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

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: MOSHINSKY J
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] FCA 964
• Date: 21 June 2019

FEDERAL COURT OF AUSTRALIA

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

File number:	VID 1153 of 2018
Judge:	MOSHINSKY J
Date of judgment:	21 June 2019
Catchwords:	PRACTICE AND PROCEDURE – stay of proceedings – whether civil proceeding should be stayed pending determination of criminal proceedings relating to the same subject matter – whether the interests of justice require the civil proceeding to be stayed – where the civil proceeding and the criminal proceedings both relate to an institutional share placement that took place on 6 August 2015 – where Australia and New Zealand Banking Group Limited (ANZ) is a defendant to both the civil proceeding and the criminal proceedings – where the key individual at ANZ who was involved in the placement, and whose evidence and assistance would be required by ANZ to defend the civil proceeding, is also a defendant to the criminal proceedings – stay granted
Legislation:	Competition and Consumer Act 2010 (Cth), ss 79, 44ZZRF, 44ZZRG, 44ZZRO Corporations Act 2001 (Cth), ss 674, 1317E, 1317G, 1317N, 1331 Evidence Act 1995 (Cth), s 128 Federal Court of Australia Act 1976 (Cth), ss 23, 23CN Criminal Procedure Act 1986 (NSW), s 314
Cases cited:	Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 Grant-Taylor v Babcock & Brown Ltd (in liq) (2015) 322 ALR 723 Grant-Taylor v Babcock & Brown Ltd (in liq) (2016) 245 FCR 402 Helicopter Resources Pty Ltd v Commonwealth of Australia [2019] FCAFC 25 McLachlan v Browne (No 9) [2019] NSWSC 10 McMahon v Gould (1982) 7 ACLR 202 Obeid v Commissioner of Taxation [2017] FCA 1135 Ransley v Commissioner of Taxation [2016] FCA 778 Re Plutus Payroll Australia Pty Ltd [2017] NSWSC 1854 Strickland v Director of Public Prosecutions (Cth) (2018) 361 ALR 23 Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562
Date of hearing:	5 June 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	100
Counsel for the Plaintiff:	Mr CM Caleo QC with Ms K Foley
Solicitor for the Plaintiff:	Australian Securities and Investments Commission
Counsel for the Defendant:	Mr JC Sheahan QC with Mr P Liondas
Solicitor for the Defendant:	Allens

ORDERS

		VID 1153 of 2018
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Defendant

JUDGE:	MOSHINSKY J
DATE OF ORDER:	21 JUNE 2019

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...