In a case management hearing Thursday, Federal Court Justice Nye Perram was told former Australia and New Zealand Bank trader Etienne Alexiou sought to amend his statement of claim to refer to communications with and disclosures to the Australian Securities and Investments Commission.

The draft amended pleading allegedly refers to disclosures Alexiou made during examinations with ASIC and mentions complaints the former trader made to the corporate regulator, said ANZ barrister Yaseen Shariff SC.

“Whether we consent to the pleading…we are not in a position to comment on that,” said Shariff.

“I don’t know whether my friend’s side has the consent of ASIC to deploy those documents…but whether they have a lawful way that can be used for this proceeding is a moot question at the moment.”

Shariff said ANZ needed to view the communications with ASIC to decide whether to oppose the amended pleading because on the basis that it was embarrassing, untenable, frivolous or vexatious, but Alexiou refused to hand them over, saying the bank could request them formally under the rules once the pleadings were filed.

Alexiou launched proceedings against ANZ in July 2020 alleging the bank dismissed him for making complaints about attempted manipulation of a key interest rate and not, as the bank claims, for his “offensive” chats with other traders.

Alexiou was sacked in September 2015 for what the ANZ said were “serious breaches” of its code of conduct, but the trader claimed in his suit that his dismissal followed a series of complaints made to senior bank executives and in interviews with ASIC.

Also on Thursday, Shariff said ANZ had not yet consented to the amended pleading because of concerns it may disclose privileged material.

Shariff said the amended case disclosed communications with ANZ’s former solicitors, Clayton Utz, and in-house counsel concerning separate litigation that followed an ASIC investigation into whether the bank manipulated bank-bill swap rates.

Justice Jayne Jagot ruled in November 2017 that ANZ and National Australia Bank had attempted to engage in unconscionable conduct in attempting to set the bank bill swap rate, a key benchmark and reference interest rate, on certain dates.

ANZ admitted at the time that a handful of traders had engaged in the conduct and apologised for its “inability to prevent or detect the behaviour”. But Alexiou alleges the attempted rate manipulation was a strategy discussed among top officials, including Shayne Elliott, who is now the bank’s CEO.

Shariff said Alexiou’s involvement in the bank bill swap rate matter was “one small part of a large piece of work” and ANZ was concerned that if it allowed the amended pleading it might waive its privilege or disclose confidential communications.

“The issues are not easy ones because they involve the intersection of common interest privilege and disclosure,” he said.

Justice Perram ordered Alexiou to provide the communications with ASIC by the end of Friday and for the matter to be listed for further case management in three weeks.

“(ANZ has) a possible point about ASIC’s communications and disclosures to ASIC…as to whether it is lawful for these documents to be deployed in the way they are,” Justice Perram said.

The lawsuit, believed to be one of the first under strengthened whistleblower protections, is the second case brought by the trader against ANZ. The first one was dropped in 2016 in the face of what his lawyers called “an unscrupulous and unwarranted media assault” on his reputation.

Alexiou is represented by Anthony McInerney SC, instructed by Levitt Robinson Lawyers. ANZ is represented by Yaseen Shariff SC, instructed by Seyfarth Shaw Australia.

The case is Etienne Alexiou v Australia and New Zealand Banking Group Limited.

Copyright Lawyerly Media. Unauthorised reproduction or distribution of this article is prohibited.

A reprint licence is required to reproduce or distribute this article. Contact Us for a reprint licence.