National Australia Bank Ltd v Anderson

SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION	Not Restricted

No. 8379 of 1997

NATIONAL AUSTRALIA BANK LTD	Plaintiff
v
RAYMOND ANDERSON and BEVERLEY ANDERSON	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28 November 2000
DATE OF JUDGMENT:	11 December 2000
CASE MAY BE CITED AS:	National Australia Bank Ltd v Anderson and Anderson
MEDIUM NEUTRAL CITATION:	[2000] VSC 508

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Appeal from order of Master – discovery.
Rule 29.02

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Shlict	Russell Kennedy
For the Defendant	Mr J. Lowenstein	Graeme Bloom Cunningham & Co

HIS HONOUR:

The defendants have at all material times been the joint registered proprietors and in possession of the following lands –

(a)The land described in Certificate of Title Volume 10070 Folio 064 and known as 116 High Street, Ararat (“the High Street land”).
(b)The land described in Certificate of Title Volume 7428 Folio 849 and known as 132 Lambert Street, Ararat (“the Lambert Street land”).
(c)The land described in Certificate of Title Volume 9338 Folio 797 and known as 291-293 Barkly Street, Ararat (“the Barkly Street land”).

By its second further amended statement of claim the plaintiff has alleged that the defendants, pursuant to instruments of mortgage dated 26 August 1991, 29 May 1993 and 26 August 1991, mortgaged to the plaintiff their estate and interest in the High Street land, the Lambert Street land and the Barkly Street land respectively. The plaintiff has alleged that each of those respective mortgages secured all moneys and amounts due and payable by the defendants to the plaintiff. The plaintiff has sought possession of each of the High Street land, the Lambert Street land and the Barkly Street land. Further, or in the alternative, the plaintiff seeks to recover against the defendants the sum of $525,775.57 secured by such mortgages together with interest due and owing on such amount.

By their defence and counterclaim, which was filed on 11 October 1999, the defendants have denied that the plaintiff is entitled to possession of the said lands and they have denied that they are indebted to the plaintiff. The defendants have sought a declaration that the mortgages with respect to the High Street land, the Lambert Street land and the Barkly Street land were at all times void ab initio and they have sought orders that such mortgages be delivered up, set aside and/or cancelled.

Further, the defendants have alleged that the plaintiff was involved in the management of the financial affairs of the second defendant and as part of that management it was involved in the purchase and sale of various properties including the High Street land, the Lambert Street land and the Barkly Street land. It is further alleged that as part of that management the plaintiff gave advice to the defendants with respect to the purchase of businesses known as Cafe Domenica and Chalambar Motel. The defendants have alleged that the plaintiff opened and closed various bank accounts and transferred moneys between accounts from time to time in the name of each of the defendants and/or in the names of Mr and Mrs Anderson and/or Collinson. In particularising those accounts the defendants have identified some 30 accounts by number. The defendants have further alleged that the plaintiff opened and closed term deposit accounts in their name and/or in the name of Mrs Anderson and/or Collinson Holdings Pty Ltd. The defendants have particularised, by number, three such accounts. The defendants have alleged that notwithstanding demands made by them, the plaintiff has failed and/or refused and/or neglected to account to the second defendant in relation to and/or in connection with the properties, the term deposits, a bank bill and each of the bank accounts identified. The defendants have further claimed that they are entitled to an accounting by the plaintiff in respect of each bank account and term deposit identified and has sought an order for the taking of accounts and making of consequential enquiries and the payment by the plaintiff to the defendants of any money found to be due and owing to them as a result of the taking of such accounts and making enquiries. The defendants have further alleged that in advising them the plaintiff was negligent causing them to suffer damages. They have claimed damages against the plaintiff.

On 8 July 1999, one John Evangelista, a legal officer in the employment of the plaintiff, swore a Consolidated Affidavit of Documents. That affidavit comprising some 134 pages and by the same, the deponent has identified some 1,747 individual documents and bundles of documents.

On 4 November 1999 there was filed with the court and subsequently served on the plaintiff a summons by the defendants seeking further discovery from the plaintiff. On 24 November 1999 Master Wheeler ordered that there be prepared a schedule in four columns.

(a)The first column identifying the document or class of documents which the defendant alleged that the plaintiff had not discovered.
(b)The second column providing reasons why it was said that the further document existed or exists.
(c)The third column setting out the relevance of such document.
(d)The fourth column setting out the plaintiff’s response.

That document was completed and the summons was further heard by the Master. On 31 May 2000 the Master made orders and gave directions requiring the plaintiff to give further discovery to the defendants. The first four paragraphs of the Master’s order required the plaintiff to provide further discovery of documents therein identified. On 7 June 2000 the plaintiff filed a notice of appeal against the order made by the Master on 31 May 2000.

On the hearing of the appeal the plaintiff by its counsel informed the court that the orders made by the Master in paragraphs 1, 2 and 4 of his order made on 31 May 2000 were not the subject of the appeal. The appeal was limited to paragraph 3 of the order made by the Master. By that order the plaintiff was ordered to give discovery of some 44 documents or classes of documents identified by reference to the exhibit marked M1 to the affidavit sworn by Mario Merlo on 29 May 2000. That document set out the schedule comprising four columns and which identified in the first column the documents and classes of documents in respect of which the defendants sought further discovery from the plaintiff.

