FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for hearing on liability on a date to be fixed in consultation with the chambers of the Chief Justice.

2.    The matter be stood over to a date to be fixed for case management in consultation with the chambers of the Chief Justice.

3.    Liberty to apply on three days’ notice.

THE COURT NOTES THAT:

4.    The parties are working towards a case management hearing in early November 2019.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    Before the Court is a proceeding for relief which includes penalties for conduct exhibiting statutory unconscionability and for providing financial services otherwise than efficiently, honestly and fairly. This is the first case management hearing. A clear and helpful concise statement in narrative form has been filed. The suit will henceforth proceed in the manner that most efficiently and effectively recognises that the rights and obligations being enforced or determined are, though derived from statute, equitable in character. Because of that, the most efficient and coherent way of approaching the matter is by a procedure that recognises the techniques of Equity:

A court of law works its way to short issues and confines its views to them. A court of equity takes a more comprehensive view and looks to every connected circumstance that ought to influence the determination upon the real justice of the case.

2    These words of Lord Stowell from 1822 in The Juliana [1822] EngR 235; 2 Dods 504 at 522; 165 ER 1560 at 1567 were applied and cited by Dixon CJ and McTiernan and Kitto JJ in Jenyns v Public Curator [1953] HCA 2; 90 CLR 113 at 119. They have been repeated more than a few times in the last few years in judgments of the High Court and in this Court. The question whether a body of conduct has in all the circumstances been unconscionable in the statutory sense or amounts to the provision of services otherwise than efficiently, honestly and fairly, is not amenable to pleading a “cause of action” constituted by “material facts”, with some distinction between them and mere “particulars” of such. Rather, the better approach is to understand what the plaintiff says are the “connected circumstances that ought to influence the determination of the case”.

3    As in a bill in equity, the plaintiff should set out a well-drafted narrative of the facts and circumstances and of the wrong or grievance that constitutes the real substance of the complaint. The statement, concisely but fully expressed, should contain all the facts to be proved at the appropriate level of generality or specificity, without prolixity, as to make meaningful the grievance. This may make relevant and reasonable a distinction between stated or narrated fact and evidence, but that will be a matter of degree and context, not a matter of definition based on categories or taxonomies such as material fact, particular, or evidence, decided a priori.

4    In a coherent way, anchored in the facts, the plaintiff should explain why the facts stated lead to the conclusion contended for. This may require a degree of reasoned or argued articulation. This process may throw up facts, circumstances or context of which the plaintiff is unaware which may then require the need for some interrogation by written or oral questioning to understand the full factual context.

5    I understand from the parties here that, given the degree of investigation that has occurred, that kind of interrogation is likely to be minimal.

6    Once that statement is complete, the defendant should engage with the narrative in an appropriate fashion, identifying what is in contention or what should be added to contextualise its conduct and to explain in a reasoned articulation why its conduct did not meet the statutory standard. The statement and the answer are to be viewed as the combined narrative which encompasses the case, not in a rigid or over-technical way but in a way that, through its narrative, coherently expresses the respective cases as to the conduct that is said to contravene or not contravene the abovementioned provisions.

7    Through these mechanisms and through the mutual cooperation of responsible litigants, it should be possible in this case, I would have thought well before the end of 2019, to determine: (a) the fundamentally agreed narrative of relevant facts, even if their legal significance is to be debated; (b) a body of agreed facts the relevance of which may be debated; (c) such facts as are contested and the nature of that contest; and (d) the competing legal analysis of all the above. This process has been, if I may respectfully say, enabled in this case by a clear and helpful concise statement.

8    As was the intention of the Court in the changes to the practice notes, the concise statement has forestalled a long pleading, which would not have enabled or facilitated the above task to be undertaken without large wasted cost.

9    Without intended disrespect to the parties by saying it, the Court expects the cooperation between the parties and the development of this narrative in a cost-effective manner. To the extent that further interrogation may be required, such can be achieved in a cost-effective manner and a number of tools are available: simple requests for information, confined but precisely targeted interrogatories, preferably small in number, in tranches if necessary, or, if cooperation did fail, oral examination of senior officers with personal knowledge of events in the form of oral discovery with any necessary certificates under s 128 of the Evidence Act 1995 (Cth) to the individuals concerned, if that were to be necessary. The utilisation of answers to such oral interrogation would be at all times within the control of the Court. However, as I have said, from what has fallen from the parties today and from what I have read in the material sent up, I do not anticipate these steps being necessary.

10    The parties have provided short minutes for provision of particulars, a concise statement in response, and agreement upon facts and law proceeding up to November. I take it from the document that there is a spirit of cooperation to achieve a degree of agreement to produce a basis for a hearing that is not far divorced from the method I have suggested. I would like the parties to consider what I have said and to discuss it and perhaps either through any debate at a further case management hearing or in correspondence with my chambers, develop the most appropriate way to have this matter come to trial.

11    I would anticipate – and I would hope – that this matter can be heard in the first half of next year.

12    Again, the following paragraph is said without the slightest intended disrespect to the parties or their advisors in this matter. Modern litigation of this kind must be wrenched from the mindset of staged trench warfare, statement and affidavit drafting and document production that makes access to the legal system, even for large and well-resourced litigants, overly costly and slow.

13    The Court recognises the importance of this matter to both parties, but the importance and size of a matter is not an excepting circumstance to Pt VB of the Federal Court of Australia Act 1976 (Cth).

14    In saying that, at this stage I am not suggesting that either side in these proceedings has shown, or is suspected of showing, anything other than appropriate and required commercial cooperation reflecting a form of litigation good faith, being an approach that is the bona fide, reasonable and proportionate search for the real issues in dispute and for the appropriate mechanism for resolving or determining those issues in the most efficient, including cost-efficient, way. That is the essence of Pt VB.

15    In due course, the question of expert evidence and technical evidence may arise. I have raised that question with the parties. If it does, the parties will be required to engage with the Court in putting in place efficient mechanisms and tools to avoid or minimise or, at the very least, enhance the effectiveness of, judicial resolution of technical issues. The extended hearing by a judge of competing expert evidence in what might be said to be the traditional way, should not be seen as the default position.

16    I will make an order for the hearing of liability before any penalty hearing, if that becomes necessary. And I will stand the matter over to a date to be fixed both for any further case management and for hearing in consultation with my associate but work on the basis that it will be around about November, and there will be liberty to apply on three days’ notice.

Associate:

Dated:    16 August 2019