Australian Retirement Group Pty Ltd v Commonwealth Bank of Australia Ltd [2021] NSWSC 127

Supreme Court New South Wales

Medium Neutral Citation: Australian Retirement Group Pty Ltd v Commonwealth Bank of Australia Ltd [2021] NSWSC 127 Hearing dates: On the papers Date of orders: 22 February 2021 Decision date: 22 February 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Application to transfer proceedings to Federal Court dismissed Catchwords: Notice of motion to transfer proceedings from Supreme Court to the Federal Court – representative proceedings – application made over four years after proceedings commenced – basis for application said to be Federal Court being well designed system to handle representative proceedings – motion dismissed. Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Commonwealth Bank of Australia v Rafidi [2021] FCCA 96 Category: Procedural rulings Parties: Australian Retirement Group Pty Ltd (First Plaintiff) Peter Gower Walsh (Second Plaintiff) Commonwealth Bank of Australia Limited (Defendant) Representation: Counsel: IJM Ahmed (Defendant)

Solicitors: Hapgood Legal (Second Plaintiff) Herbert Smith Freehills (Defendant) File Number(s): 2016/86790

Judgment 1. These proceedings were commenced on 20 March 2016 as representative proceedings under Part 10 of the Civil Procedure Act 2005 (NSW). 2. When the proceedings were commenced, Portland Property Holdings (NSW) Pty Ltd was the lead plaintiff. 3. However, shortly after the proceedings were commenced, the present plaintiffs, Australian Retirement Group Pty Ltd and Mr Peter Walsh, were substituted as plaintiffs. 4. The principal allegations in the proceedings relate to loans made by Bank of Western Australia Limited (since acquired by the defendant, the Commonwealth Bank of Australia Limited ("CBA")) to Australian Retirement Group. 5. The proceedings have been closely case managed in this Court. The parties have exchanged lay and expert evidence and discovery has taken place. 6. Now, by notice of motion filed on 10 November 2020, some four and a half years after the proceedings were commenced, Mr Walsh seeks an order that the proceedings be transferred to the Federal Court of Australia. 7. It is agreed that the matter may be dealt with on the papers. 8. At the time the notice of motion was filed, the principal basis upon which that order was sought was the asserted relationship between the issues in these proceedings and those in proceedings, then pending in the Federal Circuit Court. In those proceedings a Mr Rafidi was the applicant and the CBA the respondent. Mr Rafidi's application to transfer those proceedings to the Federal Court was dismissed on 28 January 2021. [1] Accordingly, as Mr Walsh now accepts, the Rafidi proceedings no longer provide a basis for a transfer of these proceedings to the Federal Court. 9. Otherwise the basis of Mr Walsh's application appears to be his residence in Melbourne, his straitened financial circumstances, and that "the Federal Court has in place a well-developed system to deal with representative action proceedings". 10. As to Mr Walsh's residence in Melbourne, he has so resided since at least 12 July 2016. [2] Thus, that fact does not provide a reason for a transfer at this late stage. 11. As to Mr Walsh's personal circumstances, he stated in his affidavit of 3 February 2021 that: "As matters stand, I am without solicitors to represent me on the record in these proceedings, in Sydney. I am without funding to progress otherwise than in the State of Victoria." 1. However, Mr Walsh is represented in Sydney by a solicitor, Mr Hapgood. Mr Hapgood has evidently prepared Mr Walsh's submissions on this application and has, today, joined in a position paper confirming Mr Walsh's agreement that this application be determined on the papers. Mr Hapgood has confirmed that, by notice of change of solicitor filed on 10 November 2020, he now represents Mr Walsh. 2. As to the undoubtedly correct proposition that the Federal Court is well placed to deal with representative action proceedings, the same can be said for this Court. Indeed, the provisions in Part 10 of the Civil Procedure Act governing representative proceedings are to the same effect as the analogous provisions in the Federal Court of Australia Act 1976 (Cth). 3. Further, these proceedings have been pending in this Court for almost five years. 4. I see no reason why, at this very late stage, they should be removed to the Federal Court. 5. The plaintiffs' notice of motion of 10 November 2020 is dismissed with costs. 6. As the parties have requested in the joint position paper, the matter will be listed for further directions on 5 March 2021.