In review: recent banking litigation developments in Australia – Lexology




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Overview
The Australian banking litigation landscape remains quite active following the significant increase in regulatory investigations, enforcement proceedings and legislative reform that emerged from the 2018 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Royal Commission). Much of that legislative reform has now been embedded and cases are being investigated and enforced by the key banking regulators, the Australian Prudential Regulation Authority (APRA) and the Australian Securities and Investments Commission (ASIC). In particular, the landscape has been affected by the enhanced civil and criminal penalty regime introduced in 2019 in respect of corporate and financial sector misconduct.
In December 2021, ASIC filed proceedings in respect of the final civil case arising from the Royal Commission marking the end of a long series of enforcement action stemming from that public inquiry. ASIC has confirmed that it has completed all investigations arising from the Royal Commission, with less than 10 proceedings still before the courts. ASIC stated that, based on what its investigations showed, it would continue to seek court outcomes, including civil penalties and criminal prosecutions.
Separately to the Royal Commission, ASIC and other financial services regulators are demonstrating an increased focus on issues like cybersecurity, cryptocurrency and environmental, social and governance (ESG) issues. ASIC brought its first enforcement action against an Australian financial services licensee for an alleged failure to manage cybersecurity risk. Other claimants are also focused on these issues, with shareholders of the Commonwealth Bank of Australia (CBA) seeking access to company documents through the courts in connection with the bank’s climate change commitments.
Major civil claims (including, in particular, class actions), regulator investigations, and regulator enforcement actions against financial services entities and individuals remain common. Notably, in the wake of the legislative reforms following the Royal Commission, while the overall number of enforcement proceedings pursued by ASIC has decreased, the quantum of civil and criminal penalties obtained has substantially increased. The emphasis on individual accountability (especially for directors and senior executives) has remained and will likely further strengthen following the anticipated introduction of the Financial Accountability Reforms (detailed below), together with an increased willingness to pursue criminal prosecutions of large financial institutions and their people.
Banks and financial services institutions have remained a key focus of litigation in Australia in the past year. Key recent updates in Australian banking litigation are detailed below.
Significant recent cases
Noteworthy cases commenced or determined in recent times are discussed below.
ASIC’s focus on fee for no service conduct by financial institutions has continued, being circumstances where a financial service provider is unable to determine if an advice service (e.g., an annual review) was provided (either because a record cannot be located or the service was not in fact provided). This topic was a key focus of the Royal Commission and a seemingly systemic issue within the industry.
More recently, this also involved consideration of related customer disclosure requirements in terms of fee disclosure statements (FDSs) and renewal notices. A number of fee for no service proceedings have now been resolved, although at least three further proceedings were commenced over 2021 and 2022. As of 30 June 2022, the increased enforcement efforts from ASIC have seen some of Australia’s largest banking and financial services institutions pay, or offer to pay, over A$3.3 billion in compensation in connection with this alleged conduct.2
While a number of the cases resolved to date have involved large financial institutions, including their wealth management and financial advice arms, much of the current litigation is targeting superannuation trustees. Superannuation in Australia is regulated by both ASIC and APRA, who have both intensified their supervision of the industry, which is worth more than A$2.3 trillion. Superannuation trustees are in a unique position in this context as they are generally not providing the advice themselves but are responsible for deducting fees from members’ accounts and paying those fees to separate financial advisers. On ASIC’s view, this often occurs without adequate controls in place by the trustee to ensure that the relevant service was in fact provided. On 30 June 2021, ASIC and APRA jointly wrote to superannuation trustees3 asking them to improve their oversight of advice fee deductions from member accounts. This followed previous joint communications4 to emphasise the importance of trustees having robust governance, risk management and oversight processes in place to ensure that fees are appropriately charged from superannuation members. The approach also demonstrates how the two regulators are working together in relation to potential misconduct in this area.
