Alexiou v Australia and New Zealand Banking Group Limited

Alexiou v Australia and New Zealand Banking Group Limited - [2025] FCA 7 - FCA 2025 case summary — Zoe

[3]

The Current Case

The case arises out of the manipulation of the Bank Bill Swap Rate ('BBSW') by traders employed by the Bank. The manipulation occurred as far back as 2011. Parts of the Bank were involved in the buying and selling of bank bills and those activities could affect the BBSW. However, the Bank was also party to instruments whose rates were set by reference to the BBSW. By manipulating the former activity, some of its traders were able to enhance the position of the Bank in relation to the latter.
Across the period of 2011 to 2014, a division known as the Mismatch Trading desk was directly involved in the manipulation of the BBSW as were other parts of the Bank's Global Markets Division and the Group Treasury Division.
The Australian Securities and Investments Commission ('ASIC') began an investigation in July 2012 into the Bank's misconduct. It eventually commenced a proceeding in this Court against the Bank and the National Australia Bank. The Bank submitted to an agreed penalty of $10 million, agreed to pay $20 million into a fund to be applied for the benefit of the community, agreed to pay another $20 million to ASIC on account of the costs of ASIC's investigation, the proceeding, and the fund, and proffered an enforceable undertaking not to engage in the conduct again. These various impositions were accepted by Jagot J on 10 November 2017: Australian Securities and Investments Commission v Australian and New Zealand Banking Group Ltd [2017] FCA 1338; 14 BFRA 1 at [2], [90], [106], [110]. A detailed explanation of the BBSW manipulation by the Bank appears at [48]-[90] of her Honour's reasons.
Between June 2011 and September 2015 Mr Alexiou occupied a number of senior roles with the Bank: Head of Mismatch Trading (from June 2011), the Head of Balance Sheet Trading Australia (from December 2012), the Head of Balance Sheet Trading Australia and New Zealand (from March 2013) and the Global Head of Balance Sheet Trading (from December 2013).
Loosely speaking for now, Mr Alexiou alleges that on six occasions between October 2011 and December 2014 he warned various officers of the Bank that its traders had been manipulating the BBSW. The relevant dates are 4 October 2011, an unspecified date in February 2013, 17 July 2014, 18 July 2014, October 2014 and December 2014. Mr Alexiou also says that he told ASIC of his concerns on 15 August 2014 and 22 December 2014.
Mr Alexiou alleges that the Bank took various actions against him between 19 November 2014 and 3 September 2015 because of the warnings he had given the Bank and ASIC. The actions were as follows. First, he was stood down on 19 November 2014 on full pay whilst ASIC's and the Bank's investigations into the BBSW market were completed. Secondly, the Bank issued a press release the same day announcing that it was investigating the BBSW market, was co-operating with ASIC in doing so and had stood down seven of its traders whilst these investigations took place. Thirdly, on 25 June 2015, the Bank advised Mr Alexiou that it had instituted a disciplinary investigation into allegations that he had misused his work email account and the Bloomberg messaging platform. Fourthly, on 1 September 2015, the Bank notified Mr Alexiou of the termination of his employment on the grounds that he had misused his work email account and the Bloomberg messaging platform. Fifthly, on 3 September 2015 the Bank determined not to pay the deferred components of Mr Alexiou's 2012 and 2013 performance bonuses and withheld $5 million which had been provisionally awarded to him for 2014.
Mr Alexiou alleges that the Bank's decisions to stand him down and issue the press release (on 19 November 2014) were taken because of some of the disclosures he had by that time made to the Bank and ASIC. He says that these decisions were intended to cause him detriment by making him a scapegoat for ASIC's investigation, to discourage Mr Alexiou from testifying for ASIC and, in the event that he did, pre-emptively to damage his reputation and to discredit him as a witness.
Mr Alexiou says that the decisions to terminate his employment and not to pay him any of his bonuses were taken in response to all the disclosures he had made to the Bank and ASIC.
Mr Alexiou then alleges that these events give rise to causes of actions arising from contraventions of the whistleblower provisions in the Corporations Act 2001 (Cth) ('the Corporations Act') and the Banking Act 1959 (Cth) ('the Banking Act'). He also alleges that the Bank took 'adverse action' against him within the meaning of s 340 of the Fair Work Act 2009 (Cth) ('the Fair Work Act'). He claims substantial damages for the forfeited bonuses, the loss of the chance to invest those bonuses, the loss of the chance to earn new bonuses, harm to his reputation and harm to his standing in the employment market.
Significantly for Mr Alexiou's amendment application, it should be noted that his currently pleaded case does not rely upon any of following matters:
the Bank's announcement to the Australian Stock Exchange ('the ASX') on 19 November 2014 which was in the same terms as its press release;
the Vindication Inaction allegations of the proposed pleading, being allegations that the Bank failed to correct various impressions engendered by its actions, including that Mr Alexiou was one of the stood down traders and was suspected by ASIC of having been involved in the misconduct;
any comment made to the media by the Bank on 4 January 2015 and the news articles which resulted from that comment;
the enforceable undertaking given to this Court by the Bank which also referred to the seven stood down traders;
Mr Alexiou's prior proceeding against the Bank and the related alleged provision to journalists by the Bank of Mr Alexiou's emails and Bloomberg messages in the form of its draft defence in that proceeding;
the Chairman's address on 19 December 2017 which also referred to the stood down traders and ASIC's investigation; and
an allegation that the disciplinary inquiry into Mr Alexiou for the ostensible misuse of his work email account and the Bloomberg messaging platform was a pretence to disguise the Bank's true motive which was to make Mr Alexiou the scapegoat for the BBSW manipulation affair.
In its current defence, the Bank says that Mr Alexiou was stood down whilst the ASIC BBSW investigation was undertaken, that the disciplinary investigation was launched into him because of its concerns about his inappropriate use of his work email account and the Bloomberg messaging platform, that his employment was terminated because of that misuse and that it cancelled his bonuses for the same reason.
The matter is presently listed for a 6 week trial commencing on 15 September 2025.

