FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v ANZ Banking Group Limited [2011] FCA 549 Citation: Australian Competition and Consumer Commission v ANZ Banking Group Limited [2011] FCA 549 Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ANZ BANKING GROUP LIMITED File number: QUD 252 of 2007 Judge: DOWSETT J Date of judgment: 5 May 2011 Dates of hearing: 4 and 5 May 2011 Place: Brisbane Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr S Couper QC with Ms M Brennan Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr P O'Shea SC with Dr M Collins Solicitor for the Respondent: Freehills IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 252 of 2007 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: ANZ BANKING GROUP LIMITED Respondent JUDGE: DOWSETT J DATE: 5 MAY 2011 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This matter is presently listed for trial for two weeks in June this year. Those trial dates were fixed in July last year. The respondent now applies to amend its defence, withdrawing certain admissions previously made in 2009. The proceedings are brought by the applicant pursuant to s 45A of the Trade Practices Act 1974 (Cth) (the "TP Act"), alleging that the respondent and a company called Mortgage Refunds Proprietary Limited entered into an agreement proscribed by virtue of s 45A(1). A fundamental allegation in the applicant's case is that Mortgage Refunds and the respondent were, at all times, providing certain services in an identified market. 2 The respondent has discovered, in the course of preparing for trial, evidence which may suggest that Mortgage Refunds was not, itself, participating in that market. Rather, it was entering into franchise agreements with persons who were doing so. If so, then the assertion that the agreement was proscribed by s 45A(1) would be unmaintainable. The applicant has, to date, proceeded upon the basis that, however services were being delivered to customers by Mortgage Refunds and persons associated with it, the conduct was such as to constitute participation in the relevant market by that company. Until now, the respondent has proceeded upon the same basis. One might suspect that with due diligence this apparent divergence in the available views of the facts ought to have been discovered at an earlier stage. However that might be a counsel of perfection. We must accept that preparation for trial, particularly a lengthy trial, is an ongoing business. It is not always possible to attend to all aspects of the case at the same time. I do not infer any significant lack of diligence in the late discovery of this arguably relevant information. 3 The case has not been otherwise without delay. The conduct of which complaint is made occurred in or about 2004. The action was not commenced until 2007. The applicant's statement of claim was struck out in 2009 and new pleadings delivered in that year. It was in that year, too, that the respondent made the admissions which it now seeks to withdraw. 4 The applicant does not concede that the additional information necessarily changes the complexion of the case in any meaningful way. It submits that however Mortgage Refunds chose to conduct its business, whether through franchise arrangements or otherwise, it was still participating in the market. That is an inference to be drawn from proven facts. I cannot assume it for present purposes. I suspect that had the issue not been raised at this stage, it would have arisen in the cross examination of expert economic witnesses. 5 As I say, I find myself unable to conclude at this stage that the information upon which the respondent relies may not change substantially the nature of the case. The proceedings are, in my view, of considerable public importance. They involve allegations of quite serious misconduct by a major financial institution. They are allegations which relate closely to concerns which are expressed frequently in the media concerning the trading habits of financial institutions. 6 No good purpose will be served, in litigation of this kind, if it is resolved on an artificial factual basis, brought about by a failure of the practice which we follow in bringing matters to trial. The public interest in litigation will only be served by the matter being ultimately resolved upon the basis of the true facts. That consideration militates strongly in favour of allowing the respondent to withdraw its submissions and make the relevant amendments. 7 Further, the public impact of any success enjoyed by the applicant in these proceedings might be undermined by the respondent's complaints that it was not permitted to advance its true case in defence, a situation which would not be desirable for the parties, the public or the court. There is, however, the question of any damage which may have been caused to the applicant by the application coming at this late stage. 8 I have already indicated the quite substantial delay which has already occurred in the matter, most of which is not attributable in any sense to the respondent's application. To the extent that memories may have faded, they must have faded by 2009 when the statement of claim in its present form was delivered. It may be necessary for the applicant and, perhaps, the respondent to talk to people who borrowed money with a view to finding out the way in which trading was conducted, but I doubt that it will be any more difficult now than it would have been in 2009. There was some concern that the applicant might need to amend the statement of claim further to raise different causes of action, and that there may be limitation considerations. However, the respondent has agreed to waive any reliance upon a limitation defence in terms which have been placed before me and which I mark as exhibit 1. 9 It is, I accept, also a matter of detriment, from the applicant's point of view, that it should lose its trial dates at such a late stage. However, the applicant exists primarily to serve the public and to uphold the public interest. As I have said, I am of the view that the public interest will not be served by this quite substantial piece of litigation proceeding upon anything other than a proper factual basis. It is unfortunate that the need to amend has emerged so late, but nonetheless, the public interest is best served by the matter being ventilated in the usual way. 10 In those circumstances, I accede to the application made by the respondent in its notice of motion. I shall hear any application on behalf of the applicant for vacation of the trial dates. 11 Although the circumstances in which the respondent seeks to amend did not involve substantial fault on the part of the respondent or its solicitors, it involved no fault on the part of the applicant. 12 As to the costs thrown away as a result of the adjournment of the trial, the applicant would seem to have a reasonable claim to an order. However it may be better to leave the question until the outcome of the trial is known. It may arguably emerge that the applicant ought to have known about this matter, or knew about it. It may also emerge that the applicant ought have its costs on an indemnity basis rather than on a party and party basis. In those circumstances, the better course is to reserve the costs thrown away as a result of the amendment. The applicant should have the costs of the application for leave to amend, including the appearances yesterday and today. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 7 September 2011