Plaintiff v Defendant

2 By summons dated 22 April 2015, NAB sought that Mr Klein's claim be struck out pursuant to:

(a) s 63 of the Civil Procedure Act 2010 ('CPA'); and/or

(b) r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules'); and/or

Background - the alleged offence and the prosecution

3 On 2 February 2010, a number of cheques belonging to NAB were stolen from a courier car.[1]

4 On 3 February 2010, Mr Klein alleges he received a call from a friend telling him that he had accidentally deposited $314,270.95 into Mr Klein's NAB account ('the Funds').[2]

5 The cheque by which the Funds were deposited into Mr Klein's account was one of the cheques which had been stolen from the courier car on 2 February 2010.[3]

6 On that same day, Mr Klein withdrew the following amounts from his account, allegedly in order to repay the Funds which were mistakenly paid to him:

(b) $94,500 by cheque made out to Mark Potter Automotive; and

(c) $212,500 by cheque made out to Mario Anthony Cigana.[4]

7 Mr Klein did not know of Mark Potter Automotive or Mr Cigana at the time of withdrawing the funds.[5]

8 The cheque by which the Funds were paid into Mr Klein's account had not cleared by the time he made the withdrawals. Despite this, Mr Klein's customer status at NAB was such that he was able to make the withdrawals from his account.[6]

9 On 5 February 2010, NAB sent a letter to Mr Klein informing him that the cheque by which the Funds were paid into his account was stolen and requesting that he replace the cheque.[7]

10 On 12 February 2010, Mr Klein responded by letter stating that NAB should contact the drawer's bank for a replacement.[8]

11 Subsequently, NAB and, in particular, Ms Rozlyn Ann Sims, a fraud investigator at NAB, provided information to the police concerning the above events. The circumstances of, and allegations surrounding, NAB's cooperation with the police are set out more fully below.

12 On 19 July 2012, Mr Klein was interviewed by Senior Detective Robert Baker. During that interview, Senior Detective Baker put the following to Mr Klein:

I'd put it to you that you've actively participated in a sophisticated fraud committed on the National Australia Bank.

...

I put it to you that you've actively participated in a scheme to launder money, ie, dealing in proceeds of crime in the circumstances that have been discussed here today. That no reasonable person would have conducted themselves in the manner that you've conducted yourself in the [sic] relation to the withdrawal of funds and that amount of money in those circumstances.

...

And I put it to you that your conduct is clearly suspect in as that anyone who was to find $314,000 and change in their bank account and then been asked to move - to write cheques to two companies that they've never heard - or two people or two business that they've never heard of before. Any reasonable person would've realised that there was something very fishy going on.

...

I put it to you, Maurice, that you have actively engaged in money laundering. That you've been contacted by a person known to you and agreed to this - this - this transaction of depositing the amount, the initial cheque and then withdrawing the two payable cheques from your account. You did all of that for what appears to be six and a half thousand dollars. And you've known you're [sic] complicit involvement in all that.[9]

13 Following that interview, Mr Klein was charged and bailed with obtaining financial advantage by deception, conspiracy to defraud, recklessly dealing with proceeds of crime, negligently dealing with proceeds of crime, knowingly dealing with proceeds of crime and obtaining property by deception.[10]

14 In the Summary of Charges, the police set out the conduct alleged against Mr Klein as follows:

The two successful frauds committed [include a]...stolen and valueless cheque made out in the amount of $314,270.95 deposited on 02/02/2010 into the account of the accused Maurice KLEIN.

...

The cheque clearance process normally takes 3 business days to occur. Some bank customers are exempt from the normal clearance process and are eligible to draw on funds immediately as trusted customers. Maurice KLEIN was in this category of NAB customer.

...

On 2/2/2010 the second cheque for $314,270.95 was deposited into the NAB account of Maurice KLEIN...at the Chadstone Branch of the NAB by an unknown person.

...

On 3/2/2010 Maurice KLEIN attended the NAB at Elsternwick where he withdrew $309,000.00 in 2 bank cheques and $2,000.00 in cash.

