Janssen v OnePath Custodians Pty Ltd

BUTTON J: 1 By an interlocutory application made on 7 May 2024, the Applicants applied for leave to file their Proposed Further Amended Statement of Claim (PFASOC) and Proposed Further Amended Originating Application. The application also sought limited further discovery. 2 The application was heard on 10 May 2024. All parties filed written submissions ahead of the hearing, and all but the Second Respondent put on affidavits of their solicitors. 3 I have determined to grant leave in respect of some, but not all, of the amendments set out in the PFASOC. These reasons explain, briefly, why I have permitted some, but not other, amendments. These reasons are brief because it is necessary to address the application quickly, given the impending trial date, and because seeking to set out the intricacies covered by the evidence and submissions would unduly delay delivery of these reasons. 4 It is necessary to set out some background. 5 The proceeding was commenced on 8 January 2021. It is one piece of litigation, among many, coming out the Hayne Royal Commission. This proceeding concerns two main issues: (a) the interest rates on certain "cash" investment options within the superannuation fund of which the First Respondent (OPC) was Trustee; and (b) the payment of grandfathered commissions to financial advisers. 6 While corporate restructures have since intervened, the initial three Respondents were all ANZ group entities. As mentioned, OPC was the Trustee. The Second Respondent (Zurich) is liable for acts or omissions of OPL (OnePath Life Ltd) (previously the Second Respondent), which was a member of the ANZ group of companies. The Trustee invested in certain "life policies" issued by OPL. ANZ is the Third Respondent. Some of the impugned cash investments were made by the Trustee directly with ANZ. 7 The Applicants plead a wide range of breaches of a number of statutory and common law duties owed by the Trustee. They also allege that OPL and ANZ are liable as accessories to some of those breaches. 8 The claims advanced in the current version of the Statement of Claim (ASOC) have, reflecting the two main issues referred to above, been described as the "Cash Claims" and the "Commissions Claims". The ASOC alleges that OPL is liable as an accessory in respect of the Cash Claims, that ANZ is liable as an accessory in respect of some of the Cash Claims, and that OPL is liable as an accessory in respect of the Commissions Claims. 9 On 10 June 2023, the matter was set down for trial commencing on 30 September 2024, on an estimate of four to six weeks. While my outline of the central claims above is short, that should not obscure the complexity of the claims advanced, which cover a very long period of time (from 1 September 2011 to 31 January 2020), a number of different products and investments, and varying commissions and fees. To state the obvious, "big" cases need to be set down for trial well in advance and timetabled accordingly. 10 An interlocutory timetable through to trial was fixed on 10 June 2023. While there have been a number of issues arising since 10 June 2023, and adjustments have been made to the pre-trial timetable, it has been possible to address those issues and adjustments while holding the trial date. Those issues have included discovery. 11 The Applicants first foreshadowed an intention to further amend their pleadings in an email to the Court dated 31 October 2023. The matter was listed for a case management hearing on 10 November 2023. At that time, the Applicants proposed a drawn out timetable for further discovery and an amendment application. In light of the lack of any detail regarding what the foreshadowed amendments concerned and the drawn out timetable proposed, I determined not to make orders timetabling an amendment application, but noted that if the Applicants formulated a proposed amended pleading, an application should be made sooner rather than later for obvious reasons (being the trial date). There was another hearing before me on 15 December 2023. Counsel for OPC raised the lack of any application to amend. I noted that the prospects of any application the Applicants may later make would obviously be affected by the effluxion of time. 12 It was on 28 March 2024, following the filing of its expert evidence, and close to five months after first foreshadowing amendments, that the Applicants provided their initial draft of the PFASOC to the Respondents. A revised draft was then sent on 12 April 2024. The present application was served on 7 May 2024, once the Respondents had indicated their positions. 13 The amendments the Applicants seek to make can be categorised as follows: (a) miscellaneous amendments that tidy up and refine existing claims - these are not objected to; (b) amendments to the Cash Claims: (i) in relation to the substantive aspects of the Cash Claims; and (ii) in relation to the accessorial liability case against ANZ in respect of the Cash Claims; and (c) amendments to the Commissions Claims: (i) to introduce an earlier claim period, which pre-dates the "Future of Financial Advice" (FOFA) reforms coming into effect (this new period covers April 2010 to June 2013); and (ii) to introduce a later claim period, beyond when the Commissions Claims currently end (13 April 2019), so that the Commissions Claims would run until 1 December 2020. 14 The Respondents did not oppose leave being granted to amend the Cash Claims, save that ANZ contended no leave should be granted to extend the accessorial liability case against it and the Respondents' lack of opposition was contingent on amendments being made to the pre-trial timetable. 