On 29 June 2022, ASIC commenced Federal Court proceedings against Mercer Financial Advice (Australia) Pty Ltd (Mercer) in connection with fees charged for services that were allegedly not provided, and for failing to provide compliant FDSs.5 ASIC’s claims include false or misleading representations, continuing to charge fees after the agreement was terminated following a failure to provide an FDS and breaches of the general conduct obligations of a financial service provider. Mercer has already remediated more than 3,400 customers who were charged fees for financial advice that may not have been provided between January 2012 and June 2019, resulting in compensation of approximately A$45 million. ASIC seeks declarations of contraventions including false or misleading representations and failing to provide FDSs, a civil penalty to be set by the Court and adverse publicity orders.
In February 2022, the Federal Court ordered Aware Financial Services Australia (previously State Super Financial Services Australia Limited) (Aware) to pay a A$20 million penalty in relation to its conduct in charging over 25,000 customers fees for financial services that were not provided, while receiving A$50 million in fees included as part of the superannuation product it offered.6 The Court concluded that Aware’s conduct was both serious and systematic, with thousands of similar contraventions occurring repeatedly over several years. Aware admitted the allegations and had already remediated customers for this and related conduct in the order of A$105 million. This matter had been the subject of a Royal Commission case study.
On 14 December 2021, ASIC commenced proceedings against superannuation trustee OnePath Custodians Pty Ltd (OnePath) (part of the Australia and New Zealand Banking Group Ltd (ANZ) corporate group) for allegedly engaging in misleading, deceptive and false conduct in making representations to fund members and incorrectly charging over A$4 million in fees to more than 18,000 fund members when it was not entitled to do so.7 This includes the common claim of failing to provide financial services efficiently, honestly and fairly. ASIC is seeking declarations and a civil penalty to be set by the Court, together with other orders.
Two fee for no service matters involving AMP entities examined during the Royal Commission are the subject of civil penalty proceedings commenced by ASIC in May and July 2021 respectively. The first has been set down for trial in December 2022 and relates to advice fees and insurance premiums charged to deceased customers.8
The second matter was heard in August 2022 and relates to AMP entities charging adviser fees to superannuation members who could no longer receive the service.9 AMP admitted the allegations and had already remediated customers. In its judgment dated 20 September 2022, the Court considered that the conduct was very serious and ordered penalties against each of the defendants individually. In aggregate, the total penalty against the defendants was A$14.8 million.
On 21 August 2021, ASIC commenced civil penalty proceedings against RI Advice alleging that RI Advice should have had, but did not have, adequate cyber risk management in place for itself and for each of the independently owned financial advice practices within RI’s network. ASIC alleged that the ‘minimum’ cybersecurity standard for a licensee such as RI Advice was a detailed set of 68 cybersecurity ‘documentation and controls’, and that RI’s failure to have this in place across its network was a breach of Section 912A of the Corporations Act.
On 5 May 2022, the Court delivered judgment,10 finding that RI Advice had breached its obligations under Section 912A of the Corporations Act, but did not agree that the breaches had actually caused the cyber incident, noting that it is ‘not possible to reduce cyber security risk to zero’. The Court ordered that RI Advice pay A$750,000 towards ASIC’s legal costs and, at its own expense, engage a cybersecurity expert to identify any further measures which would be necessary for RI Advice to implement.
Westpac and ASIC negotiated and settled a suite of six separate civil penalty proceedings in late 2021 regarding various admitted historical compliance failures. Broadly speaking, the proceedings related to the:
In an unprecedented event, the proceedings were each filed in the Federal Court concurrently on 30 November 2021 against a number of Westpac group entities who admitted the allegations in each of the proceedings. The proceedings related to longstanding matters that ASIC had investigated, including some which were raised during the Royal Commission. ASIC and Westpac jointly submitted to the Court that combined penalties of A$113 million were appropriate, and this was approved by the Court in April 2022. Further, Westpac and ASIC separately agreed that a penalty of A$1.5 million was appropriate in existing proceedings regarding the mis-selling of consumer credit insurance to customers who had not agreed to purchase the policies. The Court also approved this amount in April 2022.
