Ishak Cicek and anor. v The Estate of the late Mark Solomon and ors.

Judgment - EX TEMPORE 1The hearing of these proceedings commenced before me today, with an estimate of four days. 2The plaintiffs have appeared before me today unrepresented. The circumstances in which this has occurred is set out in a previous judgment (Ishak Cicek and anor. v The Estate of the late Mark Solomon and ors. [No 1] [2013] NSWSC 1490). 3An issue has arisen as to whether or not the plaintiffs should be granted leave to rely upon four further affidavits, namely: (i)an affidavit of Ulka Basak Tilli of 27 September 2013; (ii)an affidavit of Ishak Cicek of 27 September 2013; (iii)an affidavit of George Alkan an interpreter of 27 September 2013; (iv)and a further affidavit of Ishak Cicek of 30 September 2013. 4Ishak Cicek is the first named plaintiff in the proceedings and Ulka Tilli, his wife, is the second named plaintiff. 5Counsel for each of the first and third defendants oppose a grant of leave. 6The proceedings were commenced by the plaintiffs in 2011. They arise out of a series of property purchases and loans which were entered into by the plaintiffs. The plaintiffs allege, amongst other things, that they retained a Mr Mark Solomon to act as their solicitor in respect of those transactions. Mr Solomon is now deceased, having died before the commencement of the proceedings. The first defendant is Mr Solomon's estate, the third defendant is the National Australian Bank. The plaintiffs have previously indicated that they do not press the case against the second defendant. 7The plaintiffs allege that when acting for them, Mr Solomon breached his duty. They further allege that the third defendant engaged in unconscionable conduct in respect of a loan transaction. 8On 29 January 2013, the first plaintiff signed a document headed "Witness Statement of Mr Ishak Cicek" which was later served on the defendants. Earlier today, I heard and determined a number of objections raised by counsel for each of the first and third defendants in relation to the contents of that statement. I excluded a number of paragraphs of it on the basis of both form and relevance. The statement, in its partially excised form, was then admitted and marked as Exhibit A. 9On 21 February 2013, the second plaintiff signed a similar evidentiary statement which was also served. Upon enquiry today, the second plaintiff indicated to me that she did not wish to rely on the contents of that statement, although it should be noted that the only two paragraphs to which any objection was taken in respect of that document were paragraphs 8 and 9. In circumstances where the second plaintiff indicated that she did not seek to rely on that statement, its contents were not admitted and the document became MFI 1. 10As might be expected, the proceedings have been before the Registrar on several occasions before today. On those occasions the Registrar has made various orders concerning the filing and service of evidentiary and other material. Significantly, on 10 April 2013, some six months ago, the Registrar ordered that the plaintiffs were not to be permitted to rely on any further evidence without the leave of the court. 11Counsel for each of the first and third defendants approached the matter on the basis that they took a general objection to leave being granted to the plaintiffs to rely upon the further affidavit material. In the event that I were to grant leave, counsel indicated that they would then have a number of additional objections to specific parts of the material. Accordingly, as the matter presently stands, I am dealing with the preliminary question of whether or not leave ought be granted to the plaintiffs to rely on the affidavits, bearing in mind the order that was made by the Registrar on 10 April 2013. 12Counsel for the first defendant firstly submitted that in the event that leave was granted, and in the event that the plaintiffs were (subject to questions of admissibility) permitted to rely on the additional affidavit evidence, a significant degree of prejudice would arise. In this regard, counsel explained that when the earlier witness statements of the first and second plaintiffs were served earlier this year, the first defendant made what was described as a forensic decision not to adduce any evidence in the case. That, of course, was a decision that the first defendant was entitled to take based upon the material which had been served. 13Counsel for the first defendant also pointed out that a period of almost six months elapsed between the time that the Registrar had made his order on 10 April and the time at which the first defendant was served with the additional affidavit material. The effect of counsel's submission was that the additional affidavit evidence had been served, as it were, at the eleventh hour. 14Counsel pointed out that if leave were granted, it would necessitate the first defendant having to undertake further investigation of the additional matters which had been raised. Counsel explained that it was impossible to determine whether or not those inquiries would ultimately necessitate the filing of evidence on behalf of the first defendant. What was clear, was that in the event that leave were granted, it was highly unlikely that the matter could be completed within the period of four days which had been allocated. As I understood counsel's submission, it was inevitable that the matter would have to be adjourned (part heard) so as to permit the first defendant to undertake such further inquiries as it thought fit, and if thought appropriate, to file further evidence. 