The two bank cheques were drawn in the favour of Mark Potter Automotive and Mario CIGANA in the amounts of $94,500 and $212,500.00 respectively. Both cheques have been presented by the named recipients and the funds have been withdrawn.

...

Maurice KLEIN was arrested at his Caulfield home on 19/07/2012 and interviewed regarding offences of Obtain Financial Advantage by Deception and Dealing in Proceeds of Crime.

When interviewed he denied any knowledge of the theft of the deposited cheques or any subsequent deception.

KLEIN stated he received the deposited money from a person he refused to identify and claimed that person was now deceased. He declined to state what he received the money for. He denied knowing a Grant ELLIOT or Grant ANGWIN.

KLEIN was charged and bailed with various deception offences and proceeds of crime offences.

KLEIN later provided an unsigned statement to investigators implicating Wayne JACOBSON in the cheque fraud. Subsequent investigation revealed numerous phone calls between KLEIN & JACOBSON and also JACOBSON & COOPER at the relevant dates of the KLEIN cheque deposit and the subsequent police involvement with JACOBSON & KLEIN.[11]

15 In the Hand Up Brief of Evidence, the charges of obtaining financial advantage by deception, recklessly dealing with proceeds of crime, negligently dealing with proceeds of crime, knowingly dealing with proceeds of crime and obtaining property by deception were based on the following conduct of Mr Klein:

(a) receiving the Funds to which he was not entitled;

(b) withdrawing the Funds, including by two bank cheques made payable to persons who were unknown to him; and

(c) giving those bank cheques to an unidentified third party.[12]

16 In the Hand Up Brief of Evidence, a second charge of obtaining financial advantage by deception was summarised as:

Between 2008 & 2012 the accused along with numerous other co-accused including Grant ELLIOT, Mark POTTER, Mario CIGANA and diverse others engaged in an organised and sophisticated scheme to defraud the National Australia Bank by depositing and attempting to deposit stolen and valueless cheques into various bank accounts, steal the deposited cheques before they were cleared and successfully draw on the fraudulently obtained credit to the bank accounts used to receive the valueless cheques.[13]

17 In the Hand Up Brief of Evidence, the charge of conspiracy to defraud was not summarised.[14]

18 In the Indictment, Mr Klein was only charged with recklessly dealing with the proceeds of crime and negligently dealing with the proceeds of crime.[15]

19 On 15 April 2014, the prosecution was discontinued by the Office of Public Prosecutions.[16]

Malicious prosecution - instigation of proceedings

20 In Beckett v New South Wales,[17] French CJ, Hayne, Crennan, Kiefel and Bell JJ held that the elements required to establish malicious prosecution are:

(1) the prosecution was initiated by the defendant;

(2) the prosecution terminated favourably to the plaintiff;

(3) the defendant acted with malice in bringing or maintaining the prosecution; and

(4) the prosecution was brought or maintained without reasonable and probable cause.[18]

21 In cases where, as here, the defendant is not the prosecutor, in order to satisfy the first element the plaintiff must establish that the defendant was 'actively instrumental' in instigating the prosecution.[19] In Skrijel v Mengler, Nettle J, summarising the authorities, held that 'actively instrumental' means:

...either instituting or continuing the proceeding, as by the laying of an information or continuing the prosecution of the proceeding, or so dominating another by prevailing upon them or procuring them to institute or continue the proceeding as to be regarded as really taking that action through them.[20]

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

...

(b) on the application of a defendant in a civil proceeding.

23 The principles that apply to an application under s 63 of the CPA are summarised by Dixon J in Ottedin Investments v Portbury Developments Co[21] as follows:

(1) If a proceeding or defence, or any particular claim, cause of action or ground of defence ("claim") is hopeless, untenable, bound to fail, or could not possibly succeed, then it ought be summarily dismissed. In other words, a claim which ought be dismissed under the old test will be dismissed under s 63.

(2) Section 63, however, is less stringent. It does not direct an inquiry into whether a certain and concluded determination could be made that the proceeding, or a claim, would necessarily fail. What is required is a practical judgment by the court as to whether a claim has more than a "fanciful" prospect of success.

