FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 964

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be stayed until the hearing and final determination of:

(a)    R v Australia and New Zealand Banking Group Limited (ACN 005 357 522) (2018/00175183); and

(b)    R v Richard Marc Moscati (2018/00175274),

or further order.

2.    The proceeding be listed for a case management hearing within 14 days of the determination of the proceedings referred to in paragraph 1.

3.    Subject to paragraph 4, the costs of the defendant’s interlocutory application (and the amended interlocutory application) be reserved.

4.    If either party seeks a variation of the costs order in paragraph 3, the party may give written notice to the other party and the Court within seven days.

5.    Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), the confidential schedule to the reasons for judgment of the Court (the Confidential Schedule) shall be the subject of restrictions as to publication as set out in these orders.

6.    The Confidential Schedule shall be marked as confidential on the Court file and not be made available for public inspection in the Registry.

7.    The information in the Confidential Schedule may be disclosed to the parties and their lawyers in this proceeding, and shall not be further disseminated by those persons.

8.    Pursuant to s 37AJ(3) of the Federal Court of Australia Act, paragraphs 5 to 7 of these orders will operate until the hearing and final determination of this proceeding, or such other period as the Court might subsequently order.

9.    Pursuant to s 37AG(2) of the Federal Court of Australia Act, the ground for making paragraphs 5 to 7 of these orders is that it is necessary to prevent prejudice to the proper administration of justice.

10.    There be liberty to apply.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The issue to be determined is whether this proceeding, which is a civil proceeding seeking a declaration of contravention of the Corporations Act 2001 (Cth), a pecuniary penalty and ancillary orders, should be stayed pending the determination of criminal proceedings relating to the same subject matter.

2    In brief outline, the background to the two proceedings is as follows. In August 2015, the defendant, Australia and New Zealand Banking Group Limited (ANZ) sought to raise approximately $3 billion by undertaking an institutional share placement (the Placement) and a share purchase plan for retail investors. The Placement, which sought to raise approximately $2.5 billion, took place on Thursday, 6 August 2015 (the Placement Date).

3    On the morning of the Placement Date, ANZ entered into an underwriting agreement (the Underwriting Agreement) with JP Morgan Australia Ltd (JP Morgan or JPM), Citigroup Global Markets Australia Pty Ltd (Citi) and Deutsche Bank AG (Deutsche Bank or DB) (together, the Underwriters) in respect of the Placement. At about 8.30 am on the Placement Date, ANZ shares were placed in a trading halt, and the Placement took place by way of an ‘accelerated book-build’ process.

4    In the evening of the Placement Date and in the early morning of Friday, 7 August 2015, ANZ accepted the Underwriters’ proposed allocations of shares, which included that a portion of the shares the subject of the Placement (in an amount of approximately $790 million) would be allocated to the Underwriters.

5    At about 7.30 am on 7 August 2015, ANZ issued a release to the Australian Securities Exchange (the ASX) in respect of the Placement in which ANZ announced that it had raised $2.5 billion in new equity capital through the placement of ANZ ordinary shares (the Completion Announcement).

6    The Placement has given rise to two sets of overlapping proceedings.

7    First, on 1 June 2018, the Commonwealth Director of Public Prosecutions (the CDPP) commenced proceedings against Citi (and three of its senior executives), Deutsche Bank (and two of its senior executives), and ANZ (and Richard Moscati, ANZ’s Group Treasurer at the time of the Placement) (the Criminal Proceedings). In summary, the Criminal Proceedings are based on allegations that during discussions on 7 and 8 August 2015 the Underwriters made arrangements or arrived at understandings in relation to the sale of ANZ shares by the Underwriters, and that they subsequently implemented those arrangements and understandings, in contravention of cartel offence provisions in the Competition and Consumer Act 2010 (Cth). ANZ and Mr Moscati are each alleged to have been knowingly concerned in the making of, and giving effect to, those arrangements and understandings.

8    Secondly, on 14 September 2018, the plaintiff, the Australian Securities and Investments Commission (ASIC) commenced this proceeding against ANZ (the Civil Proceeding), seeking a declaration of contravention of the Corporations Act, a pecuniary penalty and ancillary relief on the basis of an alleged contravention by ANZ of its continuous disclosure obligation under s 674(2) of the Corporations Act. In brief summary, ASIC alleges that:

(a)    the Completion Announcement did not disclose that:

(i)    shares with a value between approximately $754 million and $790 million were to be acquired by the Underwriters; or

(ii)    a significant proportion of the shares the subject of the Placement were to be acquired by the Underwriters;

(b)    ANZ did not disclose the information in (a)(i) or (a)(ii) above to the ASX by other means at any stage; and

(c)    the information described in (a) above:

(i)    was not generally available to the market at the time;

(ii)    if disclosed, was information that a reasonable person would expect to have a material effect on the price of ANZ shares (and therefore was information falling within rule 3.1 of the Market Listing Rules for the purposes of s 674(2)(b) of the Corporations Act); and

(iii)    was likely to influence investors in deciding whether to acquire, and in deciding whether to dispose of, ANZ shares.

9    The Criminal Proceedings and the Civil Proceeding overlap both in a general sense (in that they both relate to the Placement) and in a number of more specific and direct respects.

10    In my view, for the reasons that follow, the interests of justice require the Civil Proceeding to be stayed until the conclusion of the Criminal Proceedings, or further order.

ANZ’s application for a stay

11    ANZ has applied, by interlocutory application dated 29 March 2019, for an order that the Civil Proceeding be stayed until the hearing and final determination of:

(a)    R v Australia and New Zealand Banking Group Limited (ACN 005 357 522) (2018/00175183); and

(b)    R v Richard Marc Moscati (2018/00175274),

or until further order.

12    In support of its interlocutory application, ANZ relies on the following affidavits:

(a)    two affidavits of Belinda Thompson, a partner of Allens, the solicitors for ANZ in this proceeding (two additional affidavits of Ms Thompson are relied on in support of confidentiality orders, discussed below);

(b)    an affidavit of Craig Phillips, the solicitor acting for Mr Moscati in the criminal proceeding against him;

(c)    an affidavit of David Grant, a partner of Logie-Smith Lanyon, the solicitors acting for John Needham (ANZ’s Head of Capital and Structured Funding at the time of the Placement) in respect of investigations by the Australian Competition and Consumer Commission and ASIC in relation to the Placement.

13    ANZ also relies on the CDPP’s “Draft Outline of Prosecution Case” in the criminal proceeding against ANZ (Confidential Exhibit 1) (the Outline of Prosecution Case). As discussed below, this is a confidential document.

14    There was no cross-examination of the deponents to the affidavits.

15    ASIC, which opposes the stay application, did not tender any evidence.

16    On 30 May 2019, ANZ filed an amended interlocutory application by which it sought, in addition to the stay order, orders relating to the confidentiality of certain documents. In brief terms, ANZ sought confidentiality orders in relation to the Outline of Prosecution Case and the parts of ANZ’s outline of submissions and ASIC’s outline of submissions that reveal the substance of the Outline of Prosecution Case. In support of the confidentiality orders, ANZ noted that the Outline of Prosecution Case is:

(a)    a document prepared by the prosecutor in the Criminal Proceedings that would not in the normal course be made public; and

(b)    a document that has only been made available to ASIC subject to an express confidentiality requirement, and which has been provided to the Court only for the purposes of the stay application, which application is itself intended to protect the fairness and integrity of the criminal process.

