Doyle proceedings

Summary

On 22 December 2010 ASIC (as an Applicant) started a proceeding in the Federal Court of Australia (Sydney) against Bank of Queensland Limited (“BoQ”), Senrac Pty Ltd (“Senrac”) and Macquarie Bank Limited (“Macquarie”) on behalf of two former Storm investors (also as Applicants). Senrac is the owner and franchisee of the BOQ’s North Ward branch.

ASIC’s case against BoQ and Macquarie is founded on 3 bases:

  1. breach of contract: The 2004 Banking Code of Conduct formed part of BoQ’s home loan contracts and the 1993 Banking Code of Conduct formed part of Macquarie’s margin loan contracts. ASIC alleges that as both BoQ and Macquarie failed to comply with the Banking Code of Conduct, they breached their loan contracts with these two investors;
  2. unconscionable conduct: ASIC alleges that BoQ and Macquarie were aware of enough facts about the investors to know they were in a position of disadvantage, and in that situation BoQ and Macquarie's conduct was unconscionable; and
  • liability as linked credit providers of Storm under s73 of the Trade Practices Act 1974: ASIC alleges that BoQ and Macquarie were ‘linked credit providers’ of Storm and therefore are jointly liable with Storm for loss and damage suffered by the two investors.

ASIC will also argue that Senrac was involved in BoQ’s alleged breaches.

If the proceedings are successful any compensation awarded will only be for the benefit of the two Storm investors named as Applicants. However, ASIC believes if it wins its case the legal analysis may assist other Storm investors who wish to seek compensation.

Note: These proceedings have now been settled, for more information please see Media Release 13-122MR.

Court appearances

5 February 2013

These proceedings were listed on 5 February 2013 before his Honour Justice Jacobson in the Federal Court in Sydney.

His Honour heard and dismissed an application by Bank of Queensland and Senrac for the proceedings to be transferred to the Queensland District Registry. The matter will remain in the Sydney District Registry where it has been set down for hearing for three weeks commencing 3 June 2013.

Prior to the June Hearing, the respondents (Bank of Queensland, Senrac and Macquarie Bank) are due to file and serve expert and lay (non expert) evidence in chief; and the applicants (ASIC and the Doyles) are due to file and serve expert and lay evidence in reply. Also, the respondents and applicants are due to serve lists of documents upon which they intend to rely.

7 December 2012

These proceedings were listed for directions on 7 December 2012 before his Honour Justice Jacobson in the Federal Court in Sydney.

The parties confirmed that all steps in the timetable for the filing and service of evidence in the period leading up to the directions hearing had been adhered to.

The Respondents (Bank of Queensland, Senrac and Macquarie Bank) sought orders for a timetable to file and serve Amended Defences (to introduce statutory defences pursuant to section 73 of the Trade Practices Act to the linked credit provider claims).

A timetable was agreed upon by the parties and his Honour made orders, with the parties consenting, providing for the following:

  1. On or before 18 December 2012, the Respondents are to serve on ASIC their proposed Amended Defences.
  2. On or before 14 January 2013, ASIC is to inform the Respondents whether the Applicants (ASIC and the Doyles) consent to their having leave to file the Amended Defences.
  3. If the Applicants consent:
    1. the Respondents shall have leave to file and serve their Amended Defences on or before 18 January 2013;
    2. the Applicants are to file and serve any reply to the Amended Defences on or before 1 February 2013; and
    3. the Respondents are to pay the Applicants' costs as a result of the Amended Defences.
  4. If the Applicants do not consent, then:
    1. on or before 18 January 2013 the Respondents are to file and serve any application to the Court for an order providing for leave to file the Amended Defences with any supporting affidavit evidence and submissions; and
    2. the Applicants are to file and serve any affidavit evidence and submissions on or before 1 February 2013.
  5. The proceedings are next listed for further directions in Sydney on 5 February 2013.

29 August 2012

On 29 August 2012, the proceedings were listed before his Honour Justice Jacobson in the Federal Court of Australia in Sydney.

The balance of the notices of motion filed by the Respondents (Bank of Queensland, Senrac and Macquarie Bank) dated 2 March 2011 seeking to strike out or stay the proceedings were dismissed by consent (that is, the Respondents did not proceed with their strike out application). The costs of and incidental to, the balance of those notices to be the parties' costs in the cause (this means that the costs will be paid by the party that loses the case in the end).

A timetable was agreed upon by the parties and his Honour made orders, with the parties consenting, providing for the following:

  1. discovery of documents by ASIC and Macquarie Bank (discussion is continuing with the Bank of Queensland and Senrac in relation to the categories of discovery to be given by them);
  2. the filing of expert and lay (non expert) evidence by the Applicants and the Respondents; and
  3. the service by the Applicants and the Respondents of lists of documents each party intends to rely upon at trial.

His Honour also ordered that the matter be provisionally set down for hearing for three weeks commencing 3 June 2013.

The proceedings are next listed for further directions in Sydney on 7 December 2012.

