Thannhauser, J. v Westpac Banking Corporation

[1991] FCA 333

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333 , 9 1,- I -

JUDGMENT NO. .. ........ ... ... ...--- i

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 29 of 1989	l
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN:  JOHANNA THANNHAUSER

Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	12 APRIL 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

On the undertaking of the solicitors for the applicant to write to the banks listed in paragraph one of the schedule insofar as there are gaps, and bespeak bank statements and supply the results to the respondents -

1.  Further discovery be made on or before 19 April 1991, but not in relation to 2(d), 2(e), 2(f) or 3.

REOISTRY

NOTE:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

RECEIVED

2 0 J U N 19 91

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QG 29 of 1989
QUEENSLAND DISTRICT REGISTRY	1	l
GENERAL DIVISION	)

BETWEEN:  JOHANNA THANNHAUSER

Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

: M A - PINCUS J.

PLACE: BRISBANE

m: 12 APRIL 1991

EX TEMPORE REASONS FOR JUDGMENT

This application relates to a notice of motion seeking further discovery. I will order that further discovery be made on or before 19 April, but not in relation to 2(d), 2(e), 2(f) or 3. The reasons for refusing discovery with respect to 2(d), (e), (f) and 3 are that, although Mr. Morris says that building up a complete picture of the financial position of the applicant from day to day is important, it does not seem to me that it really is. The

position on any particular day is not significant.

He says that it would be difficult accurately to calculate the financial consequences of failure to hedge. It seems to me that an accurate calculation on a particular day is no part of the applicant's case, and is not likely to be an issue. If it did turn out, for example, that the course of the case was such as to make it particularly relevant to know

what the financial position was on a particulhr day, then, no
doubt, further discovery as to that day could be ordered.

I do not think it is practicable to undertake the exercise which Mr. Morris contemplates. Nor do I think it is correct, as he suggests, that unless one has all these documents, one cannot determine the cash flow. I should have thought the cash flow would have been sufficiently revealed by the balance sheets, trading accounts, and pro£ it and loss accounts plus the bank statements. In short, I do not think that the trouble and expense of making further discovery is outweighed by the advantage the respondent is likely to get from it.

More generally, whereas I appreciate that in these commercial cases discovery is extremely important and cases can be lost or won on discovery, it is also important, I think, to try to keep it within bounds so that access to the court is not denied to all but those who are able to undertake an extremely expensive exercise.

On the undertaking of the solicitors for the applicant to write to the banks listed in paragraph one of the schedule, insofar as there are gaps, and bespeak bank statements and supply the results to the respondents, I will order that further discovery be made, but not in relation to 2(d), 2(e), 2(f) or 3, on or before 19 April 1991.

I certify that the two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

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Associate

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