Sherwood v Commonwealth Bank of Australia (No 2)
[2012] FCA 1030
•13 September 2012
FEDERAL COURT OF AUSTRALIA
Sherwood v Commonwealth Bank of Australia (No 2) [2012] FCA 1030
Citation: Sherwood v Commonwealth Bank of Australia (No 2) [2012] FCA 1030 Parties: LESLIE JAMES SHERWOOD, JULIANNE SHERWOOD, SEAN PATRICK JUDE MCARDLE and PAULA JOANNE MCARDLE v COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 and COLONIAL FIRST STATE INVESTMENTS LTD ABN 98 002 348 352 File number: NSD 811 of 2010 Judge: REEVES J Date of judgment: 13 September 2012 Date of hearing: 13 September 2012 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 25 Counsel for the Applicants: Mr Atkinson Solicitor for the Applicants: Levitt Robinson Lawyers Counsel for the Respondents: Mr Finch SC Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 811 of 2010
BETWEEN: LESLIE JAMES SHERWOOD
First ApplicantJULIANNE SHERWOOD
Second ApplicantSEAN PATRICK JUDE MCARDLE
Third ApplicantPAULA JOANNE MCARDLE
Fourth ApplicantAND: COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
First RespondentCOLONIAL FIRST STATE INVESTMENTS LTD
ABN 98 002 348 352
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
13 SEPTEMBER 2012
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application filed 31 August 2012 is dismissed.
2.The applicants pay the first and second respondents’ costs of and incidental to the application filed 31 August 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 811 of 2010
BETWEEN: LESLIE JAMES SHERWOOD
First ApplicantJULIANNE SHERWOOD
Second ApplicantSEAN PATRICK JUDE MCARDLE
Third ApplicantPAULA JOANNE MCARDLE
Fourth ApplicantAND: COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
First RespondentCOLONIAL FIRST STATE INVESTMENTS LTD
ABN 98 002 348 352
Second Respondent
JUDGE:
REEVES J
DATE:
13 SEPTEMBER 2012
PLACE:
BRISBANE
EX TEMPORE REASONS FOR JUDGMENT
The applicants in these representative proceedings (Sherwood applicants), commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth), have applied for leave to file as evidence an affidavit of Ms Stephanie Carmichael. The affidavit in question is annexure “SC5” to Ms Carmichael’s affidavit in support of this application, sworn 30 August 2012.
The need for the Sherwood applicants to obtain leave arises from Order 8(a) of the orders made in this proceeding on 5 April 2012, which order required such evidence to be filed by 11 May 2012. It should be noted that the 5 April 2012 orders extended the time set by the original trial programming orders made in these proceedings on 23 September 2011.
It is appropriate to note at the outset of this application that it was filed on 31 August 2012, more than three and a half months after the extended date for service for such evidence, and, more significantly, just 10 days before the trial of these proceedings was due to commence on 10 September 2012. These circumstances give rise to obvious questions about delay and prejudice. However, for the reasons that follow, it is unnecessary for me to consider those questions.
The pertinent parts of the affidavit of Ms Carmichael (SC5) are the documents annexed to that affidavit at SC4, and the explanation for the collation of those documents contained in the body of SC5.
In SC5, Ms Carmichael explains that she is a solicitor employed by Levitt Robinson Lawyers, who act for the Sherwood applicants. Ms Carmichael states in SC5 that there are 238 clients of Levitt Robinson who are involved in the Sherwood applicants’ class action proceedings. One of the central allegations in these proceedings is, to paraphrase it, that the Commonwealth Bank of Australia (CBA) was directly involved, or knowingly concerned, in a contravention of the Corporations Act 2001 (Cth) (the Corporations Act) by a company called Storm Financial Limited (Storm). The alleged contravention is that Storm operated a managed investment scheme (the Storm Scheme) by itself, or with the CBA, without registering that Scheme under the Corporations Act. The Sherwood applicants have claimed compensation under s 1325 of the Corporations Act for the moneys they lost by investing in the Storm Scheme. The Sherwood applicants have also claimed damages for other alleged unlawful conduct of the CBA, including breach of contract, misleading or deceptive conduct, and unconscionable conduct.
The facts of these proceedings are complex. For present purposes, however, it will suffice to state that to invest in the Storm Scheme, the Sherwood applicants borrowed moneys by way of margin loans from the CBA. To borrow those moneys, they completed various documents which they submitted to Storm and to the CBA.
Ms Carmichael’s evidence in SC5 describes an exercise she conducted in relation to some of those documents, specifically a confidential financial profile form and a statement of advice form. The description of that exercise, as contained in SC5, proceeds as follows.
To begin with, Ms Carmichael annexed to SC5 a list of the 238 Sherwood class action clients (Sherwood clients). Next, she chose 23 persons from those 238 Sherwood clients. Ms Carmichael states that she did that by selecting every tenth person appearing on the list of Sherwood clients.
Ms Carmichael then examined the confidential financial profile and statement of advice for those 23 Sherwood clients and found that only 13 had supplied to Storm one or both of a confidential financial profile and a statement of advice. Apparently because Ms Carmichael wanted to use a sample of 23 Sherwood clients, she returned to the list of 238 Sherwood class action clients and selected the next person on the list for the 10 excluded Sherwood clients (that is, the eleventh, if the tenth was excluded, or the twenty-first if the twentieth was excluded, and so on, as the case may be).
