Murray, L.o.a. v Macquarie Bank Ltd

[1991] FCA 927

JUDGUEI\ST NO. ... 2 .. .. ...... 1 9 ........ .... 1

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 No. Q6159 of 1990
GENERAL DIVISION	)

BETWEEN: LYNNE ORELLE ANGELA MURRAY

Applicant

AND: THE MACOUARIE BANK LIMITED

First Respondent

AND: RAYMOND WILLIAM CARLE

Second Respondent

AND BETWEEN:

THE MACOUARIE BANK LIMITED

Cross-Applicant

AND: LYNNE ORELLE ANGELA MURRAY

First Cross-Respondent

AND: JOHN ALEXANDER BAKER

Second Cross-Respondent

AND BETWEEN:

JOHN ALEXANDER BAKER

Cross-Applicant

AND: THE MACOUARIE BANK LIMITED

First Cross-Respondent

AND: RAYMOND WILLIAM CARLE

Second Cross

second cross-respondent/cross-applicant.

MINUTES OF ORDER

H ' ,

JUDGE MAKING ORDER:	Pincus J
DATE OF ORDER:	4 October 1991
WHERE MADE :	Brisbane
THE COURT ORDERS THAT:

1.    The first respondent give further discovery in respect of category one, that is, documents relating to the release of securities in respect of the service trust.

2.   The first respondent make further discovery with respect to documents appearing in the list of the

3.    The bank pay the applicant Murray's costs in respect of the application for discovery.

4.   The bank supply a better identification of the documents in item 167 to Baker.

5.    Next mention be at 9.15 a.m. on Thursday 7 November

1991.

6.    The costs in relation to Carle's discovery be reserved for determination at the next hearing, unless otherwise agreed.

7.    The bank pay Baker's costs in respect of the motion for delivery of a pleading.

8.    No order for costs in respect of the motion regarding the listing aspect.

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	1 No. QG159 of 1990
GENERAL DIVISION	)

BETWEEN: LYNNE ORELLE ANGELA MURRAY

Applicant

AND: THE MACOUARIE BANK LIMITED

First Respondent

AND: RAYMOND WILLIAM CARLE

Second Respondent

AND BETWEEN:

THE MACOUARIE BANK LIMITED

Cross-Applicant

AND: LYNNE ORELLE ANGELA MURRAY

First Cross-Respondent

AND: JOHN ALEXANDER BAKER

Second Cross-Respondent

AND BETWEEN:

JOHN ALEXANDER BAKER

Cross-Applicant

AND: THE MACOUARIE BANK LIMITED

First Cross-Respondent

AND: RAYMOND WILLIAM CARLE

Second Cross-Respondent

E R A M :	Pincus J.
m: Brisbane
m:	4 October 1991

EX TEMPORE REASONS FOR JUDGMENT

As has been mentioned in the course of argument, the terms of 0. 15 r. 8 seem to me to place potentially a heavy burden on solicitors making discovery; they produce the result that discovery may be held to be deficient and further discovery ordered, not merely on the basis of the pleadings, but on the basis of evidence and of the nature or circumstances of the case.

It is true, as counsel for the first respondent implies, that not every document passing between the solicitors' firm and the Macquarie Bank ("the bank") will necessarily be discoverable. He points out that there may be such correspondence having nothing to do with this matter. Nevertheless, it seems to me desirable that documents which have to do with the financial position of the solicitors' firm at relevant times and which are in the bank's possession should be discovered. For example, if the bank simply writes to the firm concerning its financial relations with the bank, it may not be t first sight obvious how that can be tied in with any of the allegations made by the applicant, or with the defence, or with the cross-claim. But it is improbable that one will build up a proper picture of the relations between the parties concerning the matters in issue without a fairly comprehensive set of documents. This is to some extent a matter of impression and an impression gained from the advantage I have of hearing contested proceedings in which the merits have been agitated.

The bank's solicitors concede that it is necessary for documents, and three categories remain in question. Of those,	them to make further discovery as to some categories of	I propose to order, specifically, further discovery as to two.
The further discovery will be ordered as to the first and third categories.
As to documents concerning release of the securities in respect of the service trust, it is not possible to say how such documents are likely to link in to the issue6 in the case, but nevertheless it would seem to me rather surprising if they did not show the course of events in a way which could be relevant in the case.
I am satisfied from what counsel for the bank has told me that there is no occasion to order further discovery with respect to category two. As to category three, whereas I appreciate that it might be that Baker has over-discovered, one would be rather surprised if he over-discovered to the extent which is pointed to by counsel for the applicant.
Therefore, it will be ordered further that the bank make discovery with respect to documents appearing in Baker's list. That will, of course, involve the bank in going through the list carefully and seeing whether it should discover documents which have been discovered by Baker and not by it and also seeing whether there are any other related documents which should be discovered.
Mr. Philp has been successful on categories one and have to be paid by the bank. I will point out that under the rules of this Court, an order for costs of interlocutory proceedings does not ordinarily contemplate an immediate taxation. That can be seen from 0. 62 r. 3 ( 3 ) . The practice of the Court, when an order is made for costs of an interlocutory proceeding, is that the taxation awaits the conclusion of the proceedings. It can be, and sometimes is, done to make an order for immediate taxation, but it is not usually done unless there
three. It does seem, in the circumstances, that the costs will
has been some contumacious failure to comply with the rules or matters of that sort, and this is not a case of that kind. Therefore, I propose to order the bank to pay the applicant Murray's costs in respect of the application for discovery, but
I will not make any order for immediate taxation. The taxation
will have to await the conclusion of the litigation or further order.

I certify that this and the preceding three pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

Associate

Date '+ O h - 1-1

Solicitors for the applicant	Mr Philp of Bennett & Philp
Counsel for the first respondent:	Mr R C Morton
instructed by	Clarke & Kann

The second respondent appeared in person Counsel for the second cross-respondent/

cross-applicant Mr P J Baston

instructed by	Lynch & Co.
Date of Hearing	4 October 1991