Commonwealth Bank of Australia v Goater

The proceedings

1. Before addressing the notice of motion I propose to summarise, as briefly as possible, the history and nature of the proceedings, in order that the request for discovery may be seen in context.

The Bank's claim against the Goaters

1. The Bank commenced the proceedings by statement of claim filed on 23 October 2012. It sought orders, including for judgment and possession of two parcels of land in Moree, of which Mr Goater was the registered proprietor (the Properties) on the basis of its first registered mortgage over the Properties which secured: Mrs Goater's overdraft facility of $50,000 advanced on 6 December 2006; and a business loan to the Goaters for $290,000 advanced on 13 June 2007.
2. On 24 October 2012 the Goaters lodged a complaint with the Financial Ombudsman Service (FOS) (the First FOS Complaint), as a consequence of which the Bank ceased enforcement action.
3. In September 2013 the Goaters attended Moree Court House and spoke with a representative of the Council. As a result of those discussions the parties agreed to a monthly payment arrangement to clear the arrears of water rates and Council rates. There is a dispute about what was agreed. The Council alleges in its defence to the amended cross-claim that the Goaters agreed to make minimum monthly payments of $500 for water rates and $500 for Council rates. The Goaters contended that they agreed only to pay $500 per month for both water and Council rate arrears.
4. The First FOS Complaint was resolved on 18 October 2013 by an agreement entered into between the Bank and the Goaters (the FOS Agreement). The Bank alleges in its amended statement of claim that the terms of the FOS Agreement imposed an obligation on the Goaters to: keep the overdraft within its limit of $50,000; ensure that the monthly interest payments on the overdraft were met; make repayments of $2,205 per month from 25 October 2013 to the Better Business Loan; and provide written evidence that a repayment arrangement had been reached with any creditor which has a judgment in its favour against the Goaters. In return, the Bank promised that it would not proceed with any enforcement action unless the Goaters failed to comply with the terms of the FOS Agreement.
5. On 6 November 2013 Ms Treloar, a rates officer at the Council, wrote an email to the Bank (the Treloar email). Because of the significance of the document to the Goaters' claims against the Bank and the Council (which Mr Hill described as "pivotal") I propose to set it out in full: Hi Rohan As per our phone conversation, and Shirley Goater's authorisation to give you information with us I advise that due to unpaid rates and water (no payments for the last two years), we took legal action against Terry Goater Funerals. They were requested to attend an exam order with us at the Moree Court House on 29th August 2013. They failed to attend. We sent another request notifying them of an arrest warrant to issue if they did not attend. They attended the second request however part of the exam order requests full financial disclosure and information from the rate payer and they are required to bring tax returns, copies of bank statements as well as details of any debts (credit cards, loans etc) with them. They claimed to have not completed a tax return for more than three years, that their only income was Centrelink benefits (for both of them), and they received no income from their business. They have bought a reasonably new vehicle recently which they said was purchased through the business. They did not bring any bank statements to the court house and have so far refused our requests to provide them. We have continually asked for this information, and have so far been stone walled. This means that they have not legally complied with the Exam Notice. They have made an agreement with us (which they signed) to pay off their rates arrears (currently $8,458.87 with another instalment of $1,553.00 due on 02/12/13) to pay $500 per month, which they have complied with since September 2013. They made another agreement with us (which they signed) to pay off their water arrears (currently $2,479.32) at $500 per month (since September). They have so far not complied with this. As you may be aware they are Funeral Directors. They had themselves in a situation where they owed Council $67,000 for unpaid burial costs. Mr Goater then became bankrupt and we are in the process of having to write this debt off. We have current legal action against Mrs Goater for $6,700 for unpaid burial costs. They are in the position now where Council will only take cash for any funerals booked by them which has to be paid before the funeral can occur. Due to the non-compliance of the payment of the water debt, the non-compliance of the Exam Order and the current action for unpaid burial costs, our legal action continues. Please do not hesitate to contact me should you require any further information. [Emphasis added.]
