De Poi v De Poi - [2010] SASC 310

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DE POI & ORS v DE POI & ORS
[2010] SASC 310
Judgment of The Honourable Justice White
5 November 2010
EVIDENCE - DOCUMENTARY EVIDENCE - BANKERS' BOOKS - ORDER FOR PRODUCTION
Plaintiffs sought an order, out of time, for access to banking records under s 49 of the Evidence Act 1929 (SA) and for disclosure of documents by a non-party under r 146 of the Supreme Court Civil Rules 2006 (SA) - defendants claimed that the application was "fishing", and should be denied.
Held application allowed in part - plaintiffs' application too broad in light of the issues raised on the pleadings.
Evidence Act 1929 (SA) s 46, s 49; Supreme Court Civil Rules 2006 (SA) r 4, r 101, r 136, r 146, referred to.
Mane Market Pty Ltd v Temple (1997) 194 LSJS 188; South Staffordshire Tramways Company v Ebbsmith [1895] 2 QB 669; Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164; Williams Aviation Pty Ltd v Santos (1985) 40 SASR 272; Sands v South Australia [2005] SASC 381, considered.

DE POI & ORS v DE POI & ORS
[2010] SASC 310
Civil

WHITE J. The plaintiffs seek orders under s 49 of the Evidence Act 1929 (SA) and r 146 of the Supreme Court Civil Rules 2006, the effect of which would allow them to inspect and copy specified categories of documents held by Commonwealth Bank of Australia (CBA).
Under s 49(1) of the Evidence Act a judge may order that a party to proceedings “be at liberty to inspect and take copies of a banking record for any of the purposes of such proceedings”.
In their application of 26 October 2010, the plaintiffs seek an order as follows:
CBA produce all evidentiary material in its possession including agreements, correspondence, letters, emails, facsimiles, files notes, internal memorandum in the period from June 1994 to date in relation to:
1.     loan agreements between the CBA and any of the following entities:
(a)     G & G De Poi Partnership (between Giovanni De Poi and his wife, Giovanna De Poi), established in 1974, which traded as the De Poi Produce Co from 1988;
(b)     G De Poi Nominees Pty Ltd as trustee for the De Poi Family Trust;
(c)     D.P. Exports Pty Ltd as trustee for the De Poi Sons Trust; and
(d)     Maronian Pty Ltd;
(collectively, the De Poi Group)
2.credit memoranda prepared in relation to applications for loans or the restructure of credit facilities by the De Poi Group;
3.personal guarantees provided to CBA by representatives of the De Poi Group, Ted De Poi and Paul De Poi;
4.proposals for finance, extensions of finance or restructure of De Poi Group finances;
5.the offer by or on behalf of the De Poi Group of properties or other assets of the Estate of the Late Giovanni De Poi, the Family Trust and Sons Trust as security for De Poi Group borrowings;
6.financial statements including consolidated financial statements of the De Poi Group;
7.business plans including consolidated business plans of the De Poi Group;
8.cash flow forecasts and budgets including consolidated cash flow forecasts and budgets for the De Poi Group;
9.file notes of meetings or other communications between officers of CBA and Ted De Poi, Paul De Poi, Wayne Scanlon, Michael Smith and George Meola (the De Poi Officers) in relation to the matters set out in paragraphs 4, 5 and 13 hereof;
10.correspondence between the CBA and the De Poi Officers in relation to the matters set out in paragraphs 4, 5 and 13 hereof;
11.documents recording and evidencing the opening of account number 06 5122 1066 0743 (BSB 06 5122) by or on behalf of Ted De Poi as trustee for the Estate of Giovanni De Poi; and
12.all account statements generated in relation to account number 06 5122 1066 0743 (BSB 06 5122) from the opening of that account until the date of the order obtained by the application; and
13.documents recording and evidencing all communications between officers of CBA and the De Poi Officers in relation to the Estate of Giovanni De Poi.
With the exception of paragraphs 11-13 inclusive, and a portion of paragraph 10, the documents sought by the plaintiffs seem to relate to the provision of finance by CBA to the De Poi Group (as defined in paragraph 1). The plaintiffs claim is wide-ranging as they seek access to almost every document which the CBA may have relating to the provision of such finance.
