Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services; Pty Ltd (No 2)

[2006] FCA 741

FEDERAL COURT OF AUSTRALIA

Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services
Pty Ltd (No 2) [2006] FCA 741

PRACTICE AND PROCEDURE – non-party discovery – whether appropriate for the court to order non-party discovery against financial institutions for the production of financial records, memoranda of account or financial statements in circumstances where a respondent has claimed privilege against self-incrimination

Held: non-party discovery by five financial institutions ordered.

Federal Court of Australia Rules, O 15A r 8

LIFETIME INVESTMENTS PTY LTD (A St Vincent and the Grenadines Company No 5479 IBC 2000) v COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (In liquidation) (ACN 053 354 706) & ANOR

QUD 60 of 2005

SPENDER J
9 JUNE 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 60 OF 2005

BETWEEN:

LIFETIME INVESTMENTS PTY LTD (A St Vincent and the Grenadines Company No 5479 IBC 2000)
APPLICANT

AND:

COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (in liquidation) ACN 053 354 706)
FIRST RESPONDENT

WILLIAM DAVID WALLADER
SECOND RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

9 JUNE 2006

WHERE MADE:

BRISBANE

On the Court accepting the undertaking of the applicant to pay the reasonable costs of each of the National Australia Bank, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and the Westpac Banking Corporation Ltd of complying with these orders,

THE COURT ORDERS THAT:

(1)   The National Australia Bank, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and the Westpac Banking Corporation Ltd make discovery to the applicant of any financial records, any financial statements, any correspondence or any other document that the financial institutions have or have had or is likely to have had in its possession, custody or power between the period 30 March 2001 to 31 December 2003 relating to the sum of US $2,000,100.00 or any part of it  which was transferred by the applicant to the first and second respondent's nominated account at National Australia Bank, Brisbane, Queensland, Australia, SWFT Code NAT AAU US304B for credit to Commercial (Worldwide) Financial Services Pty Ltd account COM WFU SD01.

(2)   The five financial institutions make discovery as detailed in the first par of this order in respect of the following accounts:

(a)an account in the name of WD Wallader; described as BSB account 084-150, account number 46-071-8435 at the National Australia Bank;

(b)an account in the name of D & J Wallader Pty Ltd as trustee for the Wallader Family Trust; described as account BSB 084-150, account number 46-872-7272 at the National Australia Bank;

(c)an account in the name of D & J Wallader Pty Ltd as trustee for the Wallader Family Trust; described as account BSB 084-150, number 49-529-0141 at the National Australia Bank;

(d)an account in the name of WD Wallader; described as account BSB 084-209, account number 49-253-1114 at the National Australia Bank;

(e)an account in the name of WD Wallader; described as account BSB 084-150, account number 46-071-8135 at the National Australia Bank;

(f)an account in the name of William David Wallader, described as National Australia Bank Visa number 4557 0240 0237 8759 at the National Australia Bank;

(g)an account in the name of Mr and Mrs WD Wallader, described as account number 4150-617849354 at the National Australia Bank;

(h)an account in the name of Commercial (Worldwide) Financial Services Pty Ltd NEWACUSDO1;

(i)an account in the name of Commercial (Worldwide) Financial Services Pty Ltd styled as a No 2, Business Cheque account, described as account BSB 084-150, account number 62-775-0665, at the National Australia Bank;

(j)an account in the name of Mr  William David Wallader and Mrs Jill Margaret Wallader described as account BSB 124-001 account number 90-170415 at the Bank of Queensland;

(k)an account in the name of Dairy World Pty Ltd described as account number 11-170415 at the Bank of Queensland;

(l)an account in the name of Dairy World Pty Ltd described as account number 4032 93-170415 at the Bank of Queensland;

(m)an account in the name of Dairy World Pty Ltd described as account BSB 124-001, account number 93-170415 at the Bank of Queensland;

(n)an account in the name of William David Wallader described as account BSB 124-001, account number 94-170415 at the Bank of Queensland;

(o)an account in the name of Commercial & Primary Financial Services Pty Ltd United States Dollar Account number ‘USD 170415’ at the Bank of Queensland;

(p)an account in the name of Dairy World Pty Ltd described as 108 719 463 at the Australia and New Zealand Bank Ltd;

(q)accounts from the relevant financial institution detailed as follows:

(i)   666217978; and

(ii)  1079800.

