Simonovski & Anor v Bendigo Bank Limited [2005] VSCA 125

3 Having had the advantage of reading the reasons for judgment prepared by Nettle, J.A., I agree that the appeal should be dismissed, for the reasons given by his Honour.

4 This is an appeal from a judgment given in the Common Law Division following a lengthy trial before judge alone. The appellants' case below was that in or about late January 1989 they made two deposits of foreign currency with the Bendigo Building Society as it then was ("the bank") at its Sunshine branch. The first was equivalent in amount to about $122,000 and the second was said to be worth approximately $650,000. The appellants claimed that they dealt on each occasion with the branch manager, Frank Panebianco, and that on the first occasion Mrs Janevski's brother, Milutin (Mick) Janevski, was also present. They also alleged that they were issued with a passbook for each deposit and they produced what purported to be a Bendigo Building Society passbook for account no. 0801 (recording

a deposit of $122,000) and a second Bendigo Building Society passbook for account 1089 (recording a deposit of $650,000). They claimed that the bank was indebted to them for a substantial part of the $122,000 and all of the amount of $650,000, and in each case for a considerable amount of interest.

5 The bank denied that it had ever been in a banker and customer relationship with the appellants and denied that it was indebted to the appellants in any amount at all. It contended that account 0801 was an account created by Panebianco at the request of Mick Janevski with the intention that it be operated by Mr Janevksi and his wife "under the alias" of the appellants, and that the funds to constitute the account came from other accounts in the names of P. Kristic, P. Nastevski and R. Simonovic. In the alternative the bank averred that if the appellants did deposit any moneys into account 0801, the bank thereafter paid out amounts totalling $139,835.86 to other accounts styled "Jansen" and "Hilli" (and further moneys, bringing the total to $169,267.72, "to the plaintiffs' agents Mr Milutin and Mrs Olivera Janevski") from a variety of sources, including three branch suspense accounts and accounts in the names of T. Jovanovski and T. Simic.

6 The judge found that there was a meeting of the appellants and Panebianco on 31 January 1989; that the appellants had on that occasion deposited Deutschmarks equivalent in value to about $122,000 with Panebianco; that the sum of $122,000 had been credited to account 0801; and that Panebianco had later misappropriated those moneys for his own purposes. His Honour held accordingly that the bank was indebted to the appellants on account 0801 in the sum of $122,000 and for interest on that amount.

7 The judge was not satisfied, however, that the appellants had proved their claim in respect of account 1089, and thus he dismissed it. As his Honour explained, there was a range of considerations which led him to that conclusion, which included in particular:

• First, that the passbook produced in respect of account 1089 bore a number of features suggesting that it was not created by Panebianco, and indeed may not have been brought into existence until years after the $650,000 deposit was alleged to have been made.

• Secondly, that the appellants did not make any enquiries as to the state of account 1089 from shortly after the time that it was alleged to be established in January 1989 until January 2001. The judge thought it remarkable that a person making a deposit of $650,000 would be so uninterested about it as to refrain from making any enquiries for the better part of 11 years.

• Thirdly, that the appellants learned in September 1999 that Panebianco had stolen moneys deposited with him on 31 January 1989, and at that time they instructed solicitors to institute proceedings for the recovery of the $122,000. But they did not then say anything to their solicitors or apparently anyone else about the alleged deposit of $650,000, and they did not assert a claim in respect of the alleged $650,000 deposit until January 2001. The judge rejected as improbable the appellants' evidence that they delayed in asserting their claim in respect of the alleged $650,000 deposit in order to preserve secrecy, or because they retained some confidence that the alleged $650,000 deposit was safe, or because they thought it to be a matter best dealt with by Mr Simonovski personally when he travelled to Australia.

8 The appellants contend that the judge was wrong to reject their claim on account 1089. They submit that his Honour made a number of specific errors of fact and that his Honour erred in law as to the burden of proof in respect of the account 1089 passbook. In the alternative they contend that the judge's conclusion was against the evidence and the weight of evidence.

The facts

9 The first appellant, Mr Simonovski, was born in Macedonia in Yugoslavia[2] on 30 November 1946 and is a restaurant owner and businessman. The second appellant, Mrs Simonovksi, was born in Macedonia on 21 April 1955. Mr Simonovski migrated to Sweden in 1967 and Mr and Mrs Simonovski met and married in Macedonia in 1975.

10 Mrs Simonovski's brothers, Mick and Victor Janevski, migrated to Melbourne in the late 1960s or early 1970s and married and remained in Australia, and Mrs Simonovski's parents migrated to Melbourne in about 1976 and have lived here ever since. By the end of 1988, Mick and his wife, Olivera Janevski, had established three toy and gift shops and an import business.

11 In 1986, the appellants and their three children obtained permanent residency visas for migration to Australia. They were valid until 9 March 1987 for an indefinite stay. Mr Simonovski obtained a resident visa on 26 March 1987 for travel before 8 March 1990 and Mrs Simonovski and the appellants' children obtained a resident visa on 29 April 1988 for travel as migrants before 7 December 1988 and for travel before 7 December 1991.

12 Mr Simonovski first visited Australia over the period 8 March 1987 to 8 April 1987. He stayed with Mrs Simonovski's family