FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Bank of Queensland Limited (No 2) [2012] FCA 155

THE COURT ORDERS THAT:

1.    Subject to order 5, the Notice of Motion dated 2 March 2011 filed on behalf of the first and second respondents be dismissed.

2.    Subject to order 5, the Notice of Motion dated 2 March 2011 filed on behalf of the third respondent be dismissed.

3.    The first and second respondents pay the applicants’ costs to date of and incidental to their Notice of Motion dated 2 March 2011.

4.    The third respondent pay the applicants’ costs to date of and incidental to its Notice of Motion dated 2 March 2011.

5.    The respondents’ claims in their respective Notices of Motion dated 2 March 2011, that the whole of the present proceeding be summarily dismissed or permanently stayed based upon the existence of allegedly concurrent proceedings, being two sets of proceedings instituted in the Queensland Registry of the Court (ASIC v Storm Financial Ltd and Ors (QUD 577 of 2010) and Richards v Macquarie Bank Limited (QUD 590 of 2010)), be adjourned for hearing on a date to be fixed at the directions hearing to be held on 27 April 2012.

6.    The applicants have leave and are hereby ordered to file and serve by no later than 16 March 2012 an Amended Application and an Amended Statement of Claim both of which are to be substantially in the form of the draft process submitted to the Court on 14 December 2011 but which otherwise comply with Reasons for Judgment delivered on 30 November 2011 and this day (1 March 2012).

THE COURT DIRECTS THAT:

7.    The respondents file and serve by 6 April 2012 their Defences and any submission that they wish to make in support of their claims that the proceeding should be summarily dismissed or permanently stayed by reason of the concurrent proceedings.

8.    The applicants file and serve by 20 April 2012 any Reply and their submissions on the claims made by the respondents based upon the existence of the concurrent proceedings.

9.    The matter be listed for further directions before the docket judge at 9.30 am on 27 April 2012 or on such other day as the docket judge might direct.

10.    The parties have liberty to apply on two days’ notice.

THE COURT NOTES THAT:

11.    The applicants have provided to the respondents a Schedule headed “Causes of Action pleaded in the Statement of Claim” in which there is identified for each respondent the causes of action pleaded against that respondent, the bases relied upon by ASIC in seeking relief against that respondent and the principal references in the Statement of Claim that are relevant to each cause of action. A copy of that Schedule is attached to Reasons for Judgment of Foster J published this day (1 March 2012) as Attachment “A”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 30 November 2011, I published Reasons for Judgment in respect of two Notices of Motion filed by the respondents in the proceeding by which those parties sought orders that the Statement of Claim be struck out or, alternatively, that the proceeding be summarily dismissed or, alternatively, that the proceeding be permanently stayed (Australian Securities and Investments Commission v Bank of Queensland Limited [2011] FCA 1361) (the principal judgment).

2    On 30 November 2011, I directed that:

1.    Within fourteen (14) days of the date hereof, each group of parties serve upon each other group of parties and lodge with the Associate to Foster J, Short Minutes of Order giving effect to these Reasons together with a Written Submission of no more than three (3) pages in length in support of the orders sought.

2.    The orders to be made by the Court thereafter be determined on the papers.

3    Pursuant to those directions, the applicants have filed Written Submissions, Short Minutes of Order, a draft Amended Application and a draft Amended Statement of Claim. The third respondent (Macquarie) has filed a Written Submission. The first and second respondents (Bank of Queensland and Senrac) have adopted the submissions made by Macquarie as well as the orders proposed by Macquarie.

4    At [7] in the principal judgment, I said:

7    One of the objections to ASIC’s case raised by the respondents is that this proceeding should not be permitted by the Court to remain actively on foot because there are two sets of proceedings instituted in the Queensland Registry of the Court (ASIC v Storm Financial Ltd and Ors (QUD 577 of 2010) and Richards v Macquarie Bank Limited (QUD 590 of 2010)) (the concurrent proceedings) which raise similar factual and legal issues. Macquarie, in particular, argues that this proceeding should be dismissed or permanently stayed because of the existence of the concurrent proceedings. However, Macquarie suggested that its claim for a permanent stay and its claim for summary dismissal (insofar as that claim is based upon the existence of the concurrent proceedings) should be adjourned to a date to be fixed because the progress of the concurrent proceedings may have some impact on the relevant questions of concurrency affecting the present proceeding. I understood that BOQ and Senrac took the same position as Macquarie on this point. ASIC did not object to this course and I propose to accede to it.

