Federal Court of Australia

Alexiou v Australia and New Zealand Banking Group Limited [2025] FCA 612

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is an application by Mr Alexiou for leave to appeal against the decision of the docket judge (Perram J) refusing him leave to make certain amendments to his statement of claim.

2    His Honour allowed various other amendments sought by Mr Alexiou, including some consented to by the respondent Bank, and no issue arises on this application about them. See Alexiou v Australia and New Zealand Banking Group Limited (Application to Amend Pleadings) [2025] FCA 7 (J1); and Alexiou v Australia and New Zealand Banking Group Limited (Scope of Amendments) [2025] FCA 147 (J2).

3    The parties were unable to agree on the form of a short minute of order giving effect to his Honour’s reasons in J1, so his Honour clarified in J2 which of the proposed amendments he allowed, and those which he refused.

4    At the hearing before me on 5 June 2025, Mr CH Withers SC appeared with Mr JS Burnett of counsel for Mr Alexiou, and Mr J Sheahan KC appeared with Mr RJ Pietriche of counsel for the Bank.

5    The proceeding is set down for trial before his Honour to commence on 15 September 2025, on an estimate of six weeks, so it is necessary to deal with the application for leave to appeal promptly.

The proceeding

6    Mr Alexiou commenced a different proceeding in this court in November 2015, in which he made allegations similar to those made in this proceeding. He discontinued it in July 2016, because he said it was affecting his mental health and his family. See J1 at [73].

7    This proceeding was commenced four years later. As the primary judge explained at [74]–[75] of PJ1:

74.     The current case was commenced in July 2020 … In December 2020, the Bank succeeded in having certain parts of the claim under the Banking Act struck out: Alexiou v Australia and New Zealand Banking Group Ltd [2020] FCA 1777; 303 IR 35 at [24]. In December 2021, Mr Alexiou failed to obtain access to certain privileged file notes: Alexiou v Australia and New Zealand Banking Group Ltd (Notice to Produce) [2021] FCA 1538 at [9].

75.     An Amended Statement of Claim was filed on 20 September 2021, a Redacted Further Amended Statement of Claim on 25 February 2022 and a Second Redacted Further Amended Statement of Claim on 13 July 2022. The current application relates to a proposed third further amended statement of claim. Including the pleadings which were filed, Mr Alexiou has along the way provided the Bank with 11 different iterations of his pleading. Eminent counsel have been involved in the drafting of these pleadings.

8    As the primary judge explained, the proceeding arises out of the manipulation of the Bank Bill Swap Rate (BBSW) by traders employed by the Bank, dating back to 2011. Parts of the Bank were involved in the buying and selling of bank bills. Those activities could affect the BBSW. However, the Bank was also party to instruments whose rates were set by reference to the BBSW. By manipulating the former activity, some of its traders were able to enhance the position of the Bank in relation to the latter.

9    Between 2011 and 2014, a division of the Bank called the Mismatch Trading desk was directly involved in the manipulation of the BBSW, as were other divisions of the Bank.

10    In July 2012, the Australian Securities and Investments Commission (ASIC) began an investigation into the Bank’s misconduct (the ASIC-BBSW Investigation) and commenced a proceeding in this court against it (ASIC-BBSW Proceeding). The Bank submitted to significant penalties, among other things, and proffered an enforceable undertaking not to engage in the conduct again. See Australian Securities and Investments Commission v Australian and New Zealand Banking Group Ltd [2017] FCA 1338; (2017) 14 BFRA 1.

11    In this proceeding, Mr Alexiou alleges that on six occasions between October 2011 and December 2014, he warned various officers of the Bank that its traders had been manipulating the BBSW, and that he told ASIC of his concerns on 15 August 2014 and 22 December 2014.

12    He alleges that the Bank took various actions against him between 19 November 2014 and 3 September 2015 because of the warnings he had given the Bank and ASIC, as follows:

(1)    he was stood down on 19 November 2014 on full pay pending completion of ASIC’s and the Bank’s investigations into the BBSW market;

(2)    the same day, the Bank issued a press release announcing that it was investigating the BBSW market, was co-operating with ASIC in doing so and had stood down seven of its traders whilst these investigations took place;

(3)    on 25 June 2015, the Bank advised Mr Alexiou that it had instituted a disciplinary investigation into allegations that he had misused his work email account and the Bloomberg messaging platform;

(4)    on 1 September 2015, the Bank notified Mr Alexiou of the termination of his employment on the grounds that he had misused his work email account and the Bloomberg messaging platform; and

(5)    on 3 September 2015, the Bank determined not to pay the deferred components of Mr Alexiou’s 2012 and 2013 performance bonuses and withheld $5 million which had been provisionally awarded to him for 2014.

13    Mr Alexiou alleges that:

(a)    the Bank’s decisions to stand him down and issue the press release:

(i)    were taken because of some of the disclosures he had made to the Bank and ASIC; and

(ii)    were intended to:

(A)    cause him detriment by making him a scapegoat for ASIC’s investigation;

(B)    discourage him from testifying for ASIC; and

(C)    in the event that he did so testify, pre-emptively damage his reputation and discredit him as a witness; and

(b)    the Bank’s decisions to terminate his employment and not pay him any of his bonuses were taken in response to his disclosures.

14    He alleges causes of actions sounding in substantial damages arising from contraventions of the whistleblower provisions in the Corporations Act 2001 (Cth) (the Corporations Act) and the Banking Act 1959 (Cth) (the Banking Act). He also alleges that the Bank took adverse action against him within the meaning of s 340 of the Fair Work Act 2009 (Cth) (the Fair Work Act).

