Commonwealth Bank of Australia v Quade

The Commonwealth Bank of Australia appealed to the High Court of Australia against a decision of the Full Court which had ordered a new trial in proceedings between the Bank and Thomas Quade, Mary Quade, Shawn Thomas Quade, and Gerard William Quade. The dispute concerned the discovery of documents after judgment, which the successful party, the Bank, had failed to disclose.

The central legal issue before the High Court was the appropriate test to be applied when determining whether a new trial should be ordered due to the non-discovery of relevant documents by the successful party. Specifically, the High Court was asked to consider the test applied by the Full Court, which required a new trial if the undiscovered material "might have affected the result," and to compare it with alternative tests, including the test from *Orr v Holmes* and *Wollongong Council*, which suggests a new trial is warranted only if it is "almost certain" that a different result would have been reached. The appellant also argued by analogy with the tests applied in cases of fraud and perjury, suggesting a balance of probabilities test.

The Commonwealth Bank argued that the Full Court's test was too strict and that the appropriate test, absent fraud or perjury, should be that it must be "almost certain" that a different outcome would have occurred. Alternatively, the Bank contended that the test should be whether the non-disclosed material would have altered the result on the balance of probabilities, as is applied in fraud and perjury cases. The Bank submitted that the Full Court had applied a rule stricter than that for fraud and perjury, which was inappropriate. The High Court was presented with passages from the judgment of Burchett J, with whom Neaves J concurred, which indicated that the undiscovered evidence might have led to a different conclusion, particularly concerning the credibility of bank officers in relation to disputed conversations about foreign currency loans.

The High Court ultimately found that the Full Court had erred in applying the test that a new trial must be ordered if the undiscovered material might have affected the result. The Court held that the correct test, in the absence of fraud or perjury, is that a new trial should only be granted if it is established that the failure to discover the documents has led to a verdict that is demonstrably wrong, meaning it is "almost certain" that a different result would have been reached had the documents been discovered. Consequently, the High Court allowed the appeal, set aside the order for a new trial made by the Full Court, and remitted the matter to the Full Court to determine the appropriate orders in light of the correct legal test.