Katwell v National Australia Bank

Katwell brought proceedings against the National Australia Bank (NAB) in the Federal Circuit Court of Australia. The dispute related to alleged breaches of fiduciary duty and negligence by NAB in the context of financial advice provided to Katwell. The Court was called upon to address interlocutory issues concerning discovery and the application to cross-examine witnesses based on affidavits and discovery materials. Specifically, the matter before the Court was whether the NAB had paid insufficient attention to its discovery obligations and if the evidence provided in support of the discovery was so manifestly implausible that cross-examination should be permitted.

The central legal issues revolved around the adequacy of the discovery process and the potential need for cross-examination of witnesses on the basis of the affidavits and discovery materials. The Court had to determine whether the evidence presented by the NAB was so implausible that it warranted a departure from the usual practice of limiting cross-examination to matters disclosed in affidavits. Additionally, the Court considered whether an order for costs should be made, other than those that would naturally follow from the relevant event.

The Court found that there was a lack of attention to discovery obligations on the part of the NAB, and the evidence provided in support of the discovery was indeed implausible. The Court ruled that cross-examination on the affidavits and discovery materials was permissible due to the implausibility of the evidence provided. The Court also made an order for costs, deviating from the usual practice of costs following from the relevant event, to reflect the NAB's failure to properly comply with discovery obligations.