Commonwealth Bank of Australia v Quade [1991] HCA 61

High Court of Australia Mason C.J. Deane, Dawson, Toohey and Gaudron JJ. Commonwealth Bank of Australia v Quade [1991] HCA 61

ORDER Appeal stood over generally. Liberty reserved to either party to restore the matter to the list on seven days' notice to the other party. The parties subsequently consented to the making of the following order:— Appeal dismissed. Applicant to pay respondents' costs of application for special leave and of appeal.

Cur. adv vult.

The Court delivered the following written judgment:—

Oct. 3 Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.

The respondents sustained financial losses by reason of unfavourable exchange rate fluctuations in relation to a Swiss franc loan which had been made to them by the appellant, the Commonwealth Bank of Australia. They sued the appellant ("the Bank") in the Federal Court of Australia claiming damages for (i) breach of s. 52 of the Trade Practices Act 1974 Cth, (ii) breach of the Contracts Review Act 1980 NSW, and (iii) common law negligence. It was common ground that the respondents would succeed on all three causes of action or on none of them.

At first instance in the Federal Court, the learned trial judge (Morling J.) dismissed the respondents' action. The respondents appealed to the Full Court of the Federal Court on a number of grounds. The Full Court (Neaves, Burchett and Einfeld JJ.) upheld the appeal and ordered that there be a new trial. The ground, and only ground, on which the appeal to the Full Court succeeded was that, subsequent to the verdict at first instance, the Bank had disclosed that, for reasons which remain unexplained, it had failed to comply with the requirements of a pre-trial discovery order in that it had not discovered a considerable number of relevant documents which were in its possession and should have been discovered. The present appeal is from the judgment of the Full Court.