6. The Goaters allege that first italicised paragraph in the Treloar email constitutes a breach of the duty of confidence owed to them by the Council. The Goaters allege that the second italicised paragraph is false.
7. On 27 November 2013, the Bank issued a notice to the Goaters notifying them that they were in default of the FOS Agreement and warning that if the default was not rectified the Bank would continue with its enforcement action (the First Rectification Notice). It enclosed a copy of the Treloar email with the notice.
8. On 5 December 2013 the Bank issued a further notice to the Goaters stating that they were in default of the FOS Agreement and that the Bank would continue with enforcement action if the default was not rectified (the Second Rectification Notice).
9. On 30 January 2014 the statement of claim was served personally on the Goaters. On 28 February 2014, immediately after the time for filing the defence had expired, the Bank filed a notice of motion seeking default judgment. On 7 March 2014 judgment was entered against Mrs Goater for $368,039.79 and against Mr Goater for $322,223.57. Orders for possession of the Properties were also made. On 17 March 2014 the Bank filed a motion seeking a writ of possession, which was issued.
10. On about 3 April 2014 the Sheriff served the Goaters with notices to vacate the Properties by 13 May 2014. At about 3pm the eviction took place. At about that time, the Goaters' solicitor approached the Court to seek a stay of the evictions. At 4pm, the matter came before the Registrar, who was informed that the eviction had already taken place. No stay was ordered and the notice of motion was stood over to 20 May 2014. There is an issue about whether the Bank was aware of the Goaters' stay application before the eviction took place.
11. On 22 May 2014 Davies J heard and dismissed the Goaters' motion for a stay of eviction and an order setting aside the default judgment: Commonwealth Bank of Australia v Goater [2014] NSWSC 652.
12. By notice of motion filed 15 July 2014, the Goaters applied for an injunction to restrain the Bank from selling the Properties and sought leave to appeal against the decision of Davies J. Their motion was dismissed by Ward JA on 15 August 2014: Goater v Commonwealth Bank of Australia [2014] NSWCA 265.
13. On 7 November 2014 the Court of Appeal set aside the orders made by Davies J and the default judgment entered on 7 March 2014: Goater v Commonwealth Bank of Australia [2014] NSWCA 382. The Court of Appeal (Basten JA, with whom Gleeson JA and Sackville AJA agreed) noted at [32] that the Bank had sent a default notice on 27 November 2013 in which it had: 1. purported to notify the Goaters of their default (constituted by their alleged failure to comply with the arrangement with the Council regarding outstanding water rates, as evidenced by the Treloar email); and 2. notified the Goaters of further enforcement action, based on the default.
14. Basten JA said at [33]: The ordinary reading of the Bank's obligation (i) [imposed by the FOS Agreement] is that two notices were required: the letter of 27 November 2013 purported to provide both notices within the one document. It is at least reasonably arguable that the Bank was in default of its obligations under the FOS agreement in reactivating the Supreme Court proceedings without a second and separate notice. [Emphasis added.]
15. As a result of the judgment of the Court of Appeal, the Goaters regained possession of the Properties on 8 November 2014. They remain in possession.
16. In 2015 the Council commenced proceedings in the District Court against the Goaters for outstanding rates. On 24 November 2015 the Goaters filed a cross-claim against the Council claiming damages arising, in part, from the sending of the Treloar email to the Bank. On 12 February 2016 judgment was entered in favour of the Council by consent in the sum of $23,431.57 against the Goaters.
17. On 9 November 2015 the Bank filed an amended statement of claim (to take account of issues relating to the First FOS Complaint and the FOS Agreement). On 3 December 2015 the Goaters filed a defence to the amended statement of claim.

