FEDERAL COURT OF AUSTRALIA
Selvaratnam v St George – A Division of Westpac Banking Corporation [2021] FCA 318
File number: NSD 655 of 2020 Judgment of: STEWART J Date of judgment: 30 March 2021 Catchwords: PRACTICE AND PROCEDURE – notice to produce –respondent answered that it had no further documents to produce in the categories sought – whether respondent required to specifically identify each document already produced fitting each category Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 7 Date of hearing: 30 March 2021 Counsel for the Applicant: P E King Solicitor for the Applicant: Sydney Commercial Lawyers Pty Ltd Counsel for the Respondent: A R Zahra SC and F Tao Solicitor for the Respondent: Norton Rose Fulbright Australia ORDERS
NSD 655 of 2020 BETWEEN: KENGARANEE SELVARATNAM
Applicant
AND: ST GEORGE – A DIVISION OF WESTPAC BANKING CORPORATION
Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
30 MARCH 2021
THE COURT NOTES THAT:
1.In answer to the applicant’s notice to produce dated 24 March 2021, called on before the Court on 30 March 2021, the following answer has been given by the respondent to paragraphs 1 to 9: save for the documents that have already been served as part of the respondent’s evidence in the proceedings and/or disclosed by way of discovery, there are no further documents to produce in answer to the notice to produce.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(From the transcript)STEWART J:
The applicant calls today on a notice to produce served on the respondent dated 24 March 2021. The notice to produce requires production from the respondent of nine categories of documents, mostly going to enquiries made by or consideration given by the respondent to various matters when it granted the loan at issue to the applicant.
The notice to produce arises from orders made by me on 17 February 2021, which provided for a process of discovery, and then provided that if either party required further and better discovery from the other party, a particular process should be followed.
That process involved the first party serving a notice to produce identifying the required documents, a response to the notice to produce, and in the event of the party who served the notice to produce not being satisfied, to then file the notice to produce, and for that to be returnable today.
The notice to produce procedure, which I set out in those orders, had the intention of providing for further and better discovery in the event that further and better discovery was required by either party. Thus, the call on the notice to produce this morning was in effect a call for further and better discovery in nine identified respects.
Senior counsel for the respondent answered the call by saying that save for documents already produced under discovery or served in evidence, the respondent has no further documents to produce meeting the description of the categories sought in the notice to produce.
Counsel for the applicant has argued that that is an insufficient answer to the notice to produce, and that what is required is that the respondent specifically identify each document fitting each of the nine categories, even if all of those documents, or at least those that do exist, have already been produced.
In my view, the respondent’s answer to the notice to produce is sufficient. It can be used at trial by the applicant, should she find cause to do so. It does not serve any useful purpose in the further preparation of this case towards trial to require the respondent to deal with each category individually and identify each document such as may exist within each category that has been identified by the applicant in the notice to produce.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate:
Dated: 1 April 2021
- AGLC
- Selvaratnam v St George a Division of Westpac Banking Corporation [2021] FCA 318
- Case
- [2021] FCA 318
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether the defendant, upon claiming to have no further documents to produce in the categories sought by the plaintiff, was also required to specifically identify each document already produced that fit within those categories. The plaintiff argued that such specificity was necessary to ensure transparency and to facilitate the discovery process. The defendant, on the other hand, contended that once it had stated that it had no further documents to produce, it was not obligated to go back and identify each document already produced that fit the categories sought.
In its judgment, the court held that the defendant was not required to specifically identify each document already produced that fit within the categories sought. The court reasoned that the obligation to produce documents is a procedural one, designed to assist in the discovery process. When the defendant claimed to have no further documents to produce in the categories sought, it had fulfilled its procedural obligation. The court found that requiring the defendant to go back and identify each document already produced would be overly burdensome and would not necessarily aid in the discovery process. The court also noted that if the plaintiff had specific concerns about the adequacy of the documents already produced, it could seek further clarification or make specific requests for additional documents.
The final orders of the court were that the defendant was not required to specifically identify each document already produced that fit within the categories sought by the plaintiff. The court did, however, encourage the parties to engage in good faith to ensure that the discovery process proceeded smoothly and efficiently.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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