Kemp v Westpac Banking Corporation (No 2) [2020] FCA 1392

Kemp v Westpac Banking Corporation (No 2) [2020] FCA 1392

Discovery orders should proceed by targeted categories relevant to the real issues, avoiding standard or overly broad discovery (such as wide-ranging email and file note searches) unless specifically justified by what emerges from existing categories. Opt out notice should be in accessible, plain language, but should not link to unapproved promotional material such as extended videos; email distribution may use a mutually agreed domain. Parties may revisit further discovery if existing documents justify a targeted approach. Costs reserved due to mixed success on procedural points.

Jurisdiction
Australia
Judgment Date
25 September 2020
Procedural Posture
Representative Proceeding (class Action) / Case Management/interlocutory Orders for Discovery and Opt Out Notice
Outcome
Interlocutory orders made regarding discovery and opt out notice; parties' applications on disputed categories determined; costs reserved.
Legal Topics
['representative Proceedings (class Actions)' 'discovery' 'opt Out Notice' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'personal Advice Breach' 'consumer Credit Insurance' 'case Management' 'overarching Purpose']
['practice and Procedure' 'corporations' 'consumer Protection' 'banking and Finance'] ['representative Proceedings (class Actions)' 'discovery' 'opt Out Notice' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'personal Advice Breach' 'consumer Credit Insurance' 'case Management' 'overarching Purpose']

Case Brief

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Procedural Posture

Representative Proceeding (class Action) / Case Management/interlocutory Orders for Discovery and Opt Out Notice

Legal Issues

  1. 1 ['Appropriate scope and form of orders for discovery in open class action' 'Appropriateness of broad discovery including internal emails' 'Approval of form and distribution method of opt out notice' 'Procedural fairness and proportionality of discovery burden']

Ratio Decidendi

Discovery orders should proceed by targeted categories relevant to the real issues, avoiding standard or overly broad discovery (such as wide-ranging email and file note searches) unless specifically justified by what emerges from existing categories. Opt out notice should be in accessible, plain language, but should not link to unapproved promotional material such as extended videos; email distribution may use a mutually agreed domain. Parties may revisit further discovery if existing documents justify a targeted approach. Costs reserved due to mixed success on procedural points.

Court Disposition

Interlocutory orders made regarding discovery and opt out notice; parties' applications on disputed categories determined; costs reserved.

Orders

  • ['Discovery to be provided as per categories in Annexures B and C with specified production tranches and verification requirements.' "Applicant's broad email/file note discovery refused at this stage." 'Opt out notice approved in the form proposed by the applicant (without video link), with agreed method for mailing...