The defendants did not oppose the making of orders to reflect paragraphs 11, 12 and 13 of the plaintiffs’ application. Nor did they oppose the making of an order under paragraph 10 insofar as the correspondence related to the documents sought in paragraphs 11-13 inclusive. The defendants opposed the remaining portions of the application on the grounds that the plaintiffs were engaged in a “fishing” exercise, and that the documents sought were not directly relevant to any issue raised on the pleading.
CBA indicated that it did not wish to be heard on the application and would abide by whatever order the Court makes.
Some matters were either common ground or, at least, not in dispute at the hearing. The plaintiffs accepted that the defendants were entitled to be heard both on the application made under s 49 and on the application under r 146. It was not suggested that the documents sought by the plaintiffs were not “banking records” as defined in s 46 of the Evidence Act.[1] The argument proceeded on the basis that under both s 49 and r 146, the Court could order CBA to produce for inspection documents which were both directly and indirectly relevant to an issue in the proceedings.
[1] Banking records are defined to mean:
(a)books of account, accounts, and accounting records (including working papers and other documents necessary to explain the methods and calculations by which accounts are made up); and
(b)books, diaries, or other records used in the course of carrying on the business of a bank; and
(c)cheques, bills of exchange, promissory notes, deposit slips, orders for the payment of money, invoices, receipts and vouchers; and
(d) securities, and documents of title to securities,
in the possession or control of a bank;
The authorities indicate that the principles developed in the law of discovery relating to relevance and disclosure are to be applied in the determination of applications under s 49 of the Evidence Act. Thus, in Mane Market Pty Ltd v Temple[2] Doyle CJ said that the provisions in Part 5 of the Evidence Act (of which s 49 forms part) “should not be read as a code entitling a party to make use of those powers without reference to the procedural context in which they are used”. Similarly, in South Staffordshire Tramways Company v Ebbsmith,[3] Lord Esher MR said that the exercise of the power to permit inspection of banker’s records “ought to be regulated by the general rules laid down by the decisions in relation to inspection of documents before the trial”.[4] Lord Esher also counselled against granting an application for the inspection of banking records if such an application is:
of a fishing character, made by the plaintiffs with a view to obtaining an opportunity of trying to find in the account items favourable to their case, but the existence of which they have at present no sufficient ground for suspecting.[5]
[2] (1997) 94 LSJS 188.
[3] [1895] 2 QB 669.
[4] Ibid at 674. See also Williams v Summerfield (1972) 2 QB 512 at 517-8.
[5] Ibid at 675.
In relation to the application for non-party disclosure under r 146, both parties referred to Commissioner of Police v Channel Seven Adelaide Pty Ltd[6] in which I said:
The Court has a discretion with respect to the range of documents which a non-party should be ordered to disclose. That discretion must take account of a number of factors including the directness (or indirectness) of the relevance of the documents to the issues in the case; the coercive nature of the process; the extent to which the non-party is likely to incur expense or experience difficulty in complying with the order; and the extent to which compliance with the order will impinge upon the confidentiality of the information held by the non-party, or upon the privacy of the non-party or other persons. A non-party should not be required, under the coercion of a Court order, to disclose any more documents than are necessary to dispose fairly of the proceedings. Ultimately the order should be framed so as to best serve the interests of justice in the particular case.
(Citation Omitted)
In determining the application, I have thought it appropriate to apply the test of direct relevance contained in r 136 of the Supreme Court Civil rules 2006.
[6] [2008] SASC 164 at [35].
The Underlying Litigation
This action arises out of a dispute between siblings in the De Poi family. The plaintiffs (Sandra and Linda) seek declarations, orders for inquiry and account, orders for payment of equitable compensation and consequential orders in relation to a variety of breaches of trust which they allege have been committed by their brothers or corporate trustees controlled by them.
