Eltran Pty Ltd v Westpac Banking Corporation

[1989] FCA 529

I

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G141 of 1986
GENERAL DIVISION	1

BETWEEN: ELTRAN PTY LIMITED

First Applicant

AND: PRENAYDENA PTY LIMITED

Second Applicant

AND: CRESSWELL PLACE PTY LIMITED

Third Applicant

AND: ADAMfS ROW PTY LIMITED

Fourth Applicant

AND: CARTER LANE PTY LIMITED

Fifth Applicant

AND: BERNARD STREET PTY LIMITED

Sixth Applicant

AND: ORACA PTY LIMITED

Seventh Applicant

AND: BINON PTY LIMITED

Eighth Applicant

AND: TREVOR RONALD KING

Ninth Applicant

AND: WESTPAC BANKING CORPORATION

First Respondent

AND: JOHN GEOFFREY ALLPASS and

ALAN RAPHAEL TUTTLE

Second Respondents

I ,I I,

MINUTES OF QRDER

JUDGE MAKING ORDER:  PINCUS J.

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DATE OF ORDER:  31 AUGUST 1989 .

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WHERE MADE:  BRISBANE

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THE COURT ORDERS THAT:

1.    the respondent bank produce or discover documents enunciating or recording the organisational structure and the functional, operational, and personnel requirements of the department of the bank dealing with overseas currency loans as it operated in and after December 1983;

that the respondent bank make discovery with respect to the allegations pleaded in section E paragraphs 28 to 30 of the statement of claim on or before 12 October 1989;

the respondents make discovery by 12 October 1989 of any documents relating to the receivership, including the moneys received by the receiver;

the respondent bank make discovery as soon as practicable of the report of Mr Reilly referred to in paragraph 1.3.2 of the notice of motion;

the respondent bank make discovery as soon as practicable of
a case study relating to Eltran referred to in document 717;

that the respondent bank make discovery of documents relating to the withholding tax issue, issue D in the statement of claim, within a reasonable time;

the applicants' costs of and incidental to the notice of motion of 22 August 1989 be the applicantst costs in any event ;

the applicants give better particulars of paragraph 5 of the statement of claim in that they must state which representations were made on which occasions and by whom;

the applicants give better particulars of paragrpah 7 of the statement of claim; for example, they must state as far as they can what was deficient about the bank's ability to provide advice;

the applicants give better particulars of paragraph 18(a),

(b), (C), (d) and (j) of the statement of claim;

the costs of the respondentsv notice of motion filed 29
August 1989 be the respondents1 costs in the proceedings;

the applicants' .application, so far as it relates to the documents showing the state of the bank's trading, if any, since 5 August 1986 be adjourned sine die, and that the applicant is free to ask for that aspect of the matter to be reconsidered if further information throws more light upon it;

the respondents have leave to file an amended defence on or
before 5 October 1989;

the respondent bank file a further list of documents on or
before 26 October 1989;

15.   the particulars requested of the applicants be filed and served by 21 September 1989;

16.  the matter be listed for further directions hearings on Friday, 3 November at 9.15 a.m., and that the rest of the morning until 10.15 a.m. be kept free.

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

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G141 of 1986
P	1

BETWEEN:  ELTRAN PTY LIMITED

First Applicant

AND:  PREMAYDENA PTY LIMITED

Second Applicant

AND :  CRESSWELL PLACE PTY LIMITED

Third Applicant

AND:  ADAM'S ROW PTY LIMITED

Fourth Applicant

AND :  CARTER LANE PTY LIMITED

Fifth Applicant

AND :  BERNARD STREET PTY LIMITED

Sixth Applicant

AND :  ORACA PTY LIMITED

Seventh Applicant

AND :  BINON PTY LIMITED

Eighth Applicant

AND :  TREVOR RONALD KING

Ninth Applicant

AND :  WESTPAC BANKING CORPORATION

First Respondent

AND :  JOHN GEOFFREY ALLPASS and
ALAN RAPHAEL TUTTLE

Second Respondents

PINCUS J . 31 AUGUST 1989

EX TEMPORE REASONS FOR JUDGMENT

There are five issues with respect to the respondent
bank's notice of motion filed on 27 August 1989, but some of them

have been resolved. The substantial question which is left is whether or not the respondent bank is entitled to more detail as to the conversations which are pleaded in para.5, and also conversations which are alluded to in schedule 1, which is complementary to paras.12 and 18(f) of the statement of claim.