ASIC commenced Federal Court proceedings against Westpac in May 2021 relating to alleged insider trading, unconscionable conduct, and breaches of Australian financial services licensee obligations in connection with Westpac’s execution of a A$12 billion interest rate swap transaction with a consortium of AustralianSuper and a group of IFM entities.11 The transaction is the largest interest rate swap transaction executed in one tranche in Australian financial market history – involving the privatisation of a majority stake in the electricity provider Ausgrid by the NSW government. The matter has been set down for trial in March 2024.
ASIC commenced civil penalty proceedings in the Federal Court against Macquarie Bank in April 2022 for allegedly failing to monitor and control third-party transactions, including by financial advisers, on customer cash management accounts.12 ASIC alleges that Macquarie failed to monitor transactions undertaken via its bulk transactions system using a ‘fee authority’, with a potential impact of A$2.9 million in unauthorised withdrawals. ASIC levies claims of false or misleading representations and financial service provider breaches in connection with this conduct and seeks declarations, civil penalties and other relief from the Court, including a compliance order. The parties are currently preparing a statement of agreed facts, due in October 2022.
On 30 May 2022, ASIC commenced civil penalty proceedings against ANZ for allegedly misleading customers as to the funds available and balances of their credit cards.13 As of May 2022, ANZ had remediated over A$10 million to customers who were affected up until 17 November 2018, although ASIC suggests that the problem is ongoing. ASIC seeks declarations and civil penalties in an amount the Court deems appropriate, as well as orders regarding system changes, remediation, expert assistance with regard to the system changes and remediation, and injunctive relief pending the completion of the system changes.
Similarly in May 2022, another ASIC proceeding against ANZ concluded and is now awaiting judgment. This marks the final civil case arising from the Royal Commission. ASIC alleged that, between the mid-1990s and September 2021, ANZ failed to provide certain benefits, outlined in their terms and conditions, to approximately 580,447 customers. ANZ remediated close to A$200 million to impacted customers.14 The parties agreed to a statement of facts and jointly submitted that a penalty of A$25 million was appropriate for the admitted contraventions.
On 1 March 2021, ASIC commenced civil penalty proceedings against two broking entities connected to CBA, Commonwealth Securities Limited (CommSec) and Australian Investment Exchange Limited (AUSIEX), for alleged breaches of the Market Integrity Rules, Corporations Act and ASIC Act (CommSec only) in connection with alleged systemic compliance failures which resulted in overcharged brokerage fees, incorrect trade confirmations and compliance breaches.15 While market integrity rule breaches are generally dealt with by the Market Disciplinary Panel, ASIC believed that this particular case warranted court action.
The parties agreed to a statement of facts and admissions, with CommSec and AUSIEX admitting a failure to ensure that financial services were provided efficiently, honestly and fairly, multiple breaches of the Market Integrity Rules, and false or misleading representations. The parties also agreed to a compliance programme and CommSec has agreed to pay a A$20 million penalty and AUSIEX a A$7.12 million penalty (subject to court approval). CommSec and AUSIEX have compensated customers who were overcharged brokerage fees. The matter was heard in March 2022 and is awaiting judgment.
On 26 August 2021, two shareholders of CBA sought access under Section 247A of the Corporations Act to internal company documents relating to CBA’s Environmental and Social Framework. Specifically, the applicants were concerned about the veracity of CBA’s commitment that it would not provide financing to projects unless supported by an assessment of the environmental, social and economic impacts of the project and unless the project was in line with the goals of the Paris Agreement.
On 4 November 2021, the Court ordered that CBA produce the documents sought by the applicants. The applicants have made a further application to access unredacted versions of the material produced by CBA. This case is one example of a rise in ESG-related litigation in Australia.
ASIC’s focus on investigations into suspected criminal conduct by financial services providers continues and has included criminal prosecutions in connection with legislative provisions previously untested. This demonstrates how seriously the conduct of financial institutions continues to be scrutinised in Australia and the willingness of ASIC and the Commonwealth Director of Public Prosecutions (CDPP) to pursue corporate sector convictions.