27 April 2012

These proceedings were listed for directions on 27 April 2012 before his Honour Justice Jacobson in the Federal Court in Sydney. Justice Jacobson is the docket judge for these proceedings.

His Honour directed that the proceedings should continue to be prepared for hearing. The respondents' (Bank of Queensland, Senrac, and Macquarie Bank) notices of motion seeking to strike out or stay the proceedings were to be stood over to a date in August, by which time it was anticipated that Justice Reeves will have made orders in relation to what issues will be heard at the September - December trial in the UMIS and representative proceedings. The parties were requested to agree a timetable and regime and prepare orders.

On 3 May 2012, Justice Jacobson made orders standing the balance of the respondents' notices of motion over for hearing on 29 August 2012, directing the applicants (ASIC and the Doyles) to file and serve evidence in chief of their lay evidence by 29 June 2012 and directing the parties to confer with a view to agreeing a list of categories of discovery to be made in these proceedings. Failing agreement, the parties must apply to the Court for resolution of any outstanding discovery issues by 6 July 2012. The parties are to provide discovery pursuant to the agreed categories by 6 August 2012.

As soon as practicable (and in any event within 7 days) after the case management conference in the Richards proceedings (proceedings QUD 590/2010) Macquarie Bank is to inform ASIC whether it intends to make any application that the Richards proceeding, or any part thereof, no longer continue as a representative proceeding, or should be struck out, and if it intends to bring any such application, Macquarie Bank should file and serve the application on the first day of the three day hearing, currently set down for 16 July 2012.

These proceedings are next listed to be before the court on 29 August 2012.

1 March 2012

Today, his Honour Justice Foster in the Federal Court in Sydney, handed down his reasons for judgement and further orders in relation to the notices of motion by Macquarie, BOQ and Senrac ("the respondents") seeking to strike out all or part of ASIC's proceedings.

The orders made by the Court were as follows:

  1. Except for the issues yet to be determined (which are referred to in paragraph (c) below), the notices of motion by the respondents seeking to strike out all or part of ASIC's proceedings are dismissed.
  2. The respondents are to pay the applicants' costs to date of and incidental to their notices of motion.
  3. The respondents claims in their respective notices, that this proceeding should be dismissed or permanently put on hold because there are two sets of allegedly concurrent proceedings already instituted in the Federal Court in Brisbane (ASIC v Storm Financial Ltd and Others and Richards v Macquarie Bank Ltd), has been adjourned to be heard at a later date. If this issue is to be pursued, a date will be fixed at the next directions hearing to be held on 27 April 2012.
  4. The applicants are to file and serve an Amended Application and an Amended Statement of Claim by 16 March 2012.
  5. The respondents are to file and serve their Defences and any submissions with respect to the concurrent proceedings issue by 6 April 2012.
  6. The applicants are to file and serve any Reply by 20 April 2012.
  7. The matter is listed for a further directions hearing before the docket judge in Sydney at 9:30am on 27 April 2012.

30 November 2011

At the hearing on 30 November 2011 before His Honour Justice Foster in the Federal Court in Sydney, His Honour delivered his judgement in relation to the applications filed by Macquarie, BOQ and Senrac to have ASIC's Statement of Claim struck out.

His Honour rejected the main challenges to ASIC's pleadings made by Macquarie, BOQ and Senrac, and declined to strike out the Statement of Claim filed by ASIC on behalf of two former investors (Barry and Deanna Doyle). ASIC is to file an amended Statement of Claim to reflect concessions made by the parties, reflecting the concession made by the respondents that they would not seek to defend ASIC's claims by arguing that the services are not financial services within the ASIC Act, and to comply with His Honour's directions to make clear in an amended pleading precisely which causes of action are founded upon section 50 of the ASIC Act.

The orders made by the Court were as follows:

  1. Within 14 days of the date of the judgment each of the parties is to file draft orders together with a written submission of no more than three (3) pages in length in support of the orders sought.
  2. The orders will then be settled in Chambers.

24 March 2011

The hearing today, before His Honour Justice Foster in the Federal Court in Sydney concerned applications filed by Macquarie, BOQ and Senrac to have the proceedings struck out. Their applications were primarily based on legal arguments that:

  1. In part the proceedings are beyond ASIC’s statutory power; and
  2. The claim based on section 73 of the Trade Practices Act is not available to ASIC.

ASIC argued against the applications and the Court has reserved judgement to a date to be set.

11 February 2011

This proceeding was before the Court for the first time on 11 February 2011.

At this Court appearance various orders were made by the Court including:

  1. a timetable for BOQ, Macquarie & Senrac to serve any notices for the production of documents by ASIC and for ASIC to produce those documents;
  2. a timetable for BOQ, Macquarie & Senrac to file and serve any application to strike out parts or all of ASIC’s Statement of Claim and for the filing and serving of submissions and evidence in support of any such applications; and
  3. the matter to come back before the Court on 24 March 2011, at which time the Court will hear any applications to strike out of ASIC's Statement of Claim.
Last updated: 16/09/2014 04:16