[4]

The Proposed Amendments

Mr Alexiou now wishes to add fresh elements to this case. The allegations are complex and here I summarise only their broad gist. They are, first, an allegation that at the times it stood him down and then terminated his employment the Bank had not identified any evidence that he had been involved in the manipulation of the BBSW rate set window.
Secondly, that the Bank had now admitted in correspondence that: (a) it did not have sufficient information to enable it to deny his allegation that it knew that Mr Alexiou had not been involved in the market manipulation; (b) it had not identified any evidence that he had been involved in that manipulation; and (c) it permitted reference to be made to the fact that it had suspended seven employees in an enforceable undertaking it proffered in ASIC's proceeding in this Court and to similar facts in an address to the Bank's shareholders given by its then-Chairman, Mr Gonski AC, on 19 December 2017.
Thirdly, that the press release issued by the Bank on 19 November 2014 was accompanied by a direction to Mr Alexiou not to speak to the press and itself conveyed several imputations. The most significant of these are that the seven stood down traders were accused or suspected by ASIC of having been involved in the rate manipulation and that the Bank was satisfied that there was a proper basis for ASIC to have those suspicions.
Fourthly, in addition to the press release issued on 19 November 2014, Mr Alexiou now seeks to rely upon an announcement made to the ASX on the same day and in the same terms. It is alleged that the Bank knew that the ASX announcement would convey to its recipients that Mr Alexiou was one of the seven stood down traders but that it also knew that he had not engaged in the rate manipulation and was in fact a whistleblower and potential witness.
Fifthly, Mr Alexiou seeks to add an allegation that the Bank could have taken steps to prevent the damage to his reputation by, among other steps, publicly stating that ANZ had no evidence that Mr Alexiou had engaged in any of the conduct the subject of ASIC's investigation. By way of a placeholder for later discussion, it will be observed that this is an allegation that the Bank did not do something. In due course, this will give rise to an issue about who within the Bank may be said to have performed this omission. Here the concept is that, where something is said not to have been done, the range of individuals who might be nominated as non-doers of the thing not done may, in its nature, be quite open-ended. It is convenient to refer to this collection of allegations as the 'Vindication Inaction' allegations.
Through the present amendments, Mr Alexiou also seeks to buttress the particulars already provided in relation to the motives he ascribes to the Bank for taking the steps that it did (e.g. suspension, termination, loss of bonus) and to add to those steps the announcement to the ASX and the Chairman's address. In addition to widening the scope of actions to which the Bank's motives may be attributed, the amendments now also contain an allegation that the Bank wished to suggest that the misconduct was the work of a small group of employees (including Mr Alexiou) rather than any more senior employees of the Bank. Various related sub-motives are also alleged.
Sixthly, Mr Alexiou seeks to allege that the Bank knew that he would be identified as one of the seven stood down traders and that the imputations contained in its press release would be attributed to him. Mr Alexiou alleges that, despite this, the Bank took no steps to correct the picture it knew would be painted. This is also an aspect of the fifth set of amendments set out above, i.e., the Vindication Inaction allegations.
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.
Eighthly, Mr Alexiou alleges that the Bank's decision to conduct a disciplinary investigation into him because of his alleged misuse of his work email account and the Bloomberg messaging platform was but a pretence to justify his termination. He alleges that the Bank had previously investigated those allegations with no disciplinary action being taken.
Ninthly, Mr Alexiou alleges that the enforceable undertaking given by the Bank referred to the seven stood down traders and that, since he had been publicly identified as one of those traders, the undertaking conveyed that he was the subject of ASIC's BBSW investigation or its proceeding against the Bank.
Tenthly, Mr Alexiou relies on the Chairman's address on 19 December 2017 to allege that it conveyed that Mr Alexiou had been the subject of ASIC's BBSW investigation and thereby caused him detriment.
Eleventhly, Mr Alexiou relies on events surrounding an earlier version of the present proceeding brought by him against the Bank but ultimately discontinued. Mr Alexiou says that in November 2015 the Bank provided to certain journalists its draft defence to Mr Alexiou's allegations in that proceeding or informed them of its contents. This draft defence included some of the emails and Bloomberg messages upon which the Bank alleges it relied in terminating Mr Alexiou's employment.
The twelfth set of amendments work each of those factual matters into alleged contraventions of the whistleblower provisions of the Corporations Act and the Banking Act and various episodes of 'adverse action' in contravention of the Fair Work Act. They also include an allegation that the Bank understood that Mr Alexiou's disclosures to it were for the purposes of these whistleblower provisions. It is also alleged that by September 2014 the Bank had already been advised that there was a real prospect that ASIC would sue it for its manipulation of the BBSW rate.
To this point it will be observed that the proposed amendments add seven new factual topics absent from the current pleading. These are the same as the seven matters noted above as being absent from the current pleading and, at the risk of some repetition, are as follows:
the Bank's announcement to the ASX on 19 November 2014 which was in the same terms as its press release;
the Vindication Inaction allegations of the proposed pleading, being allegations that the Bank failed to correct various impressions engendered by its actions, including that Mr Alexiou was one of the stood down traders and was suspected by ASIC of having been involved in the misconduct;
any comment made to the media by the Bank on 4 January 2015 and the news articles which resulted from that comment;
the enforceable undertaking given to this Court by the Bank which also referred to the seven stood down traders;
Mr Alexiou's prior proceeding against the Bank and the related alleged provision to journalists by the Bank of Mr Alexiou's emails and Bloomberg messages in the form of its draft defence in that proceeding;
the Chairman's address on 19 December 2017 which also referred to the stood down traders and ASIC's investigation; and
an allegation that the disciplinary inquiry into Mr Alexiou for the ostensible misuse of his work email account and the Bloomberg messaging platform was a pretence to disguise the Bank's true motive which was to make Mr Alexiou the scapegoat for the BBSW manipulation affair.
One amendment which is not opposed by the Bank is Mr Alexiou's new claim for aggravated damages in his Amended Originating Application. It will be observed that by expanding the range of misconduct Mr Alexiou seeks to allege against the Bank, that claim for aggravated damages is potentially increased in ambit.

