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CBA class action ‘ignores factual findings’, counsel argues
Commonwealth Bank’s counsel slammed the lawyers behind a failed class action for largely “ignoring factual findings” in their appeal case.
Naomi Neilson
Noel Hutley SC, the representative for the Commonwealth Bank of Australia (CBA), argued Justice David Yates made the correct decision in May when he found the pleaded information in the shareholder class action was “hopelessly misleading and incomplete”.
Justice Yates was not satisfied the Australian Stock Exchange’s (ASX) listing rules required CBA to disclose that information.
Hutley said it was “clear” to Justice Yates that the pleaded information was “hopelessly misleading and incomplete” and argued the class action’s lawyers have largely “ignored factual findings”.
On Wednesday (20 November), Hutley pointed to the appellant’s written submissions, in which they attempted to reference a notion there were “different meanings” to the words misleading and incomplete. Hutley said this was a “complete distraction”.
“The appellants do not describe what they assert is meant by misleading or incomplete … and that is because no argument is readily available,” Hutley submitted before the Federal Court’s Justices Bernard Murphy, Mark Moshinsky and Catherine Button.
“[Justice Yates] carefully and meticulously … found the pleaded information was misleading and incomplete, and His Honour’s reasonings [for those findings] were sound.”
Counsel for the appellants, Justin Gleeson SC, argued it was wrong of Justice Yates to find the information was artificial, especially considering the “very close” resemblance to the allegations summarised by AUSTRAC.
Gleeson added it was “pretty hard to think of a clearer case where the substance of the material said to be disclosed has been captured in the pleading, which is the requirement”.
Earlier in his submissions, Hutley accused Gleeson of taking “an overly simplistic position” and paying “little regard to the true position” in Justice Yates’ judgment.
“The difficulty in the appellants’ case [was] in large parts of their own making. They stemmed from a misguided case theory [and] they sought to manufacture the information that said that Commonwealth Bank was obliged to disclose to the ASX … [and] engineered findings of materiality,” Hutley said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