17    ANZ’s submissions in support of the confidentiality orders referred to s 314 of the Criminal Procedure Act 1986 (NSW). ANZ also relied, albeit indirectly, on s 23CN of the Federal Court of Australia Act 1976 (Cth). ASIC did not oppose the application for the confidentiality orders. At the hearing of the stay application, I made confidentiality orders substantially in the terms sought by ANZ.

18    In these reasons, where it is necessary to refer to the substance of the Outline of Prosecution Case, that material has been set out in a confidential schedule (the Confidential Schedule) rather than in the body of the reasons. This approach has been adopted to facilitate publication of these reasons. The Confidential Schedule forms part of these reasons. I note that the same approach was adopted by the Full Court in Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 at [3].

Background facts

19    I now set out the background facts in more detail.

The Criminal Proceedings

20    A copy of the Court Attendance Notice served on ANZ for the Criminal Proceedings is included in the material. This document indicates that ANZ has been charged with four offences of being “Knowingly concerned in the contravention of a cartel offence provision”. The following details are provided with respect to the four alleged offences:

(a)    First alleged offence. The date and time of the alleged offence are between about 9.00 am and 11.00 am on 7 August 2015. It is alleged that ANZ was knowingly concerned in the contravention by Deutsche Bank, Citi and JP Morgan of a cartel offence provision. The following particulars of the cartel provision are provided:

Deutsche Bank Aktiengesellschaft, Citigroup Global Markets Australia Pty Limited and J.P. Morgan Australia Limited intentionally made an arrangement or arrived at an understanding between them in relation to the supply of goods or services, namely ANZ shares, knowing or believing that the arrangement or understanding contained a cartel provision (as defined at s 44ZZRD of the Competition and Consumer Act 2010 (Cth)) which:

Either:

1.    had the purpose of directly or indirectly preventing, restricting or limiting the supply or likely supply of ANZ shares to persons by any or all of the parties to the arrangement or understanding, or

2.    had the purpose of directly or indirectly, maintaining the price for ANZ Shares supplied or likely to be supplied by any or all of the parties to the arrangement or understanding;

And

3.    at least two of the parties to the arrangement or understanding:

(i)    were, or were likely to be; or

(ii)    but for the arrangement or understanding, would have been likely to be;

in competition with each other in relation to the supply of those goods or services.

The statutory provisions describing the offence are identified as ss 79(1)(c) and 44ZZRF(1) of the Competition and Consumer Act.

(b)    Second alleged offence. The date and time of the alleged offence are between about 9.30 am and 4.30 pm on 7 August 2015. It is alleged that ANZ was knowingly concerned in the contravention by Deutsche Bank, Citi and JP Morgan of a cartel offence provision. The particulars refer to Deutsche Bank, Citi and JP Morgan intentionally giving effect to a cartel provision contained in an arrangement made or understanding reached between them in relation to the supply of goods or services, namely ANZ shares. The statutory provisions describing the offence are ss 79(1)(c) and 44ZZRG(1) of the Competition and Consumer Act.

(c)    Third alleged offence. The date and time of the alleged offence are between about 10.30 am and 11.30 am on 8 August 2015. It is alleged that ANZ was knowingly concerned in the contravention by Deutsche Bank, Citi and JP Morgan of a cartel offence provision. The particulars refer to the making of an arrangement (or arriving at an understanding) in relation to the supply of goods or services, namely ANZ shares. The statutory provisions describing the offence are ss 79(1)(c) and 44ZZRF(1) of the Competition and Consumer Act.

(d)    Fourth alleged offence. The date and time of the alleged offence are between about 11 August 2015 and 30 September 2015. It is alleged that ANZ was knowingly concerned in the contravention by Deutsche Bank, Citi and JP Morgan of a cartel offence provision. The particulars refer to Deutsche Bank, Citi and JP Morgan intentionally giving effect to a cartel provision contained in an arrangement made or understanding between them in relation to the supply of goods or services, namely ANZ shares. The statutory provisions describing the offence are ss 79(1)(c) and 44ZZRG(1) of the Competition and Consumer Act.

21    In her first affidavit, Ms Thompson states (and I accept) that the facts and circumstances to which the Criminal Proceedings principally relate occurred between 4 August 2015 and about 30 September 2015 (the CDPP Period). She also states that, in her opinion, the matters and issues that are raised by, and will likely be addressed in, the Criminal Proceedings include the following:

(a)    ANZ’s rationale and objectives for raising capital and conducting the Placement, including pricing decisions and the terms of the Underwriting Agreement;

(b)    the demand for Placement shares over the course of the Placement;

(c)    the allocation of the Placement shares (including the allocation of Placement shares to the Underwriters, and the reasons for that allocation);

(d)    the communications that may have occurred between representatives of ANZ and representatives of the Underwriters during the CDPP Period;

(e)    the communications that may have occurred between one or more of the representatives of the Underwriters during the CDPP Period;

(f)    the communications that may have occurred between ANZ representatives regarding matters relating to the Placement during the CDPP Period;

(g)    the Underwriters’ trading of ANZ shares from 7 August 2015 to the end of the CDPP Period; and

(h)    ANZ’s knowledge, through its representatives, of the matters in (b) to (e) and (g) above.

I accept that these matters are raised by and likely to be addressed in the Criminal Proceedings.

22    [See Confidential Schedule.]

23    [See Confidential Schedule.]

24    [See Confidential Schedule.]

25    [See Confidential Schedule.]

26    [See Confidential Schedule.]

27    [See Confidential Schedule.]

28    Ms Thompson’s affidavits indicate that the following steps have been taken in the Criminal Proceedings:

(a)    On 1 June 2018, the CDPP served ANZ with a copy of the Court Attendance Notice.

(b)    On 26 June 2018, a mention took place. Orders were made requiring, among other things, that the prosecution serve the prosecution brief-of-evidence on ANZ and the other defendants by 11 September 2018.

(c)    The prosecution brief-of-evidence and disclosure brief were served on ANZ in tranches. The first tranche was served on ANZ on 11 September 2018. The most recent tranche was served on ANZ on 6 February 2019.

(d)    Further mentions occurred on 9 October 2018 and 5 February 2019. At the 5 February 2019 mention, timetabling orders were made for the prosecution to file charge certificates and provide the defendants with a draft outline of prosecution case.

(e)    On 19 March 2019, the prosecution filed a charge certificate against ANZ and Mr Moscati.

(f)    On the same date, the prosecution also provided ANZ and Mr Moscati with a draft outline of prosecution case. A copy of this document is annexed to ANZ’s outline of submissions and is referred to in these reasons as the “Outline of Prosecution Case”.

(g)    On 29 April 2019, the prosecution filed an amended charge certificate against ANZ.

(h)    On the same date, the prosecution also filed an amended charge certificate against Mr Moscati.

(i)    Further mentions occurred on 9 April 2019 and 30 April 2019. The Criminal Proceedings were adjourned for a further mention on 9 July 2019.