15    By its defence, the Bank says in summary that:

(a)    Mr Alexiou was stood down whilst the ASIC-BBSW Investigation was undertaken;

(b)    the disciplinary investigation was launched into him because of the Bank’s concerns about his inappropriate use of his work email account and its Bloomberg messaging platform;

(c)    his employment was terminated because of that misuse; and

(d)    it cancelled his bonuses for the same reason.

The proposed amendments

16    As his Honour said in his reasons, the new allegations that Mr Alexiou now wishes to make to what will in any event be the third further amended statement of claim, and in respect of which he seeks to leave to appeal, are complex. See J1 at [16].

17    In their written submissions dated 13 May 2025, the Bank’s counsel helpfully and fairly explained the focus of Mr Alexiou’s existing case, and how the proposed amendments which were disallowed by the primary judge seek to alter it. What follows under this heading is based on [11]–[17] of those submissions.

18    Since the commencement of this proceeding, Mr Alexiou’s case has focussed upon the following instances of conduct, being the Bank’s:

(a)    decision to stand him down during the ASIC-BBSW Investigation;

(b)    publication of a press release announcing that a number of employees had been stood down as part of the ASIC-BBSW Investigation (the Press Release);

(c)    decision to institute a disciplinary investigation against him in relation to his communications on the Bloomberg messaging platform and his work email account, which the Bank considered were potentially in breach of its code of conduct and other employee workplace policies;

(d)    decision to terminate his employment following an investigation of breaches by him of the code of conduct and other employment policies; and

(e)    decision to forfeit certain deferred components of his 2012 and 2013 performance bonuses; and

(f)    decision to withhold 2014 performance bonuses which had been provisionally awarded to him in November 2014.

19    Mr Alexiou presses on this application the following amendments.

20    First, in the second further amended statement of claim filed 13 July 2022 (2FASOC), he alleges that the Bank published the Press Release, which caused him damage (by impairing his employment prospects), because it was likely that the broader market would be capable of ascertaining that he was one of the seven employees who were stood down. In the proposed third further amended statement of claim (the proposed 3FASOC), the applicant seeks to re-characterise the effect of the Press Release, pleading:

(a)    a series of “Press Release Imputations” conveyed by the Press Release (at [218A]);

(b)    that the Bank had no legal obligation to publish the Press Release (at [218F]);

(c)    that the Press Release Imputations were false (at [218Q]); and

(d)    that the Bank “intended and expected the Press Release Imputations would be conveyed by the Press Release” (at [218H]) and that it “intended or expected that” the public, employees of the Bank and the media would identify Mr Alexiou as one of the traders who was stood down (at [218K]).

21    Secondly, Mr Alexiou seeks to make new claims about:

(a)    the publication of the Press Release to the Australian Securities Exchange (ASX) on 19 November 2014 (at [218D]);

(b)    the Bank’s provision to ASIC of an enforceable undertaking containing a statement that the Bank had previously suspended employees who were involved in the subject matter of the ASIC-BBSW Investigation (at [257B]–[257C]), which Mr Alexiou says falsely conveyed that he was involved in the wrongful conduct the subject of the ASIC-BBSW Investigation (at [257G]–[257J]);

(c)    comments made at the Bank’s annual general meeting on 19 December 2017 by Mr David Gonski AC during his address to the meeting, which the applicant says falsely conveyed that Mr Alexiou was involved in the subject matter of the BBSW Proceeding (at [257M]–[257P]); and

(d)    the Federal Court proceedings for adverse action and breach of whistleblower protections brought by Mr Alexiou in November 2015 (at [257Q]–[257S]), in which Mr Alexiou says the Bank provided its defence to the media so that the content of his messages on the Bloomberg messaging platform relied upon by the Bank would be published (at [257T]–[257AB]).

22    Thirdly, Mr Alexiou seeks to expand the alleged reasons which prompted the Bank to engage in the impugned instances of conduct against him. In the 2FASOC, he alleges that the Bank engaged in the impugned conduct because he had made complaints to it, and made disclosures to ASIC, in the course of the ASIC-BBSW Investigation. The proposed 3FASOC seeks to expand those objectives, alleging that the Bank’s conduct was taken in order to:

(a)    convey to ASIC that any wrongdoing was the unauthorised conduct of a limited number of employees, including him, and to encourage ASIC to investigate and/or commence proceedings against him rather than any more senior Bank employees or the Bank itself;

(b)    dissuade and discourage employees of the Bank from assisting ASIC in the ASIC-BBSW Investigation;

(c)    further the Bank’s strategy to deny any wrongdoing or attempted wrongdoing the subject of the ASIC-BBSW Investigation;

(d)    characterise any attempted wrongdoing or attempted wrongdoing the subject of the ASIC-BBSW Investigation as the unauthorised conduct of individual employees for which senior management and directors of the Bank could not be held personally responsible; and/or

(e)    represent to ASIC, the Bank’s shareholders and the public that senior management and directors of the Bank had dismissed the employees responsible.

The relevant evidence before the primary judge

23    Mr Price, the solicitor for Mr Alexiou, swore an affidavit dated 25 October 2024, which was read before the primary judge. He described the purpose of the affidavit as being “to support the Applicant’s application seeking leave to file and serve a further amended originating process and a third further amended statement of claim”.