First, the plaintiffs make a number of allegations in their statement of claim (now in its fifth iteration) (5SC) concerning the conduct of their brothers, Ted and Paul (the first and second defendants), in relation to the estate of their father Giovanni (the Estate) who died on 6 June 1994. Prior to his death, Giovanni conducted in partnership with his wife Giovanna a profitable wholesale fruit and vegetable business under the business name De Poi Produce Co (the Partnership). The claims against Ted and Paul in relation to the Estate include allegations that:
1.Ted and Paul acted as executors de son tort of the Estate between 6 June 1994 and 19 July 2001 (5SC [12]-[13]);
2.Ted and Paul have not wound up the affairs of the Partnership (Giovanni’s share in which comprised a substantial asset in the Estate) and have transferred assets of the Partnership to D P Exports Pty Ltd (the fourth defendant) in the period between 1996 and 2001 (5SC [16]-[17]);
3.Ted and Paul have wasted an asset of the estate, namely, the goodwill of the Partnership business, and have not accounted for the alleged transfer of that goodwill to D P Exports (5SC [19]);
4.Ted and Paul have not properly accounted for the income of the Estate and, in particular, have not opened a bank account in which rent, dividends and distributions were deposited (5SC [20A]);
5.Ted breached duties owed by him in connection with his application to this Court on 20 December 1999, 4 April 2001 and 19 July 2001 for Letters of Administration of the Estate (5SC [22]-[29]);[7]
6.Ted and Paul have not since 19 July 2001 administered the Estate appropriately and have delayed its administration (5SC [31]);
7.between 30 June 2002 and 30 June 2009 Ted and Paul caused the Partnership to borrow at least $1,472,000 secured over Partnership properties at a cost to the Partnership and to the Estate and used those funds substantially for their own benefit and the benefit of entities controlled by them (5SC [34]-[37]); and
8.in breach of the duties imposed on them under the Trustee Act, have failed to keep proper accounts of the transactions in which they have caused the Estate or the Partnership to engage.
[7] On 19 July 2001, this Court granted Letters of Administration of Giovanni’s estate to Ted with a will made by Giovanni in Italy annexed (5SC [27]).
The next group of claims relate to the conduct of Ted and Paul in relation to the De Poi Family Settlement Trust (the Family Trust), a discretionary family trust, of which the third defendant (G De Poi Nominees Pty Ltd) is the trustee. Since Giovanni’s death on 6 June 1994, Ted and Paul have been the directors of G De Poi Nominees. The principal allegation concerning the Family Trust is that since Giovanni’s death, G De Poi Nominees has increased its borrowings by more than $1.6m, all of which is secured over real properties forming part of the assets of the Family Trust, at a cost to the Family Trust, and yet has used those funds substantially for the benefit of Ted, Paul and entities controlled by them (5SC [46]). However, as will be seen the transactions particularised by the plaintiffs do not involve CBA.
A third group of claims concerns another discretionary trust, the De Poi Sons Trust (the Sons Trust). The fourth defendant DP Exports is the trustee of the Sons Trust and the plaintiffs allege, amongst other things, that it has carried on the business of De Poi Produce Co since 31 May 1997 (5SC [6.5]). The claims concerning the Sons Trust include allegations that DP Exports has:
1.received loan funds and advance from the Partnership and mixed its own funds with those funds and the funds of other entities associated with Ted and Paul (5SC [58.2]);
2.received loan funds and advances from the Family Trust and mixed its own funds with those funds and the funds of other entities associated with Ted and Paul (5SC [58.3]);
3.transferred Trust properties to new trustees (5SC [58.4]);
4.failed to make any distribution to any beneficiary of the Sons Trust other than Ted and Paul and entities controlled by them (5SC [58.5]); and
5.failed to keep proper accounts and records in breach of its statutory duty to do so (5SC [60]).
Again, as will be seen, these pleas do not involve any transactions to which CBA was a party.
The plaintiffs allege generally knowing assistance by Ted and Paul in the breaches of trust by the corporate trustees.
By their defence, the defendants deny any wrongdoing and provide explanations for some of the conduct alleged against them. It is not necessary for present purposes to outline those defences.
Consideration of the Application
The plaintiffs referred to a number of particular pleadings, commencing with those contained in the Defence, in support of their application.
The Defence contains a number of references to facilities provided by, and transactions involving, CBA and members of the De Poi family as well as entities associated with them. Although the Defence does not use these expressions, it contains a number of pleadings indicating that over a period of time, and particularly in the financial year ending on 30 June 2002, some form of restructure or rearrangement in the relationship with CBA occurred. The effect of the restructure or rearrangement included the Sons Trust becoming in 1997 or 1998 the banker to the Partnership and discharging liabilities of the Partnership, including its liabilities to CBA (Defence [17], [34.1]) and the Sons Trust taking over the conduct of the Partnership business (Defence [18]). Despite this takeover, the Defence pleads that sales revenue continued to be recorded in the accounts of the Partnership in order to justify the continued financial accommodation from the CBA (Defence [18.4]). The defendants also plead that from in or about 1995, Maronian Pty Ltd, of which both Ted and Paul are directors, commenced acting as banker to De Poi entities, including T De Poi Nominees.