(3) The court's discretion whether to exercise the power of summary dismissal is very wide. Section 64 of the Act expresses that the power is based in a consideration of the interests of justice. The Act provides direction in Part 2.1. The discretion is to be exercised to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties. The court's powers in furthering the overarching purpose are facilitated by having regard to the objects and matters set out in s 9 of the Act.

(4) The court may be satisfied, on an interlocutory application, that there is no real prospect of success in a civil proceeding but nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.

(5) The power to order summary dismissal is to be exercised with great care, as a trial upon evidence of issues raised is the well-settled approach to the determination of litigation. When proceeding on a summary application to assess the prospect of success, a judge ought to feel confident that an assessment can properly be made of whether the overarching purpose is facilitated on dismissal of the impugned claims.

(6) That argument directed to the issues relevant on the application, perhaps even extensive submissions, may be necessary to demonstrate that the case of the plaintiff has no real prospect of success is not ordinarily a relevant consideration.[22]

(Citations omitted).

24 I turn now to consider the allegations of Mr Klein that NAB was actively instrumental in instigating the prosecution.

25 As part of NAB's investigation in relation to the events referred to above, Ms Sims requested CCTV footage from the branch where the Funds were deposited and provided that footage to the police.[23] The footage that Ms Simms received and provided to the police was the wrong footage.[24]

26 Mr Klein alleges in his Statement of Claim that NAB falsely and misleadingly informed the police that Mr Klein deposited the cheque and that the CCTV footage captured Mr Klein doing so ('Depositor Identity Information').[25]

27 In support of the Depositor Identity Information allegation, Mr Klein cites the Transcript of Interview dated 19 July 2012 in which Senior Constable Baker is recorded as saying:

I'm just reading the NAB investigation file that they've forwarded to us and -they state that "on the 2nd of February, 2010, NAB customer, Mr Maurice Klein," and your address, "deposited a cheque in the amount of $314,270.95 at NAB Chadstone Branch. CCTV footage captured".[26]

28 Mr Klein alleges that, in part, by reason of NAB providing the Depositor Identity Information to the police, NAB was actively instrumental in instigating his prosecution.

29 For completeness, I set out this allegation from the Statement of Claim:

NAB initiated and/or was actively instrumental in the arrest and prosecution of the Plaintiff and unduly influenced the independent discretion of the Informant by providing false and misleading information...and failing to provide the Informant with crucial material information...by reason of which and in reliance upon which the Informant arrested the Plaintiff, commenced and maintained the prosecution.

PARTICULARS

...

[NAB] Falsely and misleadingly informed the Informant that on the 2 February 2010 the Plaintiff deposited a cheque ("the cheque") drawn on the ANZ Bank on the account of a person by the name of WP & DD Beavers in the amount of $314,270.95 being "a valueless" cheque at NAB Chadstone branch and that CCTV footage thereof was captured. Further NAB advised that the Plaintiff completed the deposit form as required and went to the teller to have the transaction processed.[27]

30 In her affidavit, Ms Simms deposed that she did not know what Mr Klein looked like and that she did not tell the police that the CCTV footage showed him depositing the cheque.[28]

31 It is not necessary to decide whether or not Mr Sims did in fact provide the police with the Depositor Identity Information as alleged by Mr Klein. Even if Mr Klein's allegation is made out, it cannot provide a basis for alleging that NAB was actively instrumental in instigating the prosecution.

32 As submitted by Ms Costello, Counsel for NAB, during the police interview on 19 July 2012, Mr Klein made it clear that he was not the individual who deposited the cheque.[29] Later in the interview, after inspecting the CCTV footage with Mr Klein, Senior Constable Baker said:

I think whoever has pulled the videos jumped to the...incorrect conclusion. Alright. So what did you think when the person who called you to tell you about the depositing of that large amount of money into your account and asking you to withdraw it in the manner in which - and the amounts that he did, what did you think at that point in time?[30]

33 It is apparent, at least by the end of the interview on 19 July 2012, Senior Constable Baker did not believe that Mr Klein deposited the cheque nor that the CCTV footage captured him doing so. Following this interview, Mr Klein was charged with the offences set out above. As is evident from the Summary of Charges, the conduct relied upon by police does not include Mr Klein depositing the cheque.[31]

34 Thus, even if Ms Simms provided the police with the Depositor Identity Information, there is no causal link between this information and the decision of the police to prosecute and therefore it cannot ground a claim that NAB was actively instrumental in instigating the prosecution.

