Human Appeal International Australia v Beyond Bank Australia Ltd (No 2)

1. [1]

   This is a case about “de-banking”. The neologism refers to banks withdrawing banking services from, or refusing banking services to, certain customers or classes of customer. Typically, as in this case, it involves a bank exercising a discretionary power, under its contract with the customer, to close the customer’s accounts, even though those accounts are in credit and are being operated in accordance with the Bank’s trading terms.

2. [2]

   The customer in the present case is Human Appeal International Australia (“Human Appeal”). Human Appeal is a company limited by guarantee. It operates as a charity, with particular support from the Muslim community in Australia, and is registered with the Australian Charities and Not-for-profits Commission. Human Appeal was established more than 30 years ago. I was told by counsel for Human Appeal from the Bar Table that it is the largest Muslim charity in this country.

3. [3]

   The case for Human Appeal in these proceedings is that it has been wrongfully de-banked by Beyond Bank Australia Limited (“Beyond Bank”), the defendant.

4. [4]

   Australian banks may be divided into various classes. One class consists of commercial banks, which include the “big four”. These banks are owned by private shareholders and operate on a for-profit basis. Another class consists of mutual banks. Such banks, like credit unions and building societies, are owned by their members.

5. [5]

   Beyond Bank is a mutual bank. It is a company limited by guarantee. Its membership consists of its customers (and, in some circumstances, former customers). In theory, the members of the Bank may receive dividends out of its profits and are entitled to share in its surplus assets on winding up. But, in practice, the Bank seems not to pay dividends to its members.

6. [6]

   Human Appeal established banking facilities with Beyond Bank in March 2021. As a result, it became a member of the Bank. But then, in mid-August, the Bank notified, purportedly in reliance on the banking terms and conditions which apply to the accounts, that it was closing them. The Bank declined to give any reasons for its action other than to say that a review had been conducted and the business was not suitable. At the time, the combined credit balance of the accounts was approximately $6.1 million.

7. [7]

   Solicitors acting for Human Appeal sought an extension of the closing date for the facilities until the following February and otherwise reserved Human Appeal’s rights. However, this was not acceptable to the Bank, which insisted that the accounts had to be closed by 30 September.

Claims for determination

1. [8]

   These proceedings were commenced on behalf of Human Appeal on 17 September 2021. Although up until that point Human Appeal’s solicitors had only sought an extension of the banking facilities until the following year, the prayers for relief made it clear that Human Appeal was contending, among other things, that the termination of its banking facilities was wrongful, and that it was entitled to require the Bank to continue to provide banking services to it. A consent injunction was granted until further order of the Court, which required the Bank to continue to provide those services, and they continue to be provided.

2. [9]

   The proceedings were commenced by Summons, but among the interlocutory orders sought in the Summons was an order that Human Appeal plead its case by way of statement of claim. But no such order was sought from the Court, and the proceedings appear to have languished after the grant of the consent injunction.

3. [10]

   Earlier this year, an application was made on behalf of the Bank for the proceedings to be dismissed for want of prosecution. This resulted in a cross-application for leave to file a Statement of Claim. The two applications were the subject of a judgment by Slattery J: Human Appeal International Australia v Beyond Bank Australia Ltd [2023] NSWSC 382. I will refer to paragraphs of that judgment below as “J1”.

4. [11]

   His Honour refused the Bank’s application for summary dismissal, despite the unfortunate procedural history. Given this conclusion, the making of an order and directions for the pleadings was not contentious. His Honour was, however, clearly concerned at the length of time the proceedings had taken. He suggested that they might warrant expedition: J1 [73]-[74]. An application was made for expedition, which was granted in May.

5. [12]

   The hearing took place on 30 August and was followed by written submissions and further oral submissions on 6 September. In the course of the hearing on 30 August, Human Appeal’s statement of claim was amended without objection from the Bank. Further amendments were made to the prayers for relief in the course of the hearing on 6 September. Although counsel for the Bank complained about the lateness of the amendments, they addressed the merits of the amendments in their submissions and did not suggest the Bank was prejudiced.

6. [13]

   As presented in final submissions, Human Appeal’s case consisted of two main claims for relief.

7. [14]

   The first claim focussed on the decision to terminate Human Appeal’s banking facilities. The contention was that the Bank was only entitled to do so if it was acting in good faith and reasonably. In the argument before Slattery J, one of the foreshadowed arguments in support of this contention had been based on the terms of the Bank’s constitution: see J1 [58]-[67]. But this argument was not pursued at the hearing before me. Instead, the focus was on the Bank’s contractual obligations to Human Appeal as customer. Reliance was placed, in particular, on the duty of cooperation and good faith generally implied in commercial contracts.

8. [15]

   Counsel for Human Appeal invited me, if satisfied that the Bank had no entitlement to terminate the account except on reasonable grounds, to find on the evidence that no reasonable grounds existed. It would follow, according to the argument, that the purported termination of the banking facilities was invalid. I was asked to make a declaration to that effect. Counsel accepted, of course, that it would remain open to the Bank to terminate in the future on lawful grounds.

9. [16]

   The second claim was wider and focussed on the trading terms used by the Bank. Those terms refer to the Code of Practice which has been adopted by the Customer Owned Banking Association, which is an industry group consisting of representatives of Australia’s credit unions, building societies and mutual banks. In particular, the Code of Practice provides that those terms should fairly balance the interests of the Bank and its customers.

10. [17]

    The argument for Human Appeal was that termination without justification, or reasons, if permitted under the terms and conditions, breached that requirement of the Code of Practice. The terms and conditions were expressed to incorporate, and to be subject to, the terms of the Code of Practice, and accordingly, it was contended, compliance with the Code could be enforced by the customer against the Bank. I was asked to make orders compelling the Bank to vary its terms and conditions so as to require the existence of reasonable grounds, and proper notice of termination.

Anti-Money Laundering and Counter-Terrorism Financing Act

1. [18]

   As I will describe in due course, counsel for the Bank contended that its decision to close Human Appeal’s accounts had to be understood in the context of its obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). I will therefore set out the relevant provisions of the Act (to which I refer as the “Commonwealth Act”), before summarising the evidence and dealing with the parties’ arguments.

2. [19]

   The Act, as its name suggests, is concerned with the detection, deterrence and disruption of money laundering, the financing of terrorism and “other serious financial crimes”. In particular, it provides for a system of gathering information from Australian financial institutions (“reporting entities”) which may be relevant to combatting such crimes (see the objects in s 3(1)). The Act is administered by the Australian Transaction Reports and Analysis Centre (“AUSTRAC”) which is headed by a Chief Executive Officer (“AUSTRAC CEO”).

