Lynch v Cash Converters Personal Finance Pty Ltd
[2016] FCA 266
•3 March 2016
FEDERAL COURT OF AUSTRALIA
Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 266
File number: NSD 900 of 2015 Judge: GLEESON J Date of judgment: 3 March 2016 Catchwords: DISCOVERY – discovery of documents – relevance of requested discovery Legislation: Federal Court Rules 2011 rr 20.11, 20.14, 20.15 Date of hearing: 3 March 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Ms R Francois Solicitor for the Applicant: Maurice Blackburn Pty Ltd Counsel for the Respondent: Ms S Mirzabegian Solicitor for the Respondent: Herbert Smith Freehills ORDERS
NSD 900 of 2015 BETWEEN: SEAN LYNCH
Applicant
AND: CASH CONVERTERS PERSONAL FINANCE PTY LTD (ACN 110 275 762)
First Respondent
SAFROCK FINANCE CORPORATION (QLD) PTY LTD (ACN 098 566 520)
Second Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
3 MARCH 2016
THE COURT ORDERS THAT:
1.The time for compliance by the respondents with Order 6 made on 15 December 2015 is extended to 4 pm on Friday, 8 April 2016, subject to documents being provided to the applicant in tranches on or before 4 March 2016, 18 March 2016, and 8 April 2016.
2.By Friday, 8 April 2016 the respondents give discovery of documents listed at Annexure 1 to these orders by:
(a)producing for inspection the documents discovered in these proceedings in electronic format in accordance with the Electronic Discovery Protocol annexed at annexure 4 to the orders of Justice Gleeson dated 17 December 2015, and
(b)filing and serving a verified list of documents.
3.The matter be listed for a further case management hearing at 9:30 am on Thursday, 26 May 2016.
4.Liberty to apply on 3 days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
On 3 March 2016, I refused to grant further discovery of the following two categories of documents sought to be discovered by the applicants:
‘Good faith’ of respondents
1.All documents of Key Personnel in the Discovery Period referring to, disclosing or evidencing the state of mind of Safrock and/or CC Personal Finance with respect to each of the First, Second and Third Lynch Loans, including but not limited to:
a.any legal advices obtained by any Cash Converters Company concerning the Interest Rate Cap, the Brokerage Fee and/or the Loans;
b.any consideration of the extended definition of ‘contract’ under the Consumer Credit Code (Qld) and/or the National Credit Code and/or of the decision of the NSW Court of Appeal in Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150.
Documents regarding other credit providers’ provision of credit in Queensland
2.All Documents of Key Personnel during the Discovery Period recording communications with any of the following:
a.Cash Store Australia Holdings Inc., and/or
b.City Finance (Brisbane) Pty Ltd; and/or
c.Spot Loans Pty Ltd; and/or
d.any other credit provider providing credit to consumers ordinarily resident in Queensland;
concerning the provision of credit or the intended provision of credit to consumers ordinarily resident in Queensland during the Interest Rate Cap Period.
I ordered the respondents to give discovery of all documents of “Key Personnel” during the “Discovery Period” referring to any:
a.similarities or differences between the terms on which credit was or would be offered to consumers ordinarily resident in Queensland during the Interest Rate Cap Period, and the terms on which credit was or would be offered by any other credit provider (including but not limited to Cash Store Australia Holdings Inc., City Finance (Brisbane) Pty Ltd and/or Spot Loans Pty Ltd); and/or
b.the imposition of a fee for brokerage upon persons entering into credit contracts offered by any other credit provider (including but not limited to Cash Store Australia Holdings Inc., City Finance (Brisbane) Pty Ltd and/or Spot Loans Pty Ltd).
Rule 20.11 of the Federal Court Rules 2011 provides that a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. It is implicit in r 20.11 that discovery will not be ordered where the Court is not satisfied that the order will facilitate the goal stated in that rule.
Rule 20.15(1) provides:
A party seeking an order for discovery (other than standard discovery) must identify the following:
(a)any criteria mentioned in rules 20.14(1) and (2) that should not apply;
(b)any other criteria that should apply;
(c)whether the party seeks the use of categories of documents in the list of documents;
(d)whether discovery should be given in an electronic format;
(e)whether discovery should be given in accordance with a discovery plan.
Rule 20.14(1) provides:
If the Court orders a party to give standard discovery, the party must give discovery of documents:
(a)that are directly relevant to the issues raised by the pleadings or in the affidavits; and
(b)of which, after a reasonable search, the party is aware; and
(c)that are, or have been, in the party’s control.
In this case, the applicants’ application for further discovery was made on the basis that the documents sought are potentially relevant to the issues raised by the pleadings.
I was not persuaded that the documents sought are or might be relevant. As to the first proposed category, the particulars to the respondents’ defence identifies the basis of their claim to have acted in good faith in a way which does not concern the state of mind of the respondents. The applicant will be entitled to argue that these particulars do not demonstrate that the respondents acted in good faith to any material extent, or at all.
As to the second proposed category, the case as presently pleaded does not involve allegations of misconduct between the respondents and any of the entities mentioned in the proposed category. Accordingly, I am not satisfied that these documents are relevant. The category of documents to be discovered pursuant to the 3 March 2016 orders concerns the relevant issue between the parties, which is whether the applicant would have obtained a loan on similar terms from other credit providers in Queensland.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
22 March 2016
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