35 In his Statement of Claim, Mr Klein alleges that, by virtue of providing the Depositor Identity Information to the police, NAB was instrumental in not only instigating his prosecution, but also his arrest.[32] It is not clear on the evidence before me whether the Depositor Identity Information, if it was indeed provided to the police, was causative of Mr Klein's arrest.

36 In any event, Mr Klein's arrest is not relevant to this analysis. As was held in Mutton v Baker & Anor,[33] arrest is insufficient to ground a claim in malicious prosecution as it does not involve the processes of court.[34] It is only once court processes have been invoked or commenced, as at the point where Mr Klein was charged with the offences, that a prosecution will have been commenced such that a claim may be made in malicious prosecution.

37 Mr Klein further alleges that NAB was actively instrumental in instigating the prosecution because NAB gave the police false information as to his customer status and failed to inform the police of other information regarding his customer status. These allegations concern a change to Mr Klein's customer status with the NAB; the change meant Mr Klein was able to withdraw funds without a cheque having cleared. Mr Klein alleges that these changes were made based on false information and without Mr Klein's consent or knowledge.

38 These allegations are set out as follows in Mr Klein's Statement of Claim:

NAB initiated and/or was actively instrumental in the arrest and prosecution of the Plaintiff and unduly influenced the independent discretion of the Informant by providing false and misleading information ... and failing to provide the Informant with crucial material information ... by reason of which and in reliance upon which the Informant arrested the Plaintiff, commenced and maintained the prosecution.

PARTICULARS

[NAB] [f]alsely and misleadingly informed the Informant that the Plaintiff was deemed by NAB to be a trusted long-term and valued customer when NAB knew that he was not.

...

[NAB did not inform the police that it:]

(iii) Knew of the NAB alterations;[35]

(iv) Knew that the Plaintiff did not satisfy the NAB's protocols for describing a customer as a trusted long-term and valued customer;

(v) Knew that the Plaintiff did not satisfy the NAB's protocols for being provided with a temporary credit limit;

(vi) Knew that the Plaintiff did not request any of the NAB alterations;

(vii) Knew that the Plaintiff was not informed by the NAB of the NAB alterations;

(viii) Knew that the purpose and effect of the NAB alterations was to facilitate alleged offences which were the subject of the investigation by the Informant and which inter alia; substantively comprised the charges.[36]

(Collectively, the information referred to in these paragraphs is defined as the 'Customer Status Information').

39 It is not clear how Mr Klein alleges that the Customer Status Information was causative of his prosecution. In the outline of written submissions in support of his response to this application, it was submitted on behalf of Mr Klein:

If Simms had advised the police that Klein's withdrawal of funds was legal and was according to NAB protocols without any connection to a NAB insider then Klein would not have been arrested and prosecuted on 9/7/12.[37]

40 The submission contradicts the allegations made in Mr Klein's Statement of Claim. That is, in his Statement of Claim, Mr Klein alleges that NAB did advise the police that his ability to withdraw funds was according to NAB protocols without any connection to a NAB insider.[38] For this reason, I assume that Mr Strang in fact meant to submit:

If Simms had [not] advised the police that Klein's withdrawal of funds was legal and was according to NAB protocols without any connection to a NAB insider then Klein would not have been arrested and prosecuted on 9/7/12.

41 In any event, even on this interpretation of the submission, it fails to explain any causal connection between the Customer Status Information and the prosecution, other than to assert that one exists.