It is not necessary to refer to all the passages in the Defence relied upon by the plaintiffs. I agree with the plaintiffs that the Defence indicates sufficiently for the purposes of the present application that De Poi entities as a group have, at least for a time, dealt with CBA. In addition, the Defence indicates that some form of rearrangement occurred so that now one member of the De Poi Group acts as banker, providing the necessary financial facilities to the other entities. In short, there is reason to believe that, at least for part of the period relevant to the present action, CBA may have documents evidencing financial facilities provided to the De Poi family and entities associated with them.
I will return to the particular paragraphs in the Defence upon which the plaintiffs relied shortly, but will first consider the application by reference to the plaintiffs’ own pleading.
The first group of the plaintiffs’ claims concerning the Estate include two claims in respect of the Estate’s borrowings. Paragraph 31.7 of 5SC asserts that “Ted did not pay down and out, and has not paid out, liabilities then owed by the Estate”. I consider that that plea makes directly relevant documents held by CBA evidencing the liabilities of the Partnership to it at the time of Giovanni’s death on 6 June 1994 and the state of those liabilities thereafter. The plea does not justify the more wide-ranging application made by the plaintiffs.
Paragraph 31.8 of 5SC alleges “Ted and Paul have increased the liabilities owed by the Estate by taking out further mortgages over Estate assets, and the plaintiffs refer to [34] below of this claim”.
This plea cannot justify the wide-ranging application made by the plaintiffs as each of the transactions particularised in [34] are said to have involved the raising of finance secured by “private mortgage”. This expression is inapt to describe a mortgage to CBA, and the plaintiffs did not contend that, contrary to its ordinary meaning, the expression “private mortgage” was a reference to a mortgage to CBA.
Accordingly, the plea in [31.8] does not justify the plaintiffs’ application.
As noted above, the second group of the plaintiffs’ claims concerns the Family Trust. The statement of claim raises directly the issue of financial borrowings as the allegation in [46] is that, since 6 June 1994, G De Poi Nominees increased its borrowings by $1,659,500 using assets of the Family Trust as security and at the expense of the Family Trust and yet used those funds substantially for the benefit of Ted, Paul and entities controlled by them.
However, this allegation does not support the plaintiffs’ wide-ranging application. Each of the transactions particularised by the plaintiffs in support of the plea in [46] involved the raising of finance secured by “private mortgage”. There is no allegation that any of the transactions involved the use of finance provided by CBA.
The plaintiffs’ pleading concerning the third group of claims relating to the Sons Trust includes two allegations which could, at first glance, justify some part of the plaintiffs’ allegation. These are the claims that DP Exports has received loan funds and advances from the Partnership and the Family Trust respectively and has mixed its own funds with those of the Partnership and Family Trust and other entities associated with Ted and Paul (5SC [58.2], [58.3] and [60.1]). However, the plaintiffs’ particularisation of these allegations reveals that it relies upon the funds raised on security of the same private mortgages to which reference was made earlier. That is to say, the plaintiffs themselves do not allege that any borrowings from CBA were used for this purpose. Accordingly, the third group of claims of the plaintiffs does not justify any part of the wide‑ranging application now made by the plaintiffs.
As noted earlier, the plaintiffs also relied upon aspects of the Defence.
First, they referred to Defence [12.2(f)]. By this plea, the defendants answered the plaintiffs’ plea that Ted and Paul had assumed management and control of the assets of the Estate and, amongst other things, had thereby acted as executors de son tort by causing previously unsecured loans to be secured by the registration of mortgages over four specified properties owned by the Estate. The defendants deny the allegation and say that it was the CBA which (in three cases) had chosen in 1998 to register mortgages which Giovanni and Giovanna had granted to it prior to Giovanni’s death. As there has been no Reply, it can be taken that this plea in [12.2(f)] of the Defence is denied.[8] However, the gravamen of the dispute appears to concern the reasons for the CBA registering the previously unregistered mortgages, rather than whether they had, or had not, been executed by Giovanni and Giovanna.
