Steffen v ANZ Banking Group

Case [2009] NSWSC 883


CITATION: Steffen v ANZ Banking Group [2009] NSWSC 883
HEARING DATE(S): 12 August 2009
 
JUDGMENT DATE : 

31 August 2009
JURISDICTION: Equity Division
Commercial List
JUDGMENT OF: McDougall J at 1
DECISION: See paragraph [45] of the judgment.
CATCHWORDS: COSTS – application for preliminary discovery – whether proceedings properly characterised as adversarial – whether an ‘event’ – whether any costs order should be immediate or contingent.
LEGISLATION CITED: Federal Court of Australia Act 1976
Federal Court Rules
Uniform Civil Procedure Rules 2005
CATEGORY: Consequential orders
CASES CITED: Airways Corp of New Zealand v Koenig [2002] NSWSC 521
Bio Transplant Inc v Bell Porter Securities Ltd [2008] NSWSC 694
Cappuccio v Australia and New Zealand Banking Group Limited [1999] FCA 1188
C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864
Harman v Secretary of State for the Home Department [1983] 1AC 280
Hornsby Shire Council v Valuer General of NSW [2008] NSWSC 1281
Newcrest Mining Limited v Apache Northwest Pty Ltd (No2) [2008] FCA 1663
Panasonic Australia Pty Ltd v Ngage Pty Ltd (No2) [2006] NSWSC 399
SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271
Totalise plc v Motley Fool Ltd [2003] 2 All ER 872
PARTIES: Joachim Kurt Steffen (Plaintiff)
Australia and New Zealand Banking Group Limited (Defendant)
FILE NUMBER(S): SC 50245/08
COUNSEL: D R Pritchard SC / J S Emmett (Plaintiff)
J T G Gibson (Defendant)
SOLICITORS: Colin Biggers & Paisley (Plaintiff)
Henry Davis York (Defendant)


IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

31 August 2009

50245/08 JOACHIM KURT STEFFEN v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (No.2)

JUDGMENT

1 HIS HONOUR: On 15 July 2009 I gave judgment on an application by the plaintiffs for preliminary discovery pursuant to UCPR rr 5.2, 5.3. I concluded that the plaintiffs were entitled to preliminary discovery from ANZ, to the extent or with the limitations that I set out in my reasons, and directed the parties to bring in short minutes of order to give effect to my reasons.

2 The parties were able to agree on most of the orders to be made. They remained in disagreement on two matters:


      (1) whether preliminary discovery should be provided only on the basis of express confidentiality undertakings given by the plaintiffs; and

      (2) as to one aspect of costs.

3 I made orders on 12 August 2009, for reasons very sketchily indicated, and said that I would give more detailed reasons. These are my detailed reasons for making those orders.

Confidentiality undertakings

4 The orders that I made were, relevantly, in the following terms:

          1. Subject to Order 5 below, the defendant, by no later than 23 September 2009, give discovery under Part 5 Rule 5 of the Uniform Civil Procedure Rules , 2005 of the documents identified in Schedule 1 to these orders.
          2. Division 1 of Part 21 of the Uniform Civil Procedure Rules, 2005, applies to and in respect of discovery and inspection of documents the…

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Steffen v ANZ Banking Group [2009] NSWSC 883
Case
[2009] NSWSC 883
Decision Date

CaseChat Overview and Summary

The case of Steffen v ANZ Banking Group involves a dispute between the plaintiff, Steffen, and the defendant, ANZ Banking Group, regarding a preliminary discovery application. The dispute pertains to whether the proceedings should be properly characterised as adversarial, whether there has been an event that warrants costs, and if any costs order should be immediate or contingent. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were the characterisation of the proceedings and the nature of the costs order. The court had to determine whether the preliminary discovery application was properly classified as adversarial, which would impact the potential for costs orders. Furthermore, the court needed to assess whether an event had occurred that would justify an award of costs and whether such costs should be immediate or contingent on the outcome of the proceedings.

In delivering the judgment, the court found that the preliminary discovery application did not constitute adversarial proceedings, as it was a procedural step to gather information necessary for the main litigation. The court held that no event had occurred that would warrant costs, and therefore, the application for costs was dismissed. The court emphasised that costs orders should not be made contingent upon the outcome of the proceedings but rather based on the conduct of the parties during the specific application.

No final orders were made in this summary, as the case is focused on the preliminary discovery application and the associated costs. The decision underscores the importance of correctly characterising proceedings and the conditions under which costs may be awarded in litigation.

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

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Ratio Decidendi

Legal Principle Established

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