[7]

Injury to Mr Alexiou in his employment and alteration to his position to his prejudice

For this argument, the relevant paragraph of the amendments is s327A: The Applicant repeats paragraphs [216A] to [220B] and [228A] to [228Y] and says that: (a) the Media Release; (b) the ASX Announcement; (c) the ANZ Media Comment; and or (d) the ANZ Vindication Inaction, constituted adverse action contrary to the protections under s 342 Item 1 (b) and (c) of the Fair Work Act. Particulars ANZ injured the Applicant in his employment, and altered the position of the Applicant to his prejudice, by engaging in the conduct of the Media Release, the ASX Announcement, the ANZ Media Comment and or the ANZ Vindication Inaction, in circumstances where that conduct damaged the Applicant's employment prospects at ANZ, or alternatively caused the Applicant's future employment prospects to become untenable or substantially less secure. ANZ injured the Applicant in his employment, and altered the position of the Applicant to his prejudice, by damaging the Applicant's reputation. Further, ANZ altered the position of the Applicant to his prejudice in that the conduct damaged the Applicant's prospects as a prospective employee in the Australian financial industry. ANZ injured the Applicant in his employment in that it caused the Applicant significant emotional and psychological distress.
Item 1(b) of s 342 of the Fair Work Act provides that adverse action is taken by an employer against an employee if the employer 'injures the employee in his or her employment'. Similarly, Item 1(c) of s 342 of the Fair Work Act provides that adverse action is taken by an employer against an employee if the employer 'alters the position of the employee to the employee's prejudice'.
The Bank's submission was that the injury pleaded by Mr Alexiou was too generic. On this view, Mr Alexiou was required to plead the deprivation of one or more immediate practical incidents of employment such as the loss or alteration of some legal right, some actual adverse effect in the employee's capacity as an employee or some prejudice beyond legal injury: Taylor v Department of Health [2020] FCA 1364 at [18] per Flick J.
Whether the particularised injuries satisfy this statement is a triable issue which will depend on a fuller understanding of the nature of the employment relationship between the Bank and Mr Alexiou. I do not see this as a pleading point and I reject it.
I also reject the Bank's allied submission that the pleading failed to allege that the Bank had engendered in Mr Alexiou any expectation of re-employment the disappointment of which could be seen as adverse action against him. The submission is a long way from the text of Items 1(b) and 1(c) of s 342. The Bank's reliance upon Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910; 126 IR 165 at [71] per North J is likewise misplaced. In that case, an expectation of re-employment had been engendered by the employer and the disappointment of that expectation was held to be an alteration to the position of the employees to their prejudice within the meaning of s 298K(1) of the former Industrial Relations Act 1996 (Cth). But it does not follow, and the case does not hold, that the engenderment of such an expectation is a precondition of s 298K(1) applying, much less of pleading 'adverse action' under the Fair Work Act.
The Bank then submitted that the alleged alterations to Mr Alexiou's employment prospects after each of the instances of the Bank's conduct were possibilities or hypotheses rather than being real or substantial consequences citing Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63; 202 FCR 244 at [30]-[32] per Gray, North and Besanko JJ. Whether the allegations represent a real and substantial alteration to Mr Alexiou's position or just a possibility will depend on what the evidence shows. It cannot be determined as a pleading point.