15 OPC proposed a revised timetable, but the parties accepted that a more streamlined timetable that I proposed - and which would allow a greater time for the parties to engage fully with a pre-trial mediation - was acceptable if the Cash Claims amendments went forward, but the Commissions Claims did not. While ANZ resisted the amendments extending the accessorial liability case against it, it accepted that the revised timetable to trial provided sufficient time for it to meet the expanded accessorial liability case against it, if those amendments were permitted. 16 ANZ also contended that, if leave were granted for amendments extending the accessorial liability case against it, orders should be made that the amendments only take effect from the date of the amended pleadings (not the date the proceeding was commenced, and the original Statement of Claim was filed). 17 The proposed amendments to the Commissions Claims were resisted by OPC and by Zurich (which would only have been affected by the extension to advance claims in the earlier claim period). ANZ would not be affected by the proposed amendments to the Commissions Claims. 18 OPC put on an affidavit of the partner at KWM with carriage of the proceeding, Domenic Gatto. Mr Gatto's evidence was, in short, that if the Commissions Claims were allowed, the trial date could not be maintained. He estimated that allowing all the amendments would push the timetable out by three to four months, whereas allowing only the Cash Claims would push the timetable out by four weeks. 19 It is important to note that Mr Gatto's assessment was not contested by the Applicants. They did not suggest that the trial date could be held if the amendments to the Commissions Claims were allowed. Their central contention was that, regrettable as it may be to lose a trial date, the interests of group members are paramount, and all the amendments should be allowed so as to maximise the potential recovery for group members. 20 Another matter of context is that it was not suggested by the Respondents that any of the proposed amendments were hopeless or suffered pleading defects that should result in leave being refused on that basis. 21 Given that state of affairs, the disposition of the disputed aspects of this application devolves to the following two questions: (a) Should the amendments to the accessorial liability claims against ANZ in relation to the Cash Claims be allowed? (b) Should the amendments to the Commissions Claims be allowed if that necessitates vacating the trial date?

Principles 22 The principles relevant to amendment under rr 8.21 and 16.53 of the Federal Court Rules 2011 (Cth) (the Rules) are well established and need not be recited at length here. In KTC v David [2022] FCAFC 60, Wigney J (with whom Anastassiou J and Jackson J agreed on the relevant principles at [329] and [418]) explained those principles as follows (at [110]-[111]): The Court's power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated: Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94 at [20] (Gilmour and Foster JJ); Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [14]. The power must be exercised in a "way that best promotes the Court's overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible": Caason at [19] and the cases cited therein; s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The object of the Court is "not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy": Clough & Rogers v Frog (1974) 4 ALR 615 at 618, quoting Cropper v Smith (1884) 26 Ch D 700 at 710; Caason at [20]. Leave to amend should generally be granted unless the proposed amendment is futile, including, for example, because the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action, or where the amendment would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by the award of costs: Research in Motion Ltd v Samsung Electronics Australia Pty Limited (2009) 176 FCR 66; [2009] FCA 320 at [21]-[22]; Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]; Caason at [21]. 23 In Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 (Roberts-Smith), having referred at [15] to authorities including Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon) and Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94 (Caason Investments), Besanko J drew out the following relevant factors (at [16]-[24]): (1) The nature and importance of the amendments to the party applying for them. (2) The extent of delay and the costs associated with it. (3) The explanation for delay in applying for leave to amend. (4) The prejudice that might reasonably be assumed to follow from the amendments and that which is shown. (5) The parties' choice to date in the litigation and the consequences of those matters. (6) The detriment to other litigants in the court if the amendments are allowed. (A factor which Besanko J described at [22] as being "at its most powerful where an amendment will result in the vacation of trial dates which might otherwise have been given to other litigants".) (7) The potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification. 24 In addition to those factors, Besanko J observed that the power to amend must be exercised or carried out in the way that best promotes the overarching purpose of the power of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Roberts-Smith at [24] citing s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act); Caason Investments; Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118. 25 As may be seen from the above, an applicant's interest in pleading the case it wishes to run is not the only relevant factor. There are other interests at play, including any prejudice to respondents flowing from the amendments and the efficient use of limited court resources. Senior counsel for the applicants accepted as much in the course of oral argument.

