Alexiou v Australia and New Zealand Banking Group Limited

DISPUTED AMENDMENTS TO s192, 192A-192C, 196A, 207A, 216(b) 3 The reasons are infelicitously expressed inasmuch as they suggest that it was only the amendments relating to Mr Alexiou for which there was no relevant delay. However, some of the amendments are based on an admission contained in a letter from the Bank's solicitors to Mr Alexiou's solicitors dated 2 October 2024 and others are based on evidence served by the Bank during the course of 2024. In the case of each of these amendments, there was no relevant delay and leave will be granted. The amendments to s192 and 192A-192C are each of this character. 4 s196A is also of this character. It is true that the final particular has been available to Mr Alexiou since the article to which it refers was published on 4 October 2019 but it only became relevant once the email exchange disclosed by Mr Pucci in his affidavit of 16 November 2023 became known. Hence, it will be permitted. 5 s207A is based on s196A. Since s196 is to be permitted so too will be s207A. 6 s216(b) rests on the admission contained in the Bank's solicitors' letter of 2 October 2024 and will be permitted.

DISPUTED AMENDMENTS TO ss218A TO 218U 7 However, I will not permit the amendments to ss218A to 218U. All of these matters were clearly known to Mr Alexiou, or ought to have been known to Mr Alexiou, long before Mr Price came on the record. I will turn to the allegations concerning Mr Shapiro in a moment, but these allegations are not to be given a second life by a sidewind.

THE DISPUTED AMENDMENTS CONCERNING MR SHAPIRO: ss220A-220B, ss228G-228I, ss228R-228S 8 In relation to the allegations concerning Mr Shapiro the January 2025 Judgment said this at [23], [64]-[65]: 23 Seventhly, Mr Alexiou alleges that on 4 January 2015 the Bank provided a comment to members of the media which did not include any qualification of the earlier press release imputations to the effect that Mr Alexiou was not a target of ASIC's investigation. He says that in consequence two further articles appeared in the press which explicitly identified him as one of the seven stood down traders. Mr Alexiou then repeats his earlier contention that the Bank did nothing to dispel the misconceptions to which Mr Alexiou says its conduct gave rise. As such, the 4 January 2015 media comment is in part an aspect of his Vindication Inaction allegations although it does not depend entirely upon it. Significantly, as discussed further below, the fact that the two articles may have resulted from a comment made by the Bank to a journalist, Mr Shapiro, did not become certainly known to Mr Alexiou until September 2024 following the issue of subpoenas to Mr Shapiro and his employer, Nine Entertainment, and the production of some correspondence. … 64 The exception is Mr Alexiou's allegations concerning the comment made by the Bank to Mr Shapiro which he seeks to allege led to the articles in the Australian Financial Review and Sydney Morning Herald on 5 and 6 January 2015. It is apparent from s228G of the proposed draft pleading that Mr Alexiou alleges that the Bank made a comment to the media and at s228I that it intended and expected that its comment would convey, inter alia, that he was one of the stood down traders. s228G provides as a particular for the allegation that the comment was made in an email dated 4 January 2015 sent by Mr Stephen Ries (who was the Head of Media Relations at the Bank) to a journalist with the Australian Financial Review, Mr Shapiro. Mr Price's evidence was that he obtained this email on 3 September 2024 when Nine produced it under subpoena. 65 In that circumstance, I do not think that there has been any relevant delay insofar as this allegation is concerned. It is true, as the Bank submitted, that Mr Shapiro's article was included in Mr Alexiou's affidavit of December 2022. But that was not for the purpose of demonstrating, and it did not demonstrate, that allegations now proposed in s228G and s228H. 9 There is now no dispute that s228G should be permitted. But there is a dispute about ss220A-220B, s228H particulars (c) and (d), s228I and ss228R-228S. Each of these utilises a cross reference to the Press Release Imputations. Those are pleaded at s218A but, as I have said, I will not permit Mr Alexiou to raise a case based on s218A. It follows that I will not permit that case to be ventilated through a sidewind in these paragraphs. As framed, these amendments will not be allowed.

DISPUTED AMENDMENTS TO s228X AND 228Y(j)-(m) 10 Although s228X cross-references the whole of the pleading from s157 to s228V and hence also some of those paragraphs whose amendment I will not permit, once those amendments are rejected I do not see that this paragraph is otherwise objectionable. I likewise perceive no problem with ss228Y(j)-(m).

DISPUTED AMENDMENTS TO s244A-244B 11 The particulars to s244A cross reference s219A and s228X. There is no s219A but s228X is to be permitted. Subject to deleting the reference to s219A, I see no reason this amendment cannot be made. Since s244B is cognate with s244A it too should be permitted.

ORDERS 12 The parties should prepare orders in the form proposed by Mr Alexiou but so as to give effect to these reasons. They should also include an order that there should be no order as to costs in relation to the present application (heard on Monday 17 February 2025). I think it would be as well to have a case management hearing on Wednesday 19 March 2025 at 9.30 am to see what problems have by then developed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.