By the third order of the Master (which was the subject of this appeal) it was ordered that the plaintiff file and serve a further affidavit of documents or an affidavit pursuant to Rule 29.08 giving discovery of each of the documents or classes of documents identified by number with reference to the aforesaid schedule or alternatively by that affidavit stating whether any of the documents or classes of documents referred to in that order had been in the plaintiff’s possession, and, if no longer in its possession, when it parted with the same and its belief as to what had become of such document. In determining this appeal I shall identify the document or documents the subject of the appeal by reference to the paragraph number in the schedule which was entitled “Analysis of NAB Discovery” and which is exhibit “M1” to the affidavit of Mario Merlo sworn on 29 May 2000.

Pursuant to R. 29.02(1) of the General and Civil Procedure Rules of the Court, a party to proceedings on whom a notice of discovery is served, is obliged to “make discovery of all documents which are or have been in his possession relating to any question raised by the pleadings”. In Campagnie Financier du Pacifique v Peruvian Guano Co[1] Brett LJ addressed the question as to what was the obligation of a party to proceedings to give discovery which documents were “relating to any matter in question” in the action. At p. 62-3 his Lordship said:

“… the documents to be produced are not confined to those which would be evidence either to prove or disprove any matter in the action… It seems to me that every document relates to matters in the action, which not only would be evidence upon any issue but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because… a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry, which may have either of those two consequences…”

In Mulley v Manifold[2] in which the court considered an application for further discovery, Menzies J at p. 345 said:
“I now turn to the pleadings to determine what are the matters in issue between the parties because discovery is a procedure directed towards obtaining a proper examination and determination of these issues – not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would or would lead to a train of enquiry which would, either advance a party’s own case or damage that of his adversary.”

[1][1888] 11 QBD 55

[2](1958) 103 CLR 341

It is by application of the tests so enunciated that I determine this appeal.

Paragraph 1

By this paragraph the defendants sought discovery of each and every document in the plaintiff’s possession relating to 31 accounts identified by the account number. On behalf of the defendants it was submitted that all the documents with respect to each of the accounts identified were relevant to paragraph 37(d) of their defence and counterclaim in which it is alleged that as part of the management of the second defendant’s financial affairs the plaintiff opened and closed various bank accounts and transferred moneys between those accounts. Insofar as the defendants seek discovery of each and every document in the plaintiff’s possession relating to the identified accounts it would be extremely burdensome on the plaintiff and it is likely that many of those documents would not relate to a question raised by the defendants pursuant to paragraph 37 of their defence and counterclaim. Further, in response to the defendants’ claim for discovery of the documents relating to each of such accounts it was contended on behalf of the plaintiff that account statements had been discovered by the plaintiff in respect of accounts as identified in the plaintiff’s response to the aforesaid analysis. During the course of the submissions relevant to this paragraph it was accepted by counsel for the plaintiff that in respect of the accounts identified by number the defendants would be entitled to discovery of the statements of account in respect of each of the accounts identified by number.

I am of the view that the first step to be taken in respect of discovery being sought by the defendants under this paragraph is that the plaintiff should give discovery of the statement of account of each account as identified by paragraph 1 of the said analysis. If, subsequent to giving discovery of the statement of account of each of the accounts identified, there is sought further discovery in respect of an identified account then that matter may be dealt with at that time. In my view the discovery sought by the defendants in paragraph 1 should at this time be limited to the plaintiff giving discovery of the statements of account of each of the accounts identified in paragraph 1.

Paragraph 2

In respect of this paragraph it was put by counsel on behalf of the defendants that discovery should be given by the plaintiff of each file of the plaintiff in respect of each of the persons and companies there identified. In respect of this paragraph that which was sought by the defendants was discovery of the file of the plaintiff in respect of each account identified by number in paragraph 37(c) and (d) of their defence and counterclaim.

It was contended on behalf of the plaintiff that it had made discovery of its relevant files, an example being identified at page 14 of the Consolidated Affidavit of Documents sworn by Evangelista wherein at that page the documents numbered 154 to 170 were preceded by the heading “Manila folder entitled ‘Anderson-Raymond and Beverley’, loose documents contained in Manila folder entitled ‘Anderson – Raymond and Beverley’”. Other similar headings were identified by counsel for the plaintiff in the plaintiff’s Consolidated Affidavit of Documents. It was contended on behalf of the plaintiff that if the Consolidated Affidavit of Documents was had regard to, it is to be seen from the heading of various groups of documents that that which the plaintiff had discovered were its files. The dispute as between counsel for the plaintiff and counsel for the defendant relevant to this matter became identified as the difference between that which was contended by counsel for the plaintiff constitute a file being that identified by headings in the Consolidated Affidavit of Documents and that which was regarded by counsel for the defendants as being a file which was not the documents identified by such heading. Having regard to the affidavit sworn by Evangelista I am not satisfied that the plaintiff has failed to make discovery of its relevant files relating to the questions raised by the pleadings in these proceedings. Accordingly I make no order requiring the plaintiff to make further discovery as to the documents identified in paragraph 2 of the said Analysis.

Paragraph 4
“Documents relating to Collinson Holdings Pty Ltd”

By that paragraph the defendants sought further discovery of “documents relating to Collinson Holdings Pty Ltd”. In respect of this matter the plaintiff’s response was that all relevant documents in the plaintiff’s possession relating to this company had been discovered. In my view the dispute relating to discovery of the documents under this paragraph is best able to be resolved by an appropriate officer of the plaintiff making an affidavit to be sworn by that person deposing to the fact that discovery has been given to the defendants of all the documents in the plaintiff’s possession relating to Collinson Holdings Pty Ltd as is raised by the pleadings, and identifying such documents by reference to the plaintiff’s Consolidated Affidavit of Documents.