The Goaters' cross-claim against the Bank and the Council

1. On 20 January 2016 the Goaters filed a cross-claim against the Bank.
2. In February 2016, this Court transferred the Goaters' cross-claim against the Council in the District Court proceedings to this Court to be heard together with these proceedings.
3. An amended cross-claim was filed on 14 March 2016 in accordance with leave granted by Registrar Bradford on 22 February 2016. The amended cross-claim joined the Council as the second cross-defendant and incorporated the Goaters' cross-claim from the District Court proceedings against the Council.
4. On 14 and 15 April 2016 respectively, the Bank and the Council filed defences to the amended statement of claim.
5. At a directions hearing before Registrar Bradford on 4 May 2016, the Goaters were directed to file and serve their evidence in respect of the plaintiff's claim and their cross-claim by 1 June 2016.

The allegations made in the cross-claim

1. The amended cross-claim is densely pleaded and particularised. It is not necessary to set it out in full. What follows is intended only to be a brief summary of the allegations rather than a comprehensive survey of the pleading.

The claim in contract against the Bank

1. The Goaters allege that the Bank breached the FOS Agreement. There are issues as to: the terms (and in particular, implied terms) of the FOS Agreement; the impact of such terms (if any) on the Bank's security documentation; and whether the FOS Agreement was breached, either by the Bank or by the Goaters. The Goaters claim damages for the Bank's breach of the FOS Agreement, including for economic loss, personal injury (including psychological harm and stress), as well as aggravated damages said to arise from conduct alleged to constitute the tort of trespass.

The claim based on alleged unconscionable conduct of the Bank

1. The Goaters also allege that the Bank engaged in unconscionable conduct relating to the alleged breaches of the FOS Agreement and the enforcement action taken by the Bank thereafter.

The claims against the Council

1. The Goaters allege that the Council breached its duty of care and its duty of confidence by disclosing to the Bank their financial information in the first italicised paragraph in the Treloar email set out above. They also allege that it engaged in misleading and deceptive conduct (in part constituted by the second italicised paragraph from the Treloar email) and that the Bank relied on the Council's misrepresentations, as a result of which the Goaters suffered loss and damage. The Goaters also claim that, if they were in breach of the monthly payment arrangement with the Council, this was due to the Council misallocating the payments that they made to it.

Principles relating to discovery

1. Discovery is a procedural tool which can be of substantial benefit in litigation. However, it can come at a substantial cost. It has, at times, been used, whether intentionally or otherwise, as a means of delaying proceedings, increasing costs disproportionately, or wearing out a party to litigation. This is particularly the case in respect of so-called "chain-of-inquiry" discovery which requires the party against whom an order for discovery is made to go through documents to ascertain if any might bear any relevance to the category: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101] per Allsop P. Where a notice to produce or subpoena could serve the forensic purpose just as well, it is to be preferred.
2. For these reasons, it is necessary, before an order for discovery is made, for the Court to be satisfied that it is in the interests of justice and consistent with the just, quick and cheap determination of the real issues in the proceedings, having regard to ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW).
3. Furthermore, the time at which discovery is ordered is also important. There are good reasons for deferring discovery until after affidavit evidence has been filed. The understandable tendency to reconstruct the past by reference to contemporaneous documents (whether of one's own making or which emanate from another party) can undermine the credibility of a witness's evidence and deprive the Court of the actual recollection of a witness, unaffected by this process of reconstruction. This is one of the reasons for the provisions of the Practice Note in the Equity Division (where evidence is more commonly given on affidavit) which provide that discovery may only be ordered before the filing of affidavit evidence in exceptional circumstances: Equity Division, Practice Note SC Eq 11, considered in Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [13] per Brereton J. Another reason is that the issues in the case tend to be narrowed after evidence has been served, thereby obviating the need, in most cases, for discovery.
4. The rule that is relevant for present purposes is Uniform Civil Procedure Rules 2005 (NSW), r 21.2(4), which provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

Consideration

1. Mr Hill has not persuaded me that it is appropriate to order discovery of any of the categories sought. I am satisfied, on the basis of the submissions of Mr Kaufmann, who appeared on behalf of the Bank, and Mr Bell, who appeared on behalf of the Council, that it would not be in the interests of justice to order discovery at this time. This is not to say that I consider that discovery would be appropriate in future. Rather, I am not satisfied, on the basis of the material before me, that it is appropriate at all. However, if, after service of the affidavit evidence, the other means available to the parties to obtain relevant documents, whether by request, notice to produce or subpoena, prove to be inadequate, a further application could be made. Accordingly, the notice of motion ought be dismissed.
2. My reasons for this conclusion, by reference to the categories that are pressed, are as follows.

