Stern, Ilana Elenka v National Australia Bank Ltd

[1997] FCA 862

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 149  of 1996 and  NG 936  of 1996

BETWEEN:	ILANA ELENKA STERN AND ANOTHER APPLICANT
AND:	NATIONAL AUSTRALIA BANK LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	11 AUGUST 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The respondents, by notice of motion filed 1 August 1997, seek an order for further and better discovery.

It is well settled law that the obligation to make discovery is a wide one and the principles, as counsel have indicated, are set out in the decision of the Full Federal Court in Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 23-24 in these terms:

“A document relates to a matter in question between the parties if it is ‘reasonable to suppose’ that the document ‘contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary’.”

As is pointed out in the authorities, a document will answer that description if it may fairly lead to a train of inquiry which might have either of those consequences.

In the present case I am satisfied on the evidence contained in the affidavit of Mr Lewis that there has been a failure to make proper discovery in this matter.  I am satisfied that the particular categories of documents which have been referred to by Mr Reeves in address are examples of appropriate categories in respect of which the applicant ought to file a verified Supplementary List of Documents.

I appreciate that this will take some time. I think a proper allowance, so far as time is concerned, would be to fix 22 September 1997 as an appropriate date for the filing and serving of the verified Supplementary List of Documents.  So far as any documents falling within the categories adverted to by Mr Reeves and which are presently available, I direct that they be provided forthwith. I direct that other documents be provided on a continuing basis, as and when they become available.

I order that the applicant pay the respondent's costs of this application.

An application has been made for indemnity costs.  I am not satisfied that the failure to comply is so great as to warrant an order for what is an extraordinary grant of costs, and accordingly I refuse it.

I reserve liberty to apply in the event of any further orders being sought in relation to the implementation of these orders.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            11 August 1997

Counsel for the Applicant:	Mr V  R W Conway
Solicitor for the Applicant:	Denes Ebner
Counsel for the Respondent:	Mr S M P Reeves
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	11 August 1997