[8]

Irrelevance of motive allegations

Mr Alexiou seeks to rely upon five new particulars of the Bank's motives subscribed to s220 (and repeated at various paragraphs of the amended pleading). Paragraph s220 alleges that the various acts Mr Alexiou says the Bank took against him (standing down, issuing the press release and so forth) were conduct in breach of s 1317AC of the Corporations Act and s 52C of the Banking Act or were adverse action under s 342 of the Fair Work Act. Each provision has a mental element which is that the conduct or action should have been taken 'because' Mr Alexiou made the complaints and disclosures.
The five new motives are as follows: (h) to convey to ASIC that any wrongdoing was the unauthorised conduct of a limited number of employees, including but not limited to the Applicant and to encourage ASIC to investigate and or commence proceedings against the Applicant or the other of the Seven Stood Down Traders, rather than any more senior ANZ employees, or ANZ itself, where ANZ anticipated from September 2014 that proceedings were likely to be commenced by ASIC against either ANZ employees, or former employees of ANZ or both; (i) to dissuade and discourage any employees of ANZ from assisting ASIC in the ASIC BBSW Investigation; (j) to further ANZ's strategy to deny any wrongdoing or attempted wrongdoing the subject of the ASIC BBSW Investigation; (k) to characterise any attempted wrongdoing or attempted wrongdoing the subject of the ASIC BBSW Investigation as the unauthorised conduct of individual employees within the Global Markets Division of ANZ for which senior management and directors of the ANZ could not be held personally responsible; and or (h)(l) to represent to ASIC, ANZ's shareholders and the public that senior management and directors of ANZ had dealt with and disposed of the employees who were responsible for any contravening conduct or attempted contravening conduct the subject of the ASIC BBSW Investigation.
The Bank submits that these motives do not satisfy the required mental element and are therefore irrelevant. Mr Alexiou does in fact plead that the conduct and action was taken for the statutorily proscribed reason at s220(a)-(d). The question is therefore whether the additional motives he now seeks to ascribe to the Bank would be liable to be struck out.
I do not accept that they would be for two reasons. First, it is apparent that Mr Alexiou seeks to demonstrate not only that the Bank did what it did because of Mr Alexiou's complaints and disclosures but that, alongside that motive, it had other improper motives. However, these motives cannot be, as the Bank submits, neatly quarantined from each other. For example, the punishment of Mr Alexiou for making his complaints and disclosures cannot be disaggregated from the Bank's alleged motive of seeking to discourage its employees from assisting ASIC in its BBSW investigation.
Secondly, Mr Alexiou now claims aggravated damages and it requires little imagination to see that these fresh allegations inevitably bear upon the question of aggravation. For example, if the Bank dismissed Mr Alexiou because he made the complaints and disclosures then this is certainly aggravated if it did so with the added motives of making an example of him and/or to disguise wrongdoing at higher levels within the Bank.

[9]

Untenable imputations?

The Bank submits that some of the imputations that Mr Alexiou alleges were conveyed by the press release of 19 November 2014, the ASX announcement of the same date and the media comment of 4 January 2015 are strained and untenable, although it accepts that some are not. For example, Mr Alexiou argues that the press release conveys that the seven stood down traders were the targets or suspects of ASIC's investigation which the Bank denies. Omitting the contact information provided by the Bank in the press release, it says this: Media Release For Release: 19 November 2024 ANZ continuing to cooperate with ASIC review of interbank BBSW rate trading ANZ today confirmed that it is continuing to cooperate with an investigation by the Australian Securities and Investments Commission (ASIC) into historic trading practices in the Australian interbank market known as the Bank Bill Swap Rate (BBSW) market. Since mid-2012 ASIC has been undertaking inquiries of 14 BBSW panel bank members in relation to the integrity of their past involvement in the BBSW submission process. In addition, ANZ has been undertaking its own internal review covering a period ending in 2013. ANZ Chief Risk Officer Nigel Williams said: "We have been treating this matter very seriously and we are continuing to cooperate fully with ASIC. This is a complex issue and ASIC's investigation and ANZ's internal review may not be complete for some time. "In light of this, we are taking the precaution of having seven staff involved in markets trading step down pending completion of the investigation into practices to 2013," Mr Williams said. Mr Williams added: "Appropriate conduct is an overriding priority in everything we do at ANZ. We have worked hard to have the right risk culture including ongoing culture and compliance programs in our markets-facing businesses." ASIC's inquiries in relation to BBSW trading are ongoing and the range of potential outcomes from these inquiries include civil and criminal penalties and other actions under the relevant legislation. At this stage it is not appropriate for ANZ to comment further pending the completion of the investigation.
The press release does not literally say that the seven traders were stood down because they were targets or suspects in ASIC's investigation. On the other hand, the ordinary reader is unlikely to think that the seven traders were unrelated to the investigation or selected because of the colour of their hair. The question of precisely what this press release conveys will require an exposition of the context in which it was made. This may involve identifying its putative audience or audiences and assaying what they may have taken from the press release. It may also be - I do not say at this stage that it must be - that the Bank's intentions in issuing the press release bear upon its meaning. The point for present purposes is that the Bank's invitation to determine what the press release means divorced from its context is not one which ought to be accepted in a pleading debate. In short, what the press release means is an issue for trial.
The same may be said of the Bank's submissions in relation to the Chairman's address and the enforceable undertaking. Specifically, any characterisation of Mr Alexiou resulting from the Chairman's address and enforceable undertaking will be informed by the context surrounding each of these statements. These too are issues for trial.

