Commonwealth Bank of Australia v Segal

Solicitors: File Number(s): 2011/00090694

REVISED EXTEMPORE Judgment

1. I am considering an application for an adjournment made by the cross-claimant. The proceeding listed for hearing before me today is a cross‑claim in a possession matter. The cross‑claim is the only aspect of the litigation still outstanding. In separate proceedings in the Equity Division between the registered proprietors, orders were made for a judicial sale of the property. That has occurred, and the plaintiff mortgagee has fully recouped the amount due to it. It is holding a sum of about $150,000, effectively on account of the costs of the cross‑claim because it takes the view that defending this cross‑claim is part of the costs of enforcing, and recouping, the debt due to it. I need not comment further upon that except to say that a Mr Barel, who was the second defendant, but who is no longer a party to the litigation, has a contingent interest in the retained sum of $150,000, or at least in any surplus left after these proceedings are finalised.
2. The cross‑claim relates to the operation of one only of three accounts that the cross‑claimant, Dr Segal, operated with the bank. That is an account which is referred to as a Viridian Line of Credit Facility. It has been referred to in the pleadings as VLOC2 because there were two such facilities with the bank. Mr Barel was also a named party to that account. But Dr Segal says he borrowed that money for his own purposes, and as it was secured by the mortgage over property that he owned in common with Mr Barel, it was put in Mr Barel's name also. Dr Segal says it was a term of the contract with the bank for the creation of VLOC2 that the cheque account by which it was operated required the signature of both Dr Segal and Mr Barel. In breach of that term he says the bank honoured 43 cheques totalling the sum of $197,118.12 drawn by Mr Barel and bearing his signature only.
3. Alternatively, he says that if he is wrong about his case in contract, he is entitled to recover damages from the bank for breach of the obligations created by s 18 Australian Consumer Law or s 12DA Australian Securities and Investments Commission Act 2001 (Cth). That is to say that officers of the bank were guilty of deceptive and misleading conduct representing to him that his instructions that cheques required two signatures would be implemented.
4. At a factual level, to answer to Dr Segal's case, the bank produces a document, which is Exhibit AA before me on the application for adjournment. It purports to be the original of an instruction given to the bank by Mr Barel and Dr Segal at the time VLOC2 was opened. And it contains the instruction that the account may be operated by "one signature". The bank says that this is a contractual document, it is signed by the customers who are named in the account, and that, subject to the statutory counts, the Court is not entitled to go behind that signature. That there was such a dispute was known before the commencement of the cross‑claim, which did not occur until 15 May 2014. By such time the bank and Dr Segal had been in dispute about this matter since about August 2010.
5. To meet the difficulty presented by Exhibit AA, Dr Segal impugns its authenticity. He says that (at [8] of his affidavit) it is his usual practice to read forms before he signs them, and he would not have signed this account opening form if it had said "one signature" under "method of operation". He points out there are some other details which are erroneous, and had they been on the form at the time he signed it, he would have pointed out the error. Implicit in all of this is the acceptance by Dr Segal that the Exhibit AA bears his signature, but he says that changes have been made to the document he signed; including the instruction that one signature was sufficient to operate the cheque account.
6. He seeks an adjournment to obtain further expert evidence to support that case. I say further expert evidence because before the commencement of the proceedings, Dr Segal, through his solicitors, had obtained the report from a Ms Andrea Devlin, a forensic document and handwriting examiner, dated 14 February 2014.
7. The case about Exhibit AA effectively being a forgery is built around another document which appears to be a photocopy of Exhibit AA before a deposit slip, which was attached to the foot of it, was detached. In short, Ms Devlin came to the conclusion on the basis of her scientific examination that that document she referred to as Q2 was a reproduction of Exhibit AA. She found no evidence of any material alteration of Exhibit AA, and, generally, as I read her report, found evidence that Exhibit AA was the original of what it purports to be. That evidence related mainly to conclusions she was able to draw from a stamped impression that remains at the foot of Exhibit AA.
8. Her opinion, and the result of her examinations, was available to Dr Segal at the time he commenced this case. It must be said that her opinion, as expressed in the report, does not advance this case in relation to Exhibit AA effectively being a forgery, to the extent to which it is said to have been changed after Dr Segal signed it. Recently, counsel previously retained withdrew from the case and Mr Glissan of counsel, who appears today, was briefed late on Thursday 19 February. He appeared before me on the morning of 20 February to advise me that he had formed the view the case was not ready to proceed because, he did not put it this way, but it was implicit in what he said, of the content of Ms Devlin's report and the view he had formed that further tests needed to be carried out.
