Sherwood v Commonwealth Bank of Australia (No 2) [2012] FCA 1030

Sherwood v Commonwealth Bank of Australia (No 2) [2012] FCA 1030

The affidavit SC5 and annexure SC4 were not relevant to any fact in issue because the affidavit did not explain the purpose of the document-selection exercise, why the selected clients or documents were chosen, or what the confidential financial profiles and statements of advice demonstrated about whether the services were acquired for personal, domestic or household use. No summary or other evidence was provided to connect the documents to the asserted issue. Accordingly, leave to file the affidavit was refused and the application was dismissed.

Jurisdiction
Australia
Judgment Date
13 September 2012
Procedural Posture
Representative Proceedings Commenced Under Part IVA of the Federal Court of Australia Act 1976 (cth) / Interlocutory Application for Leave to File Affidavit Evidence
Outcome
Application dismissed with costs.
Legal Topics
['leave to File Evidence Out of Time' 'relevance of Affidavit Evidence' 'representative Proceedings' 'managed Investment Scheme' 'consumer Services for Personal, Domestic or Household Use']
['evidence' 'class Actions' 'corporations' 'consumer Law'] ['leave to File Evidence Out of Time' 'relevance of Affidavit Evidence' 'representative Proceedings' 'managed Investment Scheme' 'consumer Services for Personal, Domestic or Household Use']

Case Brief

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Procedural Posture

Representative Proceedings Commenced Under Part IVA of the Federal Court of Australia Act 1976 (cth) / Interlocutory Application for Leave to File Affidavit Evidence

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to file as evidence an affidavit of Ms Stephanie Carmichael after the time set by earlier orders had expired.' 'Whether the affidavit and annexed documents were relevant to a fact in issue in the proceedings.' "Whether the documents supported the applicants' contention that margin lending services were of a kind ordinarily acquired for personal, domestic or household use."]

Ratio Decidendi

The affidavit SC5 and annexure SC4 were not relevant to any fact in issue because the affidavit did not explain the purpose of the document-selection exercise, why the selected clients or documents were chosen, or what the confidential financial profiles and statements of advice demonstrated about whether the services were acquired for personal, domestic or household use. No summary or other evidence was provided to connect the documents to the asserted issue. Accordingly, leave to file the affidavit was refused and the application was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application filed 31 August 2012 is dismissed.' "The applicants pay the first and second respondents' costs of and incidental to the application filed 31 August 2012."]