FEDERAL COURT OF AUSTRALIA Barker v Commonwealth Bank of Australia [2011] FCA 890 Citation: Barker v Commonwealth Bank of Australia [2011] FCA 890 Parties: STEPHEN JOHN BARKER v COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 File number: SAD 187 of 2010 Judge: BESANKO J Date of judgment: 8 August 2011 Dates of hearing: 21 June 2011, 1 August 2011 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 6 Counsel for the Applicant: Ms J Adlem appeared (21 June 2011) Mr P Heywood-Smith QC appeared (1 August 2011) Solicitor for the Applicant: Pace Lawyers Counsel for the Respondent: Mr A Short Solicitors for the Respondent: Minter Ellison IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 187 of 2010 BETWEEN: STEPHEN JOHN BARKER Applicant AND: COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 Respondent JUDGE: BESANKO J DATE OF ORDER: 8 AUGUST 2011 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The parties have leave to make submissions about the terms of the appropriate order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 187 of 2010 BETWEEN: STEPHEN JOHN BARKER Applicant AND: COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 Respondent JUDGE: BESANKO J DATE: 8 AUGUST 2011 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application by the applicant for an order that the respondent provide further and better discovery. 2 The application, which was dated 8 June 2011, was first argued on 21 June 2011. For reasons which appear in the transcript of the hearing on that day I adjourned the hearing of the application to 27 July 2011. That date was subsequently vacated and the matter came on before me on 1 August 2011. Whether or not the hearing and determination of the application is a step in a proceeding within r 1.04(2) of the Federal Court Rules 2011 I think it is appropriate to determine this application by reference to the Rules of Court as they were when the application was issued (see r 1.04(3)). 3 The parties have been able to resolve a number of the disputes between them. However, there remain two categories of documents which are the subject of dispute. 4 The first category are documents identified as items 32, 33, 34, 57, 58 and 62 in a letter from the respondent's solicitors to the applicant's solicitors dated 20 June 2011. These items relate to various policies, statements, guidelines, reviews and updates of the respondent. Initially the applicant sought such documents for the period from 1981 to 2009. In the course of submissions I indicated that I would not make an order in relation to such documents for that period when the relevant contract for the purposes of the applicant's claim is a contract formed in 2004. Thereafter the applicant confined his application to the period from 2004 to 2009. The respondent contends that the applicant's allegation is that various wrongful acts and breaches occurred in 2009 and that therefore only documents current at that time are relevant. However, the applicant's plea is that various policies were incorporated into the contract in 2004. That seems to me to make relevant the policies at that time because the applicant must show the terms of the contract at the time it was entered into. In the circumstances I propose to make an order in the applicant's favour in relation to the first category of documents. 5 The second category of documents relates to item 35 in the letter from the respondent's solicitors. I do not understand the respondent to allege that the documents are not discoverable. Rather, it contends that it has made all appropriate searches and the documents in dispute cannot be found. There was no real debate before me as to whether that assertion, which is made by letter from the respondent's solicitors, should be accepted or whether the respondent should be required to file an affidavit setting out the searches made and the fact that the documents cannot be found. I will hear the parties further on this issue if the applicant seeks to pursue it. 6 I have excused the parties from attendance this morning. A copy of these reasons will be sent to them and I invite them to make efforts to agree on an appropriate order in relation to the first category of documents so that an order can be made without their attendance. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 8 August 2011