Leigh-Mardon Pty Ltd v Titan Corporation Ltd and Ors [1996] FCA 976

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VG 346 of 1993 GENERAL DIVISION B E T W E E N : LEIGH-MARDON PTY LTD Applicant A N D : TITAN CORPORATION LTD AND OTHERS Respondents COURT: NORTHROP J PLACE: MELBOURNE DATE: 6 NOVEMBER 1996 REASONS FOR JUDGMENT On 19 April 1996, in dealing with a motion for third party discovery against the Commonwealth Bank of Australia, the Court gave reasons for ordering third party discovery but refrained from making an order in relation to what was paragraph (j) in the motion then before the Court. It was pointed out that the Court was in error in referring to "key stroke" in relation to paragraph (j) which was, in truth, dealing with the issue of reliance. The Court refrained from making an order then in relation to what was contained in paragraph (j) of the motion but indicated it would consider the matter further, if necessary, if further material were before the Court or the matter could not be resolved in any other way. The matter has not been resolved. The respondents have been unable to ascertain whether there are these documents, which are sought to be discovered, in existence. They could not get copies of them from other sources of discovery and the matter is now back before the Court. The principles of law to be applied in cases of this kind are referred to in the reasons given on 19 April 1996. It has been argued on behalf of the Commonwealth Bank that a wide range of documents is sought by discovery, although limited in some respects, and that in truth, this constitutes a fishing expedition to try and find out just what, if anything, there was. The problem arises from the fact that, Mr Besley who is the Chairman of the Commonwealth Bank, is also on the Board of Amcor, a parent company of the purchasers of the business and that there is material before the Court which suggests that there may have been some knowledge of allegations of overcharging by the respondents, or the relevant company of the respondents, in its contract with the Commonwealth Bank before the contract was entered into on 1 January 1993 and the date upon which settlement took place on 31 May 1993 and that Mr Besley knew of this. What is sought to be established is a chain, by reference to documents, which could lead to evidence suggesting that there was no reliance by the present applicant insofar as the Commonwealth Bank was concerned because the Commonwealth Bank knew of the true position and therefore there being no breach of contract between the Commonwealth Bank and the relevant respondent company since the applicants had not relied upon the conduct of the respondent.