ACCC v ANZ Banking Group Ltd [2008] FCA 1935

FEDERAL COURT OF AUSTRALIA

ACCC v ANZ Banking Group Ltd [2008] FCA 1935

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522

QUD 252 of 2007

SPENDER J

8 DECEMBER 2008

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 252 of 2007

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522

Respondent

JUDGE: SPENDER J

DATE OF ORDER: 8 DECEMBER 2008

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The application for leave to appeal from the judgment of Greenwood J given on 31 October 2008 is refused. 2. The applicant for leave is to pay the costs of the respondent of and incidental to the application for leave, to be taxed if not agreed. 3. Order 2 made by Greenwood J on 31 October 2008 is varied so that the applicant in the proceedings has leave to file and serve an Amended Statement of Claim by 4 pm on 27 February 2009. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 252 of 2007

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522

Respondent

JUDGE: SPENDER J

DATE: 8 DECEMBER 2008

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from interlocutory orders made by Greenwood J on 31 October 2008, striking out the applicant's Statement of Claim. 2 I do not regard this application for leave as satisfying either of the two tests in Décor Corporation Pty ltd & Anor v Dart Industries Inc (1991) 33 FCR 397. I think the whole matter has been complicated by the position that was adopted at first instance, which has been repeated in the written submissions made by the applicant before me. 3 Paragraph 5 of the applicant's submissions identify a number of observations made by the primary judge regarding the need to plead a market in which the ANZ Bank and the respondent and Mortgage Refunds Pty Ltd (MPRL) are competitors. The correctness of those observations are, it seems to me, beyond argument, and in fact seem to be conceded in the first sentence of paragraph 3 of the applicant's submissions, which carefully avoids any reference to the word "market". 4 The fact is that a market has to be pleaded. Section 45(3) of the Trade Practices Act 1974 (Cth) (the Act) makes that plain. The provisions of s 45A of the Act do not obviate that need. 5 I referred, in the course of discussions with counsel, to observations of the High Court in Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd (1989) 167 CLR 177. In addition, Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Limited [1976] 25 FLR 169, as well as the many other cases dealing with the centrality of the concept of market contestability and competition, attest that the judgment of Greenwood J is not attended with any doubt with respect to the primary argument that was addressed to his Honour. 6 I have some concern with the width of the primary judge's observations concerning what the pleading must contain, although the word "must" might be misinterpreted. 7 If one accepts the centrality of the criticism, expressed in paragraph 54 of the primary judge's reasons, about the definition of the product over which it is said the parties in this matter compete, then much of the ACCC's argument that it is difficult, if not impossible, to properly plead what his Honour requires, falls away. 8 In my opinion, rejecting the applicant's assertion that one does not have to plead a market because of the provisions of s 45A, if what is meant by "loan arrangement services" can be properly defined, and what is the service that the ANZ and MPRL provide in competition with each other is identified, then the pleading, in particular in paragraphs 3.4, 3.5, 4.4, 4.5, 6, 7.2 and 7.3, goes a long way to meeting the requirements of a proper pleading. 9 There is, however, much sense in resort being had to the liberty to re-plead. If the applicant were to recast its pleadings in a totally different way, without trying to salvage or justify what has gone before, but rather focusing on the basic requirement of pleading material facts and the essential elements of the action which the ACCC wishes to prove, it seems to me that that can be done without any unnecessary embarrassment or extraordinary expense by the ACCC. 10 If the re-pleaded statement of claim is again the subject of attack, then let it be on the basis of principle. If necessary, a further consideration of leave may be required. 11 It seems to me, however, that this is not a case, as it presently stands and against the background of what has happened, which should require consideration by a Full Court. 12 In my opinion, if a new and completely fresh approach were adopted, potential criticism at any subsequent attempt to strike out would not enjoy too much prospect of success. 13 It follows from the above that the application for leave is refused. The applicant for leave is to pay the costs of the respondent of and incidental to the application for leave, to be taxed if not agreed. I also vary the order of the primary judge by extending the time within which the Australian Competition and Consumer Commission is to re-plead its statement of claim to 4 pm on 27 February 2009.