[8] Supreme Court Civil Rules 2006 r 101(3).

A dispute as to who, or what, caused the CBA to register the previously unregistered mortgages in 1998 does not warrant the wide-ranging production and inspection of documents sought by the plaintiffs. At best, the issue between the parties may justify a request for production of documents evidencing CBA’s decision to register the mortgages (including the reasons for that decision), but that is not the request made by the plaintiffs.
Next, the plaintiffs referred to Defence [16.4]-[16.7] relating to the Estate claim. By 5SC [16], the plaintiffs allege that “since [Giovanni’s] death, the Partnership’s affairs have not been wound up, and annual financial statements continue to be prepared in the name of the Partnership”. The defendants admit this allegation and in [16.4] to [16.7] of the Defence plead in substance that by reason of a depressed property market and the liabilities of the Partnership to CBA secured over properties owned by the Estate, Ted considered that it would be disadvantageous to the Estate and to Giovanna to dispose of the properties until the property market improved. The pleading contains some ambiguity in that it does not indicate whether the Partnership liabilities secured by Estate properties were entered into before or after Giovanni’s death, or both. (Other pleas, for example, Defence [31.5] and [34.4(e)], indicate that at least some mortgages have been granted over Estate properties). The question of whether the matters pleaded in Defence [16.4]-[16.7] are a complete answer to the matters raised by the plaintiffs’ pleading does not presently arise. As I understand it, the plaintiffs rely on Defence [16.4]-[16.7] as indicating that the Partnership did have some liability to the CBA, that these liabilities were secured over Estate assets, and that they were likely to have been substantial.
I do not regard the pleas in Defence [16.4]-[16.7] as justifying the wide-ranging application made by the plaintiffs. Those pleas may, however, justify the application in paragraph 1(a) and portions of the applications made in paragraphs 9 and 10 of the plaintiffs’ application.
Next the plaintiffs referred to Defence [17.2(d)] relating to the Estate claim. By 5SC [17], the plaintiffs allege that on or about 31 May 1997 Ted and Paul, acting as executors de son tort and as Giovanna’s attorney, transferred assets of the Partnership, including the business name, to DP Exports for no consideration. In their defence to this plea, the defendants plead a number of transactions and in [17.2(d)] plead:
The Sons Trust satisfied the Partnership’s bank liabilities by way of its overdraft, trade finance and credit bills of $3,475,815 as at 30 June 2001 in connection with which a corresponding credit was made in the books of the Partnership to the loan account in the name of the Sons Trust such that the Partnership became substantially indebted to the Sons Trust and the Sons Trust thereafter effectively acted as a banker to the Partnership, as to which the defendants repeat paragraph 34 herein.
As I understood it, the plaintiffs relied on this plea as indicating both the existence and the extinguishment of liabilities of the Partnership to the CBA as at 30 June 2001. They also submitted that it and other pleadings raised pleas of a form of restructure or re-arrangement of the De Poi families’ financial arrangements, including its arrangements with CBA. Putting this aspect of the matter aside for the moment, the plea in [17.2(d)] does not indicate that all the documents sought by the plaintiffs are directly relevant to an issue arising on the pleadings. The pleading does make directly relevant those documents evidencing the liabilities by way of overdraft, trade finance and credit bills of the Partnership to CBA in the period from 6 June 1994 to 30 June 2001. It does not support the plaintiffs’ claim for access to documents in respect of the period after 30 June 2001.
Next, the plaintiffs referred to Defence [18.4] in relation to the Estate claim. This plea is in response to the plea that DP Exports had in effect taken over the Partnership business. The defendants plead (in part) that in the years after Giovanni’s death:
… [R]evenue was recorded in the accounts of the Partnership in order to justify the continued financial accommodation of CBA to the Partnership which had historically been based upon the Partnership actively conducting a fruit and vegetable wholesale business.
This plea does not justify the wide-ranging application made by the plaintiffs. It does justify the plaintiffs having access to documents evidencing “the continued financial accommodation of CBA to the Partnership” and, in particular, the application in paragraph 1(a) and a portion of the application in paragraph 4.