[12]

The nature and importance of the amendments to Mr Alexiou

I have explained the current case and the proposed amendments to it above. The amendments do not open up an entirely new front in this litigation. Rather, they are either refinements of existing allegations or a fleshing out of those allegations. In saying that, as I have explained above, they do introduce the following new factual matters:
the Bank's announcement to the ASX on 19 November 2014 which was in the same terms as its press release;
the Vindication Inaction allegations of the proposed pleading, being allegations that the Bank failed to correct various impressions engendered by its actions, including that Mr Alexiou was one of the stood down traders and was suspected by ASIC of having been involved in the misconduct;
any comment made to the media by the Bank on 4 January 2015 and the news articles which resulted from that comment;
the enforceable undertaking given to this Court by the Bank which also referred to the seven stood down traders;
Mr Alexiou's prior proceeding against the Bank and the related alleged provision to journalists by the Bank of Mr Alexiou's emails and Bloomberg messages in the form of its draft defence in that proceeding;
the Chairman's address on 19 December 2017 which also referred to the stood down traders and ASIC's investigation; and
an allegation that the disciplinary inquiry into Mr Alexiou for the ostensible misuse of his work email account and the Bloomberg messaging platform was a pretence to disguise the Bank's true motive which was to make Mr Alexiou the scapegoat for the BBSW manipulation affair.
The amendments at (1) and (3)-(7) above raise narrow factual matters although I accept that they complicate the case from the Bank's perspective. I deal with that matter when I come to consider the prejudice likely to be suffered by the Bank if the amendments are permitted. In a sense, the factual compass of (2) is also narrow since it is not in dispute that the Bank did not vindicate Mr Alexiou in the way he says it should have. However, it conceals perhaps much work for the Bank in identifying whether there was any decision not to vindicate Mr Alexiou in this manner and, if there was, who took it, when and for what reasons. In saying that I have in mind particularly the reversed onus of proof which rests upon the Bank under s 361 of the Fair Work Act.
I have also explained above that the amendments in the relevant sense have reasonable prospects and are neither futile nor liable to be struck out. However, my impression is also that they are of substance in the sense that they add to Mr Alexiou's case in a meaningful way and are not just old wine in new bottles. Part of the reason for this relates to Mr Alexiou's aggravated damages claim which travels with the allegations and which is unopposed on the present application. If the allegations are made good there is some likelihood that this will augment the quantum of the aggravated damages claim.
I would therefore characterise the proposed amendments as non-trivial. If Mr Alexiou is not permitted to raise the amendments his case may be materially diminished.

[13]

The prejudice that might be assumed to follow from the amendments and that which is shown

The Bank's solicitor, Mr Tamvakologos, estimates that it will take at least three to four months for it to respond in evidence to the fresh allegations. There was a substantial debate at the hearing and in subsequent submissions about just how many additional witnesses might need to be called by the Bank. I do not propose to resolve that issue which is analogous to asking how long a piece of string is. It will suffice instead to say that I accept that the amendments will require the Bank to consult with the witnesses from whom it has already obtained statements and a potentially large number of past and present personnel. Without being precise about it, it is reasonable to accept that a great deal of work will need to be done by the Bank to meet the amendments. Leaving aside the Vindication Inaction allegations, I accept Mr Tamvakologos's evidence that gathering this evidence is likely to take three to four months.
Mr Tamvakologos also thought that it would take about two months to prepare the Bank's defence although this included a period for the Christmas shutdown. I am less concerned about the Bank's defence than I am about the Bank's evidence and I do not see that the two cannot proceed in parallel since they are intimately connected. If the amendments are permitted, then it seems to me that the most likely outcome is that the Bank will file its defence and its evidence by the end of May 2025. I foresee no particular problems with Mr Alexiou preparing any pleading and evidence in reply well in advance of the trial date of 15 September 2025.
Thus, although Mr Tamvakologos expressed a concern that the amendments posed a real risk to the trial dates my impression is that this risk is low.
On the other hand, I do not underestimate the amount of work that is going to need to be done by the Bank. Much of this work would not have been necessary had the amendments been pursued before the Bank began and completed the substantial task of preparing its evidence in chief. For example, some witnesses and personnel will have to be interviewed again and some may put on a second statement. Had the amendment application been pursued before the Bank completed its evidence this double handling would not have occurred. The wastage involved in this is therefore a result of the delay in the bringing of the amendment application. Whilst it is true that if the amendments are permitted then Mr Alexiou may be ordered to pay the costs occasioned by them, this is not a complete salve to this prejudice. For example, any costs order would not be a complete indemnity and there is the further difficulty that the passage of time gives rise to a risk that the recollection of witnesses in 2025 is not what it would have been had the application been brought at an earlier time.
Mr Tamvakologos also identifies a further prejudice. This is the likelihood that the amendments will result in the necessity for further discovery. In his submissions, Mr Alexiou indicated that he would not seek further discovery based only on the amendments. The Bank submitted that such an undertaking was unenforceable. It could, of course, be imposed as a condition on the grant of the amendments. However, I apprehend that the Bank's real point may have been the practical one which is that it might be impossible to discern from the face of any application for further discovery whether its origins lay in the fresh amendments or elsewhere. I think this concern could be addressed by requiring, on any application for further discovery, an affidavit from Mr Price explaining from where the idea of seeking the fresh discovery derived and confirming that it did not derive from the fresh amendments. I therefore do not give this consideration any weight.
I exempt from these conclusions the Vindication Inaction allegations. Because these are allegations that the Bank took adverse action against Mr Alexiou by not vindicating his reputation when it ought to have, this will devolve to an inquiry within the Bank about who should have taken these steps and when. Since the Bank will bear the burden of proof on this issue it will need to engage in a fairly wide internal examination of the entire course of its handling of Mr Alexiou's position. Mr Tamvakologos did not think that this could be done in four months, and I accept this evidence. Whilst I think the Bank can meet the rest of the amendments by the end of May 2025, I am not satisfied that it can do so by that date in the case of these allegations, and I am unable to form a view as to when it will be able to do so. Given that Mr Alexiou would then need to respond to the evidence, which may involve many witnesses, I think that permitting these amendments poses a significant risk to the trial date. If the trial were vacated a fresh hearing date would not be available until after March 2026.
My conclusions on prejudice therefore distinguish the Vindication Inaction amendments from all of the other amendments. In relation to the former, granting the amendments carries a significant risk of imperilling the trial dates. In relation to the latter, such a risk is, as I have explained, low. In both cases, I am satisfied that the Bank will suffer prejudice resulting from double handling, an incomplete costs indemnity, fading recollections and the ongoing stresses of litigation for the persons involved.

