ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia

Judgment 1THE COURT: On 27 November 2014, this Court unanimously dismissed this appeal: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402. One matter raised by the appellants was that the primary judge had erred in accepting one valuer's report over another's, in part by reason of what was said to have been the relative inexperience of one. In the course of his submissions, Mr Jamal Charara, who appeared for the appellants, placed reliance upon curricula vitae of the valuers which although included in the appeal books, had not been in evidence before the primary judge. One of the documents, on its face, contained a date 18 June 2014, well after the conclusion of the trial. It was observed at [87]-[88]: "At the very least, it was incumbent upon Mr Charara to point out, to the Bank and to the Court, that pages on which he placed particular reliance on the appeal, in respect of which he contended that the primary judge had erred, had been inserted into the appeal book and were not before the primary judge. It may be added that Mr Charara is no ordinary unrepresented litigant. His letterhead describes him as: 'A HIGH PROFILE AND VERY EXPERIENCED LITIGANT IN THE LOCAL COURT, DISTRICT COURT, SUPREME COURT, COURT OF APPEAL, FEDERAL COURT AND THE HIGH COURT OF AUSTRALIA' It is difficult to overstate how vital it is to the efficient and fair resolution of appeals that the parties and the Court can have confidence that the appeal materials accurately reflect the evidence at trial. In the present case, the appeal materials were voluminous (12 folders, without any meaningful index) and, in at least one critical respect, they did not reflect the evidence at trial. I regard what appears to have occurred as potentially extremely serious, but will say no more because Mr Charara has not had the opportunity to provide an explanation. I propose that by the orders to be made he be now given that opportunity." 2Accordingly, the reasons for judgment concluded at [159]: "Mr Charara may, by written submission and/or affidavit filed and served within 14 days of today, provide an explanation for how the appeal papers came to include material not before the primary judge. So that there can be no doubt about the purpose of doing so, I should make it clear that a person who seeks to alter the documents before a court, with the purpose of obtaining an advantage, may be guilty of a contempt of court or may be guilty of criminal conduct including perverting the course of justice. In such cases, the Court may refer the matter to the Prothonotary and/or to the Director of Public Prosecutions for investigation and consideration of what further steps should be taken. Before determining whether the Court ought to so refer the matter, it is appropriate to give Mr Charara an opportunity to provide such explanation as he may be advised to make." 3By letter dated 1 December 2014 Mr Charara complained that the reasons for judgment were defamatory, and made this proposal: "I respectfully submit that the fact that the finale to the transit judgment was awaiting my response, that MUST impact on the transit judgment, resulting in a change in opinion, should be sufficient to not publish the transit judgment at this stage. UNDERTAKING I Jamal Charara undertake that I will not sue the State of New South Wales for this defamation, if the transit judgment is withdrawn from publications by Tuesday 2 December 2014. [sic]" 4The Registrar advised Mr Charara the following day that communications of that nature were inappropriate. 5In accordance with the Court's direction, Mr Charara has filed and served a submission, an affidavit of Mr Sogutlu made 28 November 2014 and other documents predating the judgment. An affidavit has also been filed and served by Ms Karina Carter, the solicitor with day to day carriage of the matter on behalf the Bank. Further affidavits in response by Mr Sogutlu and Mr Charara were filed on 11 December 2014. 6Mr Sogutlu swore that on 24 June 2014, he attended the Court's registry and advised that he wished to include some new materials in the white folders in volumes 3, 7 and 9. (It may be added that, unusually, the voluminous appeal papers in this appeal were not bound in blue folders, but were reproduced by the appellants in 12 lever arch folders.) Mr Sogutlu said that he inserted profiles he had recently obtained from the internet of the two valuers into volumes 3 and 7 of the appeal books. He then said: "7 I did not insert the 2 lots of profiles in the books as part of any affidavit, I merely inserted them behind their appropriate valuation report because it states the experience that was challenged in the court below. 8 On the same day that I inserted the documents in the Court's volumes, I attended the offices of Gadens Lawyers and ask to see Karina Carter. The receptionist used the phone to call Ms Carter after the phone called, the receptionist told me that he was authorised to receive the documents. Annexed hereto and marked "A" is copy of the one bundle document I served on the bank's lawyers. 9 I carefully explained to him that; We will be using the profiles for the experience issues that were raised in the Court below, and I prefer them to be placed behind each of the valuation reports in volumes 3 and 7 by these individuals so I have numbered them accordingly. Exhibit DX4 that was tender in the Court below is now in volume 9." [Paragraph 10 of the affidavit was struck through.] 11 On 25 June 2014, I telephoned Ms Carter and she confirmed that she received the documents and then I repeated what I told the receptionist. [sic]" 7Ms Carter swore that she had reviewed the file maintained by her firm and said that different documents had been served on 24 June 2014 from those described by Mr Sogutlu. The new documents were, according to her, (a) an unsealed Further (Amended) Notice of Appeal dated 24 May 2014, (b) a new index for volume 9 of the white folder and (c) a new document to be placed behind tab 31 in volume 9 in accordance with that index. She attached what she said was a true copy of the documents served on her firm on 24 June 2014, on each of which is written, in her hand, "Rec'd 24/6/14". She said that those documents were forwarded to counsel retained in the matter on 1 July 2014. She said that she (personally) inserted the documents that were served on her firm into the white folders. She said that she has reviewed her client's copy of the white folders, and confirms that the two profile pages, being the curricula vitae of the valuers, had not been inserted into her copy of the folders. 