Fitzgerald v Westpac Banking Corporation

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FEDERAL COURT OF AUSTRALIA

Fitzgerald v Westpac Banking Corporation [2011] FCA 124

Citation: Fitzgerald v Westpac Banking Corporation [2011] FCA 124
Parties:

PETER FITZGERALD v WESTPAC BANKING CORPORATION ACN 007 457 141; JEFF SHEEHAN; GREGORY MICHAEL BARTLETT, GREG KENNY, WESTPAC BANKING CORPORATION ACN 007 457 141, CHUBB INSURANCE COMPANY OF AUSTRALIA LIMITED ACN 003 710 647 and ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850

CHRISTOPHER FINN v WESTPAC BANKING CORPORATION ACN 007 457 141; GLENN WITTINGSLOW; WESTPAC BANKING CORPORATION ACN 007 457 141, CHUBB INSURANCE COMPANY OF AUSTRALIA LIMITED ACN 003 710 647 and ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850

DANIELLE LAVARS v WESTPAC BANKING CORPORATION ACN 007 457 141; PETER FIZGERALD; GREGORY MICHAEL BARTLETT, GREG KENNY, WESTPAC BANKING CORPORATION ACN 007 457 141, CHUBB INSURANCE COMPANY OF AUSTRALIA LIMITED ACN 003 710 647 and ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850
File number(s): NSD1201 of 2009
NSD 24 of 2010
NSD 31 of 2010
Judge: JAGOT J
Date of judgment: 11 February 2011
Catchwords: PRACTICE AND PROCEDURE – notice of motion to set aside notice to produce – whether notice to produce constitutes impermissible attempt to seek general discovery
Legislation: Federal Court Rules O 15 r 2(3)
Cases cited: Pasini v Vanstone [1999] FCA 1271
Date of hearing: 11 February 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 17
Counsel for the Applicants and Cross-Claimants: Mr D P O'Dowd
Solicitor for the Applicants and Cross-Claimants: Gillis Delaney Lawyers
Counsel for the Respondent: Mr M J Steele
Solicitor for the Respondent: Allens Arthur Robinson
Counsel for the Cross-Respondents: Mr J M White
Solicitor for the Cross-Respondents: Middletons

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1201 of 2009
BETWEEN:

PETER FITZGERALD
Applicant

JEFF SHEEHAN
Cross-Claimant
AND:

WESTPAC BANKING CORPORATION ACN 007 457 141
Respondent

GREGORY MICHAEL BARTLETT
First Cross-Respondent

GREG KENNY
Second Cross-Respondent

WESTPAC BANKING CORPORATION ACN 007 457 141
Third Cross-Respondent

CHUBB INSURANCE COMPANY OF AUSTRALIA LIMITED ACN 003 710 647
Fourth Cross-Respondent

ALLIANZ AUSTRALIA INSURANCE LIMITED ACN 000 122 850
Fifth Cross-Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

11 FEBRUARY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The cross-claimant in the second cross-claim’s (Sheehan’s) notices to produce, addressed to Chubb Insurance Company of Australia Limited and Allianz Australia Insurance Limited, dated 4 February 2011, be set aside.

2.The party who served the notices to produce pay the costs of the insurers on whom notice was served, in respect of the notice of motion filed in Court today to set aside the notices to produce, as agreed or assessed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 24 of 2010
BETWEEN:

CHRISTOPHER FINN
Applicant

GLENN WITTINGSLOW
Cross-Claimant
AND:

WESTPAC BANKING CORPORATION ACN 007 457 141
Respondent

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Details
Case
[2011] FCA 124
Decision Date

CaseChat Overview and Summary

The matter before the court involved several parties, including Fitzgerald, the applicant, and Westpac Banking Corporation, the respondent, alongside various cross-claimants. The crux of the dispute centred on notices to produce documents that had been issued by the cross-claimants to two insurance companies, Chubb Insurance Company of Australia Limited and Allianz Australia Insurance Limited, dated 4 February 2011. The notices to produce were challenged by the respondent on the basis that they constituted an impermissible attempt to seek general discovery, thus raising significant legal issues regarding the scope and nature of discovery in the context of the proceedings.

The primary legal issue before the court was whether the notices to produce were appropriately tailored to the specific circumstances of the case, or if they represented an attempt to engage in general discovery, which is impermissible in Australian courts. The court had to assess whether the notices to produce were narrowly focused on the relevant facts and evidence pertinent to the litigation, or if they were overly broad and sought information beyond what was reasonably required. The court also had to consider whether the notices were proportionate to the issues at hand and whether they complied with the procedural rules governing discovery in the Federal Court of Australia.

The court found that the notices to produce issued by the cross-claimants were indeed overly broad and constituted an attempt to seek general discovery, which is not permissible. The court determined that the notices did not adequately limit the scope of the documents to be produced to those relevant to the specific issues in the case. Consequently, the notices to produce were set aside, and the party who served these notices was ordered to pay the costs incurred by the insurers in responding to the motion to set aside. Additionally, the court adjourned the applicant's motion to amend the application and statement of claim to a later date, directing the applicant to serve proposed further amendments by a specified date and setting a timeline for any objections to these amendments. The proceeding was subsequently listed for a hearing on the application for leave to amend and/or directions.

The court's final orders included setting aside the notices to produce issued by the cross-claimants, directing the party who served these notices to pay the costs of the insurers, and adjourning the applicant's notice of motion to amend the application and statement of claim. The court also outlined specific timelines for serving proposed amendments and notified the parties of any further objections. The proceeding was listed for a hearing on the application for leave to amend and/or directions on a specified date.

Orders

Orders of the court

1. The cross-claimant in the second cross-claim’s (Sheehan’s) notices to produce, addressed to Chubb Insurance Company of Australia Limited and Allianz Australia Insurance Limited, dated 4 February 2011, be set aside.

2. The party who served the notices to produce pay the costs of the insurers on whom notice was served, in respect of the notice of motion filed in Court today to set aside the notices to produce, as agreed or assessed.

Note:

1. The cross-claimant in the second cross-claim’s (Wittingslow’s) notices to produce, addressed to Chubb Insurance Company of Australia Limited and Allianz Australia Insurance Limited, dated 4 February 2011, be set aside.

2. The party who served the notices to produce pay the costs of the insurers on whom notice was served, in respect of the notice of motion filed in Court today to set aside the notices to produce, as agreed or assessed.

Note:

1. The cross-claimant in the second cross-claim’s (Fitzgerald’s) notices to produce, addressed to Chubb Insurance Company of Australia Limited and Allianz Australia Insurance Limited, dated 4 February 2011, be set aside.

2. The party who served the notices to produce pay the costs of the insurers on whom notice was served, in respect of the notice of motion filed in Court today to set aside the notices to produce, as agreed or assessed.

3. The applicant’s notice of motion to amend the application and statement of claim be adjourned until the next Court date, 22 March 2011, before Jagot J.

4. The applicant pay the respondent’s costs of and incidental to the notice of motion up to and including the hearing today, as agreed or assessed.

AND DIRECTS THAT:

5. The applicant serve on the other parties its proposed further amended application and statement of claim, and any further evidence on which the applicant wishes to rely, by 25 February 2011.

6. The respondent notify the applicant of any further objections to the proposed amendments by 11 March 2011.

7. The proceeding be listed for hearing of the application for leave to amend and/or directions at 9 a.m. on 22 March 2011 before Jagot J.

8. Liberty to restore on 3 days’ notice.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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