Slick v Westpac Banking Corporation (No 2)

In the matter of Slick v Westpac Banking Corporation (No 2), the court was tasked with determining whether the applicants had demonstrated a sufficient likelihood that documents relevant to the proceedings existed but had not been disclosed by the respondents, Westpac and Quadrant. The applicants sought an order compelling the respondents to provide further information regarding the discovery of documents, particularly emails, from their respective systems. The legal issues before the court involved the assessment of the applicants' evidence and the balancing of the potential benefits of further discovery against the costs and burdens to the respondents.

The court considered the evidence provided by the respondents regarding their IT systems and the processes in place for document retention and discovery. Westpac argued that reconstructing their old email system to access potential documents would be prohibitively expensive and time-consuming. Quadrant, on the other hand, stated that their system had been upgraded, and any relevant emails would have been migrated to the new system. The court examined the applicants' position, including the affidavit of Mr Daniel, who believed he could access relevant data at a lower cost and with fewer risks than the respondents had suggested. The court weighed the theoretical possibility of undisclosed documents against the practical difficulties and expenses associated with further discovery efforts.

After careful consideration, the court found that the applicants had not shown a sufficient likelihood that further documents existed that would warrant the significant costs and burdens imposed on the respondents. The theoretical possibility of uncovering relevant documents was outweighed by the impracticalities and expenses involved in either reconstructing Westpac's old email system or conducting a forensic examination by Mr Daniel. The court was not satisfied that the exercise sought by the applicants was necessary in the interests of justice. However, the court noted that the position regarding Quadrant was different, as the applicants had not adequately explored the potential for further discovery from Quadrant's system.

The final orders required the parties to submit minutes of order by a specified date, reflecting the reasons provided by the court. The court did not order further discovery from Westpac but left the door open for further exploration of Quadrant's system.