Tresize, J.M. v National Australia Bank

[1993] FCA 10

JUDGMENT No. ........ ........ .. .......,.,, 1 0 / 10193

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY )	GENERAL DIVISION	) No. VG 200 of 1992
B E T W E E N :

JOHN MAXWELL TRESIZE	Firstnamed Applicant
- and -
MONICA ANN TRESIZE	Secondnamed Applicant
- and -
REMEA PTY LTD	Thirdnamed Applicant
(A.C.N. 006 356 047)
- and -
MARTIN SAXON BROWN and MARY KATHLEEN TRESIZE-BROWN

Fourthnamed Applicants

- and -
KEVIN ALLAN ADRIELE TRESIZE and

MARIE LORRAINE TRESIZE	Fifthnamed Applicants
- and -
NATIONAL AUSTRALIA BANK
(A.C.N. 004 044 937)	Respondent
Coram:	Olney J
Place:	Melbourne
Date:	21 January 1993

The applicants in this matter seek what is conveniently called an order for particular discovery. The authority for making such an order is found in Order 15 Rule 8 of the Federal Court Rules which, insofar as it is presently relevant provides that where	circumstances of the case, or from any document filed in the	it appears to the Court from evidence, or from the nature or
proceeding, that there are grounds for a belief that some document, or class of document relating to any matter in question in the proceeding may be, or may have been in the possession, custody or power of a party, the Court may make an order that the party file what in effect is an affidavit of discovery.
It will be noted that the circumstances which trigger the exercise of the Court's power, which is admitted to be a discretionary power, are expressed in the alternative as either that it appears to the Court from evidence, or from the nature or circumstances of the case, or from any document filed in the proceeding. And what it is that must exercise the Court's mind is that there are grounds for a belief that some document, or class of document, may be, or may have been, in the possession, custody or power of another party.
It is not the case that an applicant must prove positively the existence of a document, or a class of document, to obtain an order pursuant to this rule. There is rarely, if ever, any
affidavit, that such a document ought to be discovered. And it argument where a document is referred to in a pleading, or in an
is rare that a party can point positively to the existence of an undiscovered document that is in the possession, custody or power of another party. For the most part this type of application arises where the nature or the circumstances of the case give rise to the likelihood that documents, either particular documents or a class of documents may be, or may have been, in the other party's possession.
To say, as has been said in argument, that there is an onus lying upon the party seeking the order is to put the position too high if by that it is suggested that there is some form of onus to prove the existence of documents that must be discharged before a party can avail itself of the provisions of this rule. The rule contemplates that the mere nature or circumstances of the case may suggest that documents are likely to exist.
I make these general comments to indicate the attitude I will
adopt in respect of the specifics of this application.
During argument I referred to the comment of Gibbs CJ, in Alistair and Others v The Oueen, 154 CLR 404 at 414, where in a somewhat different context, but one which seems to me to be appropriate and applicable in this circumstance, His Honour said:

EX TEMPORE JUDGMENT

Although a mere "frsh~ng" expeditron can never be allowed, ~ t m a y

be enough that it appears to be "on the cards" that the documents

w ~ l l materially assist the defence.