Paragraph 5
“Full file of the Bank Manager of the Ormond Branch”

In respect of this matter it had been deposed in an affidavit by the second defendant and her accountant, Zagari, that they saw in the office of this branch manager a relevant file approximately 1.5 inches thick and that discovery had not been given by the plaintiff with respect to such a file. In response to that it was contended on behalf of the plaintiff that “the branch files had been discovered in this proceeding”. In my view the matter in issue relating to the documents in this paragraph is able to be resolved by requiring an authorised officer of the plaintiff to make an affidavit deposing to the fact that all branch files relating to any question raised on the pleadings has been discovered and identifying the documents constituting the same by reference to the plaintiff’s Consolidated Affidavit of Documents.

Paragraph 6
“Documents observed by Mrs Anderson and her accountant, Ross Zagari which contained whiteout”

With respect to this matter it has been deposed by the second defendant and Zagari that they saw on the file of the branch manager of the plaintiff part of the file containing whiteout. It was contended on behalf of the defendants that no such document had been discovered. In my view, if there is factual foundation for the contention made by the second defendant and the accountant, the matter is covered by paragraph 5 of the Consolidated Affidavit of Documents sworn by Evangelista. No further discovery should be ordered in respect of this matter.

Paragraph 7
“Documents containing the words ‘This is illegal’ or ‘This is not legal’”

In respect of this matter the second defendant and her accountant, Zagari, have sworn affidavits stating that they saw a document bearing such words but no such document has been discovered by the plaintiff containing such words.

In my view this matter is resolved when regard is had to paragraph 5 of the Consolidated Affidavit of Documents sworn by Evangelista. In my view no further discovery should be ordered in respect of this matter.

Paragraph 8
“Original copy of document number 31 (letter of offer) signed by the defendants”

By paragraph 31 of the Consolidated Affidavit of Documents that discovered is said to be the original of the plaintiff’s Bill facility letter of offer to R&B Anderson dated 4 January 1993. Whether that discovered by the plaintiff is an original document or copy of the same may be an issue in dispute at the hearing of these proceedings but in my view it is not appropriate that the court make an order for discovery with respect to this document.

Paragraph 9
“Copies of applications for additional finance…”

In respect of this matter the response of the plaintiff was that it has discovered all documents in its possession relating to applications for lines of credit. It was contended on behalf of the plaintiff that such documents were identified throughout the Consolidated Affidavit of Documents. There was not able to be identified on behalf of the defendants which applications had been discovered by the plaintiff and which applications had not been discovered. In such circumstances the plaintiff should not be required to provide further discovery relevant to this matter.

Paragraph 10
“Discovery is sought of actual files of each officer or department of the Bank…”

Again, in relation to this matter the dispute between the parties was whether or not the plaintiff had provided discovery of files documents, identified by various sub-headings throughout the Consolidated Affidavit of Documents. It was contended on behalf of the plaintiff that documents so identified constituted files of the plaintiff. It is to be observed that in the Consolidated Affidavit of Documents sworn by Evangelista he has on numerous occasions identified documents, the subject of discovery under headings. In my view having regard to the Consolidated Affidavit of Documents and its structure no further order should be made relevant to this paragraph.

Paragraph 11
“Credit Committee file”

On behalf of the plaintiff it was contended that by reference to the documents discovered and being the subject of the Consolidated Affidavit of Documents there was not able to be identified a document of or a file of the plaintiff’s credit committee. On behalf of the plaintiff attention was drawn to documents numbered 1243 – 1330 and 1677-1758 it being contended that those documents constitute the credit committee file. In respect of that matter and such being contended for on behalf of the plaintiff I am of the view that this matter is able to be resolved by an authorised officer of the plaintiff swearing an affidavit deposing to the fact that such documents as now identified constitute the file of the credit committee of the plaintiff. I am of the view that otherwise no further discovery should be ordered in respect of this matter.

Paragraph 17
“Discovery is sought of the credit committee file and all credit submissions made on behalf of the defendant’s credit submission”

No further order should be made relating to this paragraph as it is provided for by the order proposed to be made relevant to paragraph 11.

Paragraph 18
“Documents relating to complaints by defendants of illegal transfers of funds and documents relating to queries raised by the defendants in this regard”

It was conceded by counsel for the defendants that in the pleadings there was no allegation made by the defendants of illegal transfers of funds. No order should be made requiring further discovery be made under this paragraph.

Paragraph 19
“The file and/or any document of the Bank’s department known as ‘SCB’ which I presume means ‘State Credit Bureau’”

On behalf of the plaintiff counsel informed the court that the State Credit Bureau was one and the same of the Credit Committee of the plaintiff. In my view having regard to the order I propose to make with respect to paragraph 11 no further order for discovery should be made with respect to this paragraph.

Paragraph 21
“File of Legal Services Department of the Bank”

Counsel for the plaintiff identified the Legal Service’s file as being the discovered documents number 1342-1676. In my view on an authorised officer of the plaintiff swearing an affidavit that the documents in the Consolidated Affidavit of Documents being those numbered 1342-1676 constitute the plaintiff’s Legal Services’ file that no further order for discovery should be made with respect to this paragraph.

Paragraph 22
“Documents 171-262 contained in grey cardboard backboard have virtually no date sequence nor any file notes”

These documents as appearing in the Consolidated Affidavit of Documents are preceded by the heading “Documents contained on grey cardboard backboard” that which was agitated on behalf of the defendants with respect to this matter is that from inspection of those documents it did not appear that they constituted a file. Whether such documents constituted a file or not is not able to be ascertained in proceedings such as this. In my view no further order for discovery ought to be made relevant to this paragraph.