[14]

The extent of the delay and the explanation for it

With one exception, the proposed amendments rely upon facts which have been known, or ought to have been known, to Mr Alexiou a long time before the present application was made. The announcement to the ASX was made on 19 November 2014. Although Mr Alexiou now seeks to characterise the failure of the Bank to take steps to vindicate his reputation in the wake of the press release as the Vindication Inaction allegations, the fact is that this failure has been known to him since 2014. The address by the Bank's then-Chairman at its annual general meeting was given on 19 December 2017 and was and is a publicly available document. The enforceable undertaking given by the Bank was dated 20 November 2017 and is also a publicly available document. The distribution of the Bank's unfiled defence to the press in response to Mr Alexiou's previous proceeding also occurred before the discontinuance of that proceeding on 12 July 2016.
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.
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.
More generally, Mr Alexiou's case emphasised the absence of any delay since he changed his lawyers in October 2023. Mr Price was retained by Mr Alexiou on 16 October 2023. The Bank completed the filing of its testimonial evidence on 17 November 2023. Mr Price immediately set about reviewing this evidence which took him the balance of 2023 and into early 2024. He retained Junior Counsel on 10 April 2024 and Senior Counsel on 16 May 2024. A further junior counsel was retained on 27 September 2024. Since 8 April 2024, Mr Price has been seeking discovery from the Bank. The parties remain at loggerheads about a substantial number of categories of discovery. An extensive hearing before a Registrar took place on 4-5 December 2024 and a decision is expected early in 2025.
The discovery debate is connected to the timing of the amendment application. Mr Price explained that he conceived that amendments to the pleadings might be necessary whilst he was reviewing the Bank's testimonial evidence and whilst he was pursuing the owner of the Australian Financial Review and the Sydney Morning Herald to ascertain the source of Mr Shapiro's articles. However, at that time he thought it would be more practical to await the completion of the Bank's discovery. Although he did not say this, I would infer that by this he meant that it was possible that the Bank's discovery would itself give rise to the need for amendments and so considerations of practicality made it more sensible to pursue whatever amendments there were to be in a single application. However, as the Bank's discovery dragged on, Mr Price eventually decided that he would bring the present application.
I accept Mr Price's evidence about this. Mr Alexiou has provided a good explanation for why the amendments were not sought between 16 October 2023 when Mr Price was retained and 25 October 2024 when the amendment application was lodged with the Court. And, as I have explained, I am satisfied that the allegations concerning the articles by Mr Shapiro could not have been made until Mr Price issued the subpoenas to Nine Entertainment and Mr Shapiro in 2024.
However, Mr Price did not seek to explain why it was that Mr Alexiou had not pursued the amendment application prior to 16 October 2023 when his previous solicitors were on the record.
This led the Bank to submit that the Court should not accept the implicit suggestion that the Applicant's former legal team made forensic mistakes or failed to investigate potential claims. I do not accept that the submissions made on behalf of Mr Alexiou or the evidence of Mr Price give rise to such an implication. Rather, they are simply silent on the issue. This is understandable since there is no reason to think that Mr Price or the counsel he has retained have any direct knowledge of what the former lawyers did whilst retained beyond the fact that they did not pursue the present amendments.
There are a number of conceivable explanations for why the amendments were not pursued by the former lawyers. Without being exhaustive, these include:
the former lawyers considered the proposed amendments but regarded them as not worth pursuing;
the former lawyers were aware of the possibility of the proposed amendments, but Mr Alexiou would not put them in funds sufficiently to investigate and bring any amendment application;
the former lawyers were aware of the possibility of the proposed amendments but, for whatever reason, could not obtain instructions from Mr Alexiou to proceed with the amendment application; or
the former lawyers did not think of bringing the amendment application.
One person who could throw light on these matters is Mr Alexiou but there is no evidence from him about why the amendment application was not pursued before the time that Mr Price came on to the record. I am left in the position, therefore, that I do not know why Mr Alexiou did not bring this application many years ago.