3. [20]

   Part 3 of the Act (ss 40 to 51) defines the obligations of reporting entities to provide information to AUSTRAC. It imposes reporting obligations on providers of a “designated service” to a “customer” (see s 6).

4. [21]

   Section 41 deals with reports of “suspicious matters”. These are circumstances which are “reasonably suspected” by the reporting entity in relation to the provision (including the prospective provision) of the service. They include: that a person or agent might not be who they claim to be (s 41(1)(d) and (e)); that information held by the reporting entity concerning the service, may be relevant to investigating or prosecuting offences against, or of assistance in enforcing, specified legislation (s 41(1)(f)); that the service is preparatory to a financing of terrorism offence (g), or a money laundering offence (s 41(1)(g) and (i)); and that information held by the reporting entity concerning the service, may be relevant to investigating or prosecuting a financing of terrorism offence or a money laundering offence (s 41(1) (h) and (j)).

5. [22]

   Part 3 imposes other reporting obligations on reporting entities. One (s 43, subject to exceptions in s 44) concerns the provision of designated services involving a “threshold transaction” (a term defined in s 5, but particularly concerned with transfers of physical currency of at least $10,000). Another (s 45, which applies to a “person”) is concerned with sending or receiving an “international funds transfer instruction” (as defined in s 46).

6. [23]

   When a report has been made under s 41 (or ss 43 or 45), the CEO of AUSTRAC and other specified officials have a power to request information or documents (s 49(1)). A written request can be made of the reporting entity or “any other person”. The recipient must comply within a specified period and in a specified way, by disclosing requested information to the extent that they have it, and by producing requested documents to the extent that they are “relevant to the matter to which the communication under section 41, 43 or 45 relates” (s 49(1)(i)(ii)) and are in their possession or control (s 49(1)(i)(iii)). A notice can only be issued if the issuer “reasonably believes that the recipient has knowledge of the information, or possession or control of the document” sought (s 49(1A)). Compliance with a notice is mandatory (s 49(2)), and non-compliance is subject to civil penalties (s 49(3)).

7. [24]

   Part 7 of the Act (ss 80 to 93) seeks to ensure that a reporting entity conducts its operations in accordance with a program designed to identify, mitigate and manage the risk that the entity may (even if inadvertently) be used to facilitate money laundering or financing of terrorism. Reporting entities are required to have an “anti-money laundering and counter-terrorism financing program” before providing a “designated service” to a customer (s 81(1)). Such programs can be “standard” (s 84), “joint” (s 85), or “special” (s 86). The entitlement to adopt a “special” program is extremely confined (see s 86(2)) and can be disregarded for present purposes.

8. [25]

   The Act recognises that such a program may, and presumably usually does, require co-operation from customers. Standard and joint programs have two parts – Part A (general) and Part B (customer identification). A reporting entity that has adopted a standard or joint program, is providing (or has provided) a designated service to a customer, and has “reasonable grounds to believe that the customer has information likely to assist the reporting entity to comply with” Part A (s 92(1)), can request information from a customer (s 92(2)). If the customer does not comply with the request, the reporting entity may decline to provide services, or restrict the services it provides, to the customer (s 92(4)), until the request is complied with.

9. [26]

   Section 92(5) protects the reporting entity against liability for actions or omissions, in exercise (or purported exercise), of its power under subsection (4), provided they are done in good faith (see also Rofe Way Pty Ltd v Ronald [2023] NSWSC 1086 at [78]). It provides:

10. [27]

    Division 3 of Part 11 (ss 123 to 124) contains provisions directed to maintaining the secrecy of specified types of information reported under Part 3.

11. [28]

    Section 123 is headed “offence of tipping off”. It contains various prohibitions, including:

12. [29]

    Subsection (10), which is headed “courts or tribunals”, provides:

13. [30]

    Subsection (11) prescribes the offences created under the section. Those offences consist of conduct by a person which breaches the requirements imposed on that person by specified subsections. They include subsections (1) and (2), but not subsection (10).

14. [31]

    Section 124 is headed “report and information not admissible”, and relevantly provides:

15. [32]

    Sections 123 and 124 may be compared with other provisions of Part 7 which deal with information obtained or generated by AUSTRAC entrusted persons (defined in s 5 as “AUSTRAC information”). In particular, s 134 deals with the use of such information in court or tribunal proceedings. Section 134 goes somewhat further than s 123(10). Not only is a person not to be required to disclose such information to a court or tribunal (sub-paragraph (b)), but they are also not to be required “to produce a document containing AUSTRAC information to a court or tribunal” (sub-paragraph (a)). As with s 123(10), there is an exception where disclosure (and production) is necessary “for the purposes of giving effect to” the Act “or the Financial Transaction Reports Act 1988”.

16. [33]

    The AUSTRAC CEO has a general power to exempt, by written instrument, a specified person from specified provisions of the Act, or to modify the application of those provisions to that person (s 248(1)). The exemption can be made conditionally (s 248(2)).

Summary and analysis of evidence

1. [34]

   Bank’s corporate constitution: The material before the Court does not reveal when the Bank was established. A copy of its current constitution, adopted in November 2020, was in evidence.

2. [35]

   The Bank’s objects are:

3. [36]

   Rule 2.2 relevantly provides:

4. [37]

   Rules 3.1 to 3.4 deal with membership of the company. Membership is represented by a share in the company called a “member share” which is issued when a person is admitted as a member of the company (r 3.1(3)).

5. [38]

   Appendix 2 deals with shares in more detail. Clause A2-D1-2 provides that each member share confers rights: to vote at general meetings; to share in dividends declared by the board; to participate in the distribution of any surplus on winding up; and to redeem the share.

6. [39]

   Division 4 (rules 4.1 to 4.4) deals with termination of membership. The member’s name may be removed from the register if the share is redeemed. Redemption can occur in one of three ways. Rule 4.2 gives the member, upon withdrawing all deposits and repaying all loans, the right to require the Bank to redeem the member’s share. By contrast, rules 4.3 and 4.4 provide for redemption at the instance of the Bank.