Extension to the accessorial liability case against ANZ 26 I have concluded that the amendments to the Cash Claims expanding the accessorial liability case against ANZ should be allowed. 27 I accept ANZ's submission that the amendments are significant. At present, the accessorial liability case against ANZ is confined to: (a) the "RPS Period", between 14 April 2019 and 31 January 2020, being a period of only nine and half months; and (b) in respect of one of the three relevant investment options, a small portion of the "Master Fund Period" (relevantly, between 1 September 2011 and 6 November 2013, being a period a little over two years). 28 The amendments would significantly expand the case against ANZ by alleging it is also accessorily liable for the contraventions of OPC in respect of the entirety of the "Master Fund Period" (1 September 2011 to 13 April 2019, being a period of about seven and a half years) in relation to arrangements between OPC and OPL, which issued the relevant life policies. 29 However, the mere fact that the allegations would be significantly expanded does not, by itself, suggest that leave should be refused. No respondent welcomes any claims being advanced against it. The same is true of the expansion of claims. 30 The critical point, here, is that the additional work to which ANZ would be put, in reviewing documents and taking evidence from witnesses, can be accommodated without jeopardising the current trial date. ANZ was candid in accepting that this could be done. 31 Given that the amendments can be accommodated without vacating the trial, I do not consider that the fact that the Applicants' explanation for the delay in advancing the expanded Cash Claims was wanting in some respects (as submitted by ANZ) warrants refusing leave for the amendments. 32 ANZ also submitted that leave should be refused in the exercise of the Court's discretion because (along with other matters already addressed), the contested amendments seek to expand the accessorial liability case against ANZ in circumstances where the primary liability of OPC, and the accessorial liability of OPL, are already pleaded in respect of the same events, and there is no suggestion that either of them is impecunious. While this is a relevant consideration, it is not one that suggests that leave ought to be refused when the amendments can otherwise be accommodated within the revised trial timetable. 33 That leaves the matter of determining from when the amendments should take effect. ANZ argued that, if the amendments to the accessorial liability case against it were to be allowed, they should only take effect as from the date of the amended pleading. That argument was made on the principal basis that, because the new claims concern accessorial liability in respect of alleged contraventions relating to OPC's investment in life policies issued by OPL, whereas the existing claims against it relate to OPC's investments directly with ANZ, the proposed expanded claims do not arise from the same facts, or substantially the same facts, as those already pleaded to support an existing claim for relief for the purposes of r 16.53(2) of the Rules. ANZ submitted that that rule should be construed on the basis that, when the rule refers to "an existing claim for relief by the applicant", it is referring to an existing claim for relief "by the applicant against the respondent the subject of the proposed amendment", or words to that effect. That submission was made in circumstances where the majority of the matters now sought to be harnessed in the expanded case against ANZ are already features of the case as pleaded against OPC and Zurich (in respect of OPL). 34 Accordingly, the point raised by ANZ requires a comparison of the factual basis of the new and expanded claims and consideration of the question of construction referred to. However, both ANZ and the Applicants accepted that the question of when the amendments should be taken to take effect from could be determined at trial and that ANZ's position to argue this issue (and any related or consequential limitations points) could be preserved. 35 Ordinarily it would be preferable to resolve the question of from when amendments are to take effect before trial. But in the present circumstances, where the relevant parties accept that the matter can be deferred to trial, and the parties will be fully engaged in trial preparation, it is not desirable to divert the parties, or delay delivering judgment on the urgent amendment application, to require further submissions on the point (as would be required given the Applicants have yet to set out their position on those matters preferring to urge that they be deferred to trial).