(3)   Each of the five financial institutions in par 1 of these orders produce documents as detailed in par 2 of these orders of financial records, financial statements, any correspondence or other document relating to any other documents not mentioned in par 2(a) to 2(q) and operated by or alternatively under the control of the second respondent, whether such accounts are in the name of the second respondent or his name, together with others, or accounts in the name of a company of which the second respondent is a director, including but not limited to the following entities:

(a)Commercial (Worldwide) Financial Services Pty Ltd ACN 053 354 706;

(b)William David Wallader;

(c)Commercial & Primary Financial Services Pty Ltd ACN 050 408 850;

(d)Colinton Station Pty Ltd formerly known as Dairy World Pty Ltd ACN 092 877 953;

(e)D & J Wallader Pty Ltd CAN 087 645 627; and

(f)Colinton Station Export Pty Ltd ACN 107 824 804.  

(4)   The applicant give notice of these orders to the National Australia Bank Ltd, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and Westpac Banking Corporation Ltd by faxing a true copy of this order to the financial institution and later delivering or leaving with some person apparently in the employ of such financial institution at the address of such financial institution an authenticated copy of these orders.

(5)   The National Australia Bank, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and Westpac Banking Corporation Ltd provide the relevant financial records, financial statements, any correspondence or other documents that the financial institutions have or have had or is likely to have in its possession, custody or power between the period 30 March 2001 to 30 December 2003 and the mentioned paragraphs in paragraphs 2(a) to 2(q) and the accounts relating to those entities mentioned in paragraphs 3(a) to 3(f) within seven days of the applicant giving the financial institution an authenticated copy of these orders.

(6)   Liberty be granted to apply to each of the five financial institutions to have the period within which to comply with these orders extended or otherwise to apply in relation to compliance with the making of these orders.

(7)   The applicant's costs of, and incidental to, this application and the applicant's costs of complying with its undertaking as to the reasonable costs of each of the financial institutions be the applicant's costs in the principal proceedings.

(8)   The respondent have liberty to inspect and take such copies as it wishes, at his cost, of documents supplied by each of the financial institutions to the applicant in the principal proceedings, and that opportunity for inspection occur promptly after receipt by the applicant of the documents from each of the financial institutions. 

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 60 OF 2005

BETWEEN:

LIFETIME INVESTMENTS PTY LTD (A St Vincent and the Grenadines Company No 5479 IBC 2000)
APPLICANT

AND:

COMMERCIAL (WORLDWIDE) FINANCIAL SERVICES PTY LTD (in liquidation) ACN 053 354 706)
FIRST RESPONDENT

WILLIAM DAVID WALLADER
SECOND RESPONDENT

JUDGE:	SPENDER J
DATE:	9 JUNE 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application by a Notice of Motion filed on 6 June 2006 seeking orders pursuant to O 15A r 8 of the Federal Court of Australia Rules in respect of non-party discovery from five financial institutions, the National Australia Bank, the Bank of Queensland, the Australia and New Zealand Bank, the Commonwealth Bank of Australia and Westpac Banking Corporation Ltd (‘the five financial institutions’). 

2. The reason for the application which is, as the cases show, out of the ordinary, is to be found, amongst other things, in the fact that the second respondent has claimed privilege against self-incrimination as a basis for refusing to meet discovery orders given by Greenwood J on 28 April 2006, which orders were in the context of asset preservation orders made against the second respondent.

3. One of those orders in respect of which privilege against self-incrimination has been claimed by Mr Wallader required him to depose to all bank accounts controlled by him in the period immediately after the payment to a company of which he was a director of US $2,000,000.00 by the applicant in the principal proceedings.  Pursuant to that privilege, which as I found by reasons given on 5 June 2006 he is entitled to claim, there has not been production of financial records, memoranda of account or financial statements. 