24    Mr Price deposed to various matters, including the state of the pleadings. He also provided an outline of the testimonial evidence of the parties filed up to that point in time. He said, and it is not disputed, that the Bank’s evidence comprises some 25 affidavits occupying more than 7,000 pages.

25    Under the heading “Applicant’s change of legal representation”, he swore as follows:

23.     I became the solicitor on the record for the Applicant in these proceedings on 16 October 2023. Exhibited at pages 974 to 975 of Exhibit TRP5 is a copy of the Notice of Acting - Change of lawyer filed on 16 October 2023.

24.     I was not involved in the preparation of the current pleadings filed on behalf of the Applicant in these proceedings or the Applicant’s testimonial evidence in chief.

25.     The Respondent’s testimonial evidence (other than certain expert evidence the subject of a claim for confidentiality) was filed and served on 17 November 2023.

26.     After receiving the Respondent’s testimonial evidence, I reviewed that evidence in detail for the purposes of preparing the Applicant’s application for discovery, the Applicant’s reply evidence, briefing counsel for the Applicant and reviewing the conduct of the proceedings more generally, including pleadings. This process took a number of months in the latter part of 2023 and the first half of 2024.

26    On the question of delay, Mr Price swore as follows:

Applicant’s current counsel and timing of the Applicant’s Amendment Application

44.    Mr Christopher Withers SC, Mr Jonathan Burnett and Ms Nicola Golian of counsel have been retained to act for the Applicant in these proceedings. Mr Withers was retained on or about 16 May 2024, Mr Burnett was retained on or about 10 April 2024 and Ms Golian was retained on or about 27 September 2024.

45.    Mr Withers SC, Mr Burnett and Ms Golan have not previously been involved in the preparation or conduct of these proceedings on behalf of the Applicant. They (principally Messrs Withers SC and Burnett) have all been involved in the preparation and settling of the Applicant’s Amendment Application.

46.    The Applicant’s Amendment Application has been made at this time, and not at any earlier time, for reasons including the following:

(a)    The change in the Applicant’s legal representation including the retaining and briefing of senior counsel;

(b)    The significant work involved in reviewing and considering the Respondent’s testimonial evidence;

(c)    The production and resolution of issues relating to the production of documents sought by the Nine Subpoenas; and

(d)    The significant dispute and consequential delay in discovery by the Respondent.

47.    In the course of undertaking the work described in (a) to (c) above, I formed the view that it may be necessary to make an application to amend the statement of claim, although I initially considered that it would be appropriate to defer proposing any amendments until that discovery had been provided and reviewed, to reduce the potential for multiple amendment applications. During the course of the Applicant’s discovery application, it has become increasingly apparent that discovery by the Respondent will not be provided until sometime next year. In those circumstances, I gave further consideration to necessary amendments, in advance of the provision of discovery, being the amendments the subject of the Applicant’s Amendment Application.

48.    As at the date of swearing this affidavit, I am not in a position to make any assessment about whether any further amendments to the pleadings may arise from discovery by the Respondent.

27    That was the sum total of the evidence relied upon by Mr Alexiou to explain the delay in making the amendment application.

28    Mr Tamvakologos, a partner at Seyfarth Shaw Australia, the Bank’s solicitors, gave evidence on behalf of the Bank in his affidavit affirmed 11 November 2024, including as to the prejudice that the Bank would or may suffer if the amendments were allowed, as follows:

88.     Based on my review of the Proposed 3FASOC, ANZ may need to make enquiries of, and consider filing affidavits from at least the following additional identified and currently unidentified individuals:

(a)     David Gonski AC, the former Chairman of ANZ, who gave an address at the ANZ 2017 Annual General Meeting …

(b)     An unspecified number of employees and former employees involved in the drafting and issue of the “ASX Announcement” …

(c)     Brian Maddigan, Senior Lawyer, and an unspecified number of other employees and former employees (and potentially external legal advisors) involved in the negotiation and preparation of the “Enforceable Undertaking” …

(d)     An unspecified number of employees and former employees who, from 19 November 2014, are alleged to have engaged in the “ANZ Vindication Inaction” by not taking the “Vindication Actions”. This is particularly problematic given that the ANZ Vindication Inaction is said to have taken place from 19 November 2014 onwards, with no specified end date and not defined to have occurred at any particular point in time, and to have been not taken by unnamed and unspecified individuals.

(e)     Mr Ries, now the General Manager Corporate Communications & ESG at ANZ, who sent the email to Mr Shapiro defined in the Proposed 3FASOC as the “ANZ Media Comment” …

(f)     Mr Edwards, the former Group General Manager Corporate Communications who received the email from Mr Shapiro at 3:29pm on 28 November 2014 … Mr Edwards is no longer employed by ANZ.

89.     It is possible that some of the required witnesses will no longer be employed by ANZ and their memory of the events in question may have diminished due to the passage of time. As such, preparing the affidavit evidence of those witnesses will require numerous meetings, with further enquiries being made by ANZ to locate documents for review by these witnesses in order to finalise the affidavit evidence.

90.     Based on my current assessment, the steps in relation to the ANZ Vindication Inaction in particular are likely to require extensive inquiries. The Applicant proposes to allege that ANZ, by the conduct of unnamed individuals, omitted to take certain steps or decisions on a rolling basis rather than at any specific times or dates. The ANZ Vindication Inaction therefore does not allege a positive action or decision, but rather a failure to take an action or a series of actions over a period of time without an express end date and to have been taken by unnamed and unspecified persons.

