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Federal Court structures timing for ASIC swap rate case

13 December 2016 5:18PM
Last Friday, in a Federal Court hearing in Melbourne, the case being run by ASIC against three of the Big Four banks over alleged bank bill swap rate manipulation took another step forwards.The main aim of last week's triple header of case management hearings, with a barrage of legal teams arrayed before Justice Jonathan Beach, was to continue to finesse the growing lists of agreed facts, confirm filing dates for evidence and lists of witnesses, and from there to set up the timing of key dates and a trial structure.Justice Beach indicated a clear intention to hear all three cases being run by ASIC against ANZ, Westpac and NAB as concurrently as possible by running the case in four phases. These will comprise, firstly, common issues, before moving to specific issues for each of the three banks.ASIC's leading silk, John Karkar QC, said ASIC would file its evidence in two tranches: documentary evidence by the end of December, and the rest of the evidence - for instance, preliminary expert evidence - in the form of affidavits and a list of agreed facts by the end of February 2017. Karkar noted that the trial - which he suggested could start as soon as 1 August 2017 - could be expedited if some "not yet agreed to facts could be agreed." He said some facts were "really nuanced," so agreement could be achieved by "tampering with the language". Examples he gave of where ANZ was yet to agree on language used included: how certain derivatives work; what an interest rate swap is; and concentration of trading in a rate-setting window.The three banks confirmed they could file the bulk of their evidence by the end of March, with some submissions and affidavits filed "before Christmas" - for instance an agreed list of facts between ANZ and Westpac. The judge suggested parties reconvene in court in April for a further case management hearing, as all evidence is expected to be filed by then. Justice Beach said he had in mind a preliminary hearing regarding the admissibility of evidence, likely to be run in July or August 2017.Justice Beach said he therefore was "minded to fix the [trial] date" at 25 September 2017, "subject to the banks persuading me otherwise," which would allow 12 weeks to review all the evidence.Further, he said he would not be making any determinations until he had completed all these phases - that is, until he has heard from all the parties.With that in mind, ANZ's top silk Alan Archibald agreed that a 25 September start date was "feasible", although NAB's legal team, headed by Neil Young, countered that its preparation was well behind the other banks as it was not notified by ASIC until June this year that it was in the regulator's sights.In a mid-year hearing, Young also told Justice Beach that NAB had to create new software - reportedly at a cost of A$1.5 million - to recover conversations between traders.When pressed on this point,

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