4. This Notice of Motion seeks non-party discovery against the banks in respect of those accounts and financial records.

5. Having regard to the material which I can refer to compendiously as being contained in the reasons for judgment of Greenwood J for the orders that his Honour made on 28 April 2006, and for the reasons which I gave on 5 June 2006 in respect of a Notice of Motion filed by Mr Wallader concerning the question of privilege against self-incrimination, and in respect of the relief sought in the Notice of Motion filed 6 June 2006 by the applicant, in my opinion it is appropriate for the Court to make orders sought by the Notice of Motion against the five financial institutions.

6. O 15A, r 8 provides:

   ‘8 Discovery from non-party
   The Court may order that a person who is not a party and in respect of whom it appears that the person has or is likely to have or has had or is likely to have had in the person’s possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document.’

7. There are a number of aspects to which specific attention should be drawn.  Having regard to O 15A r 11 it was appropriate for the Court to ask, and for the applicant to proffer, an undertaking to pay the reasonable costs of each of the financial institutions for complying with the non-party order for discovery for non-party production of documents and for those costs to be the applicant's costs in the principal proceedings.  It is also appropriate to note that the timeframe in which it is proposed that non-party production occur is seven days.  It may be that either because of the extended discovery or of the nature of the documents or for any other possible reason that timeframe might be too short or otherwise the compliance with the orders might be unfair or oppressive.

8. What the applicant is seeking by these orders is to find out what happened to US $200,000,100.00 transferred.   It seems to me that the applicants want to know what happened to the moneys that it paid into the nominated account of Commercial (Worldwide) Financial Services Pty Ltd at the National Australia Bank, Brisbane.  And the production of documents which I propose to order is in relation to finding out what happened to that amount and, in particular, whether any of the nominated accounts or the financial records of the specified companies had anything to do with that disposition of funds.

9. The court accepts the undertaking offered by the applicant to pay the reasonable costs of each of the National Australia Bank, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and the Westpac Banking Corporation Ltd of complying with these orders. 

10. The Court orders that:

    (1)   The National Australia Bank, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and the Westpac Banking Corporation Ltd make discovery to the applicant of any financial records, any financial statements, any correspondence or any other document that the financial institutions have or have had or is likely to have had in its possession, custody or power between the period 30 March 2001 to 31 December 2003 relating to the sum of US $2,000,100.00 or any part of it  which was transferred by the applicant to the first and second respondent's nominated account at National Australia Bank, Brisbane, Queensland, Australia, SWFT Code NAT AAU US304B for credit to Commercial (Worldwide) Financial Services Pty Ltd account COM WFU SD01.

    (2)   The five financial institutions make discovery as detailed in the first par of this order in respect of the following accounts:

    (a)an account in the name of WD Wallader; described as BSB account 084-150, account number 46-071-8435 at the National Australia Bank;

    (b)an account in the name of D & J Wallader Pty Ltd as trustee for the Wallader Family Trust; described as account BSB 084-150, account number 46-872-7272 at the National Australia Bank;

    (c)an account in the name of D & J Wallader Pty Ltd as trustee for the Wallader Family Trust; described as account BSB 084-150, number 49-529-0141 at the National Australia Bank;

    (d)an account in the name of WD Wallader; described as account BSB 084-209, account number 49-253-1114 at the National Australia Bank;

    (e)an account in the name of WD Wallader; described as account BSB 084-150, account number 46-071-8135 at the National Australia Bank;

    (f)an account in the name of William David Wallader, described as National Australia Bank Visa number 4557 0240 0237 8759 at the National Australia Bank;

    (g)an account in the name of Mr and Mrs WD Wallader, described as account number 4150-617849354 at the National Australia Bank;

    (h)an account in the name of Commercial (Worldwide) Financial Services Pty Ltd NEWACUSDO1;

