Kemp v Westpac Banking Corporation (No 3) [2021] FCA 1366

Kemp v Westpac Banking Corporation (No 3) [2021] FCA 1366

Further discovery was warranted because the amended pleading gave greater prominence to allegations of knowledge, category 1 emails attaching central documents were relevant to when and how named employees received and commented on those documents, category 2 as narrowed was directly tied to pleaded allegations about value, benefits, suitability and sales/distribution deficiencies, and the category 4 report sets were likely to contain relevant day-to-day information about deficient sales practices. The database export category was not ordered at this stage because the Court was not persuaded it was required and allowed further expert material to be filed.

Jurisdiction
Australia
Judgment Date
03 November 2021
Procedural Posture
Representative Proceeding Concerning Consumer Credit Insurance Policies / Interlocutory Application for Further Discovery Heard at a Case Management Hearing
Outcome
Application for further discovery granted in part; category 3 deferred for later determination; costs reserved.
Legal Topics
['further Discovery' 'case Management' 'overarching Purpose' 'internal Emails' 'document Categories']
['practice and Procedure' 'representative Proceedings' 'consumer Credit Insurance' 'discovery'] ['further Discovery' 'case Management' 'overarching Purpose' 'internal Emails' 'document Categories']

Case Brief

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Procedural Posture

Representative Proceeding Concerning Consumer Credit Insurance Policies / Interlocutory Application for Further Discovery Heard at a Case Management Hearing

Legal Issues

  1. 1 ['Whether the respondents should give further discovery of emails attaching identified documents and related email threads.' 'Whether the respondents should give further discovery of emails from specified employees concerning value, benefits, suitability and sales/distribution deficiencies of the Policies.' "Whether discovery should be ordered by way of an export from the respondents' databases containing detailed information in respect of each policy sold since 1 January 2009." 'Whether further discovery should be ordered for specified day-to-day management reports concerning sales practices and retention.']

Ratio Decidendi

Further discovery was warranted because the amended pleading gave greater prominence to allegations of knowledge, category 1 emails attaching central documents were relevant to when and how named employees received and commented on those documents, category 2 as narrowed was directly tied to pleaded allegations about value, benefits, suitability and sales/distribution deficiencies, and the category 4 report sets were likely to contain relevant day-to-day information about deficient sales practices. The database export category was not ordered at this stage because the Court was not persuaded it was required and allowed further expert material to be filed.

Court Disposition

Application for further discovery granted in part; category 3 deferred for later determination; costs reserved.

Orders

  • ['On or before 17 December 2021, the respondents are to give discovery of the categories of documents identified in categories 1, 2 and 3 of Annexure A, together with a list of documents verified in accordance with r 20.17 of the Federal Court Rules 2011 (Cth).' 'Costs be reserved.']