42 In oral submissions, when pressed for an answer as to how the Customer Status Information persuaded the police to prosecute Mr Klein, Mr Strang responded:

... he was only able to withdraw from the account because there had been apparently someone at the NAB who facilitated his ability to draw on the uncleared cheques;[39]

... [and]

had [NAB] not been misleading in advising the police that he was a long term trusted customer, the police may well have formed the view that he was an innocent victim of people who had been conspiring with insiders at the bank and they didn't do so - they didn't form that view because the bank erroneously and misleadingly told the police that he was a long term trusted customer and because someone had altered his account when clearly there were warnings on the account in January 2010.[40]

43 Again, it is not clear from these submissions just how Mr Klein contends that the alleged provision or withholding of the Customer Status Information caused the police to prosecute him.

44 As I understand the submission, Mr Klein is suggesting that, had the police known that an employee of NAB was involved in changing his customer status, then they would have been more likely to view him as innocent. This submission is misconceived. Firstly, the involvement of others does not change the nature of the conduct which resulted in Mr Klein being charged. During the interview on 19 July 2012, Senior Constable Baker described the conduct of Mr Klein, namely that he withdrew the money in cheques made out to individuals unknown to him, as being 'fishy' in and of itself.[41] This was the conduct giving rise to the charges; the Customer Status Information was irrelevant. Secondly, it is apparent on the evidence that, at some time before or during the prosecution of Mr Klein, police became aware of an allegation that someone internal to NAB was involved in these or related offences. The Summary of Charges refers to a file note prepared by Ms Simms which states that one of the alleged conspirators 'knew someone high up in NAB that could get this transaction through for him'.[42] In contradiction of the allegation made by Mr Klein, the police, aware of this aspect of the Customer Status Information, decided to instigate or continue the prosecution.

45 In submissions, Mr Strang also appeared to submit that, had the police known that Mr Klein's customer status was changed without his knowledge or consent, they would have been less likely to prosecute him. I reject the submission. The charges laid against Mr Klein had nothing to do with his knowledge or involvement in the changing of his customer status. Upon a reading of the Record of Interview, the Summary of Charges, the Hand Up Brief of Evidence and the Indictment, it is clear the decision made by police to prosecute Mr Klein concerned the actual withdrawal of funds. Customer status was only referred to by police as a background consideration. Whether Mr Klein knew of or consented to a change of his customer status was immaterial to police considerations to prosecute. It was Mr Klein's conduct in withdrawing the funds that was the basis for the prosecution.

46 I note, in the Hand Up Brief of Evidence, that the second charge of obtaining financial advantage by deception refers to 'fraudulently obtained credit', which may be a reference to Mr Klein's customer status.[43] This does not impact on my analysis as no allegation is made in any of the materials, including in particular the Summary of Charges that immediately precedes the second charge of obtaining financial advantage by deception, that Mr Klein had knowledge of, consented to or was in any way involved in the amendment to his customer status.

47 That the Customer Status Information was provided to or withheld from the police was not a consideration in the decision of the police to prosecute Mr Klein; it cannot ground an allegation that NAB was actively instrumental in instigating the prosecution.

48 In this case, I find that Mr Klein's claim does not have reasonable prospects of success. Mr Klein has not satisfactorily alleged a key element of the cause of action of malicious prosecution, namely that NAB was actively instrumental in instigating the prosecution; the conduct alleged by Mr Klein is 'insufficient by itself to ground an action in malicious prosecution', and therefore 'that part of the claim has no real prospect of success'.[44]

49 The reason that Mr Klein has no reasonable prospects of making out his allegation is that the conduct of NAB, which he alleges establishes that NAB was actively instrumental in instigating or continuing the prosecution, is not causally connected to the decision of the police to prosecute him.

50 At the very least, in order to establish that a defendant was actively instrumental in instigating or continuing the prosecution, there must be a causal link between the conduct of the defendant the subject of that allegation and the decision of the police to prosecute. In Commercial Union Assurance Co of New Zealand Ltd v Lamont,[45] Richardson J stated that:[46]

The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution.

(Emphasis added).