91.     Given ANZ’s reverse onus of proof in relation to the Fair Work Act claims, this pleading has the effect that ANZ must prove that unnamed officers and employees did not have a statutorily presumed unlawful motivation when one or more of those individuals engaged in the “ANZ Vindication Inaction” by not taking one or more of the “Vindication Actions” over a considerable period of time.

…

93.     In addition, it is likely that ANZ will need to make further enquiries of individuals who have already provided affidavits in this proceeding, in respect of whom ANZ may need to file further affidavit evidence. For example:

(a)     Andrew Geczy, former Chief Executive Officer of ANZ’s International and Institutional Banking division, in respect of matters including the “ASX Announcement” and the alleged “ANZ Vindication Inaction”.

(b)     Shayne Collins, former Group General Manager, Markets Risk at ANZ, in respect of matters including the alleged “ANZ Vindication Inaction”.

(c)     Bob Santamaria, former Group General Counsel of ANZ, in respect of matters including the “Enforceable Undertaking”.

(d)     Jonathan Slater, then Special Counsel (now Partner) of Clayton Utz, in respect of matters including the “Enforceable Undertaking”.

(e)     Mr Ries, now the General Manager Corporate Communications & ESG at ANZ, who sent the email to Mr Shapiro defined in the Proposed 3FASOC as the “ANZ Media Comment” …

(f)     Mr Edwards, the former Group General Manager Corporate Communications who received the email from Mr Shapiro at 3:29pm on 28 November 2014 … Mr Edwards is no longer employed by ANZ.

29    I interpolate that the applicant no longer presses the so-called “Vindication Inaction” allegations referred to in Mr Tamvakologos’ affidavit, because the primary judge was of the view that if such amendments were allowed, there was potential to imperil the hearing date (see PJ1 at [61]–[62]), and Mr Alexiou does not seek now to say otherwise.

The reasons of the primary judge

30    The primary judge found that a number of factors would weigh in favour of permitting the amendments that Mr Alexiou seeks to press on appeal (none of which factors the Bank takes issue with on Mr Alexiou’s application for leave to appeal). His Honour found that the amendments sought:

(1)    were legally viable (see PJ1 at [31]–[49]);

(2)    did “not open up an entirely new front in this litigation” but rather were “either refinements of existing allegations or a fleshing out of those allegations” (see PJ1 at [52]);

(3)    were “non-trivial”, such that Mr Alexiou’s case may be “materially diminished” if he is not permitted to raise them (see PJ1 at [55]); and

(4)    would not prejudice other litigants in the primary judge’s docket (see PJ1 at [86(7)]) or impact on public confidence in the legal system (see PJ1 at [86(8)]).

31    Conversely, the primary judge found that a number of factors would weigh against permitting those amendments, namely:

(1)    they relied upon facts which were known, or ought to have been known, to Mr Alexiou a long time before the application to amend was made (see PJ1 at [63]; PJ2 at [7]); and

(2)    although Mr Alexiou provided, and the primary judge accepted in PJ1 at [68], Mr Price’s explanation for why the amendments were not made between 16 October 2023 (when the applicant’s new solicitor was retained) and 25 October 2024 (when the amendment application was filed), no evidence was adduced by Mr Alexiou as to why he had not sought to pursue the application when his previous solicitors were on the record (see PJ1 at [88]–[89]).

32    The primary judge, however, said that absent any explanation for the pre-October 2023 delay, he could not perform the balancing exercise called for, reasoning as follows:

88.     Weighing the factors which strongly favour the amendments against those which do not … would be a difficult exercise even in ordinary circumstances. However, the absence of any explanation for why Mr Alexiou comes to be making this application, years after it could have been first pursued, makes it impossible to determine what the interests of justice require in that balancing exercise. For example, if Mr Alexiou’s explanation had been that his previous lawyers were hopeless and that they did not think of the amendments then this might justify permitting the amendments. In that case, the misfortune of Mr Alexiou might provide a sufficient justification for exposing the Bank to the prejudices I have outlined.

89.     On the other hand, if the explanation was that Mr Alexiou refused to put the former lawyers in funds so that the amendments could be pursued, or otherwise directed his lawyers not to pursue the amendments, then the interests of justice might suggest that the Bank ought not to suffer for the consequences of Mr Alexiou’s own decisions.

90.     The absence of any explanation for the delay prior to Mr Price coming on to the record means that I cannot perform the balancing exercising which is called for. Of this precise situation the Full Court said in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199 at [208]-[214]:

208.     The effect of the amendments, if allowed, will be that the case will go over to 2017. That will be nearly a decade after the events in question. Recollections will be frayed and the lucid ability to give sensible instructions degraded. Further, the continuation of the litigation, with its personal allegations, exposes the individual respondents to ongoing strain.

209.    The question is whether Tamaya should be permitted to raise an admittedly substantive case which will cause prejudice of that kind. An indispensable element in weighing those countervailing factors is knowing how it is that Tamaya came to find itself making such an amendment application in July 2015.

210.    Part of the answer to that question is known. Between March and July 2015 no amendment application was pursued because of an unreasonably held view that it was not necessary.

211.    But the balance of the question remains unanswered. …

214.     … Before this Court can visit upon the respondents the prejudice which we have outlined above it needs to know why this change of position occurred. We do not know why because it has not been explained. Without that explanation, the balancing process called for by an assessment of the interests of justice cannot be undertaken.

