The Plaintiff's Claim in Damages
104The plaintiff asserts that the defendant, independently of any issue of estoppel and the like, misused her position as attorney and has in effect misappropriated funds of the plaintiff making the defendant liable in damages. This was not an allegation of mere financial mismanagement.
105The plaintiff initially made a claim for $114,784.91. This amount was made up as follows:
(i)Misuse of plaintiff's accounts - breach of duties under Power of Attorneys Act - $52,500.00
(ii) Misuse of plaintiff's accounts - breach of duties under Power of Attorney Act - $31,035.08
(iii) Accommodation at Formule 1 Hotel - $5,515.00
(iv) Accommodation at Little Bay - $2,660.00
(v) Motor Vehicle sale proceeds - $3,300.00
(vi) Shortfall between transfer out of account of JPQ 18 September 2009 - $19,774.83
106The plaintiff ultimately did not press the claim in (vi).
107The plaintiff in her affidavit materials and in her oral testimony heavily hinted that the defendant misappropriated certain of the plaintiff's funds. This is a most serious allegation. Apart from a somewhat cryptic reference to something approaching such an allegation in the plaintiff's defence to the defendant's cross claim ((paragraph 11(c)) and (d) the matter is not otherwise pleaded. However it was pursued to some extent in cross examination to which I will return. In the itemised list above the court's attention was specifically directed to the first two amounts as the subject of the misappropriation.
108Although in a civil case where all issues need only be determined on the balance of probabilities, it is necessary to bear in mind what Dixon J (as he then was) said in Briginshaw v. Briginshaw :
"At common law two different standards of persuasion developed, It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded........
This mode of stating the rule for civil issues appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue. In the course of a discussion of the matter containing no less wisdom than learning, Professor Wigmore says --
In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain. But it is customary to go further, and her also to attempt to define in words the quality of persuasion necessary. It is said to be a state of mind in which there is felt to be a 'preponderance of evidence' in favour of the demandant's proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in many precedents sundry other phrases - 'satisfied' , 'convinced,' and the like - have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial effort.
.....
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempt to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Every one must feel that when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus Mellish, LJ, says - "no doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" - Panama and South Pacific Telegraph Company v India Rubber, Gutta Percha and Telegraph Works Company , (1875) LR 10 Ch App 515 at p 530".
109On the question of alleged misappropriation the defendant was cross examined about some of the plaintiff's bank statements and some of her own. There is no doubt that for the most part from around the middle of September 2009 to the middle of October 2010 the defendant had the ability and indeed did transact various financial payments for and on behalf of the plaintiffs.
110Leaving aside the form of the plaintiff's pleading to which no objection was taken, if such an allegation was to be pursued, it was to be done in such a way so as to permit a court to make a properly informed assessment as to the probabilities.
111In other words, fairness dictates that a person, the subject of such an allegation, has to be directly and fairly confronted so as to be given an opportunity to deal with it. Browne v Dunn .
112In his judgment in Allied Pastoral Holdings Pty Ltd v. Commissioner of Taxation , Hunt J comprehensively reviewed the authorities concerning the decision of Browne v. Dunn . His Honour said:
"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v. Dunn (1894) 6 R 67.
No doubt because that decision is to be found only in an obscure series of law reports (called simply "the Reports" and published briefly between 1893 and 1895) reliance upon the rules said to be enshrined in that decision seems often to be attended more with ignorance than with understanding. The appeal was from a defamation action brought against a solicitor and based upon a document which the defendant had drawn whereby he was to be retained by a number of local residents to have the plaintiff bound over to keep the peace because of a serious annoyance which it was alleged he had caused to those residents. Six of the nine signatories to the document gave evidence on behalf of the defendant that they had genuinely retained him as their solicitor and that the document was really intended to be what it appeared on its face to be. No suggestion was made to any of these witnesses in cross-examination that this was not the case and, so far as the conduct of the defendant's case was concerned, the genuineness of the document appeared to have been accepted. However, the defence of qualified privilege relied upon by the defendant depended in part upon whether the retainer was in truth genuine or whether it was a sham, drawn up without any honest or legitimate object but rather for the purpose of annoyance and injury to the plaintiff. This issue was left to the jury. The plaintiff submitted to the jury that the retainer was not genuine and was successful in obtaining a verdict in his favour. In support of that submission, the plaintiff asked the jury to disbelieve the evidence of the six signatories who had said that the retainer was a genuine one.
