Smith v National Australia Bank Limited [2022] FCA 1186

Federal Court of Australia

Smith v National Australia Bank Limited [2022] FCA 1186 File number: QUD 239 of 2021

Judgment of: LEE J

Date of judgment: 6 October 2022

Catchwords: PRACTICE AND PROCEDURE – application for preliminary discovery – r 7.23 of the Federal Court Rules 2011 (Cth) (FCR) – self-described "covert operation" – elaborate hoax – where prospective applicant hired private investigator to lure National Australia Bank (NAB) witness to the island of Batam, Indonesia to procure a confession of perjury – where confession allegedly coerced – where NAB contacted the Queensland Police Force and there was a subsequent aborted prosecution – preliminary discovery sought against the NAB – whether prospective applicant holds reasonable belief of right to obtain relief – whether preliminary discovery should be ordered HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether the Court has jurisdiction – consideration of relevant principles – whether assertion of jurisdiction is colourable – jurisdiction of the Court improperly invoked

Legislation: Constitution ss 76, 76(ii) Australian Securities and Investment Commission Act 2001 (Cth) ss 12DA, 12DB(1)(g), 12BAB(1)(a), 12BAB(7), 12GF, 12GF(2) Corporations Act 2001 (Cth) ss 124, 761EA, 761EA(2), 761EA(5), 764A(1)(l), 1041G, 1041H Evidence Act 1995 (Cth) s 140 Federal Court Rules 2011 (Cth) r 7.23 Judiciary Act 1903 (Cth) s 39B(1A)(c) Trade Practices Act 1974 (Cth) s 52 (repealed) Uniform Civil Procedure Rules 1999 (Qld) Uniform Civil Procedure (Preliminary Disclosure) Amendment Rule 2021 (Qld)