Australian Securities and Investments Commission v Commonwealth Bank of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 29 November 2022
• Neutral Citation: [2022] FCA 1422
• Date: 29 November 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Commonwealth Bank of Australia [2022] FCA 1422

File number(s):	QUD 96 of 2021
Judgment of:	DOWNES J
Date of judgment:	29 November 2022
Catchwords:	CORPORATIONS – alleged contraventions of ss 12DA and 12DB Australian Securities and Investments Commission Act 2001 (Cth) and s 912A(1) Corporations Act 2001 (Cth) – where bank failed to waive monthly account fees in relation to certain accounts in breach of its contract with customers – whether a notation on the customer account statement or passbook that a fee had been charged was an implied representation by the bank that it had a contractual entitlement to charge that fee – whether misleading or deceptive conduct – whether a contractual promise to waive a fee carried with it an implied representation that the bank had and would have adequate systems and processes to ensure that the fee would be waived – whether false or misleading representations in connection with supply of financial services – consideration of characteristics of ordinary and reasonable member of the class of customers to whom representations were alleged to have been made – whether bank’s conduct was a failure to do all things necessary to ensure that the financial services covered by its licence were provided honestly, efficiently and fairly – where bank introduced measures and improved its systems in order to assist in detecting and preventing issues associated with the failure to waive fees – where bank took steps to investigate the cause of the errors; designed, implemented and tested an appropriate mechanism for rectifying errors and preventing their recurrence; identified all customers and customer accounts affected by the errors; and remediated all affected customers, where possible, or made contributions to charity – claims dismissed
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12BA(1), 12BB, 12DA, 12DB Corporations Act 2001 (Cth) ss 9, 912A, 912C, 912D, 961L Evidence Act 1995 (Cth) ss 140, 191 Trade Practices Act 1974 (Cth) s 52
Cases cited:	Australian Competition & Consumer Commission v Dateline Imports Pty Ltd [2015] FCAFC 114 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd [2019] FCA 992 Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106 Australian Competition and Consumer Commission v Telstra Corporation Limited (2007) 244 ALR 470; [2007] FCA 1904 Australian Competition and Consumer Commission v Telstra Corporation Limited (2018) ATPR 42–593; [2018] FCA 571 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450; [2020] FCAFC 130 Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039 Australian Securities & Investments Commission v AMP Financial Planning Pty Ltd (No 2) (2020) 377 ALR 55; [2020] FCA 69 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 3) (2020) 275 FCR 57; [2020] FCA 208 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 3) [2020] FCA 1421 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2022] FCA 1251 Australian Securities and Investments Commission v Camelot Derivatives Pty Ltd (In Liquidation); In the Matter of Camelot Derivatives Pty Limited (In Liquidation) (2012) 88 ACSR 206; [2012] FCA 414 Australian Securities and Investments Commission v Cassimatis (No 8) (2016) 336 ALR 209; [2016] FCA 1023 Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd (2019) 140 ACSR 561; [2019] FCA 1932 Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 Australian Securities and Investments Commission v MLC Nominees Pty Ltd (2020) 147 ACSR 266; [2020] FCA 1306 Australian Securities and Investments Commission v National Australia Bank Limited [2022] FCA 1324 Australian Securities and Investments Commission v Vocation Limited (In Liquidation) (2019) 136 ACSR 339; [2019] FCA 807 Australian Securities and Investments Commission v Westpac Banking Corporation (Omnibus) (2022) 159 ACSR 381; [2022] FCA 515 Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) (2018) 266 FCR 147; [2018] FCA 751 Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170; [2019] FCAFC 187 Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60 Cash Bazaar Pty Ltd v RAA Consults Pty Ltd (No 2) (2020) 381 ALR 668; [2020] FCA 636 Cassimatis v Australian Securities and Investments Commission (2020) 275 FCR 533; [2020] FCAFC 52 Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516 Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132 Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; [2002] NSWSC 670 Dovuro Pty Limited v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230; [2008] FCAFC 2 Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154 SPEL Environmental Pty Ltd v IES Stormwater Pty Ltd [2022] FCA 891
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	172
Date of hearing:	10–11 October 2022
Counsel for the Plaintiff:	Mr S Couper KC w/ Mr S Seefeld
Solicitor for the Plaintiff:	Australian Government Solicitor
Counsel for the Defendant:	Mr B Walker SC w/ Mr P Kulevski and Ms L Coleman
Solicitor for the Defendant:	Clayton Utz

ORDERS

		QUD 96 of 2021
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff
AND:	COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 Defendant

order made by:	DOWNES J
DATE OF ORDER:	29 november 2022

THE COURT ORDERS THAT:

1. The claims for the relief in the originating process are dismissed.

2. The plaintiff pay the defendant’s costs of the proceeding to be agreed or, failing agreement, to be taxed.

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

REASONS FOR...