Category 1: documents relating to the Treloar email and category 2: documents relating to disclosure of information to the Bank by the Council relating to the Goaters

1. It was accepted that category 2 was a subset of category 1. Mr Hill relied on the following paragraphs of the cross-claim as defining the facts in issue to which these categories are relevant: 1. [8P]-[8W] and [13e] (which largely relate to conversations between Mr Humphries and the Bank in February and March 2014 in which it is alleged that Mr Humphries, a spokesperson for the Goaters, informed the Bank that the matters alleged in the Treloar email were incorrect); and 2. [16] (the claim that the Bank was guilty of unconscionable conduct because of enforcement action (through obtaining default judgment, obtaining a writ of possession and evicting the Goaters) brought in this Court after the FOS Agreement was entered into)
2. By email from the Bank's solicitors to the Goaters' solicitors, the Bank offered to provide informal discovery of category 1 in terms and informal discovery of category 2, as long as category 2 was confined to the disclosure of financial information to the Bank by the Council relating to the Goaters.
3. I am not satisfied that, where informal discovery has been offered, formal discovery ought be ordered against the Bank. Moreover, it is difficult to see how the disclosure by the Council to the Bank of any information about the Goaters, apart from financial information, could be relevant to a fact in issue. Even had the offer not been made, I would not have been disposed to order discovery of categories 1 and 2 since the categories amount to "chain-of-inquiry" discovery. It would be open to the Goaters to call Mr Humphries, in support of their cross-claim, to give evidence of what he told the Bank. If the Goaters seek any file note created by the Bank of any such conversations, the request can be the subject of a notice to produce.
4. The Goaters will need to adduce evidence of the monthly payment arrangement for which they contend (which will presumably comprise evidence of oral and possibly written communications) and also their compliance with that arrangement (various payments made to the Council). The Council will, in response, adduce evidence of the monthly payment arrangement for which it contends and the payments which it received. There does not appear to be any forensic purpose to be served by requiring the Council to provide discovery to the Goaters of such documents as are in its possession which might fall within categories 1 and 2. The Treloar email speaks for itself and is either correct or not, which is a matter that will be determined on the evidence at trial, if relevant.
5. I am not satisfied that it is appropriate to order the Council to provide discovery of these categories.

Category 3: documents relating to the Bank's taking possession of the Properties and evicting the Goaters, including surrounding communications

1. Mr Hill identified the following paragraphs of the cross-claim as being relevant to this category: 1. [8W] (which relates to the Bank's enforcement action in this Court in May 2014); 2. [13h] (which relates to the Bank's taking possession of the Properties on 13 May 2014); and 3. [16] (which relates to the Bank obtaining an extension of the statement of claim from this Court so that it would not go stale, moving for default judgment, and refusing to agree to its being set aside).
2. Mr Kaufmann submitted that this category harks back to the Treloar email; whether it was accurate; and whether the Bank was entitled to take enforcement action, having regard to the terms of the FOS Agreement. He contended that category 3 required chain-of-inquiry discovery. He submitted that category 3 was extremely broad and sought all documents relating to the Bank's taking possession of the Properties.
3. I am not satisfied that the documents described in category 3 are relevant to a fact in issue. In any event, the mechanics of the Bank's enforcement action are likely to be a matter of record in this Court. Any advice the Bank received relating to enforcement action would be privileged. It is difficult to discern how discovery of this category would assist the Goaters in their cross-claim.
4. Although the Goaters also seek discovery of documents in category 3 against the Council, I am not satisfied that this category has any relevance to the Council or the documents which it is likely to have in its possession.

Category 4: documents relating to the Council's statutory right to recover council and water rates owing by the Goaters

1. Mr Hill identified paragraphs [8N] and [8O] of the amended cross-claim as defining the facts in issue to which this category is relevant. These paragraphs allege that the Council misallocated the payments made by the Goaters for water rates, Council rates and funeral rates (the latter being associated with the Goaters' business as funeral directors).
2. I accept Mr Kaufmann's submission that these documents would not appear to assist in any claim against the Bank. Nor would any documents in the Bank's possession appear to be germane to any issue.
3. Mr Bell informed me that judgment was entered by consent in the District Court in favour of the Council against the Goaters relating to council and water rates. The consent judgment entered on 12 February 2016 in the District Court is referred to in the factual narrative set out above. In these circumstances I am not persuaded that the documents sought would be relevant to any fact in issue or that discovery is otherwise warranted.