(j)    The prosecution provided ANZ with revised copies of the draft outline of prosecution case on 4 April 2019 and 13 May 2019. The amendments made to the draft outline of prosecution case referred to at (f) above are not material for the purposes of the stay application.

29    Ms Thompson states in her first affidavit (and I accept) that if the Criminal Proceedings proceed according to the usual course, the next steps and likely timetable in the committal stage of the Criminal Proceedings will be as follows:

(a)    Each of the defendants to the Criminal Proceedings will have an opportunity to apply to cross-examine prosecution witnesses prior to the committal of the Criminal Proceedings. The precise timing of the remaining steps in the committal stage of the Criminal Proceedings will depend on whether cross-examination applications are made.

(b)    If the defendants choose not to apply to cross-examine any prosecution witnesses, the Magistrate will adjourn the Criminal Proceedings for eight weeks, in the expectation that criminal case conferences will occur within the first six weeks, with the case conference certificates being filed within the remaining two weeks. Ordinarily, there would be separate criminal case conferences with each defendant in the Criminal Proceedings.

(c)    If any one or more of the defendants to the Criminal Proceedings applies to cross-examine prosecution witnesses, the cross-examination applications must be determined, and any cross-examination of prosecution witnesses must be finalised, before the criminal case conferences occur and the case conference certificates are filed. The timeline for this process will depend on whether the applications are contested, whether cross-examination of prosecution witnesses is permitted and the extent and duration of any cross-examination. Completion of these steps may delay the timing of the criminal case conferences by up to approximately six months.

(d)    Once the criminal case conferences occur and the case conference certificates are filed, committal hearings will be held.

30    Ms Thompson states that, while it remains difficult to estimate the likely timeline for the Criminal Proceedings with any precision and the precise timing of the remaining steps in the committal stage of the Criminal Proceedings is dependent on a number of matters, her best estimate is that it is reasonably likely that:

(a)    if the defendants choose not to apply to cross-examine any prosecution witnesses, the committal stage of the Criminal Proceedings will be complete around September 2019; and

(b)    if any one or more of the defendants choose to apply to cross-examine any prosecution witnesses at the committal stage of the Criminal Proceedings and the application is allowed, the committal stage of the Criminal Proceedings will be complete around January or February 2020.

I accept these estimates.

31    Ms Thompson states that, assuming that ANZ and Mr Moscati enter not guilty pleas at the committal hearings and the matters are committed for trial, the likely steps in the Criminal Proceedings between the completion of the committal stage and the jury trial would broadly include:

(a)    the filing of indictments by the Prosecution;

(b)    pre-trial hearings;

(c)    pre-trial disclosure; and

(d)    the empanelment of the jury.

32    Having regard to the steps outlined above, Ms Thompson estimates that it is unlikely that the timing for empanelling of the jury would be before the third quarter of 2020. I accept this estimate.

33    Ms Thompson states (and I accept) that, other than in relation to s 44ZZRO of the Competition and Consumer Act (as in force at the relevant time) and subject to any disclosure orders made by the Court of trial, the prospective criminal trial is accusatorial in nature and ANZ is not required to give notice of its defence to the Criminal Proceedings until the prosecution has put its case at trial. It is anticipated that the prospective criminal trial will be a joint trial involving each of the defendants in the Criminal Proceedings.

The Civil Proceeding

34    I now turn to the Civil Proceeding. In this proceeding, ASIC seeks the following relief (as set out in the originating process):

(a)    pursuant to s 1317E of the Corporations Act, a declaration that ANZ contravened s 674(2) of the Corporations Act by failing to notify the ASX of the underwriter acquisition and/or that the Underwriters had been allocated and were to acquire a significant proportion of the Placement shares on:

(i)    6 August 2015; or, alternatively,

(ii)    prior to the recommencement of trading in ANZ shares on 7 August 2015;

(b)    an order pursuant to s 1317G(1A) of the Corporations Act that ANZ pay a pecuniary penalty in such amount as the Court considers appropriate in respect of the contravention referred to in (a); and

(c)    an order that ANZ pay ASIC’s costs.

In relation to (a)(ii) above, it appears from material before the Court that trading in ANZ shares recommenced at 10.00 am on 7 August 2015.

35    ASIC’s latest pleading is the further amended statement of claim (the FASOC). The amendments contained in this document (to the amended statement of claim) are not material for present purposes. Thus, although some of the affidavits refer to the amended statement of claim rather than the FASOC, nothing turns on this.

36    The Underwriting Agreement is pleaded at [3]-[4] of the FASOC. The following section of the pleading concerns the Placement. This section contains the following allegations (omitting particulars):

5.    At about 8.38am on the Placement Date, the securities of ANZ were placed in a trading halt.

6.    Immediately prior to being placed in a trading halt, securities in ANZ traded on the Australian Securities Exchange (ASX) at a price of $32.58.

7.    At about 8.44am on the Placement Date, ANZ issued a release to the ASX (Placement Announcement) entitled “ANZ announces Institutional Placement (fully underwritten) and share Purchase Plan to raise a total of $3 billion”.

8.    The Placement Announcement stated, inter alia, that:

a.    the Placement size was “fixed at $2.5 billion and will not be increased” (p 1);

b.    the Placement would be conducted by means of an “accelerated book-build” process with an “underwritten floor price” of $30.95 (p 1); and

c.    the Placement was fully underwritten by Citi, DB and JPM (p 1).

9.    At or about the time of the Placement Announcement, the Underwriters commenced the process of seeking and accepting applications in the bookbuild.

10.    The Placement did not attract the level of interest from institutional investors that was anticipated by ANZ and/or the Underwriters.

11.    During the course of the Placement Date, there were communications between senior officers and employees of ANZ and representatives of the Underwriters to the effect that, because the level of demand from institutional investors was less than had been expected, there was a prospect of the Underwriters acquiring a significant portion of the Placement Shares.

12.    Shortly after 8.30pm on the Placement Date, ANZ accepted the Underwriters’ proposed allocations of Placement Shares in the course of a teleconference.

12A.    The document “ANZ Book Allocations v6.xslx” (to which reference is made in the particulars to paragraph 12 above):

a.    recorded the value of allocated shares to be $1,745,030,819; and

b.    recorded that shares worth $754,969,181 were not allocated.

12B.    By email sent at 2.26am on 7 August 2015, Mr Rick Moscati and Mr John Needham of ANZ were provided with a copy of a revised allocations list of Placement Shares, which list showed that the value of the unallocated shares had increased to $790,871,681.

13.    [not used.]

14.    The Underwriters allocated to themselves and on or about 13 August 2015 acquired approximately 31% of the Placement Shares, or a total of 24,653,710 ANZ shares with a value of $763,032,324.50, in the following proportions: (i) Citi – 9,861,483 shares (40%); (ii) JPM – 7,396,113 shares (30%); and (iii) DB – 7,396,113 shares (30%).

15.    [Not used.]

16.    Prior to ANZ issuing to the ASX the release alleged in paragraph 18 below, ANZ held information:

a.    that shares with a value between approximately $754 million and $790 million were to be acquired by the Underwriters (the Underwriter Acquisition); and/or

b.    that a significant proportion of the shares the subject of the Placement were to be acquired by the Underwriters.

