Consideration
23 It is a unique feature of Mr Psevdos' application that he does not presently have in his possession the further evidence he seeks to adduce on the appeal. Nor is Mr Psevdos in a position to give a meaningful summary of the testimony that would be given by the three proposed witnesses, assuming that he was to be granted leave to issue subpoenas to them, and also assuming that he was to be granted leave to cross examine the witnesses on limited topics or otherwise at large.
24 In an affidavit sworn on 27 November 2015 in support of his application to have the Bankruptcy Notice set aside, Mr Psevdos deposed to matters arising in the Supreme Court proceedings in connection with the Bugle Ranges property. He claimed that it was the CBA's case at trial that "the deposit of five titles pertaining to the security property was made with its authorised purported employee" Mr Peter Marshall. He stated that it had come to his attention after the conclusion of evidence in the Supreme Court proceedings that Mr Marshall was not an employee of CBA but an independent contractor. He states that he had brought Mr Marshall's true employment status to the attention of the Honourable Justice Parker by making an application to adduce further evidence in those proceedings on 29 April 2015. Mr Psevdos goes on to state:
42. To wit: the application mentioned above was unsuccessful. Mr Marshall's employment status is questionable and when that fact was drawn to the attention of the Court, the Honourable Justice Parker deemed it irrelevant on 30th April 2015 and then proceeded to deliver his Judgment. His Honours decision to proceed regardless of fact has disturbed me greatly.
43. The non-discloser of Mr Marshall true employment status at the trail was unfair and deceitful by design I believe. The expression 'by design' is employed in this affidavit with the intention to mean: the non-discloser was as a result of a plan to conceal the fact.
(grammar and emphasis retained)
25 I should say that Mr Psevdos' submissions before me used the phrase "fraud" in the same sense described in that passage of his affidavit. It is apparent from that evidence that Mr Psevdos subjectively believed, from at least 29 April 2015, that the evidence given in the Supreme Court proceedings was intentionally false. That is the same subject matter in respect of which Mr Psevdos now seeks to cross-examine Mr Marshall on this appeal, again assuming he could compel the attendance of that witness by the issue of a subpoena.
26 In his grounds of appeal before this Court, Mr Psevdos contends that the learned primary judge erred in declining to go behind the Allocatur and to accept that judgment and associated interest as satisfactory proof of the debt owing to CBA. The appeal, to that extent, is an appeal against the exercise of a discretion, albeit a discretion in the limited sense described by Barwick CJ in Wren v Mahony (1972) 126 CLR 212. After reviewing the authorities concerning the duty of a bankruptcy court to determine whether there is, in truth, a debt owing to a crediting petitioner, Barwick CJ said at 224-5, (Windeyer and Owen JJ agreeing):
It is not the law, in my opinion, that whether in any case the Court of Bankruptcy will consider whether there is satisfactory proof of the petitioning creditor's debt is a mere matter of its own discretion. Nothing in Corney v Brien lends support for such a view. Rather the emphasis is upon the paramount need to have satisfactory proof of the petitioning creditor's debt. The Court's discretion in my opinion is a discretion to accept the judgment as satisfactory proof of that debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner.
(citation omitted)
27 Insofar as the judgment appealed against involved the exercise of a discretion in that limited sense, Mr Psevdos has the onus of establishing appealable error in accordance with the principles explained in House v The King (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ). He must otherwise establish that the Allocatur was not satisfactory proof of the alleged debt and that the learned primary judge erred in failing to identify that there were substantial reasons for questioning it. He might in that regard submit that the learned primary judge expressed or otherwise applied the test wrongly. I am not presently concerned with that question. In the present context, these interrelated questions involve the evaluation of evidence, the ascription of weight, the finding of facts and (at least where oral testimony is concerned) the assessment of credibility: all being incidents of the exercise of original jurisdiction in respect of which appellate courts must ordinarily exercise restraint: Fox v Percy (2003) 214 CLR 118.
28 Mr Psevdos makes the present application in circumstances where he did not seek to compel the attendance of the witnesses before the Federal Circuit Court. He alleges no breach of the rules of procedural fairness in the Federal Circuit Court denying him the opportunity to do so.
29 I am satisfied that Mr Psevdos was in just as good a position in the Federal Circuit Court to make an interlocutory application of the kind now made before this Court, and yet he has not advanced an adequate explanation as to why he did not do so. Notwithstanding his status as a self-represented litigant, I infer from the content, volume and tenor of Mr Psevdos' evidence and submissions that he continually alleged fraud on the part of CBA, its employees and other representatives from the outset of the original property dispute. His failure to seek to adduce or obtain (by compulsion or otherwise) the proposed evidence in the Federal Circuit Court cannot be regarded as a mere oversight on the part of a self-represented litigant. As a consequence, this Court on appeal is denied the benefit of any assessment by the learned primary judge of the evidentiary material now sought to be introduced, and the benefit of reasons for any discretion that might have been exercised by reference to it.
30 In all of the circumstances, the receipt of further evidence on this appeal would undermine the important demarcation between the exercise of original and appellate jurisdiction to such an extent that leave to adduce the evidence should be refused.