Category 5: documents relating to any attempt by the Bank to investigate or verify whether the Goaters had complied with the monthly payment arrangement or the FOS Agreement, particularly after the communications with Mr Humphries

1. Mr Hill submitted that category 5 was relevant to whether there was a breach of the FOS Agreement and any circumstances surrounding any such breach.
2. Mr Kaufmann submitted that, to the extent to which category 5 was relevant to a fact in issue, it would be in the Bank's interest to put forward evidence as to any attempts that it had made to "investigate or verify" whether or not the Goaters had complied with the monthly payment arrangements (to the Council) or the FOS Agreement. Accordingly, it could reasonably be expected that this evidence would be served in accordance with the directions which required the Bank to put on its evidence in response to the Goaters' evidence concerning the cross-claim. Once this evidence is served, the Goaters could seek any documents arising from such evidence by notice to produce.
3. There is considerable force in Mr Kaufmann's submissions. The Goaters are likely to be in a better position to determine what, if any, documents they request from the Bank after the evidence has been served. If the Bank did not make any attempt to verify or investigate whether the Goaters had complied with the FOS Agreement before it resumed enforcement action, this may be to the Goaters' advantage. If the Bank did make such attempts, one would expect it to adduce evidence of such attempts if it is germane to the issue whether it (or the Goaters) breached the FOS Agreement and whether the Bank's conduct was unconscionable. If further documents are required, there is a real prospect that they could be identified and obtained, if not on request, by the service of a notice to produce.

Category 8: documents relating to the "show cause" hearing

1. Mr Hill identified paragraph [13] in the amended cross-claim as the paragraph that made documents in category 5 relevant to a fact in issue. Paragraph [13] relates to the Bank's conduct in making show cause submissions to this Court to prevent the statement of claim lapsing by reason of its being inactive. Mr Hill contended that the Bank's actions were unconscionable since this had been done without notice to the Goaters.
2. I am not satisfied that any documents in the possession of the Bank that were not also on the Court file (which could be inspected at any time by the Goaters) would be relevant to any fact in issue.

Category 9: documents relating to the Goaters' attendance at the Moree Court House in September 2013

1. The discussions at the Moree Court House in September 2013 apparently led to a monthly payment arrangement between the Goaters and the Council. Presumably those persons on both sides who took part in the communications will put on affidavit evidence as to what occurred. It would be open to the Goaters to issue a notice to produce for any Council file note of what occurred on the day of the meeting, if any such record is not annexed to an affidavit served by the Council. There is no purpose in ordering discovery of this category in these circumstances.

Category 10: documents relating to proposed payment arrangements

1. This category would seem to overlap with category 9. What the proposed payment arrangements were does not appear to be relevant. If there is an issue about what the actual payment arrangements were, that will be the subject of affidavit evidence. I am not persuaded that it is in the interests of justice to order discovery of this category.

Category 11: documents referring to "any possible misallocation" of payments made by the Goaters to the Council

1. As I understand the issue on the pleadings, it is that the Goaters say that they met the monthly payment arrangement with the Council but the Council misallocated the payments and treated them as if they were in breach when they were not. I was informed from the bar table that, although the Goaters attached a description to the payments when they made them by bank transfer, the description was not communicated to the Council when the payments were received. As I apprehend it, the issue is more likely to be what the terms of the monthly payment arrangement were (whether it was that they pay $500 for Council rates and $500 for water rates, as the Council contended; of $500 for both, as the Goaters contended) rather than how the payments made were allocated. There is a degree of inconsistency between the Goaters' contention that they were not in breach of the monthly payment arrangement and the allegation that the Council misallocated their payments. This inconsistency need not be explored for present purposes.
2. In any event, the category sought is wide. It seeks chain-of-inquiry discovery. More importantly, it is difficult to see how any documents discovered in this category could bear on the real issues in the proceedings. I decline to order discovery of this category.

Category 12: documents relating to any attempt by the Council to investigate or verify whether it had misallocated any of the payments made by the Goaters, particularly after communications by Mr Humphries

1. For the reasons given with respect to category 11, I am not persuaded that it would be in the interests of justice to order discovery of this category.

Orders

1. For the reasons set out above, I make the following orders: 1. Dismiss the cross-claimants' notice of motion filed 13 May 2016. 2. Subject to an application being made in writing to my Associate within seven days hereof for a different order, order the cross-claimants to pay the cross-defendants' costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2016