17.    The Underwriter Acquisition shares:

(a)    amounted in number to about the equivalent volume of 3.77 to 3.95 days trading in ANZ shares on the ASX when compared with the Average Daily Trading Volume of ANZ over the preceding month; and

(b)    amounted in value to about 0.85% to 0.89% of the issued share capital of ANZ.

37    The next section of the FASOC concerns the Completion Announcement. ASIC makes the following allegations (omitting particulars):

18.    At about 7.30am on 7 August 2015, ANZ issued a release to the ASX in respect of the Placement (Completion Announcement).

19.    The Completion Announcement stated, inter alia, “ANZ today announced that it had raised $2.5 billion in new equity capital through the placement of approximately 80.8 million ANZ ordinary shares at the price of $30.95 per share”.

20.    The terms of the Completion Announcement were approved by two ANZ disclosure officers, Ms Jill Craig (now, Jill Campbell) and Mr Paul Edwards.

21.    The Completion Announcement did not disclose:

a.    the Underwriter Acquisition; or

b.    that the Underwriters were to acquire a significant proportion of the Placement Shares.

22.    ANZ did not disclose the fact of the Underwriter Acquisition, or that the Underwriters were to acquire a significant proportion of the Placement Shares, to the ASX by other means at any stage.

23.    The information described in paragraph 21 above:

a.    was not generally available to the market at the time (including to participants in the market for ANZ shares);

b.    if disclosed, was information that a reasonable person would expect to have a material effect upon the price of ANZ shares (and, therefore, was information falling within rule 3.1 of the Market Listing Rules for the purposes of s 674(2)(b) of the Act);

c.    was likely to influence investors in deciding whether to acquire and in deciding whether to dispose of ANZ shares for reasons including:

(i)    the size of the Underwriter Acquisition (whether it was described in quantum, percentage terms or generally as “significant”); and

(ii)    the expectation of both sophisticated and unsophisticated investors that the Underwriters would promptly dispose of the acquired Placement Shares and place downward pressure upon the ANZ share price;

with the result inter alia that:

(iii)    potential purchasers of ANZ shares would likely refrain from purchasing shares in anticipation that the disposal of the Underwriter Shares would present an opportunity to purchase at a lower price; and/or

(iv)    sophisticated traders of ANZ shares would likely engage in trading activities such as shorting the shares in anticipation of being able to purchase them at a lower price.

38    It is then pleaded (at [24]-[26]) that: the halt on trading in ANZ shares was lifted prior to the commencement of trading on 7 August 2015; on 7 August 2015, ANZ shares opened at $29.99 before hitting an intraday low of $29.80 and closing at $30.14; and more than $1.1 billion of ANZ shares were traded on 7 August 2015.

39    The final section of the FASOC is headed “Breaches of the Corporations Act” and contains the following allegations (again, omitting particulars):

27.    In the identified facts and circumstances, ANZ was required to notify the ASX of the Underwriter Acquisition and/or that the Underwriters were to acquire a significant proportion of the Placement Shares on the night of 6 August 2015 or, alternatively, prior to the recommencement of trading in ANZ shares on 7 August 2015.

28.    ANZ failed to comply with its continuous disclosure obligations under s 674(2) of the [Corporations Act] by:

(a)    failing to notify the ASX that, of the $2.5 billion of ANZ shares offered in the Placement, shares with a value between approximately $754 million and $790 million were to be acquired by its underwriters rather than placed with investors;

(b)    alternatively, by failing to notify the ASX that a significant proportion of the shares the subject of the Placement were to be acquired by the Underwriters.

29.    The contravention arising from ANZ’s failure as alleged in paragraph 28 above:

(a)    materially prejudiced the interests of purchasers or disposers of ANZ Shares, including those persons who participated in the retail shareholder share purchase plan announced by ANZ on 6 August 2015;

(b)    was serious, and attended by the following aggravating circumstances:

(i)    from around 10.00am on 7 August 2015, Mr Moscati and Mr Needham took part in a conference call with representatives of the Underwriters during which each of the Underwriters undertook not to sell their Underwriter Shares on that day and Mr Moscati requested that the Underwriters confer about how to manage the Underwriters’ disposal of the Underwriter Shares; and

(ii)    on 8 August 2015 at about 11.00 am, Mr Moscati and Mr Needham took part in a further conference call with representatives of each of the Underwriters during which the Underwriters agreed with each other and with ANZ:

(A)    not to sell down their respective portions of the Underwriter Shares in volumes greater than 5% of the daily traded volume of ANZ shares; and

(B)    that if any of the Underwriters formed a view that they had an obligation to disclose the existence of the Underwriter Acquisition, they would consult before doing so.

The allegations in [29] above are evidently directed to the requirements for the imposition of a pecuniary penalty: see Corporations Act, s 1317G(1A)(c).

40    Many of the particulars in the FASOC refer to conversations involving, or emails sent to, Mr Moscati and Mr Needham. Mr Moscati is identified in the following paragraphs (including particulars) of the FASOC: [10], [11], [12], [12B] and [29]. Mr Needham is identified in the following paragraphs (including particulars) of the FASOC: [10], [11], [12], [12B] and [29].

41    In Ms Thompson’s first affidavit, she sets out the procedural steps that she considers are likely to take place in the Civil Proceeding if a stay is not granted. I accept that such steps are likely in the absence of a stay. The steps outlined by Ms Thompson are as follows:

(a)    ANZ to file its defence to the statement of claim four weeks after the stay application is dismissed;

(b)    ASIC to file a reply two weeks after ANZ files its defence to the statement of claim;

(c)    ASIC to file its lay and expert evidence three months after it files its reply to ANZ’s defence to the statement of claim;

(d)    ANZ to file its lay and expert evidence three months after ASIC’s evidence is filed; and

(e)    conferral between the parties’ experts and the preparation of joint reports, following the delivery of evidence.

42    Having regard to the steps described above, Ms Thompson estimates that a reasonably likely trial date for this proceeding would be from June 2020 onwards (if a stay is not granted). I consider this to be a realistic estimate.

Overlap between the proceedings

43    The Criminal Proceedings and the Civil Proceeding overlap both in a general sense (in that they both relate to the Placement) and in a number of more specific and direct respects. The overlap between the proceedings is readily apparent from a comparison of the FASOC and the Outline of Prosecution Case. Without disclosing the substance of the latter document, it is possible to state that:

(a)    The FASOC deals with the Underwriting Agreement at [3]-[4]. The Outline of Prosecution Case deals with this topic at [8]-[13].

(b)    The FASOC deals with the trading halt (on 6 August 2015) and the book-build process at [5]-[10]. The same topics are dealt with in the Outline of Prosecution Case at [14]-[17].

(c)    The FASOC deals with the proposed allocations to the Underwriters at [11]-[12B] and [16]-[17]. The same topic is dealt with in the Outline of Prosecution Case at [16]-[19].

(d)    The FASOC deals with a conference call at 10.00 am on Friday, 7 August 2015 at [29](b)(i). The same conference call forms part of the Outline of Prosecution Case.