Amendments to the Commissions Claims 36 I have determined that leave ought not be granted to introduce amendments in respect of the Commissions Claims for the following reasons. 37 First, the proposed amendments to the Commissions Claims are extensive, and substantive. They seek to expand the period over which claims in respect of commissions are advanced, both to the earlier and later claim periods. The amendments in respect of the earlier claim period would also, if allowed, extend the Commissions Claims back to early 2010. The proposed amendments in respect of the Commissions Claims do not merely extend the period of the claims, but also ground the assertion of liability on different decisions from those that ground the existing claims. On OPC's calculation, the proposed amendments in respect of the later claim period would, if allowed, account for two thirds of the complete pleading of the Commissions Claims. This reflects that the amendments, if allowed, do not merely tidy up or add, in limited ways, to the existing claims. 38 Secondly, the Applicants' explanations for these amendments being advanced so late are not satisfactory. By the principal affidavit of Ms Morrison, and by submissions, the Applicants explained the delay in advancing the amendments on the basis that: (a) the Applicants had a difficult time obtaining documents from the Respondents by discovery, and documents that were discovered in August and October 2023 were "relevant to" the proposed amendments to the Commissions Claims (and the Cash Claims); and (b) it was sensible for the Applicants to elect, as they did, to wait for the discovery to be fully analysed, and to brief experts and obtain expert reports on the issues that were the subject of the proposed amendments, before formulating a revised pleading and providing it to the Respondents. 39 It is not necessary to revisit the rights and wrongs of the drawn out discovery process in this proceeding. Even on Ms Morrison's evidence, the last of the documents that are relevant to the Commissions Claims amendments were discovered by late October 2023. Yet, as mentioned above, the proposed revised pleading was not provided to the Respondents until 28 March 2024. That was despite the Respondents, and particularly the solicitors for Zurich, repeatedly asking the Applicants for their proposed amended pleading after amendments were first foreshadowed in an email to the Court sent on 31 October 2023. 40 OPC's solicitor, Mr Gatto, identified in his affidavit a large number of documents that were either publicly available well before the discovery which is said to have delayed the formulation of the amendments, or to have been discovered long before the tranches of discovery identified by Ms Morrison in August and October 2023. 41 The earlier claim period amendments rest on the proposition that OPC knew or should have known that the FOFA reforms would be legislated and should not have entered into any further agreements with advisers which included commission payments in the period before the reforms were passed and came into effect. Those reforms were publicly announced. Accordingly, a claim based on the premise identified did not rest on discovery. Further, the documents particularised in relation to the allegation that adviser agreements were entered into in the relevant period were, as Mr Gatto deposed, discovered in December 2021. 42 In no way can the advancing of the amendments in respect of the earlier claim period be explained on the basis of discovery being made in August and October 2023. 43 As to the later claim period, Mr Gatto's affidavit traces through the dates on which documents referred to in the particulars to the Commissions Claims amendments were discovered. With the exception of five documents, which were discovered in October 2023, all the documents were discovered on dates between December 2021 and March 2023, and some were publicly available years ago. Mr Gatto also noted that some of the documents were the Applicants' own documents and that the Second Applicant had been complaining in writing about the deduction of commissions from his account within the period concerned. This shows that it was not a surprise to the Applicants that commissions were still being deducted after the successor fund transfer in April 2019, which previously constituted the end of the Commissions Claim period. 44 While I accept that, as the Applicants submitted, it takes time to collate and analyse discovery and then consider the claims that may be advanced, it remains the case that the Applicants had all the documents since the end of October 2023 at the latest and were sufficiently advanced in their formulation of new claims to brief their expert to opine on this later claim period in instructions issued 22 December 2023. Although the Applicants might feel on firmer ground waiting for a finalised expert report before formulating amendments and providing them to the Respondents, that is an approach that the looming trial date did not allow for. In addition, experts will typically opine on pleaded claims. If an expert report turns out not to be favourable (or not as favourable as hoped), a party may make forensic and strategic decisions accordingly. 45 Thirdly, the proposed claims in respect of the earlier claim period do not add claims that cover potential losses not already covered by the existing period. Rather, they add a new basis for seeking to recover in respect of that period. This consideration does not apply to the later claim period. 