FEDERAL COURT OF AUSTRALIA Healey v Prentice [2000] FCA 1592 GREGORY HARRISON HEALEY v MAXWELL WILLIAM PRENTICE & ORS N 7835 of 1999 MADGWICK J 31 OCTOBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N7835 of 1999 BETWEEN: GREGORY HARRISON HEALEY APPLICANT AND: MAXWELL WILLIAM PRENTICE AND MARK JULIAN ROBINSON FIRST RESPONDENTS COMMONWEALTH BANK OF AUSTRALIA SECOND RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 31 OCTOBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be refused. 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 N7835 of 1999 BETWEEN: GREGORY HARRISON HEALEY APPLICANT AND: MAXWELL WILLIAM PRENTICE AND MARK JULIAN ROBINSON FIRST RESPONDENTS COMMONWEALTH BANK OF AUSTRALIA SECOND RESPONDENT JUDGE: MADGWICK J DATE: 31 OCTOBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 The applicant applies for an interlocutory order against the now second respondent, the Commonwealth Bank of Australia following its joinder in the proceedings. The applicant seeks that the Bank be ordered to provide a verified list of documents relating to all matters in issue in proceedings SY11769 of 1998 and SY50005 of 1999, both in the Supreme Court of New South Wales, and that the list be verified by affidavit of Mr R Griffiths, an officer of the Bank or any other senior officer having knowledge of the facts. 2 I decline to make the orders sought. At the heart of the substantive proceedings before me, which are to review the decision or decisions of the trustees of the estate of the bankrupt applicant not to proceed with litigation in those two cases and in a third, 50226 of 1996 in the Equity Division of the Supreme Court of New South Wales, is the assertion that in each of those proceedings the Bank did not make proper discovery of all relevant documents, such that in the proceedings in the Equity Division which terminated unfavourably for the applicant, there could be said not to have been a proper trial of the matter. 3 In relation to the other two sets of proceedings, it was submitted by Mr Hughes that by reason of the trustees' decisions, there was no opportunity to ventilate the adequacy of the discovery that had been given or sought. 4 The applicant has been able to show a number of things. The first is that the Bank's then solicitor took a view of relevance that in my opinion it was unlikely any Supreme Court judge would have shared. However, upon this position being established, steps were earlier taken in these proceedings to enable the applicant to subpoena the key documents, namely intra-Bank memoranda, which may have cast light on the underlying claim of the applicant in all of the proceedings, that arrangements between him and the Bank were such that the Bank was under a duty to continue negotiating with him in good faith in respect of his debts to the Bank. 5 There are some surprising lacunae in the documents produced on that subpoena. Nevertheless, the evidence is, and the assurance of counsel, on instructions, is that all documents that the Bank has in that category, within a period that I considered relevant, have been produced. 6 Absent some evidence that all the documents had not been produced, it would be futile to again require, in effect, the production and identification of documents not produced which, if they exist, ought to have been produced. On the state of the materials before me, I have simply reached the working conclusion that, for unknown reasons, the documents do not now exist if, as one might expect, they did exist. 7 The second difficulty is the trustees could not reasonably be expected to permit the expenditure of resources by the bankrupt or the exposure of a creditor to further indebtedness in pursuit by the bankrupt, merely of a holy grail of perfect justice. Putting matters at their very highest, all that might be said is that, in some respects, the trial of the issues in the various Supreme Court proceedings may not have been, with the benefit of the hindsight now available, perfect in that the Bank's solicitor may have had, and in my view probably did have, a mistaken view of relevance. 8 However, as far as is possible now, so far as the applicant's state of knowledge of matters is concerned, these problems appear to have been remedied by the interlocutory steps fashioned by me in these proceedings. More fundamentally, the trustees' decision would not be able to be impugned unless there was a likelihood that the documents now sought to be discovered in these proceedings, as relevant in other proceedings, would be likely to change the result in the other proceedings; in other words, unless some reasonable chance was shown that there would be something in the nature of fresh evidence available to the applicant. Nothing appears to me to indicate that this is likely to be so. 9 The evidence falls far short of a conclusion that the Bank, by any of its agents, including its solicitor, has improperly as distinct from mistakenly withheld any documents from exposure to litigious processes. 10 In these circumstances, it seems to me that nothing would be gained by making the order sought. It would be expensive to comply with and the applicant would not be in a position to compensate the bank for the cost of doing what he asks that it do. The application is therefore refused. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 8 November 2000 Counsel for the Applicant: T D F Hughes Solicitor for the Applicant: G.H. Healey & Co. Counsel for the 1st Respondents: R J Weber Solicitor for the 1st Respondents: Henry Davis York Counsel for the 2nd Respondent: G K Burton Solicitor for the 2nd Respondent: Shaw McDonald Date of Hearing: 31 October 2000 Date of Judgment: 31 October 2000