That case had to do with the production of documents, but it	seems to me that that is the type of approach contemplated by the
framer of Order 15 Rule 8 and the view I take is that if in the circumstances of the case, so far as they are known to the Court at this stage, it is on the cards that a particular document or class of document may, or may have been in the possession or custody or power of the other party, the Court has the discretion to order that discovery of that document, or class of document, be given.
It is of course necessary in every case to have some understanding of the issues that have arisen between the parties, and in some cases a reading of the pleadings will enable a view to be formed. In other cases, which appear to be the norm rather than the exception these days particularly in this Court, the pleadings are often so complex that such an analysis is not always practical, and indeed at the end of the day sometimes it is not possible to determine questions of relevance until all of the case has been heard.
There are a number of general issues that have been raised in this case which in my view justify me in granting some aspects of the orders sought. I think that in general the integrity of Pearce and Smallacombe, and their employment history and general relationship with the National Bank are issues that go to the nub of the matters pleaded in paragraphs 23 and 24 of the statement of claim and the circumstances under which Pearce and Smallacombe worked and ultimately terminated their employment are matters which in my view relate to that issue. Accordingly, I would
of documents sought to be discovered tendered by Mr Davey after accede to the following paragraphs in the amended list of classes lunch namely paragraphs 1, 9 and 10.
As far as paragraph 2 is concerned, a perusal of the affidavit of documents of Mr Wilcock sworn on 4 December 1992 indicates that a serious and detailed response has been made in respect of the various files referred to in sub-paragraphs (a) to (e) of paragraph 2 of the list. There is no reason to believe or even suspect that that response is not comprehensive and accurate, and I do not propose to make any order in terms of paragraph 2.
So far as paragraph 3 is concerned, there is reference in a document filed in the proceedings, albeit a document filed by the applicant of which discovery has been given, namely, exhibit JW2 to ME Williams' affidavit, to a loan made to Pearce and smallacornbe by the Commonwealth Bank, whether it be at Wodonga or Frankston. The document is to some extent confusing, but in the circumstances, given what appears in that document, I think that it is appropriate that there be an order in terms of paragraph 3 of the list.
So far as paragraph 4 is concerned, there is reference in the affidavit of documents in respect of at least some of the files of the applicant parties to 'demands'. I refer as an example to item 355 'bundle of demands, addressed to K.A. and M.L. Tresize dated 30 Marchr. It seems, when one considers the nature of other documents that are identified in the list, that there is no reason suggest that there has been a failure to disclose any relevant documents relating to the making of demands on the
applicants. In the circumstances I do not propose to make an order in terms of item 4.
Exhibit JW3 to Mr Williams' affidavit contains what are said to be the extracts from the bank's policies and procedures documents. Given the fact that there has been discovery of these particular aspects of the procedures document, and that there is no material before me to suggest that the bank has any other relevant policies and procedures (and there is no reason for me to suppose to the contrary) I am not inclined to make an order in terms of item 5. It has not been shown that the authority of Pearce and Smallacombe as to lending levels is relevant. What material there is before me suggests that a proper discovery of policy documents has been made.
The question of the audit of the Somerville branch of the bank on 3 October 1991 is a matter which in the circumstances of the case appears likely to be of some relevance, and if there are documents relating to or connected wlth a chain of inquiry that gave rise to that audit, they should be discovered and I propose to make an order in terms of item 6.
As to item 7, it is in the nature of things that personal diaries are likely to have been kept by Pearce and Smallacombe in the course of their employment, and indeed, there may be other diaries kept by the bank relevant to Pearce and Smallacombe's
positive statement that the bank does not have any such diaries activities. There is before me on the oath of Miss Cameron a and in those circumstances I make no order in terms of paragraph
7. I am satisfied with what has been sworn to.
I have some difficulty with paragraph 8. It seems to me that the
information sought is, indeed, in the nature of fishing. There has been no positive material put to me to suggest that it is relevant, or might be relevant to know the particular matters itemised in sub-paragraphs (a), (b), (c) and (d) of item 8, and in the circumstances I do not propose to make any order in terms of that item. I have already indicated that there would be orders in terms of paragraphs 9 and 10.
The form of the order will be that the respondent file an affidavit statlng whether the documents or class of documents referred to is or have been in the respondent's possession, custody or power and if the same has or have been, but is or are not now in the respondent's possession, custody or power, when the respondent parted with it or them and what became of it or them.
The order also will contain a direction that the affidavit be served on the other party on or before 28 January 1993. It is appropriate that there should also be an order that the respondent pay the applicant's costs of this application to be taxed.

I certify that this and the

preceding 6 pages is a true copy of the Ex Tempore Judgment of the Honourable Mr Justice Olney

,- 5

Dated: z / z ( ~

Mr F. Davey QC and Dr J. Bleechmore (instructed by Williams &

Williams) for the applicants.

Mr R. Garratt (instructed by Mallesons Stephen Jaques) for the respondent.

Date of Hearing:	21 January 1993
Place :	Melbourne
Date of Judament:	21 January 1993