    (i)an account in the name of Commercial (Worldwide) Financial Services Pty Ltd styled as a No 2, Business Cheque account, described as account BSB 084-150, account number 62-775-0665, at the National Australia Bank;

    (j)an account in the name of Mr  William David Wallader and Mrs Jill Margaret Wallader described as account BSB 124-001 account number 90-170415 at the Bank of Queensland;

    (k)an account in the name of Dairy World Pty Ltd described as account number 11-170415 at the Bank of Queensland;

    (l)an account in the name of Dairy World Pty Ltd described as account number 4032 93-170415 at the Bank of Queensland;

    (m)an account in the name of Dairy World Pty Ltd described as account BSB 124-001, account number 93-170415 at the Bank of Queensland;

    (n)an account in the name of William David Wallader described as account BSB 124-001, account number 94-170415 at the Bank of Queensland;

    (o)an account in the name of Commercial & Primary Financial Services Pty Ltd United States Dollar Account number ‘USD 170415’ at the Bank of Queensland;

    (p)an account in the name of Dairy World Pty Ltd described as 108 719 463 at the Australia and New Zealand Bank Ltd;

    (q)accounts from the relevant financial institution detailed as follows:

    (i)666217978; and

    (ii)1079800.

    (3)   The five financial institutions produce documents as detailed in par 2 of these orders of financial records, financial statements, any correspondence or other document relating to any other documents not mentioned in par 2(a) to 2(q) and operated by or alternatively under the control of the second respondent, whether such accounts are in the name of the second respondent or his name, together with others, or accounts in the name of a company of which the second respondent is a director, including but not limited to the following entities:

    (a)Commercial (Worldwide) Financial Services Pty Ltd ACN 053 354 706;

    (b)William David Wallader;

    (c)Commercial & Primary Financial Services Pty Ltd ACN 050 408 850;

    (d)Colinton Station Pty Ltd formerly known as Dairy World Pty Ltd ACN 092 877 953;

    (e)D & J Wallader Pty Ltd CAN 087 645 627; and

    (f)Colinton Station Export Pty Ltd ACN 107 824 804.  

    (4)   The applicant give notice of these orders to the National Australia Bank Ltd, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and Westpac Banking Corporation Ltd by faxing a true copy of this order to the financial institution and later delivering or leaving with some person apparently in the employ of such financial institution at the address of such financial institution an authenticated copy of these orders.

(5)   The National Australia Bank, the Bank of Queensland, the Australia and New Zealand Bank Ltd, the Commonwealth Bank of Australia and Westpac Banking Corporation Ltd provide the relevant financial records, financial statements, any correspondence or other documents that the financial institutions have or have had or is likely to have in its possession, custody or power between the period 30 March 2001 to 30 December 2003 and the mentioned paragraphs in paragraphs 2(a) to 2(q) and the accounts relating to those entities mentioned in paragraphs 3(a) to 3(f) within seven days of the applicant giving the financial institution an authenticated copy of these orders.

(6)   Liberty be granted to apply to each of the five financial institutions to have the period within which to comply with these orders extended or otherwise to apply in relation to compliance with the making of these orders.

(7)   The applicant's costs of, and incidental to, this application and the applicant's costs of complying with its undertaking as to the reasonable costs of each of the financial institutions be the applicant's costs in the principal proceedings.

(8)   The respondent have liberty to inspect and take such copies as it wishes, at his cost, of documents supplied by each of the financial institutions to the applicant in the principal proceedings, and that opportunity for inspection occur promptly after receipt by the applicant of the documents from each of the financial institutions. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender J.

Associate:

Dated:            14 June 2006

Counsel for the Applicant:

Mr James Catlin (by telephone)

Solicitor for the Applicant:

Solicitor for the 1^st Respondent:

No appearance for First Respondent

Counsel for 2^nd
Respondent

Solicitor for the 2^nd Respondent

Mr Andrew Lyons

Watts & Company

Date of Hearing:

9 June 2006

Date of Judgment:

9 June 2006