(e)    The FASOC deals with a conference call at about 11.00 am on Saturday, 8 August 2015 at [29](b)(ii). The same conference call forms part of the Outline of Prosecution Case.

44    The most direct overlap between the proceedings concerns the conference calls on 7 and 8 August 2015. These conference calls are in issue in the Criminal Proceedings (see the Outline of Prosecution Case) and the Civil Proceeding (see [29](b) of the FASOC). ASIC submits that the allegations in [29](b) of the FASOC are relevant only to penalty (as distinct from liability) (see s 1317G(1A)(c) of the Corporations Act), and evidence in relation to them would only be admitted at any penalty hearing. I consider this issue later in these reasons.

Mr Moscati and Mr Needham

45    Ms Thompson states in her first affidavit (and I accept) that Mr Moscati (as Group Treasurer of ANZ at the time of the Placement) had the primary conduct, on behalf of ANZ, of the capital raising. Ms Thompson states (and I accept) that, in order to properly prepare any defence to the amended statement of claim and defend ASIC’s claim at trial, ANZ requires the assistance of, and instructions from, Mr Moscati.

46    In relation to Mr Moscati, Mr Phillips provides the following evidence (which I accept):

(a)    Mr Moscati has reviewed the amended statement of claim in the Civil Proceeding. As a senior employee of ANZ, he has a desire to provide assistance to ANZ in the proceeding.

(b)    If not for the Criminal Proceedings, Mr Moscati would assist in ANZ’s defence preparation by providing instructions and evidence to assist ANZ to prepare its defence to the amended statement of claim and its defence of ASIC’s claim at trial.

(c)    Mr Moscati is concerned that if he provides instructions or gives evidence, and especially if he is cross-examined, regarding matters in the Civil Proceeding, he would be providing instructions or evidence concerning matters relevant to the criminal charges that are the subject of the Criminal Proceedings and that this might prejudice his right to silence and privilege against self-incrimination. Mr Moscati is not willing to do so while the Criminal Proceedings remain on foot but would do so following the determination of the Criminal Proceedings.

47    Ms Thompson states in her first affidavit (and I accept) that Mr Needham (as Head of Capital and Structured Funding at the time of the Placement) also had a role in undertaking the capital raising. Ms Thompson states (and I accept) that, in order to properly prepare any defence to the amended statement of claim and defend ASIC’s claim at trial, ANZ requires the assistance of, and instructions from, Mr Needham.

48    In relation to Mr Needham, Mr Grant provides the following evidence (which I accept):

(d)    Mr Needham wishes to assist ANZ in the preparation of its defence to the amended statement of claim, and by giving evidence at the trial of the Civil Proceeding.

(e)    Given the nature of the instructions and evidence he can provide with respect to the allegations made in the Civil Proceeding, Mr Needham is concerned that should he be required to provide those instructions and that evidence prior to the trial of the Criminal Proceedings, he may:

(i)    reveal the nature of any defence Mr Moscati may choose to run in the Criminal Proceedings;

(ii)    identify matters relevant to Mr Moscati’s defence in the Criminal Proceedings; and

(iii)    reveal the substance of the evidence Mr Moscati may provide at the trial of the Criminal Proceedings.

(f)    As a senior employee of ANZ, Mr Needham has a desire to protect both ANZ’s and his own reputation and to provide assistance in the Civil Proceeding.

(g)    In light of the matters identified above, he does not intend to voluntarily assist ANZ, by providing instructions or giving evidence in the Civil Proceeding (prior to the conclusion of the Criminal Proceedings).

49    In her first affidavit, Ms Thompson states (and I accept) that, in the circumstances, ANZ must either: (a) seek to defend the Civil Proceeding without the assistance of, or evidence from, Mr Moscati or Mr Needham (being the ANZ employees principally involved in the events with which the claims are concerned); or (b) make a decision to seek to compel Mr Moscati or Mr Needham to give evidence at trial, and thereby prejudice Mr Moscati in relation to the Criminal Proceedings.

Applicable principles

50    The Court has a wide jurisdiction to stay proceedings in the interests of justice: Obeid v Commissioner of Taxation [2017] FCA 1135 (Obeid) at [2] per Pagone J (and cases there cited); Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 (Websyte) at [53] per Dodds-Streeton J. The Court’s power to grant a stay is an incident of its general power to control its own proceedings for which s 23 of the Federal Court of Australia Act provides statutory support.

51    The appropriate approach in considering whether to grant a stay in the interests of justice has been considered in a number of recent decisions, including by the High Court of Australia in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 (Zhao) and by the Full Court of this Court in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 (CFMEU v ACCC). Recent first instance decisions concerning applications for a stay of a civil proceeding pending a criminal proceeding include: Ransley v Commissioner of Taxation [2016] FCA 778 (Ransley); Obeid; Re Plutus Payroll Australia Pty Ltd [2017] NSWSC 1854 (Re Plutus Payroll); and McLachlan v Browne (No 9) [2019] NSWSC 10 (McLachlan v Browne). Although reference is often made in this context to the guidelines set out by Wootten J in McMahon v Gould (1982) 7 ACLR 202 at 206-207, it is important to recognise that these are merely guidelines. While they may still offer some assistance, the guidelines need to be read in light of the subsequent cases.

52    Based on the authorities identified above, the applicable principles may be summarised as follows.

53    First, courts have the power to control their proceedings and to order a stay in an appropriate case; it will be appropriate to do so where the interests of justice require such an order: Zhao at [36] per French CJ, Hayne, Kiefel, Bell and Keane JJ; CFMEU v ACCC at [22] per Dowsett, Tracey and Bromberg JJ.

54    Secondly, a plaintiff is prima facie entitled to have his, her or its civil action tried in the ordinary course and a stay therefore requires justification on proper grounds (with the applicant for a stay bearing the burden of demonstrating proper grounds): see Zhao at [39]; McMahon v Gould at 206.

55    Thirdly, a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending; a stay of the civil proceeding may be warranted if it is apparent that the accused is at risk of prejudice in the conduct of his, her or its defence in the criminal trial: see Zhao (2015) 255 CLR 46 at [35]; CFMEU v ACCC at [22]; see also Corporations Act, s 1331. The risk of prejudice must be real: see CFMEU v ACCC at [22]; Ransley at [22] per Jagot J. As to possible prejudice to an accused, the following have been recognised as relevant factors:

(a)    prejudice to the accused’s right to silence or privilege against self-incrimination: see Zhao at [42]-[47]; CFMEU v ACCC at [23]; Ransley at [24]-[30]; Obeid at [4]; and

(b)    the possibility of publicity that might reach and influence jurors: see CFMEU v ACCC at [44]-[46].

56    It may not be necessary for the applicant for the stay to state the specific matters of prejudice before a stay could be contemplated. As the High Court said in Zhao at [43], “to require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid”.

57    A number of recent decisions have emphasised that the possibility of protective orders being made (such as an order made under s 128 of the Evidence Act 1995 (Cth) or a non-publication or suppression order) is not an adequate protection against the risk of prejudice to the accused: see Zhao at [44]-[46]; CFMEU v ACCC at [24]-[25]; Ransley at [29]-[30]; Re Plutus Payroll at [38] and [42] per Brereton J; Websyte at [121].