The 2018 criminal prosecution against Avanteos Investments Limited (Avanteos), a former subsidiary of CBA, ended on 15 June 2022, with Avanteos being convicted and fined A$1.71 million by the County Court of Victoria for failing to update disclosure statements after becoming aware that they were defective.16 The Court described this as a very serious failure of corporate governance, although the fine was discounted due to an early guilty plea. Specifically, Avanteos plead guilty to 18 criminal charges relating to failures to update defective disclosure statements and continuing to charge fees to deceased superannuation members. The matter was considered by the Royal Commission and prosecuted by CDPP after an investigation and referral by ASIC. This was the first criminal prosecution for failure to update defective disclosure in contravention of the Corporations Act Section 1021J(1).
On 25 May 2021, the CDPP filed criminal charges against Members Equity Bank Limited (ME Bank) in relation to allegedly making false and misleading representations in letters to home loan customers and failing to provide written notice to customers about repayment amounts and annual interest rate changes. This was the first criminal prosecution under Section 12DB of the ASIC Act, which addresses false and misleading representations to customers in respect of the price of financial services. The case also concerned violations by ME Bank of the National Credit Code (which regulates consumer loans).
ASIC alleged that this misconduct occurred due to failures in ME Bank’s systems and processes,17 which further highlights how critical it is for financial institutions to ensure they have adequate compliance frameworks in place, and that those systems and processes are operating effectively. The parties argued time limitation points, including whether the relevant provisions imposed a hard time limit of three years between the alleged conduct and when a case may be brought. The Federal Court found that the relevant provision did in fact impose a three-year time limit and, as such, the impugned conduct fell outside the statutory time limit.18 This decision was appealed and heard in May 2022. Judgment is currently reserved.
Over the course of 2021 to 2022, there has been a reduction in the number of class actions commenced in Australia. However, securities class actions remain a significant risk for financial institutions in Australia. Some key legal developments in the Australian class action sphere are discussed below.
Recent legislative developments
In December 2020, the Financial Sector Reform (Hayne Royal Commission Response) Act 2020 (the Act) received Royal Assent and came into effect on 1 October 2021. The Act introduced new, onerous and wide-ranging obligations on both Australian financial services and credit licensees in relation to breach reporting to ASIC. Failures to report to ASIC under the new regime may result in civil and criminal penalties.
As part of its priorities for 2022 to 2023, ASIC has indicated it will focus on improving the operation of the reportable situations regime. While ASIC is aware that the new regime may place an unnecessary compliance burden on financial services industry participants, it is nevertheless pursuing compliance with the regime.19 As expected, this has led to an increased number of reports to ASIC.
On 8 September 2022, and following the change in Australian government, the Financial Accountability Regime Bill 2022 was reintroduced into Parliament. Similar to the legislation introduced by the former Liberal government, the regime is intended to replace the current Banking Executive Accountability Regime (BEAR). If implemented as proposed, this would extend BEAR-like accountability obligations to additional APRA-regulated entities and their directors and senior executives, including authorised deposit-taking institutions and their non-operating holding companies, followed by insurers and registrable superannuation entity licensees.
On 21 December 2020, the Parliamentary Joint Committee on Corporations and Financial Services (the Committee) released its Litigation Funding and the Regulation of the Class Action Industry Report (PJC Report), following consultation with industry, government and other participants. The report details 31 recommendations. In particular, the committee was critical of the lack of regulation of litigation funding in Australia. The recommendations of the committee seek to restore balance between litigation funders and group members.
Following the release of the report, the Coalition government introduced a series of legislation to regulate litigation funding in Australia, including requiring that litigation funders comply with managed investment scheme (MIS) provisions of the Corporations Act, introducing legislation reforming minimum returns to class members, and implementing the Australian Law Reform Commission’s report into class actions.20
In September 2022, the new Labor government introduced a bill to wind back some of the litigation funding reforms made by the previous government and, in particular, compliance with the MIS provisions. It remains to be seen whether the Labor government will consider further reforms, including the potential introduction of Commonwealth legislation to allow the charging of contingency fees.