[15]

The parties' choices in the litigation and the consequences of those choices

Mr Alexiou initially commenced a different proceeding in this Court on 16 November 2015. The general thrust of the allegations in that case is similar to the allegations now made in this proceeding. This earlier proceeding was discontinued on 12 July 2016. Mr Alexiou's proposed pleading states that did so because the proceeding was affecting his mental health and his family.
The current case was commenced in July 2020, four years later. In December 2020, the Bank succeeded in having certain parts of the claim under the Banking Act struck out: Alexiou v Australia and New Zealand Banking Group Ltd [2020] FCA 1777; 303 IR 35 at [24]. In December 2021, Mr Alexiou failed to obtain access to certain privileged file notes: Alexiou v Australia and New Zealand Banking Group Ltd (Notice to Produce) [2021] FCA 1538 at [9].
An Amended Statement of Claim was filed on 20 September 2021, a Redacted Further Amended Statement of Claim on 25 February 2022 and a Second Redacted Further Amended Statement of Claim on 13 July 2022. The current application relates to a proposed third further amended statement of claim. Including the pleadings which were filed, Mr Alexiou has along the way provided the Bank with 11 different iterations of his pleading. Eminent counsel have been involved in the drafting of these pleadings.
The evidence in this proceeding is as follows:
Mr Alexiou's evidence in chief was completed by December 2022 and comprises statements from four lay witnesses including Mr Alexiou and three expert reports.
The Bank's evidence in chief was substantially completed on 17 November 2023. It consists of statements from 23 lay witnesses and one expert report.
Mr Alexiou's lay evidence in reply was completed by May 2024.
The progress of the case has been slow and it is now in its fifth year. There has been timetable slippage on both sides. The seeking of discovery appears only to have begun in earnest last year. The Bank submitted that Mr Alexiou's pursuit of the matter had been lackadaisical. I would accept that the proceeding could have been pursued more vigorously.
On the other hand, whilst the pleading has been amended many times, I do not know why the proposed amendments were not included at an earlier time (apart from those relating to Mr Shapiro and Nine Entertainment). I do not know whether this was a choice which was made or whether it was overlooked or whether there is some other explanation.

[19]

Should the amendments be allowed?

I am satisfied that:
The amendments raise non-trivial issues and will likely impact on the quantum of any award of aggravated damages.
Apart from those relating to Mr Shapiro, the amendments could have been pursued at any time since the proceeding was commenced including as part of the 11 different iterations of the pleadings which Mr Alexiou's advisors have articulated across that period.
In the case of the amendments relating to Mr Shapiro, there has been no relevant delay.
The Bank will suffer prejudice if the amendments are allowed in the form of double handling, fading recollections, an incomplete costs indemnity and the continuing stresses of litigation.
There is no explanation at all for why the amendments were not pursued before October 2023. On the other hand, I am satisfied that the delay between October 2023 and the bringing of the amendment application has been explained and the explanation is adequate.
Mr Alexiou's choices in this litigation include commencing a case in 2016, discontinuing it, commencing a fresh case in 2020 and then amending it four times whilst issuing 11 iterations of his pleading. I know nothing at all of why he chose not to include these amendments before Mr Price came on the record or even if Mr Alexiou did make such a choice.
The granting of the amendments will not result in prejudice to other litigants in my docket.
The granting of the amendments will not impact on public confidence in the legal system.
Whether the amendments should be granted involves an assessment of what the interests of justice require. Factor (1) strongly favours the granting of the amendments for cases should generally be heard on their real issues. Factors (7) and (8) are neutral. Factors (2), (4), (5) and (6) are against the granting of the amendments. Factor (3) stands somewhat on its own.
Weighing the factors which strongly favour the amendments against those which do not (here, weighing (1) against (2), (4), (5) and (6) above) would be a difficult exercise even in ordinary circumstances. However, the absence of any explanation for why Mr Alexiou comes to be making this application, years after it could have been first pursued, makes it impossible to determine what the interests of justice require in that balancing exercise. For example, if Mr Alexiou's explanation had been that his previous lawyers were hopeless and that they did not think of the amendments then this might justify permitting the amendments. In that case, the misfortune of Mr Alexiou might provide a sufficient justification for exposing the Bank to the prejudices I have outlined.
On the other hand, if the explanation was that Mr Alexiou refused to put the former lawyers in funds so that the amendments could be pursued, or otherwise directed his lawyers not to pursue the amendments, then the interests of justice might suggest that the Bank ought not to suffer for the consequences of Mr Alexiou's own decisions.
The absence of any explanation for the delay prior to Mr Price coming on to the record means that I cannot perform the balancing exercising which is called for. Of this precise situation the Full Court said in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199 at [208]-[214]: 208 The effect of the amendments, if allowed, will be that the case will go over to 2017. That will be nearly a decade after the events in question. Recollections will be frayed and the lucid ability to give sensible instructions degraded. Further, the continuation of the litigation, with its personal allegations, exposes the individual respondents to ongoing strain. 209 The question is whether Tamaya should be permitted to raise an admittedly substantive case which will cause prejudice of that kind. An indispensable element in weighing those countervailing factors is knowing how it is that Tamaya came to find itself making such an amendment application in July 2015. 210 Part of the answer to that question is known. Between March and July 2015 no amendment application was pursued because of an unreasonably held view that it was not necessary. 211 But the balance of the question remains unanswered. … 214 … Before this Court can visit upon the respondents the prejudice which we have outlined above it needs to know why this change of position occurred. We do not know why because it has not been explained. Without that explanation, the balancing process called for by an assessment of the interests of justice cannot be undertaken.
The same is true here. Mr Alexiou should not be granted leave to amend his pleading to the extent that the amendments were opposed by the Bank save in relation to the allegations concerning Mr Shapiro in respect of which there has been no relevant delay.
Since many amendments are not opposed, the parties should bring in a minute of order dealing with the agreed amendments and the amendments relating to Mr Shapiro, and otherwise dismissing Mr Alexiou's amendment application. Mr Alexiou should bear 70% of the Bank's costs of the amendment application. This is on the basis that only one of the contested amendments has been allowed but taking into account that the Bank failed on all of its pleading points. These were, with respect, well-below the plimsoll line of hopelessness on an amendment application. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