91.     The same is true here …

Applicable principles

33    The applicable legal principles were not in dispute.

34    The relevant considerations in determining an application for leave to appeal are:

(a)    whether in all the circumstances the decision giving rise to the orders is attended by sufficient doubt to warrant its being reconsidered; and

(b)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

See, by way of example only, Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ).

35    This application for leave to appeal involves a challenge to a discretionary decision, so it is subject to the requirements identified in House v The King (1936) 55 CLR 499 at 504–505 (Dixon, Evatt and McTiernan JJ), viz:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

36    The application for leave to appeal also involves a matter of practice and procedure, so a tight rein needs to be kept on it. As the Full Court said in Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [20] (Jacobson, Flick and Griffiths JJ):

20.     In the context of considering whether to grant or refuse leave to appeal from interlocutory decisions as to matters of practice and procedure, it has accordingly been long recognised that a “tight rein” should be exercised: National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 161. The Full Court there reaffirmed the principles governing the circumstances in which appellate courts would interfere in the exercise of the discretion of primary judges in respect to interlocutory orders. In so doing, the Full Court cited with approval the following observations of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177:

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively ... For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in Re the Will of F B Gilbert (dec) [(1946) 46 SR (NSW) 318 at 323]:

“... I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

And as Gummow J also observed in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 387:

It is not a matter of saying that the discretion miscarried because the result strikes one as perhaps harsh or perhaps one might have exercised the discretion differently. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.

It has further been recognised that greater scrutiny should be given to those interlocutory decisions which go to the ability of a party to advance its case for resolution: United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 532.

37    As their Honours also said at [39], “there are limits to the opportunity that a court will afford to a litigant to agitate a case not previously raised, particularly if the litigation is well advanced”. They continued:

This principle applies not only to applications to amend pleadings but to all interlocutory rulings that bear upon the timely resolution of proceedings (see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 at [51]). There is, as the High Court has recognised, no “right to amend”: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175. Gummow, Hayne, Crennan, Kiefel and Bell JJ there observed:

[112]     A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

[113]     In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

38    To similar effect, in Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455, de Jersey CJ said at 459 [23], in a passage quoted with approval by the Full Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at 267 [22] (Keane CJ, Gilmour and Logan JJ), that:

appeal courts should be especially circumspect about interfering with decisions on matters of practice and procedure. As put by the High Court (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177) “particular caution” must be exercised. The constraints confirmed in House v The King are real constraints, to be respected not perfunctorily discarded, and they are especially powerful, in limiting an appellate court, in a case of this character.

39    A court evaluating a party’s case for the purpose of an application for leave to appeal is only required to consider the proposed grounds of appeal “at a reasonably impressionistic level, and enquire whether a ground is ‘sufficiently arguable’ or has ‘reasonable prospects of success’”. See EBT17 v Minister for Home Affairs [2019] FCA 200 at [4] (Burley J).

The proposed grounds of appeal

40    The draft notice of appeal defines the amendments which the primary judge disallowed (and which are the subject of the proposed appeal) as the “non-Vindication Inaction amendments” (and which are recited in schedule 1 to it).

41    The proposed grounds of appeal and particulars are relevantly in these terms:

Grounds of appeal

1.    The Primary Judge acted upon a wrong principle, and/or failed to take into account a material consideration, in concluding that he could not perform the balancing exercise which was called for by the amendment application because his Honour did not have evidence from the Appellant, directly, explaining why the Non-Vindication Inaction amendments the Appellant sought to introduce into his statement of claim had not been made at any time prior to the appointment of the Appellant’s new solicitors on 16 October 2023 (PJ1 [72], [80], [86(6)], [90]).

Particulars

a)     His Honour erred in concluding that the necessary balancing exercise could not be conducted without further evidence from the Appellant, where the material before the Court was sufficient to enable the Court to conduct the balancing exercise and conclude that the amendments should be allowed, where:

a.    the Appellant’s solicitor explained that the amendments had been proposed following a review of the testimonial evidence of the Respondent which was finally filed and served on 17 November 2023 and which evidence could not have been reviewed by the Appellant’s previous legal representatives (PJ1 [66]);

b.    the amendments were, as the primary judge found (at PJ1 [52)] [sic] “either refinements of existing allegations or a fleshing out of those allegations”;

c.    the risk of the non-Vindication Inaction amendments imperilling the trial date was low (PJ1 [62]);

d.    the failure to permit the amendments could cause the Appellant’s case to be “materially diminished” (PJ1 [55]) and for the case to be determined other than on its “real issues” (PJ1 [87]);

e.     granting the amendments would not result in prejudice to other litigants (PJ1 [86](7));

f.     granting the amendments would not impact on public confidence in the legal system (PJ1 [86](8);

g.     the primary judge failed to consider the prejudice to the Appellant in procuring evidence concerning the period prior to October 2023 where such evidence would likely lead to disclosure of confidential communications between the Appellant and his former legal representatives;

h.    the non-Vindication Inaction amendments would not prejudice the Respondent, for the reasons explained in Ground 2 below.

2.    The primary judge erred at PJ1 [86(4)] in finding that the Respondent would suffer material prejudice if the non-Vindication amendments were allowed in the form of double handling, fading recollections, an incomplete cost indemnity and the continuing stresses of litigation.

