Commonwealth Bank of Australia v Goater & Ors [2017] NSWSC 418

Procedural Posture

Application for Discovery in Civil Proceedings / Interlocutory Notice of Motion Before the Duty Judge

Legal Issues

1. 1 ['Whether the second cross-defendant should be ordered under r 21.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) to give discovery of three specified categories of documents.' 'Whether the requested categories of documents were relevant to facts in issue, or were relevant only to credibility or amounted to chain of inquiry discovery.' 'Whether it was in the interests of justice to order discovery having regard to the prior refusal of similar discovery and the filed affidavit evidence.']

Ratio Decidendi

The notice of motion was dismissed because the Court was not satisfied that the documents sought in any of the three categories were relevant to facts in issue. Category 5 concerned documents created after the payment arrangement and, at most, could bear on credibility rather than the pleaded terms of the arrangement. Category 6 sought an inquiry into whether further inquiries were made before the 6 November 2013 email and amounted to chain of inquiry discovery. Category 7 had already been considered by Adamson J and any documents about later inquiries into alleged misallocation would be relevant only to credit and would also involve chain of inquiry discovery. Having regard to the Civil...

Court Disposition

The cross-claimants' notice of motion for discovery was dismissed, with costs ordered in favour of the second cross-defendant subject to any written application for a different order within seven days.

Orders

• ["Dismiss the cross-claimants' notice of motion filed 27 January 2017." "Subject to an application being made in writing to my Associate within seven days of the date of this judgment for a different order, order the cross-claimants to pay the second cross-defendant's costs of the motion."]