7. [40]

   Rule 4.3 allows the bank to redeem the member’s shares in various specified circumstances. These include where:

8. [41]

   Rule 4.4 is entitled “termination where accounts dormant or membership inactive”. It relevantly provides:

9. [42]

   Code of Practice: The relevant version of the Code of Practice commenced on 1 January 2018. It is expressed as applying to pre-existing subscribers from that date, or later subscribers from the date of subscription. The Bank’s Product Guide (which applies to both accounts in question, see below) contains a statement that the Bank voluntarily subscribes to the Code. There was no suggestion that the Bank has ceased that subscription.

10. [43]

    Part B of the Code deals with preliminary matters, including its application. The part relevantly provides:

11. [44]

    Part C of the Code list “10 Key Promises” made to customers. These relevantly include:

12. [45]

    Part D, which is headed “delivering on our promises”, contains 24 clauses dealing with the banker-customer relationship in more detail. Clause 4 is headed “fair terms and conditions”, and provides:

13. [46]

    I was also referred to clause 22, which is headed “closing your account”, and provides:

14. [47]

    Terms & conditions: Human Appeal has two accounts with the Bank. The first is a “Community Account”. This is an ordinary transactional account. Funds can be deposited into and withdrawn from it. The second is a “Visa Debit Account”. As the name suggests, withdrawals can be made from it by way of Visa-branded debit cards issued to the customer. Human Appeal has a single member share in the Bank which covers both accounts.

15. [48]

    The parties agreed that the terms and conditions which applied to both accounts were set out in a brochure issued by the Bank, named the “Product Guide”. The Product Guide in evidence took effect in March 2021. It has four parts. Part A (clauses 1-11) deals generally with the banker-customer relationship. Part B (clauses 12-25) identifies the various accounts offered by the Bank and contains terms applicable to those accounts. Part C (clauses 26-36) concerns products and services offered by the Bank which allow access to the customer’s accounts. These are referred to as “Access Products” and include cheque books and internet banking, as well as debit cards. Clauses 37 and 38, although not identified as a separate part, contain interpretation provisions which are plainly intended to apply generally.

16. [49]

    Clause 3 of the Product Guide provides that the document contains the terms and conditions for accounts and Access Products, along with terms in the “Fees & Charges booklet”. The Bank has an express right to vary the terms and conditions (clause 5).

17. [50]

    Clause 7 provides:

18. [51]

    Clause 8 deals with Codes of Practice. It relevantly provides:

19. [52]

    Clause 12 is headed “becoming a customer”. Clause 12.1 relevantly provides:

20. [53]

    Clause 38, which is headed “inconsistencies”, provides:

21. [54]

    Clause 25, which appears in Part B, is headed “closing accounts and memberships”. It relevantly provides:

22. [55]

    Clause 28.2 deals the cancellation of Access Products. It relevantly provides:

23. [56]

    The types of account described in the Product Guide include Human Appeal’s Community Account. There is no doubt that the termination provisions in clause 25 apply to such an account.

24. [57]

    The position is less clear for Human Appeal’s Visa Debit Account. The evidence shows that it was a separate account with its own account number and its own balance. But the Product Guide describes a Visa debit card as a means of access to accounts operated by the customer (referred to as “linked” accounts), rather than an account in itself, and does not identify any Visa Debit Account among the other accounts offered by the Bank. It is therefore uncertain whether the termination of such an account involved the exercise of the bank’s powers under clause 25 or under clause 28.2. But no point was taken about this, and it was not suggested that anything turned on any differences in wording between the clauses.

25. [58]

    Termination correspondence: The termination of Human Appeal’s banking facilities was purportedly effected by notice in the form of an email sent by the bank on 11 August 2021. At the time, Human Appeal’s Community Account was around $6.1 million in credit, and its Visa Debit Account was around $13,600 in credit.

26. [59]

    The email relevantly stated:

27. [60]

    Human Appeal responded to this email through a letter written by its lawyers, dated 17 August:

28. [61]

    Beyond Bank responded by a letter dated the following day, signed by Mr Raymond O’Brien, Chief Risk Officer:

29. [62]

    The letter went on to ask for Human Appeal’s acknowledgement of the revised deadline of 30 September. As already noted, Human Appeal commenced these proceedings instead and the facilities have been extended until further order of the Court.

30. [63]

    By a notice to produce for inspection issued in late April this year, Human Appeal sought production by the Bank of documents relating to its decision to terminate Human Appeal’s facilities. The notice sought production of all documents “recording the reason or reasons, rationale and considerations for”, “recording [any] information taken into account by [the Bank] in”, or “relevant to”, that decision.

31. [64]

    In response, the Bank produced:

    1. (1)

       bank statements of the two accounts until the end of July 2021 (with some redactions).

    2. (2)

       two template letters headed “Notification of Account Closure”.

    3. (3)

       the August 2021 correspondence concerning termination, which I have described above.

32. [65]

    A notice to produce for inspection operates as between the parties and does not require production to the Court (see [74] below). The documents in question were produced under cover of emails from the Bank’s solicitors. So far as the evidence goes, there was no disclosure of the existence of any other documents, nor was any time sought for further compliance. The implication would have been that the documents produced were the only documents which the Bank possessed which answered the description in the notice.

33. [66]

    On the face of it, this was surprising. Presumably the email notice of 11 August represented a considered decision on the part of the Bank. The email itself referred to a prior “review”. Yet no record of the review, nor of the decision, was produced. But however surprising it might have been, the Bank clearly appeared to be saying that neither the decision, nor the prior review, had left any documents in its possession.

34. [67]

    But at the hearing on 30 August, the Bank’s position became less clear. In opening, senior counsel for Human Appeal had pointed to the lack of substantive response to the notice, and had foreshadowed a submission that an adverse inference should be drawn against the Bank under the principles in Jones v Dunkel (1959) 101 CLR 298. In his response, senior counsel for the Bank foreshadowed a submission that no such inference would arise. Senior counsel suggested, among other things, that this was because disclosure of the Bank’s reasons, if attributable to the Bank’s obligations under the Commonwealth Act, would fall foul of the Act.

35. [68]

    When I asked whether this meant there were in fact other documents caught by the notice which had not been produced, senior counsel responded that the notice had been complied with “in accordance with [the Bank’s] statutory obligations”. When I pressed senior counsel, he indicated that, on his understanding, the Commonwealth Act prevented the Bank even from saying whether or not there were additional documents caught by the notice which had not been produced.

36. [69]

    The Bank, however, did not formally revisit its answer to the notice. On the record, the position remained that there were no other documents to produce.

