DOVADE PTY LIMITED v WESTPAC BANKING CORPORATION [1998] NSWCA 70

DOVADE PTY LIMITED vy WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P

14 October 1998

[1998] NSWCA 70

Mason P. Application is made for leave to issue a subpoena to the proper officer of the Westpac Banking Corporation for the production of specified banking records relating to dealings between the bank and six named customers. The six named customers are Rolfe J, his wife and four companies in which some evidentiary basis has been laid to show that his Honour has an interest as a shareholder. The subpoena is sought to be issued in aid of an appeal that is set down for hearing in December.

One of the issues that is raised in that appeal, subject to the grant of leave to amend which has not at this stage been addressed, is the question of the nondisclosure by the judge who heard the proceedings at first instance of an interest in the litigant party, Westpac Banking Corporation.

When this matter first surfaced during the time when the appeal was pending, there was evidence put on on behalf of the appellants in the form of an affidavit sworn by their solicitor to the effect that certain matters were notdisclosed, and asserting that had they been disclosed, then an application for his Honour to disqualify himself on that ground would have been made. Alternatively, as I understand it, it is put that the mere non-disclosure of those matters represented a ground of appearance of bias which would provide cause for correction in an appropriate way on appeal.

Earlier this year directions were given for the precise grounds to be formulated and for written submissions addressing the non-disclosure issue as well as the other issues to be put on. This was in a context where there was a late application for adjournment of an earlier hearing date. I am not suggesting any allocation of fault in that regard.