Lee v Westpac Banking Corporation (No 2)

FEDERAL COURT OF AUSTRALIA

Lee v Westpac Banking Corporation (No 2) [2016] FCA 901

File number:

QUD 211 of 2013

Judge:

DOWSETT J

Date of judgment:

9 August 2016

Catchwords:

PRACTICE AND PROCEDURE –pleadings – application for leave to amend and add a further cause of action to a statement of claim – material facts required to establish a party as a linked credit provider – involvement in contraventions of the Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) – Yorke v Lucas knowledge – timing of knowledge of contravention

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth) s 5, s 12DA, s 12GF

Corporations Act 2001 (Cth) s 79, s 1041(H), s 1041(I)

Federal Court Rules 2011 (Cth) r 16.43

Trade Practices Act 1974 (Cth) s 73(1), s 73(3), s 73(14),

Trade Practices Revision Act 1986 (Cth)

Cases cited:

Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd (No 2) (2005) 53 ACSR 305

Digital Cinema Network Pty Ltd v Omnilab Media Pty Ltd (No 2) [2011] FCA 509

Giorgianni v The Queen (1985) 156 CLR 473

Yorke v Lucas (1985) 158 CLR 661

Date of hearing:

30 November 2015

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Category:

Catchwords

Number of paragraphs:

44

Counsel for the Applicants:

Mr R Dubler SC and Mr T Kane

Solicitor for the Applicants:

Levitt Robinson Solicitors

Counsel for the Respondent:

Mr P Jopling QC and Mr G Beacham QC

Solicitor for the Respondent:

King & Wood Mallesons

ORDERS

QUD 211 of 2013

BETWEEN:

JOHN CHARLES LEE

First Applicant

GLENDA MARIAN LEE

Second Applicant

AND:

WESTPAC BANKING CORPORATION (ABN 33 007 457 141)

Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	9 AUGUST 2016

THE COURT ORDERS THAT:

1.the matter be adjourned to date to be fixed so that the parties may propose appropriate Orders and make submissions as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

BACKGROUND

1. These proceedings were commenced on 26 April 2013.  They are constituted as a class action.  The claims are complex, as is the existing version of the statement of claim.  There have been many earlier iterations.  On 15 May 2015 I dismissed an application to amend, giving reasons.  The existing causes of action are outlined in those reasons.  I concluded that, if the proposed amendments were allowed, the statement of claim would have been defective in the following respects:

   ·the applicants would impute to Westpac, knowledge obtained by certain employees at numerous meetings and seminars, without attributing any aspect of such knowledge to a particular employee, or identifying the occasion or occasions on which such knowledge was acquired (reasons, [25]‑[29]);

   ·no express basis for the aggregation of such knowledge would be pleaded (reasons, [29]‑[45]);

   ·the pleading would not adequately identify the factual basis on which the knowledge of certain employees was attributable to…