9. I, at that time, simply made directions for inquiries to be made of Ms Devlin as to her availability, and for any adjournment application to be properly supported by affidavit. An affidavit of Mr Doherty, the solicitor for Dr Segal, was provided to me and the parties on Friday afternoon and I gave leave for it to be filed in Court today. It attaches a printout of an email from Ms Devlin expressing a willingness to carry out some further examination of Exhibit AA and Q2 but understandably, as she was approached only on Friday, indicating that she would need a period of, at least, two weeks to attend to this and that she has some leave coming up soon during which time she would not be available to complete the work.
10. Mr Glissan has pointed out some matters from Q2, rather than Exhibit AA, which were not commented upon by Ms Devlin including an elongated triangle at the left‑hand margin of the page which seems to be a shadow of the type one sometimes sees in copies reproduced by photocopy machines. Ms Devlin did refer to some apparent cropping on Q2 but not to the phenomenon Mr Glissan draws to my attention. I must say, with great respect, it was not entirely clear from what learned counsel said how getting to the bottom of that fact might cast doubt on the authenticity of Exhibit AA. He argued that it suggests there was some intermediate document and I confess I did not quite follow how that might be significant for there may have been many copies made of Q2 over the years.
11. The difficulty I have, however, particularly is that it is not said what further tests or examination might be carried out by Ms Devlin or what the results of those tests or examinations might possibly show that may be capable of impugning the authenticity of Exhibit AA. I am left at a loss in understanding what the practical utility of the adjournment might be other than providing Dr Segal with another opportunity to hunt around for some evidence that might assist that part of his case he wishes to present about the authenticity of Exhibit AA.
12. I acknowledge that Mr Glissan has informed me that Dr Segal is prepared to submit to an order that he pay the bank's costs thrown away on an indemnity basis forthwith after they have been agreed or assessed and notwithstanding the great tidal shift in the Court's attitude to the capacity of a costs order to cure prejudice, in a commercial case like this such an order must go a long way to alleviating any prejudice that a party in the position of a bank might suffer. However, I accept, as Mr McClure of counsel submits, that there may be a degree of vexation experienced by commercial litigants in relation to delayed litigation even if only that arising from a need to have staff attend unnecessarily to litigation which should have been finalised.
13. However, it seems to me that the resolution of this issue does not depend solely upon the modern thinking about case management which underpins the efficiency provision of the Civil Procedure Act 2005 (NSW), and is discussed in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175. I have been referred to the decision of Davies J in Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716. His Honour points out at [58] ‑ [62] that the principles which bear upon making a decision about this adjournment application are longstanding and predate, as I have said, modern thinking.
14. His Honour points out that the general rule is that when a case is brought on for trial it should be heard. He also points out that an adjournment for the purpose of obtaining additional evidence, that should have been obtained earlier, will ordinarily not be allowed; the more so when the nature of the further evidence is not or cannot be disclosed; and where there has been a change of counsel an adjournment will not normally be allowed on that basis alone, even where new counsel takes a different view about the correct approach to the case. I will not set out the citations of authority contained in his Honour's judgment but I record that they date from the nineteen-sixties, seventies and eighties.
15. I am also referred to the decision of Schmidt J in Kingsway Group Limited v Belramou [2009] NSWSC 345. At [12] her Honour points out that the consideration that recently instructed counsel has formed a view about how the case could be improved is not normally a matter that will justify an adjournment.
16. I think this case falls into the same category as those decisions. I am very conscious that the cross-claimant ought to have a fair opportunity to present evidence to support his case. Normally evidence is obtained prior to bringing the case, or at the very least prior to setting it down for hearing. In the present case as I have tried to point out Dr Segal is not able to demonstrate what further tests or examination are to be carried out, how the results of those matters are likely to alter Ms Devlin's opinion and how, at least even as a possibility, that might impugn the authenticity of Exhibit AA.
17. In the circumstances, I am not persuaded that the interests of the administration of justice justify adjourning the case on what is essentially a speculative basis and I refuse the application for an adjournment.

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