37. [70]

    I found all of this somewhat troubling. I was left with the impression that the Bank might unjustifiably have withheld disclosure of documents caught by the notice. In particular, some of the arguments by counsel for the Bank suggested to me that the Bank might have misapprehended the scope of the prohibitions in the Commonwealth Act. These observations, and those which follow, are, however, tentative, because the adequacy of the Bank’s response to the notice was not formally raised as an issue in the proceedings before me.

38. [71]

    I have set out the relevant provisions of the Commonwealth Act above. Counsel for the parties referred to both s 123 and s 124. But s 124 deals with the admissibility of evidence in court or tribunal proceedings. That issue is to be distinguished from pre-trial production of documents: see Northern Territory v GPAO (1999) 196 CLR 553 at [16], [199]. The relevant enactment is therefore s 123.

39. [72]

    There are a number of potentially relevant subsections within s 123. On their face, subsections (1) and (2) prevent disclosure of the information protected by them to another person, such as a party to court proceedings. They do not, however, appear to prevent disclosure to a court. It is well established that, absent contrary intention, a reference to a “person” will not include a court: Kizon v Palmer (1997) 72 FCR 409 at 430-431.

40. [73]

    Moreover, s 123 contains a separate subsection (s 123(10)) which is expressly concerned with the disclosure, to a court or tribunal, of information in subsections (1) or (2). Subsection (10), unlike other subsections in s 123, does not define a situation where subsection (1) does not apply – that is, it is not to be understood as an exception to subsections (1) or (2), but as a stand-alone provision. Subsection (10) is also not referred to in the offence-creating provision (s 123(11)).

41. [74]

    In the case of a notice to produce to court or a subpoena, it seems clear that subsection (10) would be the applicable one. A complication in the present case is that Human Appeal issued a notice to produce for inspection. Although such a notice makes production compulsory, it only need be done inter partes. It is arguable then that 123(10) does not directly apply to such a notice, and that subsections (1) and (2) apply instead (but subsection (10) may apply at a later point: see [80] below).

42. [75]

    Even if subsection (10) applied to the notice in the current case, that subsection applies by reference to “information mentioned in” subsections (1) and (2). The main purpose of subsections (1) and (2) is, as the title of s 123 suggests, to prevent those involved in transactions subject to the Act from being tipped off about AUSTRAC’s involvement or potential involvement. The focus is on reports made, or required to be made, to AUSTRAC, and follow-up enquiries made by AUSTRAC.

43. [76]

    In this context, I do not read subsections (1) and (2) as preventing disclosure, in general terms, of the administrative burden that the Commonwealth Act, together with other reporting obligations, imposes on a reporting entity. I find it difficult to accept that, if in fact the Bank decided to terminate Human Appeal’s banking facilities because of that administrative burden, none of the documents produced in the review, and none of the records recording the decision, could be disclosed at all, even in partially redacted form. Nor was there any evidence that, if the terms of the Act did prevent disclosure, partial or total, the CEO of AUSTRAC had been asked (under s 248) to modify its application, so as to permit such disclosure.

44. [77]

    The Bank’s stance also raises procedural questions. Counsel appeared to be suggesting that the Bank might have considered that there were documents caught by the Act and that it might have gone on to withhold those documents from production without making any disclosure that it had done so. The implication appeared to be that this would have been legitimate. I am not at all sure that that is so.

45. [78]

    Had Human Appeal issued a subpoena or a notice to produce to court in the present case, any documents specified therein which contained information caught by s 123(1)-(2) would have been “privileged documents” (see the definitions of “privileged document”, and “privileged information” (especially paragraph (h)) in the Dictionary to the Uniform Civil Procedure Rules 2005) for the purposes of UCPR r 1.9. That rule provides that “if a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled” (r 1.9(4A)). In order to rule on the objection, evidence can be received by affidavit or otherwise (r 1.9(5)(a)), and “in the case of an objection to the production of a document, the person objecting may be compelled to produce the document” (r 1.9(5)(c)).

46. [79]

    The position for an inter partes notice to produce is more complicated. The relevant UCPR provisions are rr 21.09-21.11. They relevantly provide:

47. [80]

    In Crawford v Crawford (No 4) [2016] NSWSC 910 at [12]-[13], Stevenson J expressed the view that a privileged document does not, under the language of the rule, have to be produced. Nevertheless, as r 21.11(1)(b) expressly provides, there is still an obligation to disclose the existence of the document and the fact that a claim for privilege is being made. His Honour also assumed that any challenge to the claim would be dealt with by the Court, and could involve, if necessary, the Court inspecting the document for itself (which would plainly bring s 123(10) into play).

48. [81]

    I suppose an argument might be devised that s 123 implicitly overrides the provisions of the rules to which I have referred and excludes any role for the court in determining whether the Act applies (cf Kizon at 444-447). Any such argument would however have to address the scope of the exception in subsection (10) for disclosure “necessary for the purpose of giving effect to” the Act (the existence of s 94 would be relevant here: it must have been supposed by Parliament that the scope of the defence created by that section could give rise to contestable issues about the scope of pre-trial production in proceedings between reporting entity and customer).

49. [82]

    The observations by counsel for the Bank did not descend to this level of detail, and it is not necessary to consider the possible arguments and counter-arguments. On any view, it is hard to see how total non-disclosure by the Bank could have been justified.

50. [83]

    As already noted, it is troubling to think that this case might have to be decided in circumstances where not all of the relevant documents have been produced to the Court. But for practical purposes this is a matter for the Bank and its legal representatives. All that the Court (and the legal representatives for Human Appeal) can do is to proceed on the basis of what the Bank has actually produced in answer to the notice.

51. [84]

    Mr Mohamed Razeen, Human Appeal’s Financial Manager, gave affidavit evidence (dated September 2021) and was briefly cross-examined.

52. [85]

    According to Mr Razeen, Human Appeal’s work “involves trying to improve and relieve the effects of poverty and social injustice”, with a particular focus on developing countries. Mr Razeen also referred to work directed to “some of the most poverty, war-torn and needy places in the world”.

53. [86]

    Mr Razeen gave evidence of Human Appeal’s financing. Human Appeal uses its account with the Bank to receive donations. Roughly 4,000 people donate every fortnight by direct debit, with their donations totalling around $200,000 each fortnight. Other fundraising means include: campaign/fundraising drives (online, in person, or by telephone); project based fundraising (involving a monthly commitment, by direct debit); cash donations to offices or donation checkpoints – these are recorded, bundled and deposited from time to time, with bank agreement.