Paragraph 24
“Handwritten notes, memos and diary entries recorded by each of the bank officers who met with the defendants during the course of their dealings”

The further discovery sought by the defendants relevant to this paragraph relates to the documents number 263 in the Consolidated Affidavit of Documents. That paragraph gives discovery of a bundle of handwritten and typed notes. It was contended on behalf of the defendants that the typed notes must have their origin in handwritten notes and that the Consolidated Affidavit of Documents made no reference to the existence of the handwritten notes. On behalf of the plaintiff, attention was drawn to the fact that the documents in paragraph 263 of the Consolidated Affidavit of Documents made reference to both typed and handwritten notes. On behalf of the plaintiff reliance was had on paragraph 5 to the Consolidated Affidavit of Documents sworn by Evangelista. That paragraph was challenged by counsel for the defendants who contended that it was his instructions that when the second defendant conferred with bank officers they always took notes. In my view it is appropriate for the plaintiff on these proceedings to rely on paragraph 5 of the Consolidated Affidavit of Documents. In such circumstances no further order should be made under this paragraph for further discovery.

Paragraph 25
“All file notes and/or customer interview records prepared by Brad Beecham and/or Graeme Andrews…”

Again, with respect to this paragraph reliance was had by the defendants on the second defendant’s instructions. Again, counsel for the plaintiff relied on the Consolidated Affidavit of Documents and particularly paragraph 5 thereof. In my view on this interlocutory proceeding, the plaintiff is able to rely on such affidavit of documents which has been sworn and filed in these proceedings. In such circumstances and having regard to the material placed before the court at this time no further order should be made for discovery relative to paragraph 25.

Paragraph 26
“The Bank’s entire file in relation to Bills of Exchange…”

On behalf of the defendants it was argued that it was not discernible from the Consolidated Affidavit of Documents, any file relating to this matter. On behalf of the plaintiff attention was drawn to the heading proceeding documents 267-354 in the Consolidated Affidavit of Documents. It was further put on behalf of the plaintiff that those documents being documents 267 to 354 constituted the plaintiff’s file relating to Bills. It is appropriate that this fact be deposed to in an affidavit sworn by an officer of the plaintiff.

Paragraph 28
“White cardboard backboard discovered by Bank entitled ‘Mrs Beverley Fay Collinson, general correspondence’ but containing documents relating to Collinson Holdings Pty Ltd”

It was argued on behalf of the defendants that when regard was had to these documents it should be concluded that a file has been reconstructed. On behalf of the plaintiff it was contended that the documents which are preceded by the heading “Brown cardboard backboard entitled ‘Beverley Fay Collinson’” constituted a file of the plaintiff relating to the second defendant who was formerly Beverley Fay Collinson. Counsel for the defendants drew attention to page 37 of the Consolidated Affidavit of Documents and in particular the heading “White cardboard backboard entitled ‘Beverley Fay Collinson – overdraft correspondence’”. Notwithstanding that matter, the part of the Consolidated Affidavit of Documents relied on by the defendants was at that the foot of page 28 to which I have previously referred. Insofar as it is contended on behalf of the plaintiff that the documents being document 361-487 constitute a file of the plaintiff it is appropriate that I order that there be sworn by an authorised officer of the plaintiff, an affidavit deposing as to that matter, but otherwise no further order be made with respect to paragraph 28.

Paragraph 29
“Bank has removed 39 documents from its discovery. Discovery is sought of these 39 documents”

Attention was drawn to a document discovered by the plaintiff which was originally numbered 600 and then appears to be renumbered 639. It was contended on behalf of the defendants that some 39 documents originally discovered have now no longer been discovered. It was put on behalf of the defendants that if the explanation is that the document numbered 600 and subsequently numbered 639 are said to be the same document then that would be the end of the matter. This document was a document referred to in paragraph 4 of the order of the Master whereby it was ordered that “the plaintiff file and serve an affidavit giving explanation in respect of the documents”. As previously referred to, counsel for the plaintiff informed the court that paragraph 4 of the order of the Master was not the subject of the appeal and that an affidavit would be sworn on behalf of the plaintiff “giving explanation” in respect to this document and documents 34, 40, 41 and 44.

Paragraph 33
“Many of the Bank’s documents make reference to discussions or meetings with Mrs Anderson. No notes of these discussions or meetings have been discovered by the Bank”

On behalf of the plaintiff, again reliance was had on paragraph 5 of the affidavit sworn by Evangelista being the Consolidated Affidavit of Documents. In my view the plaintiff is able to rely on that deposed to in the Consolidated Affidavit of Documents and in particular paragraph 5 thereof. It is not incumbent on the plaintiff to identify which documents discovered are documents relating to discussions or meetings with the second defendant. No further discovery should be ordered with respect to these documents.

Paragraph 35
“Bank has discovered an untitled Verbatim computer disc…”

With respect to this matter it is contended that the Bank has discovered an untitled Verbatim computer disc without description whatsoever as to what is recorded on the disc and that it being an old fashioned computer disc it is impossible to read or review the contents of the disc.

On behalf of the plaintiff it was contended that with respect to this disc it is an old 1980’s disc and that it is extremely difficult to find a suitable computer to read it and this has not been done to this time. Discovery is an on-going procedure and a party who has made an affidavit of documents is under a continuing obligation to make discovery of documents of which the party obtains possession after making the affidavit – Rule 29.15. With respect to this disc, in the event of the plaintiff being able to open the same and to ascertain that which is recorded on it, it having been discovered in these proceedings, the plaintiff is obliged to swear, file and deliver an affidavit deposing to that matter. At this point of time I propose to make no further order for discovery under this paragraph.