Lord Herschell LC said (at pp 70, 71):
"Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the property conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, which it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."
His Lordship conceded that there was no obligation to raise such a matter in cross examination in circumstances where it is "perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling". His speech continued (as p71):
"All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatsoever in the course of the case that his story is not accepted."
Lord Halsbury said (at pp 76, 77):
"My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."
Lord Morris (at pp 78, 79) said that he entirely concurred with the two speeches which preceded his, although he wishes (at p 79) to guard himself with respect to laying down any hard and fast rule as regards cross examining a witness as a necessary preliminary to impeaching his credit. The fourth member of the House, Lord Bowen, is reported (at pp 79, 80) to have said that, on the evidence of the six signatories, it was impossible to deny that there had been a real and genuine employment of the defendant. But his Lordship made no statement of general principle."
113The plaintiff was, it seems to me, quite ready to make serious and derogatory allegations about the defendant in a number of respects not the least on the issue of misappropriation. Her evidence however I have otherwise found was quite unreliable no less so in this regard.
114As an example she asserted that the defendant had sold her Tarago without her knowing about it and she never received any funds from the defendant as a result of its sale. In the first place she asserted that it had been purchased against her wishes and to suit the defendant and her family and not to meet the plaintiff's needs at all. For reasons which follow I am of the view that this is quite inaccurate and I reject the plaintiff's assertion on this issue accordingly.
115When Mr Donaldson, her friend and companion of many years, gave evidence, an entirely different story emerged about the Tarago. He confirmed that the plaintiff was unhappy with its colour but volunteered that when he and the plaintiff left the Blakehurst property, they left in the Tarago and went to Newcastle and then Casula. When asked in cross examination who sold it he said that he and the plaintiff gave it to a Mr Noel Hogan, a private investigator to sell for her. Mr Hogan, Mr Donaldson said sold it at a loss (for $21,600 having paid it seems probably $25,000 for it). Mr Donaldson said Mr Hogan gave a cheque to the plaintiff and he and the plaintiff went to the bank and deposited it. I accept Mr Donaldson's account. He had no reason to do anything other than tell the truth. I am afraid I cannot say the same for the plaintiff who was in my view on this and other issues minded to give what was clearly an inaccurate account to seek to prejudice the defendant.
116However, as I have already observed, counsel for the plaintiff cross examined the defendant on a number of items (debits or transfers) in the bank statements of the plaintiff. At no stage did he directly put to the defendant that she had for example deliberately spirited away somehow, somewhere the two significant amounts referred to in the list above. He did not put to her that she had acted dishonestly in the handling of the plaintiff's financial affairs.
117Leaving aside the lack of access to all of the defendant's bank statements early in the trial it is plain that the plaintiff did not herself in her evidence fully disclose all of the bank accounts she had at the relevant time either.
118The cross examination so far as the plaintiff's bank statements were concerned centred largely on what was called a Power Saver Account at St George Bank (account No 456178456) which was operated in the period 2009-2010 and which the defendant clearly did operate on from time to time. Those bank statements were attached to the plaintiff's affidavit of 31 January 2011.
119However, at the end of the trial counsel for the defendant tendered a bank statement for a term deposit (account no 0000349773866) which purports to show that as at 1 July 2010 the plaintiff had an amount of $77,999 invested on term deposit. The plaintiff did not volunteer this nor was the source of those monies the subject of an explanation from her.