54. [87]

    Mr Razeen referred to an “orphan sponsorship program”, as an example of project based fundraising. Donors commit to make a monthly gift to sponsor an orphan until their 18th birthday (but some continue to sponsor them beyond this point, usually until they are self-sufficient). According to Mr Razeen, 8,000 orphans are currently sponsored.

55. [88]

    Mr Razeen gave the following evidence about the purpose and use of the accounts with the Bank:

56. [89]

    According to Mr Razeen, there were discussions between Human Appeal and the Bank about the best way for Human Appeal to deposit cash collections. Mr Razeen exhibited an email from Mr Nicholas Winstone, Community Development Manager at the Bank, dated 7 June 2021. According to Mr Razeen, the email set out an agreement, which was the product of the earlier discussions.

57. [90]

    In that email, Mr Winstone referred to himself, “Sue and Alex” (other staff of the Bank, copied in the email) having “confirmed the below plan”, and noted that it could be continually assessed and altered based on Human Appeal’s feedback. Under the heading “What we know”, Mr Winstone set out that: there are three major campaigns for cash (with details, dates, and whether cash only or coins and cash); that large coin deposits are only required for two main campaigns; that Human Appeal has its own coin counting machine; that Human Appeal, at the time, had around $30,000 in coins to deposit.

58. [91]

    Mr Winstone then set out an “Agreed Plan” under the headings of “Coin Deposit Strategy” and “Cash Deposit Strategy”. Human Appeal was to contact the Parramatta Branch of the Bank at least one day before visiting to deposit coins or at least $20,000 in cash. Coin deposits were not to exceed $5000 per week (and there were other procedural steps for coin deposits). Human Appeal was to count coin deposits in advance, and know (approximately) the value of cash deposits in advance.

59. [92]

    Mr Razeen replied to Mr Winstone’s email on the same day. He indicated, “[w]e will deposit the coins as per below email”.

60. [93]

    The Bank relied upon an affidavit of its Chief Risk Officer, Mr O’Brien, the author of the letter of 18 August 2021 (see [61] above). The affidavit had been made in February this year, for the purposes of the application before Slattery J.

61. [94]

    Mr O’Brien gave some general evidence about the nature of the Bank’s operations. This included that the Bank:

62. [95]

    According to Mr O’Brien, during the 2021/22 financial year, the Bank: “[c]ontributed over $630,000 to not-for-profit organisations through the Community Reward program”; “[r]aised over $278,000 for 16 nominated charities”; invested over $1.3 million “in local communities” through the “Beyond Bank Foundation and Community Development Investments Program”; and recorded a net profit, after tax, of $35.5 million, which the Bank re-invests into its business, “supporting investments in services, products and technology and consolidating its capital position”.

63. [96]

    Part of Mr O’Brien’s evidence was directed to the Bank’s costs of continuing to provide financial services to Human Appeal (pursuant to the injunction in place).

64. [97]

    According to Mr O’Brien, as a mutual authorised deposit-taking institution (ADI), the Bank (along with its members) is “disproportionately affected by unnecessary costs”. Mr O’Brien went on to describe aspects of the operations of mutual ADIs in Australia. These included that: mutual ADIs in Australia have to generate profit to meet their need for working capital and to meet prudential capital requirements (there are minimum rates of such capital as a percentage of risk weighted assets – the main asset being loans); mutual ADIs have historically been limited to generating prudential capital through returned earnings (whereas listed banks can rely on ordinary share capital as well); shares offered by credit unions (mostly referred to as customer owned banks) are treated in law as debt rather than equity, and are not counted towards prudential capital; consequently, “any unnecessary or excessive costs” have “a significantly disproportionate impact on” servicing “current and future members due to the impact on capital”; mutual ADIs “face considerable constraints on the costs they are willing and able to meet .. to provide banking services to its members”, where the provision of a service to one member at a disproportionate cost, is detrimental to other members – Mr O’Brien described this as the “sense of equity that is at the core of the mutual ADI”. All of this evidence was rather conclusory but probably uncontentious so far as it went. Objection was taken but not pressed after I indicated that I would receive it for what it was worth.

65. [98]

    Mr O’Brien referred to the Bank’s obligations under the Commonwealth Act. He stated that “staff” of the Bank compile management reports which are provided to the Chief Risk Officer and the Board, and that the reports involve the extraction of “data” from the Bank’s systems, and commentary on the “data” and the “results”. He did not go into further detail.

66. [99]

    Mr O’Brien then gave the following evidence, which was objected to by counsel for Human Appeal:

67. [100]

    The relevance of this evidence to the issues in these proceedings is questionable. Evidently, it was prepared for the purpose of arguing, in the context of the application dealt with by Slattery J, that, given the delay by Human Appeal in prosecuting the proceedings, the balance of convenience favoured the dismissal of the proceedings, rather than giving Human Appeal a further opportunity to continue to prosecute them. Although the evidence referred to the proceedings going back two years, that is to February 2021, the focus was on the ongoing effect on the Bank of having to provide banking facilities for Human Appeal. It was not on the decision to terminate Human Appeal’s banking facilities in August 2021. Indeed, Mr O’Brien’s affidavit did not say that the decision to terminate those banking facilities was taken because of the administrative burden on the Bank of monitoring Human Appeal’s bank accounts. It did not even identify who the decision-maker was. It did not refer to the decision at all.

68. [101]

    Counsel for the Bank invited me to infer, despite Mr O’Brien’s failure to say so, that the cost of monitoring the Bank accounts was the reason for the decision to terminate. I see little attraction in this submission. If this is correct, then the Bank could have readily put on evidence to prove it directly. But I am not sure whether it would be a justification for termination in any event. Mr O’Brien asserted that the need to monitor Human Appeal’s account had taken up a great deal of time of the Financial Crimes Team and that this was significantly higher than that of other bank customers. What he did not say was that this administrative burden required the Bank to put on further staff, or to incur extra staffing expenses, or that it distracted the staff from performing other necessary functions. It is therefore difficult to see that the monitoring task has imposed any financial cost on the Bank.

69. [102]

    In the end, however, it was not necessary to rule finally on the relevance of the evidence. There were clear deficiencies in its form. It was evident from Mr O’Brien’s affidavit that the statements he made about the effect on the Financial Crimes Team were not based on personal observation. The Team reported to Mr O’Brien, but he was not a member of it. The statements made by Mr O’Brien must therefore have been derived from oral or written statements, that were provided to him by the Senior Manager in charge of the Team, or directly from members of it. If they were derived from written reports, then those reports would have been business records, which could, and should, have been tendered. If they were derived from oral reports, then, coming from Mr O’Brien, those reports were hearsay. Mr O’Brien’s evidence was thus a conclusion based on undisclosed primary factual material.

