Finance Sector Union v Commonwealth Bank of Australia Limited [2000] FCA 1389

FEDERAL COURT OF AUSTRALIA

Finance Sector Union of Australia v Commonwealth Bank of Australia Limited

[2000] FCA 1389

PRACTICE AND PROCEDURE – particular discovery – application to cross-examine on affidavit of discovery – whether affidavit is conclusive Federal Court Rules O 15 r 8

Auspine Ltd v H S Lawrence & Sons Pty Ltd [1999] FCA 1749, followed FINANCE SECTOR UNION OF AUSTRALIA AND KENNETH MACEY v COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124) N 262 OF 1999

MOORE J 4 OCTOBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 262 OF 1999

BETWEEN: FINANCE SECTOR UNION OF AUSTRALIA

FIRST APPLICANT

KENNETH MACEY

SECOND APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124)

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 4 OCTOBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Subject to further orders of the Court, the application to cross-examine Mr Pellegrini is adjourned generally.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 262 OF 1999

BETWEEN: FINANCE SECTOR UNION OF AUSTRALIA

FIRST APPLICANT

KENNETH MACEY

SECOND APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA LIMITED (ACN 123 123 124)

RESPONDENT

JUDGE: MOORE J

DATE: 4 OCTOBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application by the Finance Sector Union ("the Union") to cross-examine the deponent to an affidavit verifying discovery. Verified discovery has been given by the Commonwealth Bank of Australia ("the Bank") pursuant to an order for particular discovery made on 31 May 2000. The Bank is a respondent to proceedings brought by the Union and others as representative proceedings. The nature of the proceedings is apparent from a judgment of a Full Court dealing with a challenge to the continuation of the proceedings as representative proceedings: see (1999) 94 FCR 179; 166 ALR 141. 2 The order of 31 May 2000 was as follows: 1. Verified discovery be given by the Commonwealth Bank of Australia Ltd by 28 June 2000 of documents, not otherwise discovered or exhibited to an affidavit, dealing with the subject matter of the emails, memoranda, facsimiles and like communications annexed or exhibited to the affidavits of Smith and Pellegrini to the extent that they concern the class of employees who might have been or were seconded to EDS. 2. Adjourn the matter for further directions at 9.30 am on 25 July 2000. 3. The parties have liberty to apply on 7 days' notice. 3 This order was not opposed by the Bank given that some internal Bank documents were annexed or exhibited to affidavits relied upon by the Bank which were of a class that, it was accepted by senior counsel for the Bank, should be discovered.