8She added that (a) she had no recollection of any telephone conversation with Mr Sogutlu on 25 June 2014, or at any other time, (b) she had no file note of any such conversation, (c) she had made no time entry for any such conversation, and (d) she said that "had such a conversation to the effect asserted by Mr Sogutlu occurred, I would have spoken to Mr Villa of counsel about it". 9The documents included as annexure A of Mr Sogutlu's affidavit omit the unsealed Further (Amended) Notice of Appeal and the new index for volume 9. They include two copies of the document which became p 2301 in volume 9 (these are the 11th and 12th pages of the annexure). They omit the document which became p 2305 of the White Book. However, they include, as the last two pages, the curricula vitae which became pages 610A and 2046A. 10Mr Sogutlu in response maintains that he served the documents in the way he described. He says that he also served the Further (Amended) Notice of Appeal and the new index at the same time. Both he and Mr Charara say that during the hearing, when Mr Charara made submissions by reference to the two new pages, they saw the Bank's counsel looking at the pages in his copy of the appeal books. 11Mr Charara states that: "Although I did not do so, I did not have any intention to mislead or interfere with the Court's process by point out to those profiles. I see it very clear from the judgment that the profiles did not impact on the court's decision in any single way." 12It is not necessary for present purposes to resolve the conflicting testimonial evidence as to what occurred in June 2014. The following matters are undisputed. 13First, documents not before the primary judge were inserted by the appellants into the appeal books without any application being made for the tender of fresh evidence, and without the Court's attention being drawn to that fact, although the appellants placed express reliance on those documents. 14Secondly, notwithstanding the terms of the Court's judgment dated 27 November 2014 reproduced above, there is nothing in the submissions advanced by Mr Charara to suggest there is any appreciation by him of the seriousness of what has occurred, nor is there any expression of contrition. The entirety of his submissions of 28 November and 1 December 2014 are annexed to these reasons. 15There is however an affidavit from Mr Charara dealing with what occurred. He states that he did not have any intention to mislead the Court or interfere with its process. That statement is consistent with the fact that, as noted in the earlier judgment, one of the additional pages bore a June 2014 date and so on its face was not a document which had been before the primary judge. 16Thirdly, the submission dated 28 November 2014 contains the following request, in bold: "With great respect, I am somehow confused as to how the Judge says to the effect that the bank was not informed about the profiles been in the folders if there was no contact with the bank's Counsel or his Solicitor, and if there was a contact, then the failure of the Judge to make me aware of any such communication is amounting to miscarriage of justice, and it is arguable in law that the whole of the appeal was poisoned on the fact that the experience of the valuer was discussed in the absent of the appellants therefore the appeal should be reheard. With great respect, instead of me making the application for inquiry or the other appropriate application for the appeal for be heard afresh, I respectfully invite His Honour to furnish me within 14 days from 28/11/14 with hard copies of notes, and written materials that relates to any contact between him and the bank's lawyers." 17It should not be necessary to say so, but of course there was no contact between the Court and the Bank's counsel or solicitor while the appeal was reserved, save for correspondence which was copied to Mr Charara (relating to the inappropriateness of Mr Charara to have sent, after the conclusion of a hearing, a further written submission dated 5 August 2014, and the delivery of judgment on 27 November 2014). Aside from its offensiveness, the suggestion to the contrary betrays a very deep misunderstanding of the nature of the judicial process. 18On any view, there has been a serious irregularity in connection with the preparation and conduct of the appeal. The question is whether this Court should report the matter, including the factual dispute summarised above, for further investigation and consideration of any further steps. As it happens, what is now established to have occurred was detected, and has not affected the outcome of the appeal. Nor has it materially impacted upon any party. Mr Charara has sworn that he had no intention to mislead the Court or interfere with its process. Even so, had Mr Charara been a barrister or solicitor, it would have been appropriate to refer the matter to the Bar Association or Law Society for investigation whether it amounted to unsatisfactory professional conduct or professional misconduct. 19That course is not available here. In all the circumstances, it is not appropriate to refer the matter for further investigation. However, this Court can by its judgment record the expectations which it holds of all of those who appear before it, including those who are not subject to the same ethical and professional obligations as a barrister or solicitor. Further, this is an unusual case, because Mr Charara holds himself out to be a "very experienced litigant" and seemingly provides legal services to others: see for example Westpac Banking Corporation v Konneh [2013] NSWSC 1176. In those circumstances it is appropriate that there be a public record of this Court's conclusion that Mr Charara has not adhered to the standards it expects of those who appear before it.