70. [103]

    For this reason, I rejected the evidence as bad in form. Counsel for the Bank then sought leave to adduce the evidence in proper form. But I considered that the application came too late. Putting the evidence in proper form might well have given rise to further factual enquiries and requests for the production of documents. It was not reasonable to expect counsel for Human Appeal to deal with this on the run.

Validity of termination

1. [104]

   In the proceedings before Slattery J, counsel for the Bank foreshadowed a dispute about the termination of Human Appeal’s banking facilities being subject to an obligation of good faith or reasonableness. The issue remained a live one during the course of the opening on 30 August and in the written supplementary submissions filed for the Bank in advance of the closing arguments on 6 September.

2. [105]

   In their submissions, counsel for the Bank emphasised two authorities in particular. The first was the decision of the English Court of Appeal in Joachimson v Swiss Bank Corporation [1921] 3 KB 110. In that case, Atkin LJ summarised the terms of the contract between banker and customer. His Lordship stated that the Bank had the right to terminate the contract, subject to allowing sufficient time for outstanding transactions to be processed (at 127). Counsel submitted that this statement has since been understood as an exhaustive one, which excluded the possibility of any restriction based on good faith or reasonableness.

3. [106]

   In counsel’s submission, this understanding was correct. It was said to be consistent with the decision of the House of Lords in Foley v Hill (1848) 2 HL Cas 28, which laid down that, in the absence of some specific undertaking, the banker-customer relationship is not a fiduciary one. More recent authority in Canada was said to reinforce the view that the termination of a banking contract is not generally subject to obligations of good faith or reasonableness: RCG Forex Service Corp v HSBC Bank Canada 2011 BCSC 315; International Relief Fund for the Afflicted and Needy (Canada) v Canadian Imperial Bank of Commerce 2013 ONSC 4612.

4. [107]

   The second authority emphasised by counsel was the decision of Foster J in Sundararajah v Teachers Federation Health Limited [2011] FCA 1031. The case concerned a health fund which provided benefits to members covering health services provided to them. Accredited providers could be supplied with electronic point of sale equipment which allowed a member’s benefit to be paid directly to the provider, leaving the member to pay only the difference between the benefit and the amount charged by the provider. It was obviously beneficial for a provider to be able to offer the service.

5. [108]

   What happened was that the plaintiff, who was a dentist, obtained such equipment by entering into a contract with the fund. The fund later terminated the arrangement by exercising a power of termination in the contract, which did not require any reasons to be given. The plaintiff challenged the termination, contending that the fund had obligations of good faith and fair dealing which prevented termination without proper commercial justification. This contention was rejected by Foster J: see at [62]-[71].

6. [109]

   In response, counsel for Human Appeal submitted that the world had moved on. Counsel referred me to the following statement from the Supreme Court of Arizona, as long ago as 1937 (Stewart v Phoenix National Bank (1937) 49 Ariz. 34 at 45):

7. [110]

   In the same vein, counsel referred to more recent comments by Allsop CJ about the importance of banking in commerce in ASIC v Australia and New Zealand Banking Corporation Ltd (No 3) [2020] FCA 1421. His Honour observed (at [13]) that:

8. [111]

   Counsel for Human Appeal submitted that, if there had ever been any limitation on applying the principles of good faith and reasonableness to a bank’s decision to terminate its accounts with a customer, that limitation should be discarded. Indeed, counsel appeared to go so far as to contend that the relationship of banker and customer, while not fiduciary, was of itself a relationship of “good faith”.

9. [112]

   In the end, however, it did not prove necessary to go into this debate in any depth. In the course of closing argument on 6 September, in answer to a question from me, counsel for the Bank conceded that the Bank was only entitled to terminate Human Appeal’s banking facilities if it had “a valid commercial reason” for doing so. The real question, according to counsel, was whether it had been established that, in fact, the Bank lacked a valid commercial reason to close Human Appeal’s accounts.

10. [113]

    The existence of an obligation to exercise contractual powers in good faith (and, it is sometimes added, reasonably) is well recognised. In the leading authorities in this State, it is seen as deriving from an implication to that effect as a term of the contract. This, of course, would mean that the implication could be excluded by an express term to the contrary. It has been suggested, however, that the implied term analysis is too narrow, and an obligation to act in good faith should be seen as inherent in the doctrines of contract law themselves: see, for example, JW Carter and E Peden, ‘Good Faith in Australian Contract Law’ (2003) 19 Journal of Contract Law 155.

11. [114]

    In view of counsel’s concession, it is not necessary to go into this debate. Furthermore, the present case has its own specific factual features.

12. [115]

    The Code of Practice, which is expressly incorporated into the Bank’s terms and conditions, contains provisions which guide the manner in which the Bank is to act. That effect is seemingly reinforced by clause 38. Although the Code does not use the terms “good faith” or “reasonableness”, it uses similar terms (see above at [44]). Thus, there is room to argue that, in the present case, there is a contractual obligation of good faith and reasonableness which is express (or at least which arises from the express terms of the contract rather than by way of stand-alone implication: cf Realestate.com.au Pty Ltd v Hardingham (2022) 296 ALJR 40 at [21] (Kiefel CJ and Gageler J) and [102]-[106] (Edelman and Steward JJ).

13. [116]

    I proceed on the basis that this additional fact-specific consideration, and perhaps others, may have informed the concession in the present case. Counsel for the Bank is not to be taken as having accepted that the same is so in every case of banker and customer.

14. [117]

    There is a further point which turns on the facts of the present case. Even though Human Appeal has not pursued the contention that the constitution of the Bank itself prevents it from terminating Human Appeal’s banking facilities without cause, the constitution is part of the contractual context. It operates as a “statutory contract” binding on both the Bank and Human Appeal (along with the other members of the company): Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 at 433-436.

15. [118]

    Under the Bank’s constitution, a customer’s member share is potentially valuable property which can only be taken away by the Bank in defined circumstances. Being able to maintain an account with the Bank is, in itself, a valuable right because it makes it harder for the share to be taken away. Furthermore, the provisions of rule 4.4, in particular sub-rules (2), (3) and (5), appear to have the effect that a member’s bank account cannot be closed without the member’s consent, even if the account is not being used. All of this seems difficult to reconcile with the Bank having a discretion to close any customer’s account merely upon giving notice, and without cause.