51 By way of example, in Skrijel v Mengler, the plaintiff alleged that evidence had been falsified regarding his thumb print.[47] Nettle J held that this information could not give rise to a finding that the defendant had been actively instrumental in instigating the prosecution because this information was not known until after the initial charges had been brought, and therefore could 'not have led to the laying of the initial charges'.[48]

52 Similarly, in Johnston v ANZ Banking Group Ltd & Ors,[49] Hoeben J held that the plaintiff's allegations that the defendant, in providing information to the police, had been actively instrumental in the prosecution could not be made out. His Honour found the information provided by the defendant to the police could not have given rise to the charges laid because it was either irrelevant to the first charge[50] or was provided to the police subsequent to them becoming aware of the circumstances the subject of the second charge.[51]

53 Mr Strang, Counsel for Mr Klein, directed me to the decision of JBS Southern Aust v Westcity Group Holdings,[52] in which Croft J held that, despite the fact that 'the court had doubts as to the prospect of success of [the] defendant's claims', the proper course, in a situation where the case involves significant sums of money and is complex, would be to 'exercise the discretion under s 64 and to require a full trial of the claims'.[53]

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

55 I do not agree that this is such a case. In the sense meant by Croft J in JBS Southern Aust v Westcity Group Holdings, this is not a complex claim, nor would it likely involve substantial sums of money if damages were to be awarded. Mr Strang did not direct me to any further extenuating circumstances which would warrant a refusal to dismiss the proceedings despite the fact that the claim has no reasonable prospects of success. Further, as submitted by Ms Costello, it would be inappropriate for me, and contrary to the provisions of the CPA,[54] to allow a claim to proceed in circumstances where 'the assertions that are made [as at the time of the hearing] do not give rise to reasonable grounds for the plaintiff's case'.[55]

56 There was some confusion at the hearing as to whether or not NAB's application should properly have been brought under r 23.01 or r 23.03 of the Rules.[56] I do not accept the relevant rule is r 23.01 of the Rules. The changes to the Rules to which Ms Costello referred commenced on 4 May 2015,[57] the summons was filed on 22 April 2015. In any event, and consistently with s 65 of the CPA, I have made this decision under s 63 of the CPA and therefore I do not need to resolve this question.

57 As Mr Klein's allegations regarding the Depositor Identity Information and the Customer Status Information cannot ground a claim that NAB was actively instrumental in instigating or continuing the prosecution, Mr Klein has no reasonable prospects of making out the first element of the tort of malicious prosecution. It is on this basis that I dismiss the proceedings pursuant to s 63 of the CPA.

58 During the hearing, I understood Mr Strang to submit that the application the subject of the hearing was not a summary judgment application.[58] I do not accept this submission. By summons filed 22 April 2015, NAB sought an order that Mr Klein's claim be struck out pursuant to s 63 of the CPA, r 23.01 of the Rules or the Court's inherent jurisdiction. This was clearly an application for summary judgment.

59 It appears that this submission may have been directed towards the level of scrutiny of Mr Klein's claim during the hearing by both myself and counsel for NAB. If Mr Strang was in fact submitting that the hearing had been taken further than was appropriate for an application for summary judgment, then I do not accept this submission. It is apparent from the authorities that extensive argument and submissions regarding issues relevant to the proceeding will be appropriate in certain summary judgment applications.[59] Further, all submissions that have influenced my decision were directed toward the relevant question in such an application, namely, whether the respondent to the application has a real chance of success.

60 Finally, it is important to note that at the hearing on 24 April 2015, I did not allow for the hearing of this application to be delayed in order that Mr Klein could seek further documentary evidence in the form of discovery from NAB to 'bolster [his] resistance to this application'.[60] At the hearing on 19 June 2015, Mr Strang indicated that such a course of action was appropriate for the hearing of a summary judgment application.[61]

61 For the sake of completeness, I note that there was much documentary evidence placed before me in support of Mr Klein's claim. As is set out above, I have not made summary judgment dismissing Mr Klein's claim because of any lack of evidence of the allegations made by him. Rather, I have made this decision on the basis that the allegations made by Mr Klein cannot ground a claim in malicious prosecution.

[1] Amended Defence, filed 28 April 2015, pars. 7(b)(ii) and (iv).

[2] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-1, pars. 1 and 5.