15Counsel was not in a position to state whether or not his cross-examination of either of the plaintiffs could be completed prior to any adjournment. However, he raised the distinct possibility that once further enquiries had been made, either or both of the plaintiffs may have to be cross-examined further in the light of any additional evidence which was unearthed as a consequence of those enquiries. 16Counsel for the first defendant pointed, in these circumstances, to the cost of the further proceedings, and to the delay which would be occasioned in having the proceedings completed. Whilst one cannot be specific as to the extent of any delay, it can be reasonably anticipated that if the matter were adjourned, it would be unlikely to obtain a resumed hearing date much before May or June of 2014, depending of course upon how long it was likely to take to complete. 17Counsel for the third defendant supported the submissions of counsel for the first defendant insofar as those submissions went to the issues of prejudice, cost and delay. Unlike the first defendant, the third defendant has not made a forensic or tactical decision not to file evidence. To that extent, the positions of the first and third defendants are different. 18However, counsel for the third defendant submitted that within the additional affidavit material which was now sought to be relied upon by the plaintiffs was an allegation by the first plaintiff (raised for the first time) that what purported to be his signature on one or more relevant documents was in fact not his signature. Counsel for the third defendant submitted that if leave were granted and the evidence admitted, this was obviously a matter which would require investigation. Counsel submitted that if this course had to be taken, there would inevitably be a delay in the conclusion of these proceedings. 19It is also relevant to point out, that two of the persons involved in the transactions which are the subject of these proceedings, namely Mr Solomon and a Mr Tam (whose estate is named as the second defendant) are now dead. That, as a matter of common sense, must impact to some degree upon the ability of the first defendant in particular to conduct its case. 20Whether or not leave should be granted to the plaintiffs is a decision to be determined in the exercise of my discretion. In exercising that discretion, I must have regard, amongst other things, to the provisions of s 56 of the Civil Procedure Act (NSW) 2005 which make specific reference to the just, quick and cheap resolution of proceedings. Needless to say, in the exercise of my discretion, I must also endeavour to do justice to all parties. 21The defendants prepared their case for hearing today having regard to the orders made by the Registrar on 10 April. They were entitled to take that course. When I asked the plaintiffs what they wished to advance in terms of a reason which explained why the additional affidavit material was served at such a late stage, the second plaintiff explained that she and the first plaintiff had previously retained a solicitor to act for them and that having done so, assumed that relevant matters, including procedural matters, were being dealt with properly. 22In AON Risk Services Australia Limited v The Australian National University (2009) 239 CLR 175, the High Court dealt extensively with principles to be applied in determining an application for amendment. In that case, the necessity for the amendment which was sought had arisen after the proceedings had been on foot for some weeks. The present application has been made on the first day of the hearing and, of course, is not an application to amend. However in my view, the observations of the High Court regarding matters of general principle are applicable in the present case. 23One of the matters which is relevant to the exercise of my discretion concerns the stage of the proceedings at which this issue has arisen. Although it is not in evidence before me, I infer from the dates of the affidavits in respect of which leave is sought that they were served upon the solicitors for the first and third defendants approximately one week before the hearing, or possibly less than that. That was almost six months after the Registrar made his order of 10 April 2013. 24I am also satisfied that if leave were granted, it would have the effect of substantially delaying the further conduct of these proceedings. Such an outcome, were it to eventuate, could certainly not be described as quick, nor could it be described as cheap. 25A further matter which bears upon the exercise of my discretion is the explanation which has been proffered for the late service of the material. It may well be the case that the plaintiffs' previous solicitor was not adept in the conduct of litigation of this nature. In one sense it may be unfair to visit the consequences of any default on his part upon the plaintiffs personally. Equally however, it would also be unfair to visit the consequences of an such default on the defendants, particularly when accompanied by the consequences, in terms of costs and delay, to which I have already referred. 26Finally, whilst the efficient use of court time is not a determinative consideration, it is clearly relevant and important. The consequences of a grant of leave to the plaintiffs to be permitted to rely on this additional affidavit material would, in my view, impact adversely upon the efficiency of the court. The impact would be significant, not only in terms of cost, but also in terms of the substantial delay which would be occasioned in terms of the final determination of the proceedings. 27In my view, all of those matters militate against a grant of leave to the plaintiffs. 28Accordingly, leave to rely on the further four affidavits to which I have referred will be refused. 29Those four affidavits collectively will be marked MFI 2 in the proceedings.