16. [119]

    It may therefore be that a customer of the Bank is in a stronger position to resist de-banking than the customer of a commercial bank. But this was not argued, and, having regard to the concession made by the Bank, it need not be furthered discussed in this judgment.

17. [120]

    I come now to the question of breach by the Bank. It is common ground that Human Appeal bears the legal onus of proving that the Bank acted without a valid commercial reason. At the same time, however, the circumstances may place an evidentiary onus on the Bank to justify that action.

18. [121]

    Counsel for Human Appeal pointed out that no officer of the Bank had given any evidence about its decision to close Human Appeal’s accounts. Indeed, the Bank had not even identified who the decision-maker was. Nor had any documents been produced. Counsel invited me to infer that the Bank had no reason for its decision, or at least no reason which would stand scrutiny.

19. [122]

    Counsel for the Bank, for their part, submitted that no such inference should be drawn. Essentially, their argument was that to do so would give insufficient weight to the Bank’s secrecy obligations.

20. [123]

    Counsel for the Bank referred, in particular, to the Commonwealth Act as providing the “context” for the decision to terminate Human Appeal’s banking facilities. Counsel acknowledged that there was no evidence before the Court that the decision was associated with the making of a report or reports under the Act. But counsel submitted that, had that been the case, the Bank would have been prevented from giving evidence about it under s 124.

21. [124]

    In their submissions, counsel for the Bank referred to the decision of Moshinsky J in Marundrury v Commonwealth Bank of Australia (No 2) [2022] FCA 916. In that case, the plaintiffs were Indonesian nationals. Money was transferred to their accounts held (in Australia) with the defendant bank (“CBA”). The transfers came from members of the plaintiffs’ family in Indonesia. The monies were not transferred using conventional interbank channels, but were instead converted into a series of cash deposits in sums less than $10,000. The proceeds were later forfeited, but only after several transfers had been made, involving a significant sum.

22. [125]

    The plaintiffs’ pleaded case was that CBA breached its obligations to them as customers by failing to comply with its reporting requirements under the Commonwealth Act. The plaintiffs alleged that, had CBA done so, the forfeiture steps would have taken place earlier, and later transfers would have taken place by conventional channels, which would not have been subject to forfeiture.

23. [126]

    CBA sought to have the proceedings dismissed as an abuse of process. CBA’s argument was that the provisions of ss 123 and 124 of the Commonwealth Act, in effect, prevented it from defending itself against the plaintiffs’ claims. Moshinsky J initially deferred the application, to allow CBA to ask the AUSTRAC CEO to dispense with the secrecy provisions, to the extent necessary for it to be able to defend itself. But when the Deputy CEO (to whom CBA’s request had been referred) declined to do so, his Honour decided to accede to CBA’s application (subject to giving the plaintiffs a further opportunity to amend their pleading).

24. [127]

    Counsel referred to the statement of reasons by the Deputy CEO for failing to authorise the legislation to allow for disclosure in that case. In particular, the reasons included the following:

25. [128]

    Marundrury (No 2) was a very different case from this one. The claims pleaded by the plaintiffs against CBA directly involved an allegation that CBA had breached its reporting obligations under the Commonwealth Act with respect to specific transactions. In the present case, by contrast, the question of the application of the Act arises only incidentally. It could not be said, and was not contended by counsel for the Bank, that Human Appeal’s claim involved an abuse of process.

26. [129]

    Counsel for the Bank urged me to consider the issue in the context of all of the evidence, and in particular Mr O’Brien’s evidence about the Bank’s structures and procedures. For this reason, I have set out that evidence in some detail at [93]-[98] above. But overall, I thought that it was presented at too high a level to answer the specific questions which arise in this case.

27. [130]

    I have already pointed out that, if it were truly the case that compliance with the Act (and possibly other prudential requirements) had resulted in disproportionate time being spent by members of the Financial Crimes Team on monitoring Human Appeal’s accounts, that would not necessarily have imposed any additional cost on the Bank, and it is therefore questionable whether, of itself, it would have been a valid commercial reason for terminating the banking relationship. But even if additional costs had been incurred, I see no reason why the Bank could not simply have said that that was so, without going into detail about any specific transactions or reports. Indeed, I cannot see why a statement that the Team had been disproportionately engaged in working on Human Appeal’s accounts, and that the Bank had not wished to continue to bear that administrative burden (if the Bank had truly reasoned in that way), would fall foul of s 123 (or s 124).

28. [131]

    For completeness, I should add that, if I am wrong in my understanding of the width of the Commonwealth Act, there would always be a possibility of the CEO of AUSTRAC modifying the application of the Act, in the present case, to allow the evidence to be given. There is nothing in the record to suggest that the Bank made any request for dispensation, either to allow it to answer the notice to produce, or to conduct its defence at the hearing. Indeed, there is no suggestion that the Bank even considered doing so.

29. [132]

    Although counsel referred me to the reasons given for the refusal of such a dispensation in the Marundrury (No 2) case, and I have quoted those reasons above, they are not evidence for the purposes of these proceedings. I certainly am not prepared to infer that if in this case a request had been necessary, and had been made, it would have been refused.

30. [133]

    I have already pointed out that Marundrury (No 2) was a very different case. Furthermore, there would be no need for the CEO of AUSTRAC to be concerned in this case (or, with great respect to the author of the Marundrury (No 2) statement of reasons, in any proceedings in which the rules of evidence apply) about the possibility of reports being used to give hearsay evidence about customers’ affairs. Such documents, unless deriving from personal knowledge of the reporting entity’s officers, would be inadmissible in any event. And (again with respect to the author of the Marundrury (No 2) statement of reasons) the courts can be expected to take whatever steps may be necessary to ensure the confidentiality of evidence which has been received and warrants protection, including by making suppression orders, backed up by the power to impose criminal sanctions for contempt. Documents from the highest level of government, or recording security and intelligence information of the most secret kind, are routinely dealt with in this way.

31. [134]

    In these circumstances, I would like to think that the AUSTRAC CEO would recognise the important public interest in the fair conduct and just resolution of court proceedings, and generally exercise his or her powers under the Act accordingly. This would include both facilitating compliance with a subpoena or notice to produce issued by a court, if it called for documents which were found by the court to be privileged under s 123, and facilitating the adducing of potentially relevant evidence at the hearing, if that evidence were covered by s 124.

