Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No. 31)

[1996] FCA 198

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION                 )
  No NG 381 of 1994

BETWEEN:

ALLSTATE LIFE INSURANCE CO and the parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

No NG 523 of 1991
         BETWEEN:

ALLSTATE LIFE INSURANCE CO and the parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

No NG 622 of 1991
         BETWEEN:

ALLSTATE LIFE INSURANCE CO and the parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

No NG 635 of 1991

BETWEEN:

ALLSTATE LIFE INSURANCE CO and the
parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

CORAM:Lindgren J

PLACE:Sydney

DATE:13 March 1996

MINUTE OF ORDERS

THE COURT:

1. (a)  Orders that the 49th, 50th, 51st and 53rd respondents file and serve witness statements by 27 March 1996.

(b)Notes that it is intended that if those statements are not filed by 27 March 1996, there will be an order, upon application, that the party or parties in default be precluded from bringing evidence in their respective cases.

1. Orders that the 49th, 50th, 51st and 53rd respondents pay the applicants' costs of the applicants' motion brought by notice of motion filed on 4 March 1996.

1. (a)  Orders that the motion of the 49th and 53rd
   respondents brought by notice of motion filed on 7 March 1996 be dismissed.

(b)Orders that the 49th and 53rd respondents pay the applicants' costs as respondents to that motion.

1. (a)  Orders that the motion of the 51st respondent brought by notice of motion filed on 7 March 1996 be dismissed.

(b)Orders that the 51st respondent pay the applicants' costs as respondents to that motion.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION                 )
  No NG 381 of 1994

BETWEEN:

ALLSTATE LIFE INSURANCE CO and the parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

No NG 523 of 1991

BETWEEN:

ALLSTATE LIFE INSURANCE CO and the parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

No NG 622 of 1991

BETWEEN:

ALLSTATE LIFE INSURANCE CO and the parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

No NG 635 of 1991
         BETWEEN:

ALLSTATE LIFE INSURANCE CO and the parties listed in Annexure A to the third further amended statement of claim.
  Applicants

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and the parties listed in Annexure B to the third further amended statement of claim.
  Respondents

CORAM:Lindgren J

PLACE:Sydney

DATE:13 March 1996

REASONS FOR JUDGMENT (No 31)
         (Motions relating to failure to file and
                 serve witness statements)

There are before the Court three motions: one by the applicants; a second by Mr Deans, the 51st respondent; and a third by Mr Blood, the 49th and Mr Gale the 53rd respondent.  The applicants complain of the failure by those three respondents and the 50th respondent Ms Boskovitz to file and serve witness statements.  Although the applicants' motion named as respondents to it the 49th, 50th, 51st, 52nd and 53rd respondents, they did not, in the event, move against the legal personal representatives of the 52nd respondent, the late Sir Max Dillon.  There was no appearance for the 50th respondent, Ms Boskovitz.  I will, for convenience, refer to the 49th, 51st and 53rd respondents who appeared as "the Respondents".

On 11 July 1995 all respondents were directed to file and serve their witness statements by 22 December 1995.  The Respondents have not complied with this order.

It has been submitted for the Respondents that they ought not be required to put on any evidence until the close of the applicants' evidence.  Indeed, that is the order they seek in their motions.  That submission depends in part on the nature of the case pleaded against them as one of fraud, and further, on a matter not unassociated with this, namely the "generality" of the allegations as made in the third further amended statement of claim filed on 3 October 1995.  It is put that several of the allegations pleaded in that document are of so general a nature that it cannot be known by any one of the Respondents whether it is alleged, for example, that any particular one of numerous documents referred to in the pleading was received by the particular Respondent.

Such a complaint should have been raised a very long while ago when arguments were taking place over the adequacy of the applicants' pleading and particulars.  The trial is due to commence next Monday 18 March.  Although I am anxious to ensure that there is no prejudice amounting to injustice, it is too late to make the sweeping allegation that because of the generality of the applicants' pleading in some respects, the Respondents should simply be relieved of the obligation to put on any witness statement whatever until the conclusion of the applicants' case.

Moreover, as the applicants point out, by amendments made to the defences of the Respondents filed pursuant to leave granted this day, certain affirmative defences are raised which will, of their nature, require positive evidence to be given by the Respondents.

I am not persuaded that the Respondents should be relieved of the obligation to put on any written statement.  They concede that there are allegations already made in witness statements served on them to which they wish to give evidence in response.  If a particular difficulty arises, that can be dealt with by a subsequent application but it seems to me appropriate that there be an order that the Respondents and Ms Boskovitz, file and serve their witness statements within 14 days of today's date.  If the witness statements are not filed within that period, I propose to make an order upon the expiry of that period precluding them from giving evidence in their cases.  That will not preclude them from tendering documents.

Accordingly, I make an order first that the 49th respondent Mr Blood, the 50th respondent Ms Boskovitz, the 51st respondent Mr Deans and the 53rd respondent Mr Gale, within 14 days from today's date, file and serve witness statements and a list of documents proposed to be tendered by them respectively.  Secondly, I record that it is my intention that if those witness statements are not filed within that time, to make an order, upon application, that any one of those four respondents in default shall not be at liberty to give evidence in his or her case.  Thirdly, I order those four respondents to pay the applicants' costs of the applicants' motion.  Fourthly, I order that the Respondents' motions be dismissed and that they pay the applicants' costs of those motions.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:25 March 1996

Heard:       13 March 1996

Place:       Sydney

Decision:     13 March 1996

Appearances:  Mr W G Muddle of counsel instructed by Deacons Graham & James appeared for the applicants.

Mr J S Wheelhouse of counsel instructed by Tress Cocks & Maddox appeared for the 49th and 53rd respondents.

Mr D Robertson of counsel instructed by Madgwick Partners appeared for the 51st respondent.