Next the plaintiffs referred to Defence [34.1] in relation to the Estate claim. Paragraph 34.1 pleads relevantly that at all material times following Giovanni’s death and prior to the financial year ending on 30 June 2002, the Partnership was substantially indebted to external financiers including CBA and trade creditors, and that from time to time CBA expressed concerns about its security arising out of the death of Giovanni. The defendants plead that on or about 14 February 2001, DP Exports discharged the Partnership’s external financing liabilities and, as a consequence, the Partnership’s external financing liabilities together with its security interest were, with one exception, totally discharged. In the same context, the plaintiffs also referred to Defence [34.4] and [36.1].
Again, I am not satisfied that these pleas justify the plaintiffs’ wide-ranging application. They do, however, justify the plaintiffs having access to the loan agreements and account statements relating to the liabilities of the Partnership to CBA as well as any correspondence or other documents evidencing CBA’s expressions of concern to the defendants, or any one of them, relating to its security position following the death of Giovanni.
Finally, the plaintiffs referred to Defence [46.3(b)]. Relevantly, this paragraph contained an allegation that another entity, Maronian Pty Ltd, commenced acting as banker to the defendants and other entities associated with the De Poi family. The plaintiffs referred to this plea as indicating a restructuring in the financial arrangement of the various De Poi entities. In my opinion, however, reference to this plea does not justify the present application.
The plaintiffs also relied on aspects of the affidavit and exhibits filed in support of their application. The exhibits comprised in the main documents already disclosed by the defendants in the action. The affidavit was a useful point of reference but the relevance or otherwise of the documents sought by the plaintiffs must of course be determined by reference to the pleadings.
The affidavit indicated that at least on some occasions CBA dealt with the De Poi family and entities as a group. Further, on at least some occasions, the defendants’ accountants prepared group accounts for submission to CBA. The members of the group were the Family Trust, the Partnership, the Sons Trust and other entities controlled by members of the De Poi family.
However, the fact that the CBA was accustomed, from time to time, to deal with De Poi entities as a group does not, of itself, justify the plaintiff’s wide‑ranging application. The “group documents” should be produced for inspection only if production of the class of document is appropriate in relation to at least one of the persons or entities whose conduct is in question in this litigation.
The plaintiffs also exhibited documents indicating that in about June 2000, and from time to time in later years, CBA did not, when assessing its security position, differentiate between assets of the Family Trust, the Estate and DP Exports. The documents also indicate that from time to time G De Poi Nominees allowed assets of the Family Trust (of which it was the trustee) to secure financial facilities provided to DP Exports, the trustee of the Sons Trust. For example, various schedules of the properties securing loans included assets of the Family Trust (12 Jetty Road, Largs Bay and 15 Lochinvar Street, Paradise) in relation to facilities provided to DP Exports. However, as outlined earlier, the 5SC does not make any allegations to the effect that the defendants, or any one of them, has obtained loans from CBA using assets from another entity as security. In other words, the plaintiffs appear to be seeking documents in respect of conduct which their pleading does not impugn.
The plaintiffs should be held to their pleading. On the same day that I heard the argument on the present application, I granted the plaintiffs’ permission to amend further their statement of claim in the light of their recent review of its adequacy. This is the fifth version of the statement of claim and can be taken to be the plaintiffs’ considered position. Accordingly, the plaintiffs’ reference to documents indicating that G De Poi Nominees may have allowed assets of the Family Trust to secure loans made by CBA in favour of DP Exports does not support the present application.
The plaintiffs are on more secure ground in relation to the documents suggesting that CBA was involved in a restructuring or re-arrangement of financial facilities in February 2001. The defendants’ discovered documents do suggest that CBA is likely to have documents directly relevant to the restructure, including the transfer of assets and liabilities from the Partnership to De Poi Exports.
I consider that the plaintiffs have made good that part of the application which concerns the pleaded discharge by DP Exports of the Partnership’s “external financing liabilities”.
Beyond the matters referred to above, I consider that the plaintiffs’ application should be dismissed. It is not necessary to address the defendants’ submission that the application should be characterised as “fishing” in nature.
There are other considerations of a more discretionary nature which indicate that, save as already indicated, the plaintiffs’ application should be dismissed. The first is the lateness of the application. It is late because on 25 May this year, I directed that any application by any party for non-party discovery or production of banking records, or the like, was to be made by no later than close of business on 16 June 2010. The plaintiffs did not make any application at that time and indeed, informed the Court that they considered any such application to be unnecessary. In my opinion, a satisfactory explanation for the lateness of the application has not yet been provided.