Counsel for the bank says that the law is that the substance and effect of the conversations be given, not merely the applicant's interpretation of the conversation. Counsel for the applicants in the principal proceedings says that it is sufficient to set out the effect of the conversation, and one does not have to attempt to reproduce its terms. He concedes, however, that it

is possible that, in the course of performing another - task, which

it is conceded he has to perform, further details may emerge, but
he thinks that is unlikely.

The alleged conversation in question is 5 years old in each case, and it is obvious that it is very difficult for people accurately to remember conversations which occurred so long ago. It may be that all they are able to do, in the end, is to swear to them in a very general way. If there were a statement taken from

practice which has been used on some other occasions of simply	them about the time of these events, then they might follow the
signing the statement.and attempting to tender that. However that may be, it is my opinion that the assertions in para.5 and those in schedule l(4) are in accordance with the ordinary practice of pleading in this sort of case, both under the general law and under the statute.

I accept the force of what Mr ~hesterian Q.C. says for

the respondents, that there may be a temptation on the part of the pleader to set out not what was said, but what the client took from what was said, but that is not what the pleading alleges. In fact, the pleading says that these representations were made. That may turn out to be untrue; but that is what it says, and I do not see any justification for going behind that.

In short, I hold that the present pleading is, in the respect complained of, sufficient. That is really the only issue that is left. The other ones are all conceded, and I make orders in terms of the concessions.

I order that the applicants give better particulars of para.5 of the statement of claim, in that they must state, as far as they can, which of the representations were made on which occasion, and by whom.

I order that the applicants give better particulars of

para.7 of the statement of claim; for example, they must state, as
far as they can, what it was that was deficient about the bank's

ability to provide advice.

I order that the applicants provide better particulars

of para.l8(a), (b), (c), ( d ) and (j) of the statement of claim.

I make the costs of the notice of motion filed on 4

August 1989 the respondents' costs in the proceedings.

[Lunch Adjournment]

There is one matter which was reserved by me before lunch and that was the question of the records of the bank's dealings, if any, since 5 August 1986. The argument which was advanced by Mr Einfeld P.C., senior counsel for the applicants, seemed principally to be based upon the proposition that, if there were held to be no default, then the state of the account subsequent to 5 August 1986 would become relevant; secondly, he suggested that under the doctrine of quasi-contract or restitution, if the bank had traded profitably since that date then credit should be given to the applicants or one of them.

The general principle upon which Courts, in my experience, work in discovery matters is to try to avoid making decisions about difficult legal questions of substance, in the course of discovery, although sometimes it is necessary to do so. That is, prima facie, if a matter looks likely to be relevant the tendency is to order discovery. The prospect which must be faced if I accede to Mr Einfeldls application at this stage is that three yearsv more documents become relevant, which is rather a

daunting notion.

I have not .resolved the legal questions which have been raised between Mr Einfeld and Mr Chesterman, as to this issue. What I propose to do is to adjourn Mr Einfeldls application, so far as it relates to the documents I have indicated, that is those showing the state of the bank's trading, if any, since 5 August 1986, sine die. It may be that at some later stage in the course

of the proceedings it will emerge that the documents are clearly relevant, and I foresee the possibility that having to give discovery of them in a hurry could be inconvenient. Nevertheless, it is, I think, excessive to give the discovery asked at this stage and permit investigation of a whole extra three years' activity.

So I will make the order I' have indicated and add the rider that the applicant is free to ask for that aspect of the matter to be reconsidered, if further information throws more light upon it.

I will order that the applicantsv costs of and incidental to the notice of motion of 22 August 1989 will be the applicants' costs in any event. The result of that, gentlemen, is that whoever wins the case, when the final costs order is made the applicant will have the costs of that notice of motion.

1 certify that thie and the tour prmcmding page.
are a tru. copy et the reanon. for judgment harmin

of Him Honour Hr. Justice Pineus.

Aasoeiate