BBSW trial for ANZ, Westpac and NAB pushed back to September 2017

The Federal Court will hear allegations against ANZ, Westpac and NAB in four phases.

Justice Beach said the trial would be conducted in four phases.

The trial of rate-fixing allegations brought by the corporate regulator against three of the big four banks has been put back by almost two months.

Federal Court judge Jonathan Beach this morning ordered the trial of cases brought by the Australian Securities and Investments Commission against ANZ, Westpac and NAB over the key BBSW interest rate benchmark would begin on September 25 next year.

He had previously proposed the trial could begin on August 1.

Justice Beach said the trial would be conducted in four phases, starting with issues that are common to all three cases.

He then wants to hear issues related specifically to each of ANZ, Westpac and NAB in turn.

The trial will decide only whether the banks are liable for any rate-fixing, with a further hearing on what penalty they should pay to be held later if ASIC wins.

Justice Beach said the extra time was needed so that the parties could file all their evidence and get their arguments into order.

He said he might also want to hold a preliminary hearing about the admissibility of some of the evidence.

“That suggests to me a trial date at the end of September is more realistic,” he said.

Much of this morning’s hearing was occupied with argument from counsel for ASIC, John Karkar QC, who wants to be able to use some of the evidence given against each bank against the other banks.

He said he wanted to do this to demonstrate how the BBSW market worked.

“If Westpac was on a particular day manipulating the market that is evidence that ANZ considered the market capable of manipulation,” he said.

He said this would be evidence against the argument mounted by all banks that the BBSW price was set by a “dynamic process of supply and demand”.

“ANZ says it’s not capable of manipulation and we couldn’t have manipulated it,” he said.

Justice Beach queried how evidence of the subjective intent of traders within one bank — “what they were saying over morning tea” — could be relevant to the case against another banks.

However, he said he had no difficulty with the idea that evidence about market operations could be introduced against all the banks.