FEDERAL COURT OF AUSTRALIA Kojic v Commonwealth of Australia [2014] FCA 310 Citation: Kojic v Commonwealth of Australia [2014] FCA 310 Parties: MARIJA KOJIC and DRAGUTIN KOJIC v COMMONWEALTH BANK OF AUSTRALIA File number: SAD 332 of 2013 Judge: MANSFIELD J Date of judgment: 26 March 2014 Date of hearing: 26 March 2014 Place: Adelaide Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 13 Counsel for the Applicants: S Mitchell Solicitor for the Applicants: Bambrick Legal Counsel for the Respondent: S Thomas Solicitor for the Respondent: Commonwealth Bank of Australia Legal Services IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 332 of 2013 BETWEEN: MARIJA KOJIC First Applicant DRAGUTIN KOJIC Second Applicant AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: MANSFIELD J DATE OF ORDER: 26 MARCH 2014 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The respondent discover such written instructions or policies as applied to either of the two officers, Mr Coombe and Mr Barnden, at the material time - that is at about November 2009 concerning whether they should or should not act on verbal instructions of customers, and if they may act on verbal instructions, the circumstances in which they should do so. 2. The respondent discover any policy or instruction applicable at the same time to those two officers or either of them as to how to manage their conduct where a bank officer advising one client is aware of another bank officer acting or advising on behalf of a different client where it is reasonably apprehended that the client's interest may be in conflict. 3. The respondent complete discovery in following category of documents within 28 days: 3.1 Relationship Manager job descriptions; 3.2 the Banker/Customer contract; and 3.3 the respondent's relationship with the company, Southern Construction Services Pty Ltd ACN 099 310 737. 4. Vary the leave to issue subpoenas to extend that leave to issue subpoena to Duncan McDonald, returnable at 9.30 am on 19 May 2014, and to be issued no later than 10 May 2014. 5. This directions hearing is adjourned to 9.30 am on 19 May 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 332 of 2013 BETWEEN: MARIJA KOJIC First Applicant DRAGUTIN KOJIC Second Applicant AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: MANSFIELD J DATE: 26 MARCH 2014 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is a disputed application about discovery. The request for discovery was made by letter of 4 February 2014, in which six categories of documents were specified. The response was given via letter of 17 February 2014. At a previous directions hearing, certain documents were noted as being discoverable, and certain affidavits of discovery were offered, and have now been given. They are the affidavits of David Coombe and Steven Barnden of 17 and 18 March 2014 respectively. 2 The discovery sought in paragraphs 1.1, but more particularly, 3.4 and 5.1 and 5.2, of the letter of 4 February 2014 are still pursued and are contentious. 3 I do not propose to order further discovery of the documents in 1.1, which are described as: … all documents published by the respondent from time to time in the form of any hard copy brochures, web page publications, or direct correspondence, for the purposes of marketing, promoting or offering to customers of the bank the "relationship manager" or like services offered by the respondent, and for a period of time up to November 2009. 4 There is no pleading other than a general one asserting a general holding out by the bank as to the services it provided which draws attention to any particular document. At present, I do not see that there is any particular document or documents which are so directly relevant as would, if produced, enhance the applicant's claims in a material way. 5 The discovery sought is broad in terms. There has been no particular identification of a particular type or style of document which either of the applicants say they have read, or which they say they relied upon. I am not persuaded that such discovery is necessary. 6 As to paragraph 3.4, counsel for the applicants has pointed out the content of what has been discovered by the two affidavits to which I have been referred, and pointed out what he contends are indications that there are likely to be further documents of an electronic character which have not been discovered. 7 In part, that is based upon an expectation that there would be an email sent to the branch to confirm a phone request, but there is no such email discovery, and in part it is pointed out that there may be some lack of correspondence between what has been discovered on the part of one of the two deponents, with what has been discovered or what might have been discovered at the other end of that communication by the other deponent. 8 However, in the face of the two affidavits, I am not satisfied that it is clear that there are further non-discovered electronic documents, and for that reason I have not taken the first step of being satisfied that there are further electronic documents which might be discoverable, and which, secondly, should then be ordered to be discovered. 9 Counsel for the respondent has indicated the extent of the discovery, and that there is no scope for any misunderstanding about what has been searched for, so that there is no suggestion on the part of the bank that a further search with slightly different fields would produce any different outcome. I, therefore, do not order further discovery of electronic documents of the character referred to in paragraph 3.4 of the letter of 4 February. 10 As to paragraphs 5.1 and 5.2, in my view, any written policy or instruction of the bank to officers, such as the two relevant officers, addressing the identification of conflicts of interest where two bank officers are advising different customers who may have a different interest, or where there is an instruction as to the requirement for proceeding in a certain way – for instance, not proceeding except on clear written instructions, or, for instance, not proceeding on verbal instructions – may be directly relevant to the issues before the Court. 11 I, therefore, order that the respondent discover such written instructions or policies as applied to either of the two officers, Mr Coombe and Mr Barnden, at the material time – that is, at about November 2009 – concerning whether they should act on written instructions only of customers, or whether they should or should not act on verbal instructions of customers, and if they may act on verbal instructions, the circumstances in which they should do so. 12 And, secondly, any policy or instruction applicable at the same time to those two officers, or either of them, as to how to manage their conduct where a bank officer advising one client is aware of another bank officer acting or advising on behalf of a different client, where it is reasonably apprehended that the clients' interests may be in conflict. I do not propose to make an order in the more extensive terms set out in paragraph 5 of the letter. 13 I note that the discovery sought in paragraphs 1.2, 2 and 4 has either been given or is being given and is not contentious, and that sought in paragraph 6 is not pursued. I will not set a timetable for the completion of the further discovery, but it should be completed within 28 days. I will adjourn this matter for directions to 9.30 am on 19 May 2014. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 31 March 2014