Thannhauser v Westpac Banking Corporation - [1991] FCA 898

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JUDGMENT NO. ... -........ . ...--- W B / ~ I

IN THE F E D E ~ L COURT OF AUSTRRLIA 1 po. QG 29 of 1989
QUEENSLAND DISTRICT REGISTRY

GENERAId DIVESION 1
BETWEEN: JOHANNA THANNIWUSER
Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

MINUTES OF ORDER

LTUDGE M I N G ORDER: PINCUS J.
DATE OF ORDER: 5 SEPTEMBER 1991
PHERE MADE: BRISBANE
THE COURT ORDERS THAT:
1 .    MFI 7, 8, 9, 10 and 11 can be released into the custody of Mr McDonnell of Feez Ruthning and Mr Broadley of Morris Fletcher and Cross on their

undertaking to be personally responsible for the
return of documents which are taken away by them.
2.    The document corresponding to exhibit JAD3 of the affjdavit of James Alan Demack for the 1984 year be discovered.
3.    The document corresponding to exhibit JAD3 of the affidavit of James Alan Demack for the 1987 year be discovered.

Committee and study them.
4 .    The respondent produce copies of diary memoranda kept on Mr Look's file of such memorando recording discussions of Mr Look with prospective foreign currency loan borrowers where advice or iniormation was given to tliem during tlie 1983, 1904 and 1905 years.
5 .    The notice of motion be adjourned sine die insofar as not dealt with today on the understanding that Mr McDonnell will get the mjnutes of Head Office Credit
.
6.    ThB costs of the notice of motion, nsofar as they

were incurred up tll.1 today, be tax d and paid by k
the respondent to the applicant.

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

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IN THE F E D E ~ COURT OF AUSTRALIA 1 No. QG 29 of 1989

QUEENSLAND DISTRICT REGISTRY 1
GENERAL DIVISION 1
BETWEEN: JOHANNA THANNHAUSER
Applicant

AND:
Respondent

CORM: PINCUS J.
m: BRISBANE
m: 5 SEPTEMBER 1991
EX TEMPORE REASONS FOR JUDGMENT

This is an application for further and better

discovery. There are three questions which I will mention in
the order they were raised by Mr. McMurdo, counsel for the
Applicant.
In exhibit JAD3 to the affidavit of Mr. Demack,

which is relied on by Mr. McMurdo, appears a complete copy of

il document which was partially discovered in JAD2. JAD3 seems
to be to be discoverable in whole. The reason it is
discoverable is that it is not relevant merely to credit,
assuming it is correct (as Mr. Sheahan argues) that the
documents relevant to credit are not discoverable. It is
something which happened and which would be admissible in
chief. For example, if it were the case that the manager was
being encouraged to get out as much Euro loan business as
possible, that would be, it seems to me, plainly part of the
factual background of the case which could be proved and would
be relevant.
Mr. Sheahdn speaks as if to determine whether

something is discoverable, you look merely at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] FCA 898
Decision Date: 5 Sep 1991

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Thannhauser v Westpac Banking Corporation, No. QG 29 of 1989, was heard in the Queensland District Registry of the General Division. Johanna Thannhauser, the applicant, brought this application for further and better discovery against Westpac Banking Corporation, the respondent. The application sought additional documents and information relevant to the proceedings.

The court was tasked with deciding three key issues raised by the applicant's counsel. The first issue concerned the discovery of a complete copy of a document partially discovered earlier, which the applicant argued was relevant to the case. The second issue involved a document dated 19 January 1988, which contained minutes from a credit committee meeting. The third issue pertained to memoranda from Mr. Look, a relevant party, covering the years 1983, 1984, and 1985.

The court ruled that the complete copy of the previously partially discovered document should be disclosed, as it was relevant to the case's factual background. The court found it odd that this document was not discovered initially. Regarding the credit committee meeting minutes, the court decided to adjourn the matter for further examination by the respondent's solicitor, Mr. McDonnell. The court also accepted the applicant's request for the discovery of Mr. Look's memoranda for the years 1983, 1984, and 1985, as these documents were relevant to the case. The court ordered the respondent to pay the costs of the notice of motion incurred up until the date of the judgment.

Orders