[20]

Annexure A Document Date Court Book Page(s) Party Evidence referred to in Written Submissions Exhibit TRP5 - Article published on afr.com.au on 5 January 2015 entitled 'ANZ traders sidelined during ASIC investigation' (referred to at [38] of Applicant's Submissions in Support of Amendment Application) 5/1/2015 CB 1350-1353 Applicant Exhibit TRP5 - Email from Jonathan Shapiro to Stephen Ries sent 28 November 2014 at 2:48pm (referred to at [36] of Applicant's Submissions in Support of Amendment Application) 28/11/2014 CB 1456 Applicant Exhibit TRP5 - Email from Jonathan Shapiro to Paul Edwards sent 28 November 2014 at 3:29pm (referred to at [36] of Applicant's Submissions in Support of Amendment Application) 28/11/2014 CB 1457 Applicant Exhibit MT15 - Letter from Seyfarth Shaw to YPOL (referred to at [2] of ANZ's written submissions) 25/10/2024 CB 2211-2212 Respondent Exhibit MT15 - Email from YPOL to Seyfarth Shaw serving proposed AOA and 3FASOC (referred to at [13] of ANZ's written submissions) CB 2207-2210 Respondent Exhibit MT15 - ANZ statement dated 14 January 2016 (referred to at [42] of ANZ's written submissions) 14/01/2016 CB 2214 Respondent Exhibit TRP5 - Articles published in around January 2015 (referred to at [46] of ANZ's written submissions) 01/01/2015 CB 1350-1356 Respondent Evidence referred to in written Submissions on Applicant's List of Relevant ANZ Persons Exhibit TRP5 - Email from Bob Santamaria to Global Markets 25/07/2014 CB 643-646 Applicant Exhibit TRP5 - Email from Bob Santamaria to Paul Edwards and Stephen Ries 24/06/2015 CB 660 Applicant Exhibit TRP5 - Email from Bob Santamaria to Paul Edwards and Stephen Ries 25/06/2015 CB 659 Applicant Exhibit TRP5 - Press Release 19/11/2014 CB 1324 Applicant Exhibit MT15 - Statement of Nigel Williams to the Australian Financial Review 14/01/2016 CB 2214 Applicant Exhibit TRP5 - Affidavit of Mr Santamaria [7] 17/11/2023 CB 636 Applicant Exhibit TRP5 - Letter from Mr Santamaria to the Applicant 5/12/2014 CB 648 Applicant Exhibit TRP5 - Project Arrow File note 5/12/2014 CB 651 Applicant Exhibit TRP5 - Applicant's Affidavit in Chief [37] 21/12/2022 CB 467 Applicant Exhibit TRP5 - Email from Steve Bellotti to Global Markets - All Staff 12/06/2014 CB 1460-1462 Applicant Evidence referred to in Oral Submissions Exhibit TRP5 - ANZ Media Release 19/11/2014 CB1324, CB1326 Applicant Exhibit TRP5 - Sydney Morning Herald Articled entitled 'ANZ traders stood down over interest rate rigging probe' 19/11/2014 CB1330 Applicant Exhibit TRP5 - Email from YPOL to Michael Tamvakologos 13/09/2024 CB1357 Applicant Exhibit TRP5 - Enforceable Undertaking 20/11/2017 CB1535 [3.19] Applicant Exhibit MT-15 - Statement by ANZ Chief Risk Officer Nigel Williams to The Australian Financial Review in relation to Federal Court Applications by Patrick O'Connor and Etienne Alexiou 14/01/2016 C2214 Applicant Discovery Category 183A (referred to in ANZ's oral submissions)

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