Australian Competition and Consumer Commission 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…