Paragraph 36
“Bank’s report dated 21 May 1997.”

Document 929 of the Consolidated Affidavit of Documents is recorded as being – “original National Australia Bank internal memo to asset structure from Graeme Andrew manager Oakleigh dated 30 May 1997 (1 page)”.

With respect to this document it is asserted that in the document (document 929) being dated 30 May 1997 there is reference to a bank report of 21 May and that that document has not been discovered. On behalf of the plaintiff it was submitted that when reference is had to the document dated 30 May 1997 it does not refer to a report dated 21 May 1997 but rather it refers to a report that was submitted on that date. On enquiring from counsel for the plaintiff where such document was in the Consolidated Affidavit of Documents he was unable to identify the same at that point of time. In my view it is appropriate to order that the plaintiff by an authorised officer swear an affidavit identifying the report referred to in document 929 which was submitted on 21 May 1997.

Paragraphs 37, 38 and 39
By these paragraphs the defendants seek discovery of ‘files’ identified in such paragraphs

On behalf of the plaintiff it was submitted that all such files have been the subject of discovery as referred to and contained in the Consolidated Affidavit of Documents. In the course of submissions made by counsel on behalf of the defendants it was conceded that that referred to in paragraph 38 – “The file(s) of Manager Set H” was a misdescription and that in respect of these paragraphs the defendants pursued those identified in paragraphs 37 and 39. Counsel on behalf of the plaintiff informed the court that with respect to paragraphs 37 and 39 the files of the plaintiff discovered with respect to those matters can be identified by the plaintiff. In my view that should be done by the plaintiff and I will order that the plaintiff by a proper officer, swear an affidavit deposing to which of the plaintiff’s documents as discovered in the Consolidated Affidavit of Documents constitutes the files referred to in paragraphs 37 and 39 of the said Analysis.

Paragraph 42
The plaintiff’s copy of documents therein identified

These documents have been discovered by the defendants but not by the plaintiff.

It was contended on behalf of the defendants that when this matter was queried with the plaintiff it simply took copies of the defendants’ documents and discovered them back to the defendants. That which was sought by the defendants were the original documents, copies of which are in possession of the defendants. In further investigating the matters relevant to this paragraph it was to be seen that documents 156 and 163 of the defendants’ discovered documents each were contended not to be relevant in any way to any issue in dispute in these proceedings. If it was relevant then the defendants have such documents. The fact that the defendant is in possession of the documents identified in this paragraph, if the same relate to a question raised by the pleadings or if some or other of them may lead to enquiries relevant to these proceedings it is apparent that the defendants have the documents. Any further discovery of the documents would be merely providing documents which the defendants have. In my view no further order for discovery should be made as to this paragraph.

Paragraph 43
“Business plan provided by the second defendant to Brad Beecham of the Bank”

On behalf of the defendants it was put that this document was discovered by the defendants but it is not the subject of any document identified in the Consolidated Affidavit of Documents. The document was not able to be identified by counsel for the defendants. On such document being identified by those acting for the defendants and that being transmitted to those acting on behalf of the plaintiff, if the plaintiff has or has had possession of the same it would be part of the on-going obligation of the plaintiff to make discovery of the same. I propose to make no order at this time relevant to paragraph 43.

Paragraph 45
“Original mortgage in favour of the bank over the property known as ‘Cafe Dominica’”

In response to the claim by the defendants for further discovery relating to this document, on behalf of the plaintiff, it has been said that the duplicate mortgage has been lost or destroyed, the original mortgage has been lodged at the Office of Titles and is on public record and that a photocopy of the mortgage is document number 8 of the plaintiff’s discovered documents. In my view the plaintiff has given discovery of this document and I intend to make no further order relevant to this document.

Paragraph 46
“Head Office/Senior Management response/approval to loan applications”

On behalf of the defendants it was put that there must have been approvals by senior management in response to and for the approval of loans made to the defendants. It was put that such approvals have not been the subject of discovery.

On behalf of the plaintiff it was put that such response and approvals appear on the documents constituting an application for a line of credit. Examples of that were provided to the court. Counsel for the defendants informed the court he was aware that on discovered documents relating to applications for lines of credit endorsements of the nature now sought were made on the document. Counsel for the defendants was unable to refer to any application for a line of credit which did not have such endorsement on it. In the circumstances no further order for discovery will be made with respect to this paragraph.

Paragraph 51
“Settlement authorities with respect to the sale of properties owned by the defendants”

On behalf of the defendants it was put that mortgages in favour of the plaintiff secured on properties, when sold, the plaintiff must have been provided with details of where funds were to be disbursed. On behalf of the defendants it was put that there is involved 18 properties with respect to this matter. On behalf of the plaintiff it was put that to this point of time there had been no allegation made on behalf of the defendants that in respect of the sale of these properties the proceeds of sale had been wrongly disbursed by the plaintiff. It was further put, that to this point of time there was no allegation that at settlement of the sale of properties moneys were not disbursed in accordance with the instructions of the registered proprietor. At this point of time the allegations made by the defendants by their defence and counterclaim provide no foundation for the further discovery now sought under this paragraph. At one point I considered that it may be appropriate that it be ordered that on the defendants making amendments to paragraph 37(a) of their defence and counterclaim that further discovery with respect to this matter be made by the plaintiffs. However, I have concluded that any further discovery relating to this matter should await actual amendment to this paragraph . If in consequence of that amendment further discovery is sought then that matter can be dealt with at an appropriate time. At this point I propose to make no further order for discovery with respect to paragraph 51.