58    Fourthly, relevant prejudice to a party in the civil proceeding may arise from the existence of the criminal proceeding even in circumstances where there is not a strict identity between the applicant for the stay of the civil proceeding and the criminal accused: see Ransley at [15]; Obeid at [7]; Re Plutus Payroll at [33], [39], [41]-[43]. There may, for example, be relevant prejudice where the criminal accused, although not a party to the civil proceeding, would be a lay witness in that proceeding. In such circumstances, the criminal accused’s invocation of the privilege against self-incrimination and the right to silence may deprive a party to the civil proceeding of assistance or evidence that is critical or very important to its claim or defence.

59    Fifthly, prejudice to an accused who is not a party to the civil proceeding, or against whom relevant allegations are not made in the civil proceeding, may be a relevant consideration: see CFMEU v ACCC at [28]-[49] (although this argument failed on the facts in that case). There was a difference between the parties to the present case on this point. In oral submissions, ASIC submitted that the focus (in an application for a stay of a civil proceeding pending a criminal proceeding) is on the parties to the civil proceeding and whether the existence of the criminal proceeding gives rise to a risk of prejudice to a party; prejudice to a person who is not a party to the civil proceeding is not a relevant consideration. ASIC did not submit that prejudice to a non-party is completely irrelevant; however, on ASIC’s submission, prejudice to a non-party is only relevant to the extent that it impacts on the party to the civil proceeding in a relevant way. In support of these submissions, ASIC relied on Obeid at [2], [4], [6], [7]; McMahon v Gould at 206 (paragraphs (e) and (h)); Zhao at [19], [35], [37], [42], [48]; Ransley at [10], [15]; and Re Plutus Payroll at [33], [37], [41]-[43].

60    However, as pointed out by ANZ in its reply submissions, the cases relied upon by ASIC leave open the possibility that prejudice to an accused who is not a party to the civil proceeding may itself be a relevant consideration. In Obeid, Pagone J expressly refrained from deciding the point: at [7] (“Counsel for the applicants had also submitted … that relevant prejudice might also be caused to each of Messrs Obeid in their criminal trial if they were compelled to give evidence in the tax proceedings, but in the circumstances it is unnecessary to express a concluded view about whether that is the correct way to identify the relevant prejudice …”). In Ransley, Jagot J referred, not only to the risk of prejudice to the party to the proceeding, but also to the risk of prejudice to the accused (who was not a party to the civil proceeding): at [20] (“… I do not consider the existence of these powers [to make a non-publication or suppression order, etc.] to outweigh the potential prejudice to which the applicant will be exposed if forced to trial in the appeal without Mr Ransley’s evidence or to which Mr Ransley will be exposed if he is compelled by the applicant to give evidence in the appeal …” (emphasis added)). Indeed, the subsequent paragraphs of the judgment in Ransley focus on the position of the accused (as distinct from the party to the proceeding): see [21]-[30]. In Re Plutus Payroll, Brereton J referred, not only to the risk of prejudice to the party to the civil proceeding, but also to the risk of prejudice to the accused: at [43] (“… it seems to me that to require Synep to defend the winding up proceedings at this stage would require it to do so in circumstances where either it would be deprived of the most important source of evidence that might be adduced in its defence, or Messrs Onley and Cranston would have to forgo their right to silence in the criminal proceedings” (emphasis added)). Thus, in both Ransley and Re Plutus Payroll, the Court gave separate consideration to the risk of prejudice to a criminal accused who was not a party to the civil proceeding. In relation to Zhao, the passages relied on by ASIC reflect the particular circumstances of that case rather than supporting the general principle contended for by ASIC. In relation to McMahon v Gould, as noted above, the guidelines set out by Wootten J are just that: guidelines. Further, in CFMEU v ACCC, the Full Court considered whether there was a risk of prejudice to the individuals who were the subject of criminal charges in circumstances where the application for the stay of the civil proceeding was made by the union in respect of the claims against the union (the claims against the individuals in the civil proceeding having already been stayed): see [28]-[49]. In light of the approach taken by the Full Court in CFMEU v ACCC, and having regard to the other authorities discussed above, I consider that prejudice to an accused who is not a party to a civil proceeding may be a relevant consideration in considering whether or not to grant a stay of a civil proceeding. However, as discussed later in these reasons, acceptance of this proposition is not necessary for the disposition of the present application.

61    Sixthly, the risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceeding would occasion: see Zhao at [47], [50]; CFMEU v ACCC at [22].

62    Seventhly, the principles relevant to the exercise of the discretion to grant a stay are not different in the case of a proceeding brought by a regulator, from those that apply in the case of a proceeding brought by a private plaintiff: CFMEU v ACCC at [60]-[62].

63    Eighthly, each case must be judged on its own merits; the matters that might individually, or in combination, be relevant to the exercise of the discretion are not rigid or closed; the factors identified in the authorities are not a prescriptive or an exhaustive statement of all of the considerations, or the weight to be attached to them: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 at [51] per Middleton J (application for leave to appeal dismissed: CFMEU v ACCC).

64    I note for completeness that s 1317N(1) of the Corporations Act provides that proceedings for a declaration of contravention or pecuniary penalty order against a person are stayed if: (a) criminal proceedings are started or have already been started against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. However, the present application for a stay is not made under that provision.

Consideration

65    In my view, the interests of justice require the Civil Proceeding to be stayed until the conclusion of the Criminal Proceedings, or further order.

66    First, there is a real risk of prejudice to ANZ if the Civil Proceeding is not stayed because ANZ will be required to conduct its defence of the Civil Proceeding without the assistance of Mr Moscati and Mr Needham.

67    As set out above, I accept the unchallenged affidavit evidence to the effect that:

(a)    in order to properly prepare any defence to the FASOC and defend ASIC’s claim at trial, ANZ requires the assistance of, and instructions from, Mr Moscati and Mr Needham;

(b)    Mr Moscati is not willing to provide instructions to ANZ in relation to the Civil Proceeding while the Criminal Proceedings remain on foot, but would do so following the determination of the Criminal Proceedings; and

(c)    Mr Needham does not intend to voluntarily assist ANZ by providing instructions in relation to the Civil Proceeding (prior to the conclusion of the Criminal Proceedings).

68    Mr Moscati’s and Mr Needham’s assistance is likely to be very important, if not critical, to ANZ’s defence of the Civil Proceeding. In this regard, I note that:

(a)    Mr Moscati had the primary conduct, on behalf of ANZ, of the Placement;

(b)    Mr Needham also had a role in undertaking the Placement, on behalf of ANZ;

(c)    Mr Moscati was involved in most, if not all, of the events alleged in the FASOC (he is referred to 19 times in the FASOC); and

(d)    Mr Needham was involved in most of the events alleged in the FASOC (he is referred to 15 times in the FASOC).

69    Mr Moscati’s and Mr Needham’s assistance is relevant to the allegations of material fact made in the FASOC. Their assistance will be very important in relation to the allegations concerning the Placement, the Underwriting Agreement, the book-build that took place on the Placement Date, and the decisions of the Underwriters as to proposed allocations of ANZ shares. (I refer to the conference calls on 7 and 8 August 2015 later in these reasons.)

