Federal Court of Australia

Alexiou v Australia and New Zealand Banking Group Limited (Scope of Amendments) [2025] FCA 147

ORDERS

THE COURT ORDERS THAT:

1.    The parties prepare short minutes of order to give effect to these reasons within 7 days.

2.    The matter be listed for case management on 19 March 2025 at 9.30 am.

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

REASONS FOR JUDGMENT

PERRAM J

1    On 17 January 2025 I gave judgment on Mr Alexiou’s application for leave to file a Further Amended Originating Application and a Third Further Amended Statement of Claim: Alexiou v Australia and New Zealand Banking Group Limited (Application to Amend Pleadings) [2025] FCA 7 (the ‘January 2025 Judgment’). These reasons assume familiarity with the initial reasons and its defined terms. By the time of the hearing, a number of the amendments had been determined by consent. The reasons dealt with the remaining disputed amendments. I allowed some of the amendments and rejected others. I directed the parties to bring in a short minute of order giving effect to the reasons. They have been unable to do so.

2    At [86] of the January 2025 Judgment I said this:

I am satisfied that:

(1)    The amendments raise non-trivial issues and will likely impact on the quantum of any award of aggravated damages.

(2)    Apart from those relating to Mr Shapiro, the amendments could have been pursued at any time since the proceeding was commenced including as part of the 11 different iterations of the pleadings which Mr Alexiou’s advisors have articulated across that period.

(3)    In the case of the amendments relating to Mr Shapiro, there has been no relevant delay.

(4)    The Bank will suffer prejudice if the amendments are allowed in the form of double handling, fading recollections, an incomplete costs indemnity and the continuing stresses of litigation.

(5)    There is no explanation at all for why the amendments were not pursued before October 2023. On the other hand, I am satisfied that the delay between October 2023 and the bringing of the amendment application has been explained and the explanation is adequate.

(6)    Mr Alexiou’s choices in this litigation include commencing a case in 2016, discontinuing it, commencing a fresh case in 2020 and then amending it four times whilst issuing 11 iterations of his pleading. I know nothing at all of why he chose not to include these amendments before Mr Price came on the record or even if Mr Alexiou did make such a choice.

(7)    The granting of the amendments will not result in prejudice to other litigants in my docket.

(8)    The granting of the amendments will not impact on public confidence in the legal system.

DISPUTED AMENDMENTS TO §192, 192A-192C, 196A, 207A, 216(b)

3    The reasons are infelicitously expressed inasmuch as they suggest that it was only the amendments relating to Mr Alexiou for which there was no relevant delay. However, some of the amendments are based on an admission contained in a letter from the Bank’s solicitors to Mr Alexiou’s solicitors dated 2 October 2024 and others are based on evidence served by the Bank during the course of 2024. In the case of each of these amendments, there was no relevant delay and leave will be granted. The amendments to §192 and 192A-192C are each of this character.

4    §196A is also of this character. It is true that the final particular has been available to Mr Alexiou since the article to which it refers was published on 4 October 2019 but it only became relevant once the email exchange disclosed by Mr Pucci in his affidavit of 16 November 2023 became known. Hence, it will be permitted.

5    §207A is based on §196A. Since §196 is to be permitted so too will be §207A.

6    §216(b) rests on the admission contained in the Bank’s solicitors’ letter of 2 October 2024 and will be permitted.

DISPUTED AMENDMENTS TO §§218A TO 218U

7    However, I will not permit the amendments to §§218A to 218U. All of these matters were clearly known to Mr Alexiou, or ought to have been known to Mr Alexiou, long before Mr Price came on the record. I will turn to the allegations concerning Mr Shapiro in a moment, but these allegations are not to be given a second life by a sidewind.

THE DISPUTED AMENDMENTS CONCERNING MR SHAPIRO: §§220A-220B, §§228G-228I, §§228R-228S

8    In relation to the allegations concerning Mr Shapiro the January 2025 Judgment said this at [23], [64]-[65]:

23    Seventhly, Mr Alexiou alleges that on 4 January 2015 the Bank provided a comment to members of the media which did not include any qualification of the earlier press release imputations to the effect that Mr Alexiou was not a target of ASIC’s investigation. He says that in consequence two further articles appeared in the press which explicitly identified him as one of the seven stood down traders. Mr Alexiou then repeats his earlier contention that the Bank did nothing to dispel the misconceptions to which Mr Alexiou says its conduct gave rise. As such, the 4 January 2015 media comment is in part an aspect of his Vindication Inaction allegations although it does not depend entirely upon it. Significantly, as discussed further below, the fact that the two articles may have resulted from a comment made by the Bank to a journalist, Mr Shapiro, did not become certainly known to Mr Alexiou until September 2024 following the issue of subpoenas to Mr Shapiro and his employer, Nine Entertainment, and the production of some correspondence.

…

64    The exception is Mr Alexiou’s allegations concerning the comment made by the Bank to Mr Shapiro which he seeks to allege led to the articles in the Australian Financial Review and Sydney Morning Herald on 5 and 6 January 2015. It is apparent from §228G of the proposed draft pleading that Mr Alexiou alleges that the Bank made a comment to the media and at §228I that it intended and expected that its comment would convey, inter alia, that he was one of the stood down traders. §228G provides as a particular for the allegation that the comment was made in an email dated 4 January 2015 sent by Mr Stephen Ries (who was the Head of Media Relations at the Bank) to a journalist with the Australian Financial Review, Mr Shapiro. Mr Price’s evidence was that he obtained this email on 3 September 2024 when Nine produced it under subpoena.

65    In that circumstance, I do not think that there has been any relevant delay insofar as this allegation is concerned. It is true, as the Bank submitted, that Mr Shapiro’s article was included in Mr Alexiou’s affidavit of December 2022. But that was not for the purpose of demonstrating, and it did not demonstrate, that allegations now proposed in §228G and §228H.

9    There is now no dispute that §228G should be permitted. But there is a dispute about §§220A-220B, §228H particulars (c) and (d), §228I and §§228R-228S. Each of these utilises a cross reference to the Press Release Imputations. Those are pleaded at §218A but, as I have said, I will not permit Mr Alexiou to raise a case based on §218A. It follows that I will not permit that case to be ventilated through a sidewind in these paragraphs. As framed, these amendments will not be allowed.

DISPUTED AMENDMENTS TO §228X AND 228Y(j)-(m)

10    Although §228X cross-references the whole of the pleading from §157 to §228V and hence also some of those paragraphs whose amendment I will not permit, once those amendments are rejected I do not see that this paragraph is otherwise objectionable. I likewise perceive no problem with §§228Y(j)-(m).

DISPUTED AMENDMENTS TO §244A-244B

11    The particulars to §244A cross reference §219A and §228X. There is no §219A but §228X is to be permitted. Subject to deleting the reference to §219A, I see no reason this amendment cannot be made. Since §244B is cognate with §244A it too should be permitted.

ORDERS

12    The parties should prepare orders in the form proposed by Mr Alexiou but so as to give effect to these reasons. They should also include an order that there should be no order as to costs in relation to the present application (heard on Monday 17 February 2025). I think it would be as well to have a case management hearing on Wednesday 19 March 2025 at 9.30 am to see what problems have by then developed.

Associate:

Dated:    28 February 2025