Federal Court confirms concise statement approach to case management in complex banking litigation

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284 

The Australian Securities and Investments Commission (ASIC) recently commenced proceedings in the Federal Court of Australia against the Australia and New Zealand Banking Group Ltd (ANZ).  The proceeding is at an early stage.  In the proceeding, ASIC alleges ANZ was not entitled to charge certain periodic payment fees under the Bank’s contracts with its customers.  The statutory claims in the proceeding have an equitable character.  ASIC alleges that ANZ breached its obligations under the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth), including by engaging in misleading or deceptive conduct and engaging in unconscionable conduct by, among other things, charging fees ANZ knew were unlawful, and by failing to inform its customers.  The claim is complex and the impugned conduct spans 13 years, from 2003 to 2016.

The proceeding was listed for its first case management hearing before Allsop CJ.  At the case management hearing, Allsop CJ tailored the case management of the proceeding and the approach to ‘pleadings’ having regard to the equitable nature of the claims in the proceeding.  The Court observed that a court of law and a court of equity historically took a different approach to ‘pleadings’.  While a court of law is designed to confine matters to pleadings, a court of equity takes a comprehensive view, looking at connected circumstances that influence the determination of the real substance of the case.

With this in mind, the Court tailored an approach to procedure and pleadings that recognised the techniques of equity, and adopted the concise statement approach (in contrast to a formal pleading or statement of claim) which the Court has favoured in recent practice notes.  In so ordering, the Court observed that ”modern litigation of this kind must be wrenched from the mindset of staged trench warfare, statement and affidavit drafting and document production makes access to the legal system, even for large and well-resourced litigants, overly costly and slow”: [12].

In his ruling, Allsop CJ gave some golden tips to the legal teams of the parties (and to practitioners more broadly) as to how to draft the concise statement and respond to it:

For the plaintiff drafting the concise statement:

  • set out a well drafted narrative of the facts and circumstances of the wrong or grievance that constitutes the real substance of the complaint;
  • ensure the statement contains all the facts to be proved, at the appropriate level of generality or specificity, without prolixity, as to give meaning to the grievance;
  • explain in a coherent way, anchored to the facts, why those facts lead to the conclusion contended for, which may require some degree of reasoned articulation;
  • this approach will enable the drafter to make distinctions between material facts and evidence, without focusing on labelling such things as facts and particulars.

For the defendant responding to the concise statement

  • The defendant should engage with the narrative in the plaintiff’s concise statement by identifying what is in contention, or what should be added to contextualise its conduct, and to explain why its conduct did not meet the statutory standard;
  • The statement (and the answer) are to be viewed as the combined narrative which encompasses the case, not in a rigid or over-technical way, but in a way that, through its narrative, expresses the respective cases as to the conduct that is said to contravene the statutory provisions.

Through the adoption of this method, the parties will be able to agree or narrow a a body of relevant facts, and determine which facts are to be contested, to facilitate the conduct of the trial.

This modern concise statement approach is fast replacing the historical pleading in many matters in the Federal Court of Australia.  Practitioners who have traditionally approached drafting through the pleading method should develop their drafting skills to incorporate the concise statement method.

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