Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited

• Jurisdiction: Australia Federal only
• Judge: ALLSOP CJ
• Judgment Date: 15 August 2019
• Neutral Citation: [2019] FCA 1284
• Court: Federal Court
• Date: 15 August 2019

FEDERAL COURT OF AUSTRALIA

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

File number:	QUD 445 of 2019
Judge:	ALLSOP CJ
Date of judgment:	15 August 2019
Date of publication of reasons:	16 August 2019
Catchwords	PRACTICE AND PROCEDURE – approach to case management in the context of statutory unconscionability – procedure informed by techniques of equity – presentation of facts and grievances in narrative form – potential inappropriateness of statement of claim – proper use of concise statement – litigation good faith and Pt VB of the Federal Court of Australia Act 1976 (Cth)
Legislation:	Federal Court of Australia Act 1976 (Cth) Pt VB
Cases cited:	Jenyns v Public Curator [1953] HCA 2; 90 CLR 113 The Juliana [1822] EngR 235; 2 Dods 504; 165 ER 1560
Date of hearing:	15 August 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	16
Counsel for the Plaintiff:	Mr S Couper QC with Ms C Schneider
Solicitor for the Plaintiff:	Australian Government Solicitor
Counsel for the Defendant:	Dr M Collins QC with Ms C van Proctor
Solicitor for the Defendant:	Ashurst

ORDERS

		QUD 445 of 2019
BETWEEN:	AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Plaintiff
AND:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Defendant

JUDGE:	ALLSOP CJ
DATE OF ORDER:	15 AUGUST 2019

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...