Kemp v Westpac Banking Corporation [2020] FCA 437

Kemp v Westpac Banking Corporation [2020] FCA 437

In a representative proceeding at an early stage, where pleadings are not closed and no genuine steps to resolve the dispute have yet been taken, discovery should initially be limited to clearly relevant material to avoid unnecessary costs. Timetable and procedural orders should take account of current impacts on litigation caused by external events such as COVID-19. Subsequent, broader discovery and conferral processes should follow after pleadings are closed.

Jurisdiction
Australia
Judgment Date
03 April 2020
Procedural Posture
Representative Proceeding / Case Management, Timetabling and Discovery Orders
Outcome
Interlocutory procedural orders made; costs reserved.
Legal Topics
['representative Proceedings' 'credit Insurance' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'timetabling Orders' 'discovery' 'pleadings' 'covid 19 Court Procedure']
['commercial Law' 'corporations Law' 'banking and Finance Law' 'insurance Law'] ['representative Proceedings' 'credit Insurance' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'timetabling Orders' 'discovery' 'pleadings' 'covid 19 Court Procedure']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Representative Proceeding / Case Management, Timetabling and Discovery Orders

Legal Issues

  1. 1 ['Whether the respondents engaged in misleading or deceptive conduct in issuing or arranging credit insurance policies in contravention of s 12DA(1) of the ASIC Act.' 'Whether Westpac is liable to compensate the applicant and group members under s 961M of the Corporations Act for breaches of s 961B and s 961G.' 'Whether the respondents contravened s 12CB of the ASIC Act by engaging in unconscionable conduct in connection with the supply of financial services.' 'Whether applicants are entitled to restitution of premiums based on mistaken beliefs about the necessity or value of policies.' 'Whether initial discovery should be ordered and its appropriate scope given the status of pleadings and COVID-19 impacts.']

Ratio Decidendi

In a representative proceeding at an early stage, where pleadings are not closed and no genuine steps to resolve the dispute have yet been taken, discovery should initially be limited to clearly relevant material to avoid unnecessary costs. Timetable and procedural orders should take account of current impacts on litigation caused by external events such as COVID-19. Subsequent, broader discovery and conferral processes should follow after pleadings are closed.

Court Disposition

Interlocutory procedural orders made; costs reserved.

Orders

  • ['Respondents to file and serve their defences by 22 May 2020.' 'Applicant to file and serve any reply by 5 June 2020.' 'Respondents to make limited initial discovery and provide certain affidavit evidence by 19 June 2020.' 'Parties to confer regarding further discovery and document protocol by 10 July 2020;...