Marundrury v Commonwealth Bank of Australia (No 2)

The Federal Court was asked to decide on an application by the applicants, Marundrury, to amend their statement of claim and an application by the respondent, Commonwealth Bank of Australia, to dismiss or strike out the applicants’ claims. The applicants’ claims were largely based on alleged breaches of section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The Bank argued that the applicants had no reasonable prospect of establishing a breach of section 41 of the Act due to the operation of section 124 of the Act, and that section 123 of the Act prohibits the Bank from properly defending the allegations in respect of section 41. The court had to determine whether to grant the applicants leave to amend and whether to summarily dismiss the applicants’ claims.

The court considered the discretion conferred on the AUSTRAC CEO by section 248 of the AML/CTF Act, which could potentially address the Bank’s contentions based on sections 123 and 124. The court found it appropriate to allow a period of time to enable the parties to explore whether the AUSTRAC CEO would be prepared to exercise the discretion. The applicants provided a proposed second amended statement of claim, and the Bank sought an exemption and modification of sections 123 and 124 of the AML/CTF Act under section 248 of the Act. However, the AUSTRAC CEO decided not to modify section 124 of the AML/CTF Act and deemed it unnecessary to determine the proposed exemption from section 123. The court concluded that the application for leave to file the proposed second amended statement of claim should be dismissed, the whole of the amended statement of claim filed on 16 April 2021 should be struck out with a right to re-plead, and the Bank’s interlocutory application should otherwise be dismissed.

The final orders of the court were as follows: the applicants’ interlocutory application for leave to file the proposed second amended statement of claim dated 21 May 2022 was dismissed; the whole of the amended statement of claim filed on 16 April 2021 was struck out; the respondent’s interlocutory application seeking summary dismissal or strike-out otherwise was dismissed; the applicants were to provide to the respondent any proposed second amended statement of claim within two months; the matter was to be listed for a case management hearing on a date to be fixed; and the applicants were to pay the respondent’s costs of the interlocutory applications, subject to any different costs order sought by either party. The court also noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.