Particulars

a)     The primary judge failed to have regard to the fact that because the non-Vindication amendments were simply refinements of existing allegations (PJ1 [52]) those allegations were likely to have already been considered by the Respondent and addressed in the Respondent’s evidence, to the extent necessary.

b)     The primary judge failed to have regard to the fact that the Respondent did not adduce any evidence of any person involved in the litigation being impacted by “continuing stresses” of the litigation and there was therefore no basis to find that litigation stress constituted relevant prejudice and the primary judge accepted that risk of the non-Vindication Inaction amendments imperilling the trial date was low (PJ1 [62]).

3.     The primary judge erred in finding at PJ1 [90] that he was dealing with the “precise situation” that the Full Court considered in in [sic] Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199 and therefore acted upon a wrong principle in concluding that an explanation needed to be given by the Appellant as to why the allegations had not been made at any time prior to the appointment of the Appellant’s new solicitors on 16 October 2023 or that in the circumstances, the explanation provided on behalf of the Appellant was insufficient.

Particulars

a)     The situation under consideration in Tamaya was significantly different to the circumstances being considered by his Honour:

a.    The Full Court in Tamaya was dealing with an application to amend which included the raising of an entirely new cause of action against the respondents which would potentially have brought about a vacation of the hearing date, for a second time;

b.    By contrast, the primary judge was dealing with amendments which were either refinements of existing allegations or a fleshing out of those allegations (at PJ1 [52]);

c.    The application to amend the pleading was brought 11 months before the scheduled commencement of the hearing, prior to discovery being given, and where the primary judge found that the risk the scheduled hearing dates would be imperilled was ‘low’ other than in respect of the Vindication Inaction (PJ1 [58]) and that risk was not ‘especially relevant’ (PJ1 [79]);

d.    The respondents in Tamaya included several individuals (former directors of Tamaya and the audit partners of Deloitte) whom the primary judge and the Full Court found were exposed to the prejudice of the ongoing strain arising out of “the continuation of the litigation, with its personal allegations” (at [208] and [93]).

e.    By contrast, there are no individual respondents to the proceedings below and the Respondent did not identify any individual said to be experiencing litigation stress or strain or adduce any evidence of the existence of such stress or strain.

4.    The primary judge disallowed amendments which were refinements of and substantially overlapped with existing allegations and in doing so failed to take into account a material consideration, being the significant uncertainty that refusal of the amendments would create as to the manner in which the trial is to be conducted.

[Particulars omitted.]

5.    The exercise of the primary judge’s discretion to refuse the amendments produced a result that was unreasonable and/or plainly unjust.

Particulars

a.     The primary judge disallowed amendments that were refinements of existing allegations and which substantially overlapped with existing allegations, where the application to amend was brought 11 months prior to the scheduled commencement of the proceedings, where discovery had not yet been given, where the risk of the amendments imperilling the trial date was low, where there are no individual respondents to the proceedings and where the failure to permit the amendments could cause the Appellant’s case to be “materially diminished” (PJ1 [55]) and for the case to be determined other than on its “real issues” (PJ1 [87]) and where granting the amendments would not result in prejudice to other litigants (PJ1 [86](7)).

Consideration

Proposed ground 1

42    There are inexorable difficulties with proposed ground 1. First, the “non-Vindication Inaction amendments” seek to plead matters that Mr Alexiou knew or ought to have known before he changed solicitors (that is, between July 2020 and October 2023). Secondly, Mr Alexiou did not adduce any evidence to explain his failure to seek the amendments during that time, in circumstances where an explanation was obviously called for. Thirdly, the finding of the primary judge that the proposed amendments rely upon facts which have been known, or ought to have been known, to Mr Alexiou for a long time before the present application (J1 at [63]) is not challenged on this application for leave to appeal.

43    The primary judge, as I have already noted, allowed a number of the amendments sought by Mr Alexiou, including those that related to documents unavailable to him before the Bank’s discovery or evidence. So, delay was not relevant in those instances. But as the Bank’s counsel accurately said in their written submissions:

26.     The evidence failed to explain why it was only through Mr Price’s and the applicant’s counsels’ consideration of ANZ’s evidence that the proposed amendments were deemed “necessary” (AS [21]) when the Primary Judge held (in a finding which is not challenged) that those amendments “rel[ied] upon facts which have been known, or ought to have been known, to Mr Alexiou a long time before the present application was made”: PJ1 [63] (extracted above). The Applicant does not point to any aspect of ANZ’s affidavit and documentary evidence which exposed previously unknown facts or which crystallised the availability of the claims proposed on his Amendment Application. Mr Price’s evidence as to the steps taken after October 2023 simply failed to explain why claims which depended not upon ANZ’s evidence, but upon publicly available documents, had not been advanced when the proceedings were first commenced nor in any of the 11 iterations of the statement of claim prior to Mr Price’s engagement.

44    And as the careful reasons of the primary judge make clear, despite the various things that his Honour said would weigh in favour of exercising the discretion to permit the non-Vindication Inaction amendments (namely, that they were legally viable, did not open up an entirely new front, were non-trivial and would not prejudice other litigants or impact on public confidence in the legal system), the failure to adduce relevant evidence by Mr Alexiou — who, as the judge put it, was the “[o]ne person” (J1 at [72]) who could adduce evidence to explain the relevant delay — was in effect fatal.