Paragraph 52
“Bank valuations of properties owned by defendants and Collinson Holdings Pty Ltd”

It was put on behalf of the defendants that if the plaintiff had a particular valuation in respect of a property and sold it for less than that sum, the defendants would be entitled to know why and be provided with discovery of documents relating to the same. Counsel for the defendants identified the properties as those particularised in paragraph 37(a) of their defence and counterclaim. On behalf of the plaintiff it was submitted that in the defendants’ defence and counterclaim no allegation is made that the plaintiff sold properties of the defendants at under valuation. In my view on the pleadings as they presently stand, no foundation is provided for the further discovery sought under this paragraph. I propose to make no further order for discovery relevant to this paragraph.

Paragraph 53
“Lodgement letter forwarded, mortgage and transfer of land for registration and stamping”

With respect to this matter no argument was put on behalf of the defendants which provides a foundation for an order to be made for further discovery under this paragraph. I propose to make no order for further discovery with respect to this paragraph.

Paragraph 54
“Account opening authorities and signature cards on all accounts in the names of the defendants either individually, jointly or with third parties together with same with respect to Collinson Holdings Pty Ltd”

On behalf of the plaintiff it was put that there had been discovered the documents relating to the opening of accounts. There was not put behalf of the defendant that with respect to any one of the 34 accounts now said to be relevant to the issues in dispute that with respect to some or other of them discovery of authorities to open such accounts had not been discovered. There was not identified to me, on behalf of the defendants, the accounts in respect of which authorities to open the same had not been the subject of discovery. In such circumstances I propose to make no order for further discovery under this paragraph.

Paragraph 55
“Copies of all term deposit records”

In paragraph 37(c) of the defendants’ defence and counterclaim there are identified three term deposit accounts which it is alleged the plaintiff opened and closed. By paragraph 42 of the defence and counterclaim it is alleged that since 1989 the plaintiff opened and closed term deposits although particulars have not been provided. Those term deposit accounts identified in paragraph 37(c) of defence and counterclaim are in addition to those identified in paragraph 1 of the analysis. In my view at this time the plaintiff should provide to the defendants the account statements relating to any term deposit account held by the plaintiff in the names of the persons and bodies referred to in paragraph 37(c). On such discovery being provided the defendants would then be able to determine whether or not the discovery provided by the plaintiff to this point of time is complete or otherwise. Until that is done I consider that no proper adjudication can be made with respect to this paragraph. I propose to order that the plaintiff make discovery to the defendants of all bank statements relating to any term deposit account held by it in the name of the persons and bodies referred to in paragraph 37(c) of the defence and counterclaim.

Paragraph 56
“Copies of all internally prepared debits and credits passed to all accounts and identified on bank statements as ‘miscellaneous’ and/or ‘transfer’ including but not limited to entries listed in attached schedules”

Counsel for the defendants informed the court that he did not know if there was any attached schedule. Insofar as I propose to order that the plaintiff give discovery of all statements of accounts identified in paragraph 1 of the said analysis it would be at that time that there may be identified to the defendants, entries on statements of account of the nature referred to. It would then be able to be determined whether the plaintiff has failed to give full discovery relating to the matters now sought. At this point of time it cannot be determined whether or not the plaintiff has provided full and proper discovery relating to such accounts. At this time and before such statements are provided by the plaintiff I do not propose to order that there be further discovery of the nature sought under this paragraph.

Paragraph 57
“Copies of the debit entry for $100,000 on 5 June 1995 to account no. 646484884-R”

On behalf of the defendants it was contended that this account which was called – “Raymond Charles Anderson, National Flexi Account” contained such debit entry but there was no document discovered to support such debit entry made on that account. It was not contended on behalf of the plaintiff that there had been discovered any document relating to such entry. The account referred to in this paragraph is an account identified in paragraph 37(d) of the defence and counterclaim. In my view, in the absence of the plaintiff being able to identify any document presently discovered relating to this matter, it is appropriate to order that discovery be made by the plaintiff to the defendants of all documents relating to the debit entry for $100,000 made on 5 June 1995 in account numbered 646484884-R.

Paragraph 58
"Copies of all periodical payment authorities"

The discovery sought by this paragraph has no foundation in the pleadings as they presently stand. No further order should be made requiring the plaintiff to give discovery of these “authorities”.

Paragraph 59
“Bank statement pages 1-6 re Cafe Dominica, account No. 50779861”

Pursuant to the order I propose to make with respect to paragraph 1 of the analysis, this requirement for further discovery will be satisfied. There is no reason why any further order should be made with respect to this paragraph.

Paragraph 60
“Letter of lien”

A letter of lien would be expected to be a letter providing security for transactions the subject of these proceedings. In my view such letter relates to the questions in these proceedings and accordingly should be discovered by the plaintiff to the defendants. I propose to order that the plaintiff make discovery of this document to the defendants.

Paragraph 61
Customer interview record regarding attendance by Colin da Costa on the second defendant concerning the acquisition of a motor vehicle

In my view the documents sought by the defendants pursuant to this paragraph do not relate to any question raised by the pleadings in these proceedings as presently pleaded. Accordingly no order for further discovery will be made with respect to this matter.