46 Further, these are not amendments that seek to "cure a defect" in a pleading, or ensure that the "real questions in the controversy are properly agitated" (Caason Investments at [20] (Gilmour and Foster JJ); Aon at [14] (French CJ)). Rather, they are amendments that seek to expand what the real questions are, and introduce new controversies. 47 Fourthly, and critically, the trial date cannot be maintained if leave is granted for the Commissions Claims amendments. In Aon, the plurality observed that "[m]uch may depend upon the point the litigation has reached relative to a trial when the application to amend is made" (at [102]). This is a case in point. As noted, Mr Gatto's evidence was that the trial date could not be maintained if the amendments were allowed. The Applicants accepted this. Given the common ground that the trial date would have to be vacated, it is not necessary to delve into the difference in views on whether the later claim period amendments would require the parties to delve into complex matters concerning the successor fund transfer. 48 The Applicants' response to the matter of the trial having to be vacated was that the amendments should be allowed and the trial vacated on the basis that the amendments are significant from the group members' point of view. 49 I accept that the later claim period amendments are important from the group members' point of view, and, if successful, would add to the loss or damage that may be recovered. This is a strong consideration in favour of allowing the amendments. Nevertheless, I do not consider that this factor warrants the grant of leave in the context of this case. As the authorities make clear, Applicants are to be afforded a fair opportunity to plead the case they wish to advance. The Applicants have had that chance. 50 I also take into account that, for the reasons set out above, I do not consider that the explanation for the delay is satisfactory or that the amendments could not have been advanced sooner. If the Commissions Claims amendments could be accommodated without losing the trial date, then I would not refuse leave for the amendments just because the explanation for delay was wanting. But the trial date cannot be held if the amendments are allowed. This is not a case of "punishing" the Applicants (or group members) for any mistakes that have been made, but taking into account how compelling the explanation for the delay is, which is a relevant consideration (as confirmed by the authorities referred to above). 51 Ultimately, the power must be exercised in a way that "best promotes the Court's overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible": Caason Investments at [19] (Gilmour and Foster JJ) and the cases cited therein; s 37M(3) of the FCA Act. The inability to maintain the trial date is decisive in this case. The interests of the Applicants and group members are not the only interests to be considered. While the Respondents are large and well resourced, vacating the trial date nevertheless occasions some prejudice to them through the prolongation of litigation that was commenced in January 2021. Further, and importantly, Court resources are a finite public resource. Large trials such as this cannot be readily accommodated by shifting the starting dates by a couple of months (even putting to one side the likely complications related to counsel availability for shifting trial dates). There is also the matter of wasted Court resources from vacating large trials. I informed the parties at the start of the hearing that, if the trial were to be vacated, it was unlikely that it could be re-fixed until the second half of 2025. The trial was fixed nearly one year ago, on 10 June 2023. The prospect of amendments was floated in October 2023, yet the amendments did not emerge until 28 March 2024. 52 Taking all of these matters into consideration, I have determined that leave should not be granted for the Commissions Claims amendments.

Conclusion 53 Orders will be made granting leave for the amendments, other than those concerning the Commissions Claims. OPC provided a schedule that identified the paragraphs concerning the Commissions Claims. Counsel for the Applicants did not anticipate any dispute between the parties as to which amendments concerned the expansions to the Commissions Claims. 54 In the course of oral submissions it was suggested that categories 1 to 3 of the additional discovery sought by the Applicants concerned the expanded Commissions Claims. It was not entirely clear whether category 4 would be pressed if the Commissions Claims amendments were not allowed and, if so, if it would be resisted given it appears OPC has stated it would only take two days to produce those documents. Accordingly, I will first make orders concerning leave to amend and direct the parties to confirm the position regarding discovery given my determination on the ambit of the leave to be granted. 55 I will also make orders directing that the Applicants provide the Respondents with a draft Further Amended Originating Application with amendments limited to those that reflect the amendments allowed to the pleading, and for the parties to submit proposed consent orders in respect of that Originating Application. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.