In September 2020, and following the Royal Commission, the Australian Law Reform Commission (ALRC) commenced an inquiry into the potential simplification of the laws that regulate financial services in Australia. The focus of the inquiry is not on policy changes regarding the content of the current obligations on financial services. Instead, the ALRC is considering how to facilitate a more adaptive, efficient and navigable framework of legislation. The ALRC will deliver its report in multiple stages. To date, the ALRC has produced reports and background papers into:
Further reports are due in 2022 and 2023.
In June 2022, ASIC released an information paper on greenwashing and its requirements for superannuation entities and managed funds.21 Greenwashing occurs where organisations over-represent the extent to which their practices are environmentally friendly, sustainable or ethical. ASIC’s concern comes from an increase in investor demand for sustainable financial products. In particular, ASIC’s concerns are in relation to investors being confused or misled by marketing materials.
ASIC’s guidance is based on existing misleading and deceptive provisions, which contain general prohibitions against a person making statements (or disseminating information) that are false or misleading, or engaging in dishonest, misleading or deceptive conduct in relation to a financial product or financial service.
Changes to court procedure
In June 2020, the Victorian Parliament passed legislation legalising group costs orders (GCOs) or contingency fees, such that a court can order that the legal costs payable to solicitors representing the plaintiff and group members be calculated as a percentage of any award or settlement, shared among all group members. Victoria was the first (and, so far, only) Australian jurisdiction to do so.
In September 2021, judgment was handed down in connection with the first set of GCO applications in two class actions against three major Australian banks.22 In those matters, the Supreme Court of Victoria denied the GCO applications on the basis that Her Honour was not satisfied that the statutory test had been satisfied.
Since then, GCOs have been approved in five other cases. Those decisions demonstrate that ‘appropriate or necessary’ requires a ‘broad evaluative assessment’. While a number of factors will be relevant to the assessment of whether the court is satisfied that the making of a GCO is appropriate or necessary to ensure that justice is done in the proceeding, the question of price (or cost of the funding assessed in relation to outcome) likely to be paid under a proposed GCO will be the most significant. However, group members’ interest must be a primary consideration.
Interim measures
Asset tracing and freezing orders often involve banks enforcing or holding customer assets. Freezing orders are often sought as interim relief to protect assets pending final determination. On 8 December 2021, the High Court of Australia handed down its judgment in Deputy Commissioner of Taxation v. Huang,23 which confirmed that the Federal Court of Australia has the power, under Rule 7.32 of the Federal Court Rules 2011 (Cth) (FCR), to make an asset freezing order in relation to assets outside of Australia. The High Court further confirmed that Rule 7.32 FCR does not require any proof that there be a realistic possibility of enforcement of a judgment against the relevant person’s assets in the jurisdiction to which the orders relate.
Privilege and professional secrecy
On 25 March 2022, the Federal Court of Australia delivered judgment in Commissioner of Taxation v. PricewaterhouseCoopers24 dealing with claims of legal professional privilege (LLP) in the context of multi-disciplinary legal and non-legal partnerships. The case concerned an audit by the Commissioner of Taxation (the Commissioner) into Flora Green Pty Ltd (Flora Green) and a number of its related bodies corporate (Flora Green Group). The Commissioner issued notices to produce documents to Flora Green and Glenn Russel, a PWC partner providing services to Flora Green Group. PWC, described by the Court as a multi-disciplinary partnership of legal and non-legal partners, claimed LLP on behalf of Flora Green over a large number of documents subject to the notices.
The Commissioner disputed the privilege claims on three grounds, being the form of the engagement with PWC, the nature of the services provided by PWC and that the documents themselves did not record LPP communications.
The Court found that the engagement was sufficient to establish a lawyer–client relationship to substantiate an LPP claim and that, based on this finding, he did not need to consider the nature of the services rendered on a global basis. Whether the documents were subject to LPP protection would require determination on a document-by-document basis.
