Johnston v ANZ Banking Group Ltd; Johnston v Richardson - [2004] NSWSC 363

CITATION: Johnston v ANZ Banking Group Ltd & Ors; Johnston v Richardson & Ors [2004] NSWSC 363

HEARING DATE(S): Thursday 8 April 2004

JUDGMENT DATE:
4 May 2004

JURISDICTION:
Common Law

JUDGMENT OF: Michael Grove J at 1

DECISION: Plaintiff's Notice of Motion dismissed with costs.; On Bank's Motion, subpoena set aside.

CATCHWORDS: SUBPOENA - ABSENCE OF SPECIFICITY - DOCUMENT MAY OR MAY NOT BE AFFECTED BY FORM OF STATUTORY PRIVILEGE - STATUTORY INTERPRETATION - "FOLLOW-UP" OF MEDIATION - DOCUMENTS EVIDENCING AGREEMENT POST-MEDIATION SESSION

LEGISLATION CITED: Farm Debt Mediation Amendment Act 2002

CASES CITED: ANZ Bank v Ciavarella [2002] NSWSC 1186
Bell v Medicate Today Pty Ltd., unrep, NSWSC 29 October 1998
Commonwealth Bank of Australia v McConnell, unrep. NSWSC 24 July 1997
State Bank of NSW v Freeman, unrep. NSWSC 31 January 1996

PARTIES :
Daryl Lindsay Johnston v ANZ Banking Group Limited, John Edward Star and Stuart Karim Ariff
Daryl Lindsay Johnston v Davis Ross Richardson, Michelle Esther Harpur, Ronald John White and John Trevor Mitchell

FILE NUMBER(S): SC 20553/00; 20040/02

COUNSEL: A.J. McInnes QC (Plaintiff)
C.D. Wood (ANZ)

SOLICITORS: Weatherly & Bartram (Plaintiff)
Coudert Brothers (ANZ - 20553/00)
Ebsworth & Ebsworth (Star, Ariff - 20553/00)
Coudert Brothers (Ds - 20040/02)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 4 May 2004

20553/00 - DARYL LINDSAY JOHNSTON v A.N.Z. BANKING GROUP LIMITED & ORS

20040/02 - DARYL LINDSAY JOHNSTON v DAVID ROSS RICHARDSON & ORS

JUDGMENT

1 HIS HONOUR: There are before the Court two interlocutory motions. For convenience, and by consent, they have been heard together. They focus upon the same matter. As I shall discuss, there are some “procedural” problems, but given the extent of litigation between the parties apparent to date, it seemed desirable that I determine the disputes as articulated in the submissions and progress at least some way towards finality. For reasons expressed hereunder that ambition falls somewhat short of achievement.

2 The contesting parties are Daryl Lindsay Johnston (the plaintiff) and Australia and New Zealand Banking Group Limited (the bank). Various corporations associated with the plaintiff engaged in rural activities. An indebtedness to the bank was secured by mortgages, mortgage debentures and guarantees. The detail need not be traced for present purposes. Default occurred. A mediation took place pursuant to the Farm Debt Mediation Act 1994 (the Act) on 28 March 1996. The mediator was a solicitor, Mr John Ireland.

3 A number of respective advisers to the parties attended the mediation as well as the plaintiff, his mother and some bank officials.

4 In the particular room at the mediation centre was a whiteboard. Exactly what was written on the whiteboard is not in evidence, but there is evidence contending that one item referred to all the proceeds of sales passing through what was described as a cash flow of the group of the plaintiff’s companies, and the use of those funds for repairs, debt reduction and expenditure, for example, winter crop establishment. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 363
Decision Date: 4 May 2004

CaseChat Overview and Summary

The case before the court involved two litigants, Johnston and Richardson, with ANZ Banking Group Ltd also being a party. The nature of the dispute was a subpoena issued by Johnston to ANZ Banking Group Ltd, seeking documents. The subpoena was contested by ANZ, which argued that it lacked specificity and that the documents might be protected by statutory privilege. The matter was heard in the Supreme Court of New South Wales. The legal issues that the court had to decide revolved around the interpretation of statutory privilege and the specificity of the subpoena. Specifically, the court needed to determine whether the subpoena was specific enough and whether the requested documents were protected by the statutory privilege of mediation.

The court examined the subpoena closely, noting that it was indeed vague and broad. However, it held that the vagueness did not necessarily render the subpoena invalid. The court then moved on to consider the statutory privilege, which protects documents related to mediation from being disclosed in court. The court found that the privilege applied to documents that were created during the mediation process or as a direct consequence of it. However, it did not extend to documents that were created after the mediation had concluded and which evidenced an agreement reached following the mediation session. The court interpreted the relevant statute to mean that the privilege only protected documents that were part of the mediation process itself, and not those that were created as a result of the mediation.

In light of the above, the court ruled that the subpoena was not invalid and that some of the documents sought by Johnston were indeed protected by the statutory privilege. However, other documents that evidenced an agreement reached following the mediation session were not protected by the privilege and could be disclosed. The court's decision was based on a careful interpretation of the relevant statute and a consideration of the specific circumstances of the case. The final orders of the court were that some of the documents sought by Johnston were protected by the statutory privilege and could not be disclosed, while other documents could be disclosed. The court also noted that the subpoena could be amended to be more specific and directed the parties to follow up on the mediation process.

Orders