Commonwealth Bank of Australia v The Law Debenture Trust Corporation Plc

[2000] WASC 87

COMMONWEALTH BANK OF AUSTRALIA & ORS -v- THE LAW DEBENTURE TRUST CORPORATION PLC & ORS [2000] WASC 87

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 87
Case No:	CIV:2061/1996	Heard:	3 APRIL 2000
Coram:	MASTER BREDMEYER	Delivered:	5/04/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937) SOCIETE GENERALE AUSTRALIA LTD (ACN 002 093 021) STANDARD CHARTERED BANK AUSTRALIA LTD (ACN 008 262 897) WESTPAC BANKING CORPORATION (ARBN 007 457 141) HONGKONGBANK OF AUSTRALIA LTD (ACN 006 434 162) BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA BANK FUR GEMEINWIRTSCHAFT AG THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND CREDITANSTALT-BANKVEREIN CREDIT LYONNAIS DRESDNER BANK AG BANQUE INDOSUEZ LLOYDS BANK PLC CAISSE NATIONALE DE CREDIT AGRICOLE GENTRA LTD (FORMERLY ROYAL TRUST BANK) KREDIETBANK NV GULF BANK KSC DG BANK DEUTSCHE GENOSSENSCHAFTSBANK SKOPBANK THE LAW DEBENTURE TRUST CORPORATION PLC THE BELL GROUP LTD (IN LIQ) (ACN 008 666 993) GEOFFREY FRANK TOTTERDELL BELL GROUP FINANCE PTY LTD (IN LIQ) (RECEIVER AND MANAGER APPOINTED) (ACN 009 165 182) ANTONY LESLIE JOHN WOODINGS INSURANCE COMMISSION OF WESTERN AUSTRALIA
Catchwords:	Practice and procedure Application for subpoena duces tecum prior to interlocutory hearing
Legislation:	Rules of the Supreme Court, O 1 r 4(1), O 26 r 8(2), O 36 r 12(4)
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COMMONWEALTH BANK OF AUSTRALIA & ORS -v- THE LAW DEBENTURE TRUST CORPORATION PLC & ORS [2000] WASC 87 CORAM : MASTER BREDMEYER HEARD : 3 APRIL 2000 DELIVERED : 5 APRIL 2000 FILE NO/S : CIV 2061 of 1996 BETWEEN : COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

First Plaintiff

NATIONAL AUSTRALIA BANK LTD (ACN 004 044 937)
Second Plaintiff

SOCIETE GENERALE AUSTRALIA LTD (ACN 002 093 021)
Third Plaintiff

STANDARD CHARTERED BANK AUSTRALIA LTD (ACN 008 262 897)
Fourth Plaintiff

WESTPAC BANKING CORPORATION (ARBN 007 457 141)
Fifth Plaintiff

HONGKONGBANK OF AUSTRALIA LTD (ACN 006 434 162)
Sixth Plaintiff

BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA

(Page 2)

BANK FUR GEMEINWIRTSCHAFT AG
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
CREDITANSTALT-BANKVEREIN
CREDIT LYONNAIS
DRESDNER BANK AG
BANQUE INDOSUEZ
Seventh Plaintiffs

LLOYDS BANK PLC
CAISSE NATIONALE DE CREDIT AGRICOLE
GENTRA LTD (FORMERLY ROYAL TRUST BANK)
KREDIETBANK NV
GULF BANK KSC
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
Eighth Plaintiffs

SKOPBANK
Ninth Plaintiff

AND

THE LAW DEBENTURE TRUST CORPORATION PLC
First Defendant

THE BELL GROUP LTD (IN LIQ) (ACN 008 666 993)
Second Defendant

GEOFFREY FRANK TOTTERDELL
Third Defendant

BELL GROUP FINANCE PTY LTD (IN LIQ) (RECEIVER AND MANAGER APPOINTED) (ACN 009 165 182)
Fourth Defendant

ANTONY LESLIE JOHN WOODINGS
Fifth Defendant

(Page 3)

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Sixth Defendant

Catchwords:

Practice and procedure - Application for subpoena duces tecum prior to interlocutory hearing

Legislation:

Rules of the Supreme Court, O 1 r 4(1), O 26 r 8(2), O 36 r 12(4)

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff : Mr M C Goldblatt
Second Plaintiff : No appearance
Third Plaintiff : No appearance
Fourth Plaintiff : No appearance
Fifth Plaintiff : No appearance
Sixth Plaintiff : No appearance
Seventh Plaintiffs : No appearance
Eighth Plaintiffs : No appearance
Ninth Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance

Solicitors:

First Plaintiff : Freehill Hollingdale & Page

(Page 4)

Second Plaintiff : No appearance
Third Plaintiff : No appearance
Fourth Plaintiff : No appearance
Fifth Plaintiff : No appearance
Sixth Plaintiff : No appearance
Seventh Plaintiffs : No appearance
Eighth Plaintiffs : No appearance
Ninth Plaintiff : No appearance
First Defendant : Edgar & Co
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : Edgar & Co

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Nil

(Page 5)