[3] Amended Defence, filed 28 April 2015, par. 7(c)(iii).

[4] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, par. 3(f)(ii); Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-1, pars. 5-7.

[5] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, Exhibit RS-2, Transcript of Interview, page 11, Qs 67-68.

[6] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, par. 13.

[7] Affidavit in reply of Maurice Klein, sworn 22 May 2015, pars. 7-8; Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, par. 3(g).

[8] Affidavit in reply of Maurice Klein, sworn 22 May 2015, pars. 9-10; Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, par. 3(h).

[9] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, Exhibit RS-2, Transcript of Interview, pages 29-30, 32.

[10] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-9, Hand Up Brief of Evidence.

[11] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-8, Summary of Charges.

[12] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-9, Hand Up Brief of Evidence.

[13] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-9, Hand Up Brief of Evidence.

[15] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-14, Indictment.

[16] Statement of Claim dated 19 December 2014, particulars to par. 9; Affidavit in reply of Maurice Klein, sworn 22 May 2015, par. 51.

[17] [2013] HCA 17; (2013) 248 CLR 432.

[19] Skrijel v Mengler [2003] VSC 270, [200] (Nettle J).

[20] Skrijel v Mengler [2003] VSC 270, [200] (Nettle J).

[21] (2011) 35 VR 1.

[22] Ottedin Investments v Portbury Developments Co (2011) 35 VR 1, 8-9 [18]. See also Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, [35] (Warren CJ and Nettle JA).

[23] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, pars. 5-6.

[24] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, par. 7.

[25] Statement of Claim dated 19 December 2014, particulars to par. 7.

[26] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, Exhibit RS-2, page 17 (Q 109). Affidavit in reply of Maurice Klein, sworn 22 May 2015, par. 34.

[27] Statement of Claim dated 19 December 2014, par. 7 and the particulars thereto.

[28] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, par. 6.

[29] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, Exhibit RS-2, Transcript of Interview, page 18 (Q 112).

[30] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, Exhibit RS-2, Transcript of Interview, page 22 (Q 143).

[31] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-8, Summary of Charges, par. 30. See Summary of Charges, par. 30.

[32] Statement of Claim dated 19 December 2014, par. 7.

[33] [2014] VSCA 43.

[34] Ibid, [37] (Santamaria JA, with whom Whelan JA agreed).

[35] The 'NAB alterations' refer to, broadly, the changes made to Mr Klein's customer status.

[36] Statement of Claim dated 19 December 2014, par. 7 and particulars thereto.

[37] Plaintiff's Submissions dated 19 June 2015, par. 13.

[38] The Customer Status Information as alleged in the Statement of Claim accords, at least to a certain extent, with the information referred to in this submission.

[39] Supreme Court Transcript ('Transcript'), at 61.25-28.

[41] Affidavit of Rozlyn Ann Simms, sworn 20 April 2015, Exhibit RS-2, Transcript of Interview, page 30 (Q 191).

[42] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-8, Summary of Charges, par. 1.

[43] Affidavit in reply of Maurice Klein, sworn 22 May 2015, Exhibit MK-9, Hand Up Brief of Evidence.

[44] Mutton v Baker & Anor [2014] VSCA 43, [37] (Santamaria JA, with whom Whelan JA agreed).

[45] [1988] NZCA 247; [1989] 3 NZLR 187.

[46] Ibid, 199 (Richardson J) (cited in Skrijel v Mengler [2003] VSC 270, [202] (Nettle J)).

[47] Skrijel v Mengler [2003] VSC 270, [45] (Nettle J).

[49] [2004] NSWSC 1250.

[50] Johnston v ANZ Banking Group Ltd & Ors [2004] NSWSC 1250, [44]-[45] (Hoeben J).

[52] [2011] VSC 476.

[54] See for example ss 9(1)(c), (d), (f) and (g) of the CPA.

[57] Supreme Court (Chapter I Summary Judgment Amendment) Rules 2015, S.R. No. 29/2015.

[59] Ottedin Investments v Portbury Developments Co (2011) 35 VR 1, 9 [18] (Dixon J).