70    Mr Moscati’s and Mr Needham’s assistance is also relevant to the surrounding facts and circumstances that may provide context for the material facts in issue in the proceeding (and thus make it more or less likely that the material facts alleged in the FASOC are established). For example, the Civil Proceeding will likely involve a close consideration of the allocation decision in favour of the Underwriters, particularly in circumstances where, it seems, there was a decision not to allocate shares to some institutional investors that had subscribed for shares – see ANZ’s outline of submissions at [76] and the FASOC at [12], [12A] and [12B]; see also the Outline of Prosecution Case at [16]. Mr Moscati’s and Mr Needham’s assistance in relation to this issue will be very important. Further, in considering whether ANZ contravened its continuous disclosure obligation, it may be necessary to look not only at the allegations of material facts in the FASOC but also to the other facts and circumstances which may, on a proper understanding, form part of the “whole situation” to be disclosed: see Grant-Taylor v Babcock & Brown Ltd (in liq) (2015) 322 ALR 723 at [73], [74] and [101]; Grant-Taylor v Babcock & Brown Ltd (in liq) (2016) 245 FCR 402 at [137], [149] and [161]. Again, Mr Moscati’s and Mr Needham’s assistance will be very important.

71    To require ANZ to defend the Civil Proceeding at this stage (that is, before the Criminal Proceedings have been determined) would require it to do so in circumstances where it would be deprived of very important sources of assistance (namely, that of Mr Moscati and Mr Needham). As senior counsel for ANZ put it in oral submissions, defending the Civil Proceeding without the support of Mr Moscati and Mr Needham would involve ANZ defending the proceeding with “one arm behind its back”.

72    Secondly, if the Civil Proceeding is not stayed, ANZ will face the invidious choice as to whether or not to compel Mr Moscati (and Mr Needham) to give evidence in the Civil Proceeding. Depending on this choice, either:

(a)    ANZ would be deprived of very important, if not critical, sources of evidence that might be adduced in its defence (that of Mr Moscati and Mr Needham); or

(b)    ANZ’s rights arising from the accusatorial process applying to criminal trials are likely to be prejudiced.

73    As set out above, I accept the unchallenged affidavit evidence to the effect that:

(a)    Mr Moscati is not willing to give evidence in the Civil Proceeding while the Criminal Proceedings remain on foot, but would do so following the determination of the Criminal Proceedings; and

(b)    Mr Needham does not intend to voluntarily assist ANZ by giving evidence in the Civil Proceeding (prior to the conclusion of the Criminal Proceedings).

74    The facts of the present case are therefore quite different from those in CFMEU v ACCC where, as the Full Court noted at [34]-[35], there was an absence of a basis for thinking that Mr Setka and Mr Reardon would likely give evidence in the civil proceeding (even if there was no risk of prejudice to their position in the criminal proceeding).

75    For the reasons discussed at [68]-[70] above, Mr Moscati’s and Mr Needham’s evidence is likely to be very important, if not critical, to ANZ’s defence of the Civil Proceeding. Thus, if ANZ were to decide not to compel Mr Moscati and Mr Needham to give evidence at trial, it would be deprived of evidence that is very important for its defence.

76    On the other hand, if ANZ were to decide to compel Mr Moscati and Mr Needham to give evidence at trial, this would be likely (given the overlap between the proceedings) to result in disclosure of evidence to be given in ANZ’s defence of the Criminal Proceedings and thus to deprive ANZ of rights arising from the accusatorial process applying to criminal trials. While ANZ as a corporation cannot claim the privilege against self-incrimination, it nevertheless has rights arising from the accusatorial process: see Helicopter Resources Pty Ltd v Commonwealth of Australia [2019] FCAFC 25 at [187]-[189] per Rares, McKerracher and Robertson JJ, citing Strickland v Director of Public Prosecutions (Cth) (2018) 361 ALR 23 at [77]-[81] per Kiefel CJ, Bell and Nettle JJ. As a result, to adopt the language of the Full Court in Helicopter, ANZ’s position as an accused corporation in the Criminal Proceedings would be altered fundamentally.

77    The Criminal Proceedings and the Civil Proceeding overlap both in a general sense and in a number of more specific and direct respects, such that, if Mr Moscati and Mr Needham were compelled to give evidence at the trial of the Civil Proceeding, this is likely to disclose evidence to be given in ANZ’s defence of the Criminal Proceedings. Both proceedings concern the Placement, the Underwriting Agreement, the book-build that took place on the Placement Date, and the decisions of the Underwriters as to proposed allocations of shares. Even if the allegations in [29](b) of the FASOC are put to one side, there is a substantial area of factual overlap between the two proceedings. In considering the extent of overlap, one does not have regard simply to the allegations of material fact made by ASIC in the FASOC; the forensic reality is that the probability of material facts being true falls to be assessed against a penumbra of circumstances not referred to in the pleading. Overlap may also arise from additional facts and circumstances relied on by ANZ in its defence of ASIC’s claim. For example, as discussed at [70] above, it may be necessary to look at additional facts and circumstances which may, on a proper understanding, form part of the “whole situation” to be disclosed.

78    Having regard to these matters, it is difficult to see how Mr Moscati’s and Mr Needham’s evidence-in-chief and cross-examination (if they were compelled to give evidence at the trial of the Civil Proceeding) would not involve a wide range of matters that would also be dealt with in the Criminal Proceedings. I consider that this would be the case even if an order were made that issues of liability and penalty be determined separately (such that the allegations contained in [29](b) of the FASOC would be dealt with during the penalty phase). However, I note that, even if an order splitting liability and penalty were made, it may not be appropriate to segregate the issues such that evidence relating to the conference calls on 7 and 8 August 2015 is dealt with only during the penalty hearing. For example, if Mr Moscati were compelled to give evidence at the liability hearing and credit were in issue, it may not be appropriate for him to be cross-examined twice. It may therefore be appropriate for him to be cross-examined on the conference calls on 7 and 8 August 2015 during the liability hearing.

79    While it would be possible for a certificate to be given under s 128 of the Evidence Act, and for non-publication or suppressions orders to be made, in respect of evidence given by Mr Moscati and Mr Needham at the trial of the Civil Proceeding, this has generally not been considered sufficient to address the risk of prejudice to rights arising from the accusatorial process.

80    Further, on this scenario, while ANZ would have the benefit of Mr Moscati’s and Mr Needham’s evidence at trial, it would still not have the benefit of their assistance before trial.

81    Thirdly, the preparation for, trial of, and findings made in, the Civil Proceeding are likely to lead to publicity which poses a risk of prejudicing the position of ANZ in the Criminal Proceedings.

82    Ms Thompson’s first affidavit evidences the media attention that the Placement, and more specifically the Criminal Proceedings and the Civil Proceeding, have attracted. In summary, since the commencement of the Criminal Proceedings on 1 June 2018, the Placement (and the criminal and civil proceedings) have attracted very significant media attention.