45    Mr Withers submitted that the primary judge erred as a matter of principle because his Honour declined to perform the balancing exercise called for in circumstances where he was required to perform it. He relied on the passages of J1 at [88]–[90] set out above, in particular at [88] (“the absence of any explanation for why Mr Alexiou comes to be making this application, years after it could have been first pursued, makes it impossible to determine what the interests of justice require in that balancing exercise”) and at [90] (“[t]he absence of any explanation for the delay prior to Mr Price coming on to the record means that I cannot perform the balancing exercising which is called for”).

46    I do not accept that submission. The primary judge found that an explanation for the delay was called for, because there were alternative possible explanations for it. The first alternative was that Mr Alexiou’s previous lawyers were hopeless and that they did not think of the amendments. And as his Honour said, that might justify permitting the amendments. The second alternative was that Mr Alexiou either refused to put his former lawyers in funds so that the amendments could be pursued, or otherwise directed his lawyers not to pursue the amendments — in which case, “the interests of justice might suggest that the Bank ought not to suffer for the consequences of Mr Alexiou’s own decisions”. Compare Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 at 207 [32] (Gilmour, Perram and Beach JJ), where the possible explanations for the delay in seeking the amendments to the pleading included: (i) a deliberate tactical decision not to pursue such a case; (ii) incompetence on the part of the anonymous audit expert; (iii) an error within the liquidator’s own office; and (iv) the views of the litigation funder.

47    As Mr Sheahan submitted, “because there are alternatives that point either way, in terms of the innocence of the applicant or the relative culpability of the applicant, then the absence of an explanation might be such as to prevent you from effectively carrying out the balancing exercise or, to put it more precisely, prevent you from ruling in the applicant’s favour when they come to court seeking an indulgence”. The primary judge took precisely that course, and he did not err in doing so.

48    As the High Court said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 214–215 [102]–[103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ):

102.     … [T]he extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court’s discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

103.     The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached … to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.

(Emphasis added.) (Citations omitted.)

49    If no explanation is proffered for the delay in circumstances where one is required, then it is not open to a judge to weigh it in the balance with its effects and the objectives of the court rules. That is the approach that the High Court took in Aon, and it is exactly the approach adopted by the learned primary judge in this case.

50    In his oral submissions, Mr Withers submitted that:

we submitted to the primary judge [that] there was a perfectly good explanation for why the amendments were being made at that time. New lawyers reviewed all of the evidence that had been supplied with a fresh set of eyes and decided that the pleading needed some refinement in the way that it was done. And that is, in my respectful submission, a very orthodox thing that happens all the time in this court. People come along, new lawyers come along and look at evidence and conceive of ways that the case can be better presented with some refinement. And that’s all that occurred here.

51    Such an approach is, no doubt, orthodox, but on the facts of this case, it was not sufficient, for the reasons given by the primary judge.

52    The applicant’s other point under proposed ground 1 was that the primary judge failed to consider the prejudice to Mr Alexiou in procuring evidence concerning the period prior to October 2023 because “such evidence would likely (indeed almost inevitably) lead to disclosure of confidential communications between [him] and his former legal representatives”. But this point was not made before the primary judge, and that is enough to dispose of it. See Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at 106 [120] (Gummow A-CJ, Kirby, Hayne and Heydon JJ) (“when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters …”).

53    But in any event, if it were the case that Mr Alexiou could only explain the delay by waiving legal professional privilege, he could have done so. Cf Tamaya at 222 [130]. And if he had sought to rely on a desire not to waive privilege as an explanation for the paucity of his evidence about delay, he had to depose to at least that much, which he did not do. See Roberts-Smith v Fairfax Media Publications Pty Ltd (No 5) [2020] FCA 1067 at [114] (Besanko J) (“respondents’ counsel [submitted] … that some sources might be protected by … privilege … I firmly reject that submission to the extent it is advanced to ameliorate in some way the lack of a detailed explanation for delay. If a party wants me to place any weight on such a contention, then there should be a clear statement to that effect in the affidavit containing the explanation for the delay”).

54    Mr Withers’ final point said to arise under proposed ground 1 was that Mr Alexiou “simply couldn’t … ever give evidence” of the delay in the pre-October 2023 period. His submission was as follows:

[Mr Price] couldn’t ever give evidence to say, this is why the previous lawyers didn’t formulate these pleadings exactly in the way that we’re doing now. He just simply couldn’t give evidence of that kind. In fact, neither could the applicant, because the way that the pleadings were formulated post-October 2023 was a product of the intellectual exercise of Mr Price and the new counsel. So how can one explain why earlier lawyers and – solicitors and counsel didn’t frame the case exactly in the way that the new ones had done, i.e. why they didn’t follow that same intellectual exercise that the new lawyers had undertaken? That just simply couldn’t be explained.

55    I do not accept that submission. First, it is, with respect, mere assertion. Secondly, as the primary judge said, and as I have explained, there were in fact competing possible explanations that called out for an explanation from Mr Alexiou in respect of the pre-October 2023 period.

Proposed ground 2

56    Proposed ground 2 is that the primary judge erred in finding that, if the non-Vindication Inaction amendments were allowed, the Bank would suffer material prejudice in the form of double handling, fading recollections, an incomplete cost indemnity and the continuing stresses of litigation.

57    There is no merit in this proposed ground.

58    The fact of the matter is that the evidence given by Mr Tamvakologos set out above in relation to the non-Vindication Inaction amendments (set out at [88]–[91] and [93] of his affidavit) does establish that the Bank would suffer material prejudice if the non-Vindication Inaction amendments were allowed.

