Fitzgerald v Westpac Banking Corporation [2011] FCA 124

Fitzgerald v Westpac Banking Corporation [2011] FCA 124

The notices to produce were set aside because they constituted an impermissible attempt to obtain general discovery by seeking an amorphous collection of documents at a premature stage, without demonstrating sufficient relevance or relation to live issues in the proceedings.

Parties
Applicant/cross Claimant: Peter Fitzgerald; Applicant: Christopher Finn; Applicant: Danielle Lavers; Cross Claimant: Jeff Sheehan; First Cross Respondent: Gregory Michael Bartlett; Second Cross Respondent: Greg Kenny; Cross Claimant: Glenn Wittingslow; Respondent/third Cross Respondent/first Cross Respondent: Westpac Banking Corporation ACN 007 457 141; Fourth Cross Respondent/second Cross Respondent: Chubb Insurance Company of Australia Limited ACN 003 710 647; Fifth Cross Respondent/third Cross Respondent: Allianz Australia Insurance Limited ACN 000 122 850
Jurisdiction
Australia
Judgment Date
11 February 2011
Procedural Posture
Practice and Procedure / Interlocutory Application to Set Aside Notices to Produce
Outcome
Notices to produce set aside; cost orders made.
Legal Topics
Notice to Produce, Discovery, Abuse of Process
Civil Procedure Notice to Produce Discovery Abuse of Process

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Peter Fitzgerald

Applicant/cross Claimant

Christopher Finn

Applicant

Danielle Lavers

Applicant

Jeff Sheehan

Cross Claimant

Gregory Michael Bartlett

First Cross Respondent

Greg Kenny

Second Cross Respondent

Glenn Wittingslow

Cross Claimant

Westpac Banking Corporation ACN 007 457 141

Respondent/third Cross Respondent/first Cross Respondent

Chubb Insurance Company of Australia Limited ACN 003 710 647

Fourth Cross Respondent/second Cross Respondent

Allianz Australia Insurance Limited ACN 000 122 850

Fifth Cross Respondent/third Cross Respondent

Procedural Posture

Practice and Procedure / Interlocutory Application to Set Aside Notices to Produce

Legal Issues

  1. 1 Whether the notices to produce served on the insurers should be set aside as an abuse of process or as an impermissible attempt to seek general discovery
  2. 2 Whether the notices to produce sought documents for a legitimate forensic purpose and were relevant

Ratio Decidendi

The notices to produce were set aside because they constituted an impermissible attempt to obtain general discovery by seeking an amorphous collection of documents at a premature stage, without demonstrating sufficient relevance or relation to live issues in the proceedings.

Court Disposition

Notices to produce set aside; cost orders made.

Orders

  • The cross-claimants' notices to produce, addressed to Chubb Insurance Company of Australia Limited and Allianz Australia Insurance Limited, dated 4 February 2011, be set aside.
  • The party who served the notices to produce pay the costs of the insurers on whom notice was served, in respect of the notice of motion filed to set aside the notices, as agreed or assessed.