Paragraph 63
“File of Bill Coxall of the Ararat branch of the Bank (including any notes of his review of the Anderson file”

Counsel for the defendants informed me that what was sought pursuant to this paragraph was the Ararat branch file referable to the defendants. Counsel for the defendants referred to document 908 in the plaintiff's Consolidated Affidavit of Documents which was identified as an “original internal memo to Ormond from W.J. Coxall, Manager Ararat dated 29 October 1992 (1 page)”. He submitted that this provided a foundation for the contention that there existed a file at the plaintiff's branch at Ararat which related to questions in these proceedings. Counsel for the plaintiff informed me that if there was an Ararat file in respect to the defendants which had not been discovered, it would be discovered. He conceded that if such a file existed, discovery should be made of the same. I propose to order that an authorised officer of the plaintiff shall make, file and serve on the defendants an affidavit deposing whether the plaintiff is or has been in possession of a file at its Ararat branch relating to any question in these proceedings, and in the event that such file is in the possession of the plaintiff it shall make discovery of the same to the defendants, but in the event that such file has been but is no longer in possession of the plaintiff, such officer shall state when that file was last in the possession of the plaintiff and what has become of the same.

Paragraph 64
“Documents relating to advances made by Bank to Collinson Holdings Pty Ltd and/or any securities provided by Collinson Holdings Pty Ltd to secure advances made by the Bank to the defendants”

In response to the defendants’ application for discovery of such documents, the plaintiff has responded that the “Collinson Holdings Pty Ltd files have been discovered”. It then becomes a matter of identifying which documents among those discovered by the plaintiff constitutes such files. I propose to order that the plaintiff by a proper officer swear an affidavit identifying which documents discovered by it constitute or form part of the Collinson Holdings Pty Ltd files discovered by it to the defendants.

Paragraph 65
“Documents evidencing why Bank aggregated borrowings of the defendants and Collinson Holdings Pty Ltd”

At present there exists no allegation made by the defendants in their defence and/or counterclaim alleging that the plaintiff aggregated borrowing of the defendants with Collinson Holdings Pty Ltd. In such circumstances I propose to make no further order for discovery relating to this paragraph.

Paragraph 66
“Documentation evidencing what happened to a cheque for $195,000 payable to Collinson Holdings Pty Ltd which was paid to the Bank following settlement of the sale of the Toorak property in or about November 1993”

It appears that the matter referred to was a sale of the property at Evelina Road, Toorak and the matter is referred to in a letter from the solicitors for the second defendant confirming her instructions with respect to the cheque for $195,000 on settlement of the sale. There does not appear in the pleadings any allegation made by the defendants or a defendant that the plaintiff in some way disbursed such sum without authority. In such circumstances I propose to make no further order for discovery relating to this matter.

Paragraph 67

By this paragraph the defendants seek discovery of documents evidencing what moneys were received by the Bank upon sale by the defendants of their various properties together with any authority as to how the funds were to be applied. As is evidenced by the supplementary affidavit of documents sworn by the second defendant on 28 February 2000, she has knowledge of the sale of some 31 properties. There is not identified or particularised in the defendants’ pleadings any allegations that moneys from the sale of any of these properties was paid to the plaintiff. If there is to be an allegation by the defendants that any moneys from the sale of any or all of these properties were received by the plaintiff then such allegation should be made in the pleadings of the defendants. In my view the further discovery sought pursuant to this paragraph does not relate to any question raised on the pleadings in these proceedings as they presently stand and I propose to make no further order for discovery under this paragraph.

Paragraph 68
“Documentation relating to the priority agreed to be granted by the Bank to Collinson Holdings Pty Ltd with respect to a second mortgage held by the company”

Counsel for the defendants informed the Court that he could not take the matter further other than that which was stated in the Analysis. In the circumstances I propose to make no further order for discovery relating to this paragraph.

Paragraph 69
“Documentation evidencing loan of $75,000 extended to defendants/Collinson Holdings Pty Ltd secured by unregistered mortgage”

Beyond the relief sought in these proceedings by the defendants for accounts to be taken there is no allegation made on the pleadings relevant to this matter. I propose to make no further order for discovery relating to this paragraph.

Paragraph 70
“Documents re Raymond Moon – account No. 346571687 referred to in Bank's document No. 1036”

It was asserted by counsel for the defendants that Raymond Moon is the same person as the first defendant. The account referred to is not one of the accounts referred to in paragraph 37(d) of the defendants’ defence and counterclaim. In my view the documents now sought to be discovered do not relate to any question raised by the pleadings in the proceedings. I propose to make no order that further discovery be made relating to this paragraph.

Paragraph 71
“Diaries of Bank Managers”

It was conceded on behalf of the plaintiff that discovery of such documents that relate to questions raised by the pleadings in these proceedings ought to be discovered to the defendants. I propose to order that the plaintiff make discovery to the defendants of any diaries of a manager which relates to any question raised on the pleadings in these proceedings.

Paragraph 72
“Full copies of Bank application forms for line of credit (both original and copies)”

Although this matter was not specifically pursued on this appeal it appears from the material before the Master and in particular the analysis being exhibit "M1" to the affidavit of Mario Merlo sworn on 29 May 2000 that the plaintiff’s response to this matter was that all relevant applications for lines of credit had been discovered. In the circumstances I propose to make no further order for discovery under this paragraph.

Although the plaintiff by its notice of appeal, appealed against each of the orders made by the Master in this proceeding on 31 May 2000 on the hearing of the appeal the plaintiff did not pursue its appeal with respect to orders 1, 2 and 4. In such circumstances it is appropriate that the appeal in respect of those orders should be dismissed. In the orders made by the Master being orders 1 and 2 contain a date on or before which further discovery was to be given by the plaintiff to the defendants in these proceedings. It will be necessary for a new date to be fixed for compliance with those orders and also the order No. 4 made by the Master. I shall give counsel the opportunity to agree upon such date. In the event that no agreement can be reached I shall fix a date relevant to that and also relevant to the orders I propose to make giving to the defendants further discovery as identified in my judgment.