5    The parties remain in agreement that the respondents should have the opportunity to press those claims for relief made in their Notices of Motion which are based upon the existence of the concurrent proceedings, should they wish to do so.

6    The orders which I propose to make will accommodate that circumstance.

7    The respondents contend that the Notices of Motion should simply be adjourned whereas the applicants submit that the Notices of Motion should be dismissed subject to reserving the respondents’ position in respect of the concurrent proceedings.

8    Subject to my consideration of further submissions made by the respondents as to the adequacy of the proposed Amended Statement of Claim, I think that the applicants’ approach is the preferable one. In my view, the Court should give effect to its judgment by making orders now, substantially as sought by the applicants. Deferring the making of orders may lead to uncertainty in the future.

9    The parties are also in agreement that the applicants should now file an Amended Application and an Amended Statement of Claim which conform to the reasons which I gave in the principal judgment. The applicants have submitted drafts of those documents.

10    The respondents accept that the proposed Amended Application conforms to the reasons which I gave in the principal judgment. However, they submit that the proposed Amended Statement of Claim inadequately addresses those reasons. The respondents submit that they are entitled to have a more detailed exposition of the material facts relied upon by the applicants as supporting the pleaded causes of action as well as proper particulars of the pleaded allegations. They submit that the most appropriate way of securing an adequate Statement of Claim is for the Court to adjourn the Notices of Motion for a relatively short period of time and for the parties to communicate and discuss their respective positions during that period of adjournment. In this way, multiple pleading applications will most likely be avoided.

11    The applicants contend that the proposed Amended Application and proposed Amended Statement of Claim (read with the explanatory statement attached to the Short Minutes of Order filed by them) properly and adequately address the reasons given by me in the principal judgment.

12    In my judgment, subject to the following matters, the applicants’ submission is correct.

13    First, I think that the explanatory statement attached to the Short Minutes of Order submitted to the Court by the applicants (a copy of which is Attachment “A” to these Reasons for Judgment) should be attached to the Amended Statement of Claim so that it is clear to a reader of that document which causes of action are relied upon against each respondent.

14    Second, I think that I should allow a short period of time for the lawyers for the respondents to take up with the applicants’ lawyers all of the remaining complaints which they have about the proposed Amended Statement of Claim. If any of those complaints resonate with the lawyers for the applicants, they may wish to make further amendments to the existing draft Amended Statement of Claim.

15    Third, I think that the applicants should plead the material facts and provide proper particulars in support of the allegations that Mr and Mrs Doyle were consumers within the meaning of and for the purposes of s 73 of the Trade Practices Act 1974 (Cth), s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth), s 39 of the Fair Trading Act 1989 (Qld) and s 8 of the Fair Trading Act 1999 (Vic). This is a particularly contentious issue and the respondents are entitled to know precisely how the applicants propose to put their case on the point.

16    Fourth, I am of the view that the applicants should specify the loss and damage which they claim in the present proceeding and do so in respect of each and every cause of action relied upon. Proper particulars of that loss and damage should be provided.

17    Accordingly, I will give leave to the applicants to file and serve amended process which is substantially in the form of the draft Amended Application and draft Amended Statement of Claim submitted to the Court but which is to be further amended in order to comply with the three requirements to which I have referred at [13], [15] and [16] above. As far as the subject matter of [14] is concerned, the applicants may incorporate additional amendments as a result of their communications with the lawyers for the respondents but will not be obliged to do so.

18    I now turn to the question of costs.

19    In my view, the applicants have had much the better of the applications determined by me in the principal judgment and in these Reasons for Judgment. Whilst it is true that the respondents had some success, that success was relatively minor. Some concessions were made by the applicants but these were made only after Senior Counsel for the respondents made concessions which invited the response which the applicants gave. The remaining improvements to the pleading so far achieved by the respondents are in the nature of pure pleading matters and, for the most part, have not involved consideration of the main points argued by the respondents in the applications before me. On the substantial points of law argued by the respondents, the respondents failed.

20    In those circumstances, I think that the appropriate order in respect of costs is an order in each case that the respondents pay the applicants’ costs to date of and incidental to the Notices of Motion filed by them.

21    I agree that procedural directions along the lines of the remaining directions sought by the applicants should be made.

22    There will be orders accordingly.

Associate:

Dated:    1 March 2012

ATTACHMENT “A”