The Court considered a sample of documents, concluding that the majority were not privileged. Of the documents considered not privileged, the Court found that the majority were between non-lawyers and made for multiple purposes, including the giving of legal advice, but not for the dominant purpose of giving or receiving legal advice. Instructively, the Court explained that in instances of a multidisciplinary partnership, where the business of the partnership includes the provision of legal and non-legal advice, ‘caution is required in evaluating whether or not a particular communication was made for the dominant purpose of giving or receiving legal advice’.
Jurisdiction and conflicts of law
Recent years have demonstrated that financial institutions have been subject to an increasing risk of class actions. On 12 October 2022, the High Court of Australia delivered its judgment in BHP Group Limited v. Impiombato,25 confirming that foreign residents can be group members in a class action under Part IVA of the Federal Court of Australia Act 1976 (Cth). It was argued that Section 21(1)(b) of the Acts Interpretation Act 1901 (Cth) and the common law presumption against extraterritoriality prevented non-residents of Australia from being included as group members. The High Court rejected this argument and noted that Part IVA is a procedural mechanism that operates to determine the Federal Court’s personal jurisdiction over a respondent, not group members. The High Court explained that:
Sources of litigation
In August 2022, ASIC released its 2022 Corporate Plan outlining that it will remain an ‘active litigator’ while also making use of its full suite of enforcement tools, keeping with the shift made in 2021 following the change in ASIC’s leadership away from its previous ‘why not litigate’ mandate.27 This targeted approach appears to be bearing fruit, as according to ASIC’s latest enforcement update dated 16 August 2022, between the period of January 2022 and June 2022, the regulator launched almost 100 fewer criminal prosecutions and one-third of the civil proceedings compared to the corresponding 2021 period, while securing A$145.8 million in civil penalties, around A$34 million more than the whole of 2021.28
The 2022 plan further notes that ASIC will retain a key strategic initiative from the previous year to reduce the risk of harm to customers caused by poor product design and governance while also broadening its focus on other key strategic priorities, including product design and distribution, sustainable finance, retirement decision making, and technology risks in an effort to address emerging trends and issues identified by the regulator.
Exclusion of liability
Financial institutions can seek to limit or exclude particular liabilities, although the Corporations Act, National Consumer Credit Protection Act and ASIC Act each contain provisions preventing them from ‘contracting out’ of that legislation or limiting their liability. Notably, exclusion clauses are typically interpreted by the courts against the party seeking to rely upon then. However, parties often seek to exclude or modify fiduciary obligations.
The unfair contract regime precludes the use of certain contractual terms in standard form contracts for consumers and small businesses, including limited liability clauses that go beyond protecting legitimate business interests. This regime was extended to include insurance contracts from 5 April 2021.
Regulatory impact
Following a period of intense regulatory review and reform for the financial services industry in Australia during and after the Royal Commission, we expect that regulators will continue to focus on monitoring, supervision and enforcement measures, with legislation and case law to adapt to emerging areas such as cryptocurrency, cybersecurity and ESG.
Outlook and conclusions
The Australian banking and financial services industry continues to see a significant level of enforcement activity and litigation (including criminal prosecutions and class actions) and general public scrutiny. We expect this to continue, including the trend of class actions and other civil claims following major regulatory investigations and enforcement proceedings. These disputes will continue to have significant impacts for industry participants, including shareholders, even where the prosecuting parties are ultimately unsuccessful, given the sheer amount of time and expense involved in responding to and defending such actions.
We expect the nature of claims against banking and financial services institutions will expand from subject matters of the kind ventilated during the Royal Commission to increasingly focus on emerging issues like cybersecurity, cryptocurrency and ESG issues. More broadly, banking and financial services participants are likely to continue to be a focus of, and impacted by, legislative reforms under the new Labor government that will shape the nature of banking litigation in the years to come.
This, together with reinvigorated regulators with renewed focuses, suggests that the Australian banking litigation landscape will continue to remain robust over the coming years and that Australian banking case law is likely to further evolve as more untested legislation comes before the courts and is applied in new contexts.
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