Vella v Australia & New Zealand Banking Group Limited

[2008] NSWSC 209

CITATION:	Vella v Australia & New Zealand Banking Group Limited [2008] NSWSC 209
HEARING DATE(S):	7 March 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	7 March 2008
DECISION:	No order made on notice to produce.
CATCHWORDS:	PROCEDURE [429]- Notice to produce documents- What time the notice ought to be given- Late notice not to be allowed to disrupt trial.
LEGISLATION CITED:	Civil Procedure Act 2005, ss 56-60
CATEGORY:	Procedural and other rulings
PARTIES:	Australia & New Zealand Banking Group Ltd (Cross-Claimant) Houssam Annous (1st Cross-Defendant to Second Cross-Claim)
FILE NUMBER(S):	SC 3957/06
COUNSEL:	R G Forster SC and P Dowdy (Cross-Claimant) S J Burchett (1st Cross-Defendant to Second Cross-Claim)
SOLICITORS:	Henry Davis York (Cross-Claimant) Aston Reid Lawyers (1st Cross-Defendant to Second Cross-Claim)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 7 March 2008

3957/06 – VELLA v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD

JUDGMENT

1 HIS HONOUR: This is an application to have documents produced on a notice to produce bearing date 4 March 2008 directed to the ANZ Bank and an application for setting it aside.

2 I have said before and I will say again that particularly when one is dealing with a trial of multiple parties which must cost at least $100,000 a day, bearing in mind the provisions of ss 56 through to 60 of the Civil Procedure Act 2005 the court will not interrupt the trial to deal with late subpoenas or notices to produce. To do otherwise would cause large expenses to innocent parties in the proceedings. Apart from situations where something comes up by surprise, if a notice to produce is not given in the proper time before the proper person before the trial, it will be very, very difficult indeed for the court to be convinced that it should, at everyone else's expense, deal with defaults by lawyers for not getting their cases ready in time.

3 In answer to that, Mr Burchett of counsel for Mr Annous (a person who allegedly received some of the disputed funds by way of a bank cheque) says that the solicitors and other lawyers for the ANZ Bank have given assurances which induced his solicitor not to act within due time. That is denied and I would not accept it without evidence, but I will allow evidence to be filed by 10 o'clock on Monday 10 March to convince me that there is an arguable case. I treat it as a very serious allegation.

4 Mr Burchett has said that the material in the notice to produce is material which would give him a forensic advantage in dealing with para 12 of the defence to the amended second cross-claim on page 56 of bundle 1.

5 Mr Forster SC for the Bank has denied that and said that material is irrelevant. The allegation in para 12 alleges that by making public statements in advertisements and press releases that bank cheques were virtually “as good as cash”, the Bank has made representations to this cross-defendant as to what it would do about the bank cheque involved in the instant case.

6 I cannot, with great respect, see how that material could be relevant to that representation. I might be satisfied if I had some reference to authority but none has yet been provided.

7 Accordingly, at this stage I will not make any order on the notice to produce. The matter can be mentioned if anyone wants to mention it after all the live witnesses have given their evidence next Monday.

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