120In cross examination the defendant said that her uncle Terry had kept the bank statements, although they were clearly mailed to the plaintiff's address. She accepted that almost immediately the power of attorney had been executed by the plaintiff, she took it to St George bank to let them know what had transpired and to open a "power saver" account for her grandmother. When discussing bank statements with the plaintiff she agreed she did not explain every item but did generally each Saturday when she had lunch with her grandmother and uncle have discussions about expenditure from time to time. She attended to the payment of monies for the construction of the granny flat (which cost approximately $40,000). There appears to be other monies expended on fencing, landscaping and the like. She attended to the payment of these as well.
121She said she thought she knew where all funds were but clearly had difficulty giving a clear explanation regarding her own bank statements which she retrieved at the end of the trial. She agreed that the plaintiff's account at ING was closed and funds transferred to St George Bank. She agreed a Bank of Queensland account was kept open.
122She explained a number of transactions as either referable to the construction of the granny flat, renovations, a party for the plaintiff, sound proofing, air conditioning, change of locks, carpet, floor boards, cement work, and purchase of a Tarago motor car (which was approximately $25,000.) She also acknowledged that she repaid an amount of $7,000 into the plaintiff's account for a car she had bought prior to the power of attorney being executed.
123As I have said it was not directly put to her in terms that she had misappropriated any amounts. A person can for example of course be put on notice of an allegation from the way a case is conducted. When skilful and competent counsel, as here does not candidly confront a witness with an allegation of misappropriation it makes it in my mind all the more difficult for a court to reach the requisite level of satisfaction to sustain such an allegation. There is no occasion for discourtesy or aggression. What is needed is precision and clarity. In my view, an allegation as serious as that must of course be plainly and unmistakenly put so the court is placed in a position to judge the response, for itself.
124There was one amount that was the subject of such treatment. It was in relation to an amount of $600 where the following exchange took place:
"Q. Can I take you back to the entry Bid and Buy for $600.
A. Yes
Q. So you say that was for a payment previously made or debited from Ms Quinn's account?
A. Yes
Q. Is it the case you never paid her back within 7 or 14 days, it was just whenever you had the money?
A. When I received money from my mother's estate which went into my bank account, which was around July, late June, early July. I think these is another one reference to Suzanne shopping on 30 th of the 7 th , internet withdrawal for $170 authorised."
A little later the following transpired:
"Q. I am trying to be fair to you Ms Bryant by taking you to the statement of Ms Quinn for that particular period.
A. It went somewhere. It was a withdrawal. Its an internet withdrawal.
Q. Ms Bryant, the reality is the payment did not go to Ms Quinn did it?
A. There we go, sorry. I have just found some here. It is my testimony I did repay that money to her account. I'd have it there for alternative accounts. I have just found some here. It is my testimony I did repay that money to her account. Money was going through four, two Power Savers, Retirement and Complete Freedom."
125On the amount of the $52,500 for example (item (i) above) the following exchange took place:
"Q. On 16 March, transfer of account (sic) $52,500. Where did this go?
A. That would, I'd say have to do with the granny flat. I would have to check the receipts.
Q. Were you certain?
A. I'm pretty sure that would have to do with the granny flat."
126Counsel for the defendant fairly accepts that the $52,500 is unlikely to have been applied for the granny flat, but this is not, nor could it be, an admission of misappropriation. Counsel for the plaintiff did not put to the defendant that the $52,500 had been misappropriated, no doubt because he felt, quite appropriately in my view, that he could not do so.
127The same can equally be said of the amount of $31,035.08 (item (ii)) contained in the plaintiff's affidavit of 31 January 2011. An explanation is provided for in the defendant's affidavit of 8 March 2011. Some of the items were the subject of cross examination of the defendant. She explained these items to my satisfaction. In addition she provides a detailed explanation in her affidavit of 8 March 2011 which I accept, again for two reasons. First serial and/or habitual misappropriation was not put in terms. It is and was a serious allegation. Secondly I am not persuaded given a plausible item by item explanation that misappropriation could be made out, and I reject that claim as well.