31 There are further reasons for refusing the relief sought.
32 Put simply, Mr Psevdos does not know the content or effect of the evidence upon which he proposes to rely. He seeks not only to adduce further evidence on the appeal, but to use the processes of this Court to compel the production of a document and to compel the attendance of witnesses to testify so that the forensic value of the evidence may be revealed to him. His actual purpose for compelling the attendance of the witnesses is not correctly stated on the Amended Interlocutory Application. Mr Psevdos does not seek to have the witnesses "verify the veracity of the evidence before the Honourable Court". On the contrary, Mr Psevdos seeks to challenge the veracity of the evidence given by the witnesses in other proceedings so as to persuade this Court that the Supreme Court judgment was affected by fraud and that the learned primary judge erred in failing to act on that basis.
33 Further, Mr Psevdos has not articulated with any precision how any revelation concerning Mr Marshall's status as an independent contractor would alter the circumstance that the Supreme Court found in favour of CBA in relation to the substantive property dispute before it nor how any new revelation about Mr Marshall's contractor status would have affected the Costs Order (which he did not oppose) nor how any such revelation would have affected the issue of the Allocatur (to which he consented). It is conceivable that a party in Mr Psevdos' position might not have consented to a costs order had he or she known that evidence advanced by a party in the proceedings was incorrect or deliberately false, but he has not sought to give evidence before this Court to that effect. It is to be borne in mind that it is the Allocatur that comprises the judgment debt upon which CBA's Petition was based.
34 I turn now then to the CBA's claim for legal professional privilege in relation to the RiskinSite Report. Further, I am not satisfied that CBA's claim for legal professional privilege in respect of a part of the RiskinSite Report is improperly made. In an affidavit sworn on 5 August 2016 in opposition to this application, CBA's solicitor, Ms Jones, deposed:
I was the practitioner responsible for the claim of Legal Professional Privilege in respect of the Document. The section that is the subject of the redaction comprises a reference to legal advice received by CBA from my firm, Fisher Jeffries (Gadens), the effect of which is restated in the Document. I was instructed that CBA maintained the claim of privilege at the time of the relevant redaction. I am instructed that CBA continues to maintain the claim of privilege.
35 No application was made by Mr Psevdos to cross-examine Ms Jones, nor was I invited by either party to inspect for myself the unredacted portion of the document so as to make my own assessment as to whether or not, on its terms, it evidenced a proper or improper claim for legal professional privilege. Mr Psevdos' submissions in connection with the document were to the effect that the document is a business record, being a category of document in respect of which he submits a claim for legal professional privilege could not properly be made. In that regard, he submitted that the test for the existence of legal professional privilege was one directed at the dominant purpose of the document itself.
36 I reject Mr Psevdos' submission that a document having the status of a business record cannot contain material subject to legal professional privilege. To conclude that a document meets the description of a business record within the meaning of the Evidence Act 1995 (Cth) or the Evidence Act 1929 (SA) is to say nothing more than that the document may, subject to other criteria, be admissible in evidence for a hearsay purpose. The rules concerning the admissibility of hearsay evidence have no bearing on the question of whether a communication is subject to legal professional privilege. They are unrelated concepts.
37 Further, Mr Psevdos' submissions fail to recognise that legal professional privilege attaches to a communication and not to a document. Where a document contains material that would, if disclosed, cause confidentiality to be lost in an otherwise privileged communication, then a claim of legal professional privilege may be made in respect of that part of the document so as to preserve the confidentiality in the communication. The redaction of the document in those circumstances involves the proper exercise of a legal right and does not, of itself, evidence a motive to conceal evidence of fraud.
38 Nor am I satisfied on the material referred to by Mr Psevdos that there is proven conduct on the part of CBA that is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect in the sense described in Mann v Carnell (1999) 201 CLR 1 (at [29]).
39 Finally, it is to be borne in mind that Mr Psevdos obtained the redacted RiskinSite document under compulsive disclosure processes in the Supreme Court prior to judgment being entered in those proceedings. Mr Psevdos has not exhausted his rights to challenge the sufficiency of CBA's disclosure or production in that Court.
40 There is, on this appeal, no compulsive process requiring the disclosure of the RiskinSite report, whether in its redacted or unredacted form, rather Mr Psevdos requires leave to issue a subpoena so as to compel its production.
41 The grant of leave should, in all of the circumstances be refused irrespective of whether the content of the document is subject to legal professional privilege.
42 The Amended Interlocutory Application should be dismissed.
43 In dismissing the Amended Interlocutory Application, I should not be understood as making any determination of the merits of Mr Psevdos' grounds of appeal. It remains to be determined whether the learned primary judge erred in finding that there was, in truth and reality, a debt owing to CBA by Mr Psevdos, and whether the learned judge erred in declining to go behind a judgment of the Supreme Court when deciding that question. Those issues are to be determined on this appeal by reference to the material properly before the learned primary judge at the time that the Sequestration Order was made.
44 I will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.