59    It was suggested in the course of oral submissions that it was necessary for the Bank to go into chapter and verse about which of the Bank’s 24 witnesses had fading memories or endured “the continuing stresses of litigation”, and why it would be necessary to confer with them again were the non-Vindication Inaction amendments allowed.

60    As to the first two points, so much can readily be assumed without evidence about them. The primary judge was obviously entitled to find that recollections of the new allegations could be worse now than they were several years ago, when the evidence would otherwise have been collected. See Aon at 214 [102] (“It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case” (emphasis added)).

61    The same applies to the stresses of litigation. As the High Court said in Aon at 214 [101]:

… [I]t should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end.

62    As to the third point, the new allegations are very serious and wide-ranging, and they go to the motives, objectives and state of mind of a large number of current and former senior executives at the Bank. In particular, where the proposed new pleas (which include allegations that the Bank intended to harm Mr Alexiou) are tied into allegations of breaches of the Fair Work Act, which imposes a reverse onus on the Bank, it goes without saying that if the non-Vindication Inaction amendments were allowed, it would be necessary for the Bank’s legal representatives to confer with any witness who might be said to have been part of the Bank’s corporate mind. Hence, the obvious prejudice to the Bank.

Proposed ground 3

63    Proposed ground 3, which overlaps with proposed ground 1, is that the primary judge erred in finding that he was dealing with the “‘precise situation’ that the Full Court considered in []Tamaya … and therefore acted upon a wrong principle in concluding that an explanation needed to be given by [Mr Alexiou] as to why the allegations had not been made at any time prior to the appointment of [his] new solicitors on 16 October 2023 or that … the explanation provided on [his] behalf … was insufficient”.

64    There is no merit in proposed ground 3.

65    His Honour was a member of the Full Court in that case. The notion that he misunderstood it is inherently unlikely. But in any event, as the Bank’s counsel submitted their written submissions:

38.     … The Primary Judge’s reference at PJ1 [90] to “this precise situation” is a reference to the situation stated in the previous sentence, namely, one where “the absence of any explanation for the delay prior to Mr Price coming on to the record means that I cannot perform the balancing exercise which is called for”. That was indeed the precise situation in Tamaya. It is inconceivable that the Primary Judge meant to include in his reference to the “precise situation” the fact that in Tamaya (for example) the amendments would require the trial to be adjourned, when he had just found that in this case that was not the position (PJ1 [80]).

…

40.     Quite plainly, the Primary Judge did not seek to equate the underlying circumstances in Tamaya and in this case. Nor did the Primary Judge blindly apply Tamaya. Rather, the Primary Judge sought to assess the significance of the impossibility of carrying out the balancing exercise with which he was faced by reference to Full Court authority, in circumstances where material prejudice would flow from the grant of leave to make the amendments. No “wrong principle” arises from such a mode of analysis. This proposed ground of appeal does not rise above a semantic quibble.

66    I agree.

Proposed ground 4

67    In his oral submissions, Mr Sheahan answered proposed ground 4 in a way that I cannot improve on, by reference to an imaginary monster, as follows:

If I can turn then to [proposed] ground 4. This deals with what is said to be the judge’s failure to take into account a material consideration, being the significant uncertainty that refusal of the amendments would create as to the manner in which the trial is to be conducted. … There are two short answers to this. The first is that this point was not raised below. Your Honour will have observed the ground of complaint is a failure to have regard to a mandatory relevant consideration, or to a relevant consideration. That cannot be relied upon if it wasn’t relied upon below. …

The second answer to it is that the concern is aptly described as chimerical, that is to say, an imaginary monster. The court is well-equipped to deal with issues of admissibility at the trial, even if the pleadings are complex. That’s what judges do. Now, there’s no basis for thinking that the trial judge is going to be embarrassed by having to resolve them. …

Proposed ground 5

68    It was accepted that proposed ground 5 did not add any further ground of substance, so I need not say anything more about it.

One final matter

69    During his reply submissions, in answer to a question from me, Mr Withers suggested that the primary judge erred in law in not picking up written submissions below to the effect that the proposed amendments fell into different categories and that his Honour erred (presumably as a matter of principle) in applying what Mr Withers called a “bright-line rule” with respect to pre- and post-October 2023. Whatever the submission amounted to, Mr Sheahan was correct to say in his brief oral submission (by way of rejoinder) that the point is nowhere to be found in the draft notice of appeal and that the Bank had no notice of it. It follows that I need say no more about it.

Disposition

70    In circumstances where:

    the critical events the subject of the non-Vindication Inaction amendments happened up to ten years ago;

    Mr Alexiou discontinued one proceeding and then four years later brought this proceeding involving similar allegations;

    Mr Alexiou is now up to the thirteenth iteration of his pleaded case;

    Mr Alexiou’s failure to provide an explanation as to why the non-Vindication Inaction amendments were not made prior to October 2023 (despite the fact that he knew, or ought to have known, the facts underlying those amendments for a long time before the present application) made it impossible for the primary judge to undertake the relevant balancing exercise;

    the Bank would suffer obvious prejudice were the non-Vindication Inaction amendments allowed; and

    the court’s ability to deal with issues of admissibility at trial, even if the pleadings are complex, means that refusing the amendments would not create uncertainty as to the manner in which the trial is to be conducted,

the primary judge’s decision not to allow those amendments was, to say the very least, a course well open to him, and his Honour did not act on any wrong principle.

71    The application for leave to appeal will accordingly be dismissed with costs.

Associate:

Dated:    12 June 2025