Secondly, the plaintiffs’ application that CBA produce all “evidentiary material” of the described kind in its possession is inappropriate. The expression “evidentiary material” appears to be derived from r 146(1) of the Supreme Court Civil Rules 2006. The Court must be satisfied that the non-party may have “evidentiary material” before making an order for non-party disclosure, but it does not follow that the Court will make an order which in its terms requires the production of “evidentiary material”. That expression is defined in r 4 of the 2006 Rules to mean:
… any document, object or substance of evidentiary value in an action and includes any document, object or substance that should, in the opinion of the Court, be produced for the purpose of enabling the Court to determine whether or not it has evidentiary value;
In essence, “evidentiary material” means any document, object or substance of “evidentiary value” and includes any document, object or substance which the Court considers should be produced for the purposes of determining whether or not it has evidentiary value.
It is not for a non-party to determine whether a document is of “evidentiary value” or to form the opinion required of this Court for the purposes of the definition. Accordingly, an order directed to a non-party requiring it to produce “evidentiary material” would be quite inappropriate.
There is a further reason for refusing portions of the plaintiff’s application. Counsel for the plaintiffs acknowledged that they have not, prior to bringing their present application, pursued requests to the defendants for many of the documents now sought. There does not appear to be any reason why the plaintiffs could not have made and, if necessary, pursued an application for the documents from the defendants. The plaintiffs should have done so before bringing the present application.[9] For this reason, alone it is inappropriate to grant the applications sought in paragraphs 1(b) (c) and (d), 3, 5, 6, 7, and 8.
[9] Williams Aviation Pty Ltd v Santos (1985) 40 SASR 272; Sands v State of South Australia [2005] SASC 381.
For the reasons outlined above, I order that CBA, by no later than close of business of Monday, 15 November 2010, produce to the parties to this action for inspection and copying the following:
(1)loan agreements, including loan agreements relating to overdrafts, trade finance and credit bills, between CBA and the Partnership of Giovanni (or of the Estate of Giovanni) and Giovanna De Poi (the Partnership) in relation to loans by CBA which were current as at 6 June 1994, or which have been entered into subsequently up to and including 30 June 2001;
(2)account statements indicating the extent of the liability of the Partnership to CBA in relation to each loan, including each overdraft, trade finance facility or credit bill, by CBA to the Partnership during the period from 6 June 1994 to date, or for such shorter period during which each such loan was current;
(3)the Memoranda of Mortgage or other documents constituting or evidencing the securities held by CBA to secure the liabilities of the Partnership to CBA in the period from 6 June 1994 to date;
(4)any correspondence or file notes recording or evidencing the intentions of CBA with respect to the sale, or possible sale, of the property at 15 Lambert Road, Joslin in the period commencing on 6 June 1994 and concluding on 14 February 2001;
(5)any documents recording or evidencing the requirements of CBA for continued financial accommodation to the Partnership in the period commencing on 6 June 1994 and concluding on 14 February 2001;
(6) any correspondence or file notes recording or evidencing any expressions of concern by CBA to the defendants, or any one of them, relating to its security position following the death of Giovanni De Poi on 6 June 1994;
(7)any document proposing, evidencing or recording the discharge on or about 14 February 2001 by DP Exports Pty Ltd of the liabilities of the Partnership to CBA;
(8)any documents proposing, evidencing or recording the transfer of assets and liabilities from the Partnership to DP Exports Pty Ltd;
(9)documents recording and evidencing the opening of account No 06 5122 1066 0743(BSB 06 5122) by or on behalf of Ted De Poi as trustee for the Estate of Giovanni De Poi;
(10)all account statements generated in relation to account No 06 5122 1066 0743 (BSB 06 5122) from the opening of that account until 5 November 2010;
(11)documents recording and evidencing all communications between officers of CBA and Ted De Poi, Paul De Poi, Wayne Scanlon, Michael Smith and George Meola (the De Poi officers) in relation to the Estate of Giovanni De Poi; and
(12)correspondence between CBA and the De Poi officers in relation to the matters set out in paragraphs 9-12 herein.
I will hear the parties and CBA as to the costs of the plaintiffs’ application and of this order, and will grant the parties liberty to apply.