83    The nature and content of the reporting is relevant. In this regard, the sample of the articles included in Ms Thompson’s first affidavit shows that:

(a)    the articles consistently and prominently refer to the criminal charges and the Civil Proceeding as each relating to the ANZ share placement (variously described as the share placement, 2015 share issue, $2.5 billion share placement, $2.5 billion capital raising, sale of $2.5 billion ANZ shares, $2.5 billion issue of new shares or 2015 capital raising); and

(b)    a number of articles refer to both the Criminal Proceedings and the Civil Proceeding (or an investigation by ASIC) in relation to the share placement, including in ways that link the allegations and factual material in each case.

84    From these facts it can be inferred that the trial of the Civil Proceeding, the findings made in the Civil Proceeding, as well as significant steps in the preparation of the Civil Proceeding (including in relation to any documents filed by the parties), are likely to be extensively reported in prominent New South Wales and national newspapers.

85    The likely timing of the Criminal Proceedings and the Civil Proceeding (if not stayed) is summarised at [32] and [42] above and shows that, if the Civil Proceeding is not stayed, the two proceedings are likely to move in relatively close parallel.

86    In the circumstances, there is a substantial risk that members of the jury in the Criminal Proceedings will have been, or be, exposed to and aware of publicity concerning the Civil Proceeding.

87    Fourthly, as against the above matters, the only apparent prejudice to which ASIC points is delay in the resolution of the Civil Proceeding. While unnecessary delay should be avoided, the value of timeliness in the hearing and disposal of matters in court is, in the present case, not equivalent to the weight that should be given to the forms of prejudice identified above.

88    In addition to the matters discussed above, ANZ relies on the risk of prejudice to Mr Moscati if the Civil Proceeding is not stayed. ANZ submits that the prejudice occasioned to Mr Moscati if the Civil Proceeding is not stayed is:

(a)    the invidious choice that he would face as to whether to give assistance and give evidence in the Civil Proceeding (and thereby prejudice his defence of the Criminal Proceedings) or to prejudice ANZ’s defence of the Civil Proceeding by not assisting it or providing evidence; and

(b)    if he is compelled to give evidence, the prejudice to his right to silence and privilege against self-incrimination, as well as his fundamental common law rights arising from the accusatorial nature of the criminal process.

89    As discussed above, there is a difference between the parties as to whether prejudice to a non-party is a relevant consideration in considering whether to grant a stay. I have indicated that, on the basis of CFMEU v ACCC, I consider that prejudice to a criminal accused who is not a party to a civil proceeding may be a relevant consideration in determining whether or not to grant a stay of a civil proceeding.

90    In my view, the risk of prejudice to Mr Moscati (on the bases outlined in [88] above) provides an additional reason why the interests of justice require the Civil Proceeding to be stayed. However, I do not regard this reason as necessary for the disposition of the stay application.

91    I now turn to deal with some other matters that were the subject of submissions.

92    ASIC submits that, while the two proceedings have a common factual background, there is not the identity of issues that one sees in many of the proceedings where a stay has been granted (such as Zhao and Obeid). ASIC submits that it is important to focus on the elements of the contraventions that are sought to be established in each proceeding, and that these are unrelated in substance. ASIC also submits that its case in the Civil Proceeding is a narrow one, and that it depends to a considerable extent on particularised documents. Further, in relation to the particularised conversations that Mr Moscati participated in, ASIC submits that there was another representative of ANZ in each conversation.

93    In my view, even if these submissions were accepted, Mr Moscati’s and Mr Needham’s assistance and evidence would remain very important for ANZ’s defence of the proceeding (for the reasons given above). Accordingly, the real risk of prejudice to ANZ if the Civil Proceeding is not stayed would remain. In any event, for the reasons that follow, I do not accept ASIC’s submissions as set out in the preceding paragraph.

94    While it is true that there is not the identity of issues that one sees in some of the other cases, there is, nevertheless, a substantial overlap of issues between the two proceedings: see [77] above.

95    It is true that ASIC’s case as pleaded is a relatively narrow one, and that many of the allegations have been particularised by reference to specific documents. However, for the reasons set out above, it is not sufficient to look at the pleaded allegations in considering the extent of factual overlap between the two proceedings. Further, it would of course be open to ANZ to dispute the allegations, and ANZ’s defence to the allegations may refer to other facts and matters.

96    In relation to ASIC’s submission that each of the conversations involved another representative of ANZ apart from Mr Moscati, two points may be made. First, the other person in most cases was Mr Needham, and he is also unwilling to provide assistance and evidence in the Civil Proceeding. Secondly, the assistance and evidence of Mr Moscati about the conversations is in any event likely to be very important.

97    ASIC submits that the unwillingness of Mr Moscati to give evidence in the Civil Proceeding does not give rise to a real risk of prejudice to ANZ due to the nature of the allegations in the Civil Proceeding. ASIC submits that: no intent is ascribed to Mr Moscati; no knowledge is alleged to be held solely by Mr Moscati; and there is no allegation regarding the subjective beliefs or purposes of Mr Moscati. ASIC contrasts the facts of the present case with those in Ransley, where, without Mr Ransley giving evidence, it seemed “inevitable that the applicant’s case [would] fail”: at [15]. In my view, for the reasons given above, and notwithstanding the matters to which ASIC refers, the evidence of Mr Moscati is very important, if not critical, to ANZ’s defence of the Civil Proceeding. In relation to Ransley, the context of that proceeding was a taxation appeal under Pt IVC of the Taxation Administration Act 1953 (Cth) in which the taxpayer bore the onus of proof. It was in that context that it seemed inevitable that the applicant’s case would fail without Mr Ransley’s evidence. This reflected the facts of that case rather than representing a threshold requirement for a stay.

98    ASIC also submits that it is necessary to examine the position of Mr Needham separately. ASIC submits that it is not suggested that any charges against him are likely. ASIC submits that, when one examines the concern that Mr Needham expresses, it is “difficult to imagine the basis for it”. However, ASIC did not seek to cross-examine Mr Grant and there is no contrary evidence. I consider Mr Grant’s evidence concerning Mr Needham’s unwillingness to provide assistance and give evidence to be plausible in the circumstances. I therefore accept Mr Grant’s evidence.

99    I have given consideration to whether it would be appropriate to progress the interlocutory steps in the proceeding, even if the matter were not set down for trial. However, I do not consider it appropriate or practical to do so. Ordering ANZ to file a defence runs into the same risks of prejudice discussed above. Further, it does not seem practical, for example, to require ANZ to file part of its evidence (eg, expert evidence) in the usual course, with the opportunity to supplement this (with evidence from Mr Moscati and Mr Needham) after the Criminal Proceedings have concluded. Such a course is likely to be productive of inefficiency and waste.

Conclusion

100    For the reasons set out above, in my view the interests of justice require the Civil Proceeding to be stayed until the conclusion of the Criminal Proceedings, or further order. This conclusion has been reached on the basis of the current facts and circumstances. If the facts and circumstances change, it would be open to either party to approach the Court to have the matter revisited. To this end, I will reserve liberty to apply. In relation to costs, it appears to be appropriate for the costs of ANZ’s interlocutory application (and amended interlocutory application) to be reserved. However, I will provide in the orders that if either party seeks a variation of this costs order, they may give notice within a short period of time. The matter of costs can then be dealt with on the papers. I will also make confidentiality orders in relation to the material in the Confidential Schedule.

Associate:

Dated:    21 June 2019