128Given the seriousness of the allegation and putting to one side the question of cross examination in my view the evidence of misappropriation does not go any higher than pure speculation or conjecture. It was at all times upon the plaintiff to prove the allegations of misappropriation to the requisite level of satisfaction. An inability to show with clarity where for example the $52,500 was transferred does not prove the commission of a misappropriation for that or any other amount. It could easily be characterised as mismanagement and no more. The tenor of the cross examination was to simply invite explanations as to amounts which when given were largely not challenged. This is of some significance given the belated discovery of the fixed term deposit of approximately $80,000 in the plaintiff's name. Indeed on the state of the evidence there is in my mind some confusion as to whether these amounts are even missing.
129Notwithstanding that the defendant said the bank statements were left with Mr Quinn, her uncle, no questions were put to him about any suggestion of misappropriation either, although he was present at the Saturday meetings and counsel for the plaintiff put to him that he "called the shots".
130On the question of misappropriation therefore the evidence in the plaintiff's case is left in quite an unsatisfactory state, despite a skilful cross examination on the part of her counsel.
131As I have already observed, the cross examination was limited to some bank statements of the plaintiff and some of the defendant. There was simply no evidence showing large amounts of cash being used by the defendant at relevant times to acquire assets, or transfer of funds to members of her family, including Mr Quinn or her former partner. No evidence has been tendered showing she had debts or any creditors who have been satisfied. There was no evidence of any term deposits in her name or subject to her control.
132An inability to clearly rebut an assertion cannot amount to an admission of the fact asserted. As Barwick CJ remarked in Steinberg and Others v Federal Commissioner of Taxation :
"But disbelief does not afford evidence of the contrary of what is disbelieved, leaving on one side a doubtful case of a situation of two mutually exclusive possibilities which the facts of this case do not raise."
133I accept that some of the defendant's explanations were themselves unsatisfactory and in some instances far from clear. However the last two questions and answers in her cross examination amount to a denial of any misappropriation in effect and I am inclined to accept that denial.
"Q. So other than that, any other repayment that you say you may have made or did make in relation to a repayment to Ms Quinn should appear in those statements in front of you.
A. Yes
Q. And if they don't appear in those statements, then you never made the payment, is that correct?
A. Exactly, because I paid back what I owed."
134In my view, the plaintiff has not satisfied me on the balance of probabilities, given the seriousness of the allegations that more probably than not the defendant has misappropriated the first of the two amounts (i) and (ii). There is no evidence that the plaintiff has produced showing those amounts were transferred or used by the defendant for her own purposes, so as to support a finding of misappropriation and I am unable on the state of evidence to so find. I therefore reject the plaintiff's claim in that regard.
135The other amounts in the damages claim are $5,515 (iii) for accommodation at the Formule 1 Hotel, an amount of $2,660 (iv) for accommodation at Little Bay, and an amount of $3,300 (v) for motor vehicle proceeds. I will deal with these separately.
136I do not accept that the plaintiff left Blakehurst solely or even predominately because of the defendant's conduct. There is no doubt the parties after a time could not get on and living together became impossible. I regard that as having as much to do with personalities, especially that of the plaintiff, rather than objectively pointing to any particular or blameworthy conduct on the part of the defendant.
137I consider that there is a real likelihood that the plaintiff was heavily influenced by her inability to get on with the defendant's children and perhaps a belated realisation that she preferred to live in the Eastern Suburbs where she again resides. The plaintiff was openly critical of the granny flat when completed, the hairdresser the defendant took her to, and the types of cooking the defendant did for her. The plaintiff has of course now made an alliance with other members of the family and changed her will for example very recently. On 7 March 2011 she executed her most recent will. The bulk of her estate is now left to her grandchildren or great grandchildren and 1/16 th to her long time companion Mr Donaldson. That of course is entirely her right.
138In her penultimate will of 25 January 2011 she had divided her estate into 19ths, leaving her son Terry 3/19ths. She had a change of mind in the few weeks between then and 7 March and has excluded him from the most recent will. I consider this to be a good indication of the somewhat volatile nature of her personality.