I propose to make orders in accordance with the following minutes:

(1)The appeal by the plaintiff against the orders made by the Master on 31 May 2000 and being orders 1, 2 and 4 be dismissed.
(2)That the appeal of the plaintiff against the orders made by the Master on 31 May 2000 and being orders for discovery in relation to documents or classes of documents as numbered in the following paragraphs to the Analysis being exhibit “M1” to the affidavit of Mario Merlo sworn 29 May 2000 and filed in this proceeding, be dismissed and it be ordered with respect to those numbered paragraphs as follows:
Paragraph 1
It is ordered that the plaintiff make discovery to the defendants of statements of account identified in paragraph 1 of the said Analysis insofar as the numbers appearing in that paragraph is a number of a bank account of the plaintiff.
Paragraph 4
It is ordered that insofar as it is contended by the plaintiff that it has given discovery of all documents in its possession relating to Collinson Holdings Pty Ltd and as relate to any question raised in these proceedings that an authorised officer of the plaintiff swear, file and serve on the defendants an affidavit deposing to that fact.
Paragraph 5
That insofar as it is contended on behalf of the plaintiff that the branch files relating to questions raised in these proceedings and identified by paragraph 5 of the said Analysis have been discovered to the defendants, that an authorised officer of the plaintiff swear, file and serve on the defendants an affidavit deposing to that fact.
Paragraph 11
It is ordered that an authorised officer of the plaintiff swear and file an affidavit and serve the same on the defendants deposing to the fact that in the Consolidated Affidavit of Documents of the plaintiff in these proceedings documents numbered 1243-1330 and 1677-1758 constitute the file of the credit committee of the plaintiff.
Paragraph 21
It is ordered that an authorised officer of the plaintiff swear, file and serve on the defendants an affidavit deposing to the fact that the documents numbered 1342-1676 in the plaintiff's Consolidated Affidavit of Documents constitute the file of the Legal Services Department of the plaintiff
Paragraph 26
It is ordered that an authorised office of the plaintiff swear, file and serve on the defendants an affidavit deposing to the fact that the documents numbered 267-354 constitute the plaintiff’s file with respect to Bills as relate to these proceedings but that otherwise no further order be made for discovery with respect to paragraph 26 of the analysis.
Paragraph 28
It is ordered that an authorised officer of the plaintiff swear, file and serve on the defendants an affidavit deposing to the fact that the documents being documents 361-487 of the plaintiff’s Consolidated Affidavit of Documents constitutes a file of the plaintiff but otherwise no further order be made under this paragraph.
Paragraph 36
It is ordered that an authorised officer of the plaintiff swear, file and serve on the defendants an affidavit identifying by number or otherwise the report referred to in document 929 of the Consolidated Affidavit of Documents which was submitted on 21 May 1997, and that otherwise no further order be made under this paragraph.
Paragraph 37, 38 and 39
It is ordered that an authorised officer of the plaintiff swear, file and serve on the defendants an affidavit identifying by name or otherwise the files of the plaintiff referred to in column 1 of the said Analysis and marked paragraphs 37 and 39 but otherwise no further order for discovery be made with respect to paragraphs 37, 38 and 39 of the analysis.

Paragraph 55
It is ordered that the plaintiff make discovery to the defendants of each Bank term deposit account held by it in the name of the person or bodies referred to in paragraph 37(c) of the defendants’ defence and counterclaim.
Paragraph 57
It is ordered that the plaintiff make discovery to the defendants of all documents relating to the debit entry for $100,000 on 5 June 1995 in account numbered 646484884-R.
Paragraph 60
It is ordered that the plaintiff make discovery to the defendants of the letter of lien referred to in paragraph 60 of the said Analysis.
Paragraph 63
It is ordered that the plaintiff by its authorised officer swear, file and serve on the defendants an affidavit stating whether the plaintiff is or has been in possession of a file of its Ararat branch relating to any question in these proceedings and in the event that such file is in the possession of the plaintiff it make discovery of it to the defendants but in the event that it is no longer in the possession of the plaintiff there be deposed by such officer when such file was last in possession of the plaintiff and what has become of the same.
Paragraph 64
It is ordered that the plaintiff by an authorised officer swear an affidavit identifying to the defendants which documents discovered by it constitute or form part of the Collinson Holdings Pty Ltd files discovered by it to the defendants by its Consolidated Affidavit of Documents.
Paragraph 71
It is ordered that the plaintiff make discovery to the defendants of any diary of a bank manager relating to a question or questions in the proceedings.
(3)That the appeal of the plaintiff against the orders made by the Master with respect to the document or documents referred to in the following paragraphs in the said Analysis be upheld and that there be no further order for discovery of the documents or classes of documents in numbered paragraphs 2, 6, 7, 8, 9, 10, 17, 18, 19, 22, 24, 25, 33, 35, 38, 42, 43, 45, 46, 51, 52, 53, 54, 56, 58,59, 61, 65, 66, 67, 68, 69, 70, 72 in the document being exhibit “M1” to the affidavit of Mario Merlo sworn 29 May 2000 in these proceedings.

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National Australia Bank Ltd v Anderson [2000] VSC 508

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Seven Network Ltd v News Ltd (No 5) [2005] FCA 510

[2000] VSC 508

11 December 2000