Kemp v Westpac Banking Corporation (No 3) [2021] FCA 1366

FEDERAL COURT OF AUSTRALIA

Kemp v Westpac Banking Corporation (No 3) [2021] FCA 1366 File number: VID 134 of 2020

Judgment of: O'BRYAN J

Date of judgment: 3 November 2021

Catchwords: PRACTICE AND PROCEDURE – representative proceeding – consumer credit insurance policies – case management –– application for further discovery

Legislation: Federal Court of Australia Act 1976 (Cth) s 37M

Cases cited: Kemp v Westpac Banking Corporation (No 2) [2020] FCA 1392

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 34

Date of hearing: 18 October 2021

Counsel for the Applicant: Dr O Bigos SC with Ms G Coleman

Solicitor for the Applicant: Slater and Gordon

Counsel for the Respondents: Mr D Thomas SC with Mr P Holmes

Solicitor for the Respondents: Allens

ORDERS VID 134 of 2020

BETWEEN: ROGER KEMP Applicant

AND: WESTPAC BANKING CORPORATION ACN 007 457 141 First Respondent

WESTPAC GENERAL INSURANCE LIMITED ACN 003 719 319 Second Respondent

WESTPAC LIFE INSURANCE SERVICES LIMITED ACN 003 149 157 Third Respondent

order made by: O'BRYAN J DATE OF ORDER: 3 november 2021

THE COURT ORDERS THAT:

1. On or before 17 December 2021, the respondents are to give discovery of the categories of documents identified in categories 1, 2 and 3 of Annexure A, together with a list of documents verified in accordance with r 20.17 of the Federal Court Rules 2011 (Cth). 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ANNEXURE A Terms defined in the Statement of Claim have the same meaning when used in these categories. No. Category 1. Emails sent or received by the employees listed in Annexure B in the Relevant Period, that attach a version of a document listed in Annexure C. 2. Emails dated 1 July 2009 or onwards, contained in the mailboxes of the employees listed in rows 2, 4 and 5 of Annexure B, that: (a) relate to: (i) the existence or absence of value, benefits and suitability of the Policies to customers as alleged in paragraphs 19 to 24 of the further amended statement of claim; or (ii) the deficiencies in the systems for sale and distribution of the Policies by the respondents and third parties (including without limitation Sykes Financial Services Pty Ltd and Peakbound Holdings) as alleged in paragraphs 34A to 35A of the further amended statement of claim; and (b) support the applicant's case or adversely affect the respondents' case. 3. THE FOLLOWING DOCUMENT SETS ISSUED FROM 1 JANUARY 2010 IN SO FAR AS THEY RELATE TO THE POLICIES: (a) outlier reports, produced monthly; (b) unaccredited sales reports, produced weekly; (c) re-instatement reports, produced daily; and (d) Peakbound retention reports and covering email, produced weekly.