1 MASTER BREDMEYER: This is an ex parte application by the plaintiffs under O 36 r 12(4) of the Rules of the Supreme Court for leave to issue six subpoenas duces tecum returnable prior to trial. The proposed return date for the subpoenas is 10 April 2000 and the "trial" is listed for hearing by Templeman J on 20 April 2000. The "trial" is the hearing of an interlocutory application by the first defendant (the Law Debenture Trust Corporation PLC and State Government Insurance Commission) (LDTC) and the sixth defendant (Insurance Commission of WA) (ICWA) for an injunction to prevent the plaintiffs commencing any further actions in the Federal Court against the defendants which seek against the defendants, or any of them, the relief sought in this action. Grounds for that application are that the orders are necessary to preserve the integrity of the proceedings and/or to avoid prejudice to the first and sixth defendants and to prevent an abuse of process. That application is supported by an affidavit of Mr Edgar, who is the solicitor for the first and sixth defendants, sworn 28 February 2000.

2 The plaintiffs seek subpoenas duces tecum against each of the six defendants and, in an affidavit in support of Mr Paterniti sworn 31 March, the object of this application is so that the plaintiffs can

"[R]eview those documents at the time of their production to make an assessment of whether the plaintiffs need to lead any further evidence, make any further submissions, or seek to cross-examine deponents to affidavits sworn in support of the chamber summons.

In that event it may be necessary for the plaintiffs to seek an adjournment of the hearing. If the documents sought in the subpoena are produced in a reasonable time prior to 20 April 2000, it will enable the plaintiffs to give consideration to those matters prior to the hearing so that the hearing may proceed without unnecessary delay on 20 April."

3 The documents sought to be produced by the subpoenas are referred to in various parts of Mr Edgar's affidavit. I quote from par 7 of that affidavit by way of example:

"I know from my involvement in the negotiation of various funding agreements made between LDTC, ICWA and others and the liquidators in 1995, that prior to LDTC executing the supplemental deeds referred to in the pleadings in this proceeding and in order to facilitate their funding by ICWA, the

(Page 6)

liquidators agreed that, if a court sanctioned their doing so, they would execute deeds to amend the trust deeds referred to in the pleadings in this proceeding (the trust deeds) to ensure ICWA retained the benefit of any funds paid to it or LDTC pursuant to an order of a court pursuant to section 564 of the Corporations Law." (Emphasis mine)

4 The documents sought are the funding agreements referred to in the first part (whereby LDTC and ICWA funded the liquidators to bring what I will refer to as the main action against the banks in the Federal Court) and the agreement referred to in the latter part of the paragraph.

5 The hearing before Templeman J on 20 April is not a trial at which oral evidence will be called and cross-examination will take place. Order 36 r 12(4) allows the early return of a subpoena duces tecum before the date of the trial with the leave of the court. The plaintiffs rely on O 1 r 4(1) which states that "unless the context otherwise requires … 'trial' includes hearing".

6 I consider that the hearing before Templeman J is an interlocutory one and unless orders are made to the contrary, oral evidence from witnesses will not be allowed, the tendering of documents will not be allowed and the cross-examination of deponents on affidavits will not be allowed: see Seaman 36.2.2 and 36.2.3. Orders to permit oral evidence and the cross-examination of deponents of affidavits on 20 April have not been made. I therefore consider it unnecessary and unjustified to permit the early return of subpoenas duces tecum for the purposes stated.

7 Interlocutory aplications are normally heard on affidavits. The application of the first and second defendants before the Judge on 20 April is a procedural one designed to avoid unnecessary duplication of actions. I has been prompted by the banks' application dated 11 February 2000in the Federal Court action for leave to amend its defence and cross-claim by adding new cross-claims or allegations in the cross-claim - an application which has not yet been heard. The application on 20 April will be argued on the pleadings and the parties in the two actions (on their overlap or non-overlap) and probably does not require any affidavit except as a convenient way of getting before the court the pleadings in the other action. In any event it does not require, in my view, the documents sought to be obtained by these subpoenas which are prima facie internal documents between the two funders and the liquidators and for which privilege may well be claimed. I also query the propriety of bringing an

(Page 7)

application such as this ex parte against the other parties to the litigation, when I suspect they would have a keen desire to be heard.

8 If I be wrong on all these views, 20 April is the first return date of the funders' summons and the banks can seek appropriate directions (if necessary) as to the filing of affidavits on that occasion. This action is stayed. It is not imperative that an interlocutory application contrary to the stay, and likely to be contested, should be heard on the return date. Indeed it would be unusual. A contested application likely to take more than half an hour to hear is normally heard at a special appointment.

9 I know that under O 26 r 8(2) a party is entitled to serve a notice on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for inspection by the party giving the notice. Such a notice has been given to the first and sixth defendants and to their solicitors, Edgar & Co, on 3 March 2000. I am not being asked in this application to enforce that notice and I would not do so on an ex parte basis. I consider it satisfactory that the first and sixth defendants explain their non-compliance with it to the Judge on 20 April. A further reason why I am not willing to entertain any application to enforce that notice is that this action is stayed pursuant to an order of Templeman J made on 20 January 1998 and that is a barrier to me making interlocutory orders. This application is misconceived and will be dismissed with no order as to costs.