Of those extra 10 Sherwood clients, Ms Carmichael found three had provided one or both of a confidential financial profile and a statement of advice, which meant she had a total of 16 Sherwood clients who had provided one or both of a confidential financial profile and a statement of advice.
Finally, Ms Carmichael prepared a schedule, SC4, which shows the details of those 16 Sherwood clients. SC4, in turn, shows that, of those 16 Sherwood clients:
·five had both a confidential financial profile and a statement of advice;
·two had only a confidential financial profile; and
·the remaining nine had only a statement of advice.
Ms Carmichael then copied and annexed to SC5 the entire confidential financial profile for the seven Sherwood clients who had a confidential financial profile and an extract of the statement of advice for the 14 Sherwood clients who had a statement of advice. There is an overlap of five, reducing the total to 16 Sherwood clients, as mentioned above. Ms Carmichael said she only copied an extract of the latter documents because they were “… generally very lengthy documents, exceeding 100 pages.”
It follows that SC4 contains the confidential financial profile and/or the statement of advice for the 16 Sherwood clients.
Mr Atkinson, for the Sherwood applicants, submitted that the fact said to be proved by SC5 is that the services the Sherwood clients acquired from Storm were “of a kind ordinarily acquired for personal, domestic, or household use.” This prerequisite is set out in the definition of “consumer” in s 12BC of the Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act) and the corresponding s 4B of the Trade Practices Act 1974 (Cth) (the TPA).
Mr Atkinson submitted that the question of whether services are “ordinarily acquired for such use” equates to whether they are “commonly” or “regularly” so acquired. In support of this proposition, Mr Atkinson relied upon Young J’s decision in Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682 (Bunnings) at [81]. Mr Atkinson also submitted that the question was ultimately one of fact and degree, relying again on Bunnings at [87] and [89]. In addition to Bunnings, Mr Atkinson referred to a decision of Lehane J in Peter Crago v Multiquip Pty Ltd [1997] FCA 913 to the effect that services can be of a kind ordinarily acquired for personal, domestic, or household use “… even if services of the same kind are in many cases, perhaps even the majority of cases, acquired for business use.”
Mr Atkinson submitted that the Sherwood applicants “… seek to rely upon a number of Group Members to support their contention that margin lending is a service that is ordinarily acquired for personal, domestic or household use.”
Finally, to counter the submissions made against him by Mr Finch SC, for the CBA, Mr Atkinson submitted that the Sherwood applicants “… do not seek to show that this number is indicative of the entire group.” He submitted “It is enough to lend support to the Applicants’ argument that the services were of the relevant kind, and that some people used the services for that purpose.” By “it”, I presume Mr Atkinson was referring to the 16 Sherwood clients in SC4, mentioned at [10] above.
As I indicated at the outset, it is not necessary to deal with Mr Finch’s submissions about delay or prejudice because I have reached the firm conclusion that SC5 is not relevant to any fact in issue in these proceedings.
Before turning to SC5 itself, it should be noted that it is common ground that the documents in SC4, and the same documents relating to the other 222 clients on the Sherwood class action clients list, are business records. Whether these documents will eventually be put forward for tender as business records by the Sherwood applicants remains to be seen. In this regard, it should be noted that despite the fact that the trial was due to commence on 10 September, now postponed to 17 September, the exchange of documents for tender at the trial is not yet complete by arrangement between the parties.
This necessarily means that, despite the rejection of SC5 as irrelevant, the documents in SC4 and the other documents I mentioned before, if relevant to a fact in issue, may well end up in evidence in these proceedings. However, that does not make SC5 itself relevant.
It is appropriate to begin the consideration of SC5 by noting that it does not contain any evidence about the purpose of the exercise Ms Carmichael conducted, as described in that affidavit. For example, Ms Carmichael does not say in SC5 why it was that the 23, or 33, Sherwood clients were selected, nor why it was considered necessary to have either a confidential financial profile, or statement of advice, or both for those clients who are listed in SC4. Significantly, SC5 does not state what the copies of the confidential financial profile and statement of advice forms for the 16 Sherwood clients listed in annexure SC4 demonstrate.
As an aside, it is somewhat curious to note that in her affidavit filed 31 August 2012, which annexes SC5, Ms Carmichael does give evidence that the SC4 documents comprise “a representative sample of group members/investors”, ie, of the Sherwood clients. However, no such evidence is given in SC5 itself. Nonetheless, it is clear from Mr Atkinson’s submissions that the contents of SC4 have not been put forward as an indicative or a representative sample of the whole of the Sherwood clients’ documents. Instead, Mr Atkinson made it equally clear that SC5 and its annexure, SC4, are put forward to establish that the services acquired by the 16 Sherwood clients listed in SC4 were services acquired for “personal, domestic, or household use” within the definition of “consumer” in s 12BC of the ASIC Act and s 4B of the TPA.
As I alluded to above (at [21]), the difficulty with that submission is that no attempt has been made in SC5 to explain what the documents in SC4 show about that issue or any other issue for that matter. That could, for example, have been done by the Sherwood applicants seeking to rely upon a summary of the contents of the documents for the 16 Sherwood clients in SC4, in accordance with s 50 of the Evidence Act 1995 (Cth), but that has not occurred.
In the absence of any such evidence, both SC5 and its critical annexure, SC4, do not go to any relevant issue in these proceedings.
For these reasons, I dismiss the Sherwood applicants’ application filed 31 August 2012 and order that the applicants pay the first and second respondents’ costs of and incidental to that application.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 18 September 2012
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