32. [135]

    In summary, the Bank was, from the outset, challenged by Human Appeal as to its reason for terminating the facilities. Initially, the Bank took the position that it was entitled to terminate without having a reason. Belatedly, the Bank raised the alternative argument, that if it was not entitled to terminate without having a reason, it might have had one. I think that such an argument is quintessentially one which attracts an evidentiary onus. How else could it be evaluated by the Court? But the Bank has propounded no admissible evidence in support of it. Instead, the Bank has contented itself with submitting that I should infer that the Commonwealth Act prevented the reason from being put before the Court. I have rejected that submission. I find myself driven to the conclusion that the Bank did not have reasons for termination which would sustain scrutiny. The purported termination was therefore invalid.

Compliance of terms and conditions with Code of Practice

1. [136]

   The argument for Human Appeal focused on clause 4.2 of the Code of Practice which I set out again for convenience:

2. [137]

   As a matter of language, clause 4.2 imposes an obligation on the members of COBA which relates to the terms and conditions in those members’ contracts with their customers. But that obligation is then picked up by the Bank’s acknowledgment in clause 8 of its terms and conditions (see above) that the relevant provisions of the Code “apply” to all of its products and services. On the face of it, therefore, clause 4.2 of the Code forms part of the contract between the Bank and its customers, and obliges the Bank, if the existing terms and conditions do not reflect a “fair balance” of the parties’ interests, to adopt revised terms and conditions which do. There is no apparent difficulty with enforcing the obligation by mandatory injunction at the suit of the customer: the Bank is expressly permitted to vary the terms and conditions (clause 5).

3. [138]

   It is unusual for the parties to a contract to agree make the reasonableness of their trading terms reviewable in this way. But counsel for the Bank did not argue that it was impermissible as an “agreement to agree”. Nor did counsel argue that the fairness of the balance struck by the Bank’s terms was not a justiciable issue. I think, therefore, that the Court has no alternative but to decide the issue as best it can.

4. [139]

   Counsel for the parties did not refer me to any instance of such an issue being dealt with in a decided case. I must therefore address the question in the present case from first principles.

5. [140]

   Counsel for the Bank did refer me to clause 22 of the Code of Practice. I understood their submission to be that, while, in general, clause 4.2 was capable of application to the question of termination, clause 22 dealt with the issue exhaustively. But I do not think that is correct. Clause 22 addresses the situation where termination is permitted under the contract. I think it has nothing to say about the circumstances in which termination should take place.

6. [141]

   Of more significance, for present purposes, is the circumstance that the Bank’s terms and conditions expressly make provision for the impact of the Act on the conduct of the customer’s banking facilities (clause 7, quoted at [50] above). That clause allows the Bank to obtain and disclose customer information in accordance with its obligations under the Act (and otherwise). It also allows the Bank to recover costs incurred as a result of the customer engaging in transactions or payments in breach of the Act. It does not however give the bank power to terminate the customer’s banking facilities on that ground.

7. [142]

   Returning to the issue of principle, clause 25 of the terms and conditions, on its face, permits termination of the customer’s banking facilities without cause and simply upon the giving of 20 days’ written notice. The concession by counsel for the Bank that the clause cannot be used unless the Bank actually has a valid commercial reason for termination goes some way to redressing the balance. But the practical value of that concession is limited if, as clause 25 provides, there is no obligation to specify the reason in the notice. That means if a bare termination notice is given, as in this case, the customer has no practical means of finding out the reason for the decision, and challenging it, short of launching legal proceedings.

8. [143]

   Such a state of affairs seems to me to be highly un-businesslike. The contractual duty of good faith and fair dealing is closely linked with the contractual duty of cooperation. A cooperative approach to a problem which was causing the Bank to think that it might wish to terminate the customer’s account, would be to raise the issue with the customer (to the extent, of course, that this is lawfully possible), so that it may be dealt with in advance. It seems quite illogical, having conceded that a reason must exist, to put the customer in the position where the reason can only be identified once the purported termination has taken place, and the customer has brought legal proceedings about it.

9. [144]

   There is a further point. While the Bank now accepts that termination without a valid commercial justification is ineffective, that is not something a customer would appreciate from reading the bare terms of clause 25. It seems to me that this, of itself, is a defect in the terms and conditions for the purposes of clause 4.2 of the Code.

10. [145]

    Counsel for the Bank submitted that the fair balancing of interests must take account of the Bank’s legal obligations, including its secrecy obligations under the Commonwealth Act. I accept that this is so. Clearly, any obligation to give reasons must be limited to the reasons the Bank may lawfully disclose. But I have already explained why I do not think that this would have been an obstacle to giving at least some explanation in the present case, if the Bank’s decision had actually been based on the administrative burden of complying with the Act.

11. [146]

    For these reasons, I consider that the termination provision in clause 25 of the terms and conditions does not strike a “fair balance” between the interests of the parties, as required by clause 4.2 of the Code. The Bank will need to modify the provisions to ensure that a fair balance is struck. But how that is to be done seems to me to be a matter for the Bank. As at present advised, I am not sure that I should defer the finalisation of these proceedings until it has happened (indeed I am not sure that I will be asked to do so).

Conclusions and orders

1. [147]

   I have concluded that:

   1. (1)

      the purported termination of Human Appeal’s banking facilities, notified by letter dated 11 August 2021 was invalid; and

   2. (2)

      the provisions in clause 25 of the terms and conditions, concerning the termination of customer bank accounts, contravene the Bank’s obligations (enforceable by Human Appeal as a customer of the Bank) under the Code of Practice.

2. [148]

   Ordinarily, the first conclusion would justify an injunction restraining the Bank from giving effect to the purported termination. The second conclusion would justify a mandatory injunction, requiring the Bank to adopt fresh terms and conditions relating to the termination of banking facilities which strike a “fair balance” for the purposes of clause 4.2 of the Code of Practice. But counsel for the Bank submitted that the grant of injunctions would be unnecessary and that I could be confident that if I made declarations reflecting my conclusions, the Bank would act accordingly. I am inclined to accept this approach. But I will give counsel for Human Appeal an opportunity to be heard further on whether further, non-declaratory, relief should be granted.

3. [149]

   I will stand the proceedings over for a short time to allow the parties to confer on the terms of the declarations and whether any other orders are necessary to complete the proceedings. The parties should also seek to agree the costs consequence which should follow from my decision. If there is any disagreement, I will hear argument.

4. [150]

   The orders of the Court are:

   1. (1)

      Adjourn the proceedings to 29 September 2023 or such other time or date as may be arranged with my Associate.

   2. (2)

      Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with the remaining claims in the proceedings, including costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for this purpose.