Suncorp Metway v Rider Levett Bucknall

Judgment (ex tempore - revised 23 august 2012) 1HIS HONOUR: On 17 August 2012, I heard an application by the defendant in these proceedings, RLB, that the plaintiff, the bank, give further disclosure of documents, including what might be called further or particular discovery, and that it provide a verified list of documents. 2For the reasons that I gave on 17 August [2012] NSWSC 975, I concluded that the bank should not be required to give further disclosure in relation to categories 3 to 30 of the categories for disclosure that had been propounded. I concluded, further, that the bank should not be required at this stage to provide a verified list of documents. I expressly reserved the question as to whether in due course the bank should be required to give verified discovery. 3In relation to categories 1 and 2 of the propounded categories, I concluded that, as drafted, they were too wide. However, I indicated that, in principle, there should be disclosure in relation to redrafted and narrower categories corresponding in substance to categories 1 and 2. 4I stood the matter over until today so that the form of orders could be considered, and likewise the question of costs. 5As one might expect from the procedural history of this matter, the parties have been unable to agree on the orders to be made. The first disagreement, which may be one of drafting or one of substance, is that RLB asks that the bank "give disclosure of documents" whereas the bank proposes that it "produce for the defendant's inspection" the relevant documents. 6Given that this is an application for disclosure pursuant to paragraph 4 of practice note SC Eq 11, and given that I have accepted, at least at the level of principle, that verified discovery is not appropriate at this stage of the proceedings, I think it better to adopt the bank's formulation. 7The Practice Note does not indicate how it is that disclosure in accordance with para 4 (that is disclosure before evidence) is to be given. The Practice Note seeks to minimise the costs associated with discovery by limiting, in the usual case, the availability of discovery before parties put on evidence, and by emphasising that even after parties have put on their evidence, discovery is to be given only to the extent necessary. 8In those circumstances, it seems to me that disclosure for the purposes of para 4 should be treated, at least in the ordinary case, as meaning no more that the disclosing party produce to the other the documents that are to be disclosed. 9I accept, as I said in my reasons of 17 August, that there will be cases where it is important for a party to whom disclosure is made to have a verified list of documents. This may be such a case. Thus, as I contemplated, it may be appropriate in the future to make an order that the bank file and serve a verified list of documents. But at present, what we are trying to do is put RLB in a position where, with access to certain of the bank's documents, it can serve its evidence. 10In circumstances where there is no suggestion that the bank, which I might add has had the benefit of legal advice of the highest quality, will do other than comply faithfully with the Court's order, I see no reason at this stage to impose on it (if that is what RLB seeks) the further burden of providing a verified list of documents. 11The second disagreement relates to the date for disclosure. Since there seems to me to be no difference in principle between 5 and 6 September 2012 (being the competing dates) I proposed to stick with the later date. 12Each of the parties suggests that there should be some limitation on the categories that are now agreed. The bank seeks the limitation that it be required to produce documents only insofar as they are relevant to the fact in issue of whether or not the existing loan of the debtor would have been repaid to the bank or discharged if the further loan, said to have been made in reliance on RLB's allegedly incorrect report, had not been provided. The reasons why that is relevant are, as I said in my earlier reasons at [34], that RLB wishes to investigate "the counter-factual situation: what would have happened if a report that was not deficient in the ways alleged by the bank had been prepared and provided to the bank". 13RLB seemingly accepts that there should be some limitation, but phrases the limitation far more widely. Bearing in mind that the purpose of the Practice Note is to limit the cost of discovery, and bearing in mind that the application of any restrictive criterion (be it that proposed by the bank or that proposed by RLB) is likely to increase costs, it seems to me that it may be more appropriate not to impose any restriction at all. 14The application of some restrictive criterion is likely to increase costs because, once documents falling within the described classes have been located, it will be necessary for someone on the bank's legal team to scrutinise them to see (particularly in the case of the correspondence, file notes and memoranda) whether they are relevant to whatever the fact or facts in issue suggested in the competing restrictive criteria may be. 15When one looks at the classes of documents that are to be disclosed, it is apparent that they can be assembled for the relevant time period, without requiring a huge amount of high-powered analysis. But substantial analysis will likely be required to see whether any restrictive criteria apply. In circumstances where it is not suggested that production of documents without restriction is likely to do anything other than result in production of probably irrelevant documents which RLB's legal advisers will have to wade through, of course at the expense of RLB, I think that the appropriate course is to avoid any restriction whatsoever, and to put on RLB (which is the party seeking disclosure) the burden of going through the documents to see whether they are relevant to what it considers to be the facts in issue. 16In coming to this view, I take into account also that, as Mr Kidd of counsel for the bank submitted, the restrictions proposed by RLB are so broad as to be lacking in certainty. In truth, it seems to me, they are so broad as to be not much of a restriction at all. By contrast, however, it is at least possible that the restriction proposed by the bank is so narrow as to lead to the exclusion of documents that might well have some legitimate forensic utility. 17The next major area of disagreement relates to the time for RLB to put on its evidence. RLB says it should have until 5 December 2012. The bank says that it should have until 5 October 2012. 18I have an affidavit from Ms Wheeler, a solicitor working on the matter for RLB, who estimates that it will take 13 weeks for RLB to prepare its evidence. When one pays attention to the volume of documents that Ms Wheeler says she will need to examine, that is understandable. 19As against that, it is plain that RLB has had available for about a month the documents already produced by the bank. It is also plain that RLB has had available to it, although for how long I do not know, other documents that it says it wishes to review for the purpose of putting on its evidence. 20In my view, RLB should have started the task of preparing its evidence already. (In saying that, I do not wish to suggest that I am finding that it has not done so; I do not know one way or the other.) 21I take into account that it took the bank of the order of 14 weeks to put its evidence on, and that it only did so with the benefit of several extensions of time. Although this is not a "tit for tat" exercise, the relevance of that period of time is that it gives an indication of the complexity of the matter, and provides some yardstick against which the rationality of Ms Wheeler's estimate can be measured. 22Doing the best I can, it seems to me to be appropriate to give RLB three months from today to put on its evidence. That will take the matter up to Friday 23 November 2012. 23Finally, I turn to the question of costs. 24The bank submits that it has had substantial success and that RLB has not had any relief in accordance with its notice of motion. That is correct, insofar as I said that RLB should not have the orders it sought in relation to any of the categories; and indeed, should not have orders at all in relation to category 3 to 30. That RLB has had some success, in relation to categories 1 and 2, arose only because in the course of argument, it occurred to me that it might be appropriate to deal with the matter now rather than put RLB to the expense of filing yet another notice of motion. 25Nonetheless, the fact is that, insofar as the notice of motion was pressed, it has failed; and even to the extent that RLB has had subsequent success, that success has fallen short of what it asked for. 26In those circumstances, it seems to me to be appropriate that the bank should have its costs substantially (although not entirely) as sought. 27Accordingly, I propose to make orders in accordance with the short minutes propounded by the bank, save that paragraph 3 will refer to 23 November 2012 rather than 4 October 2012, paragraph 4 will refer to 30 November rather than 5 October 2012 and the proviso in the schedule will be deleted. 28I make orders in accordance with paragraphs 1 to 4 as amended of the short minutes of order initialled by me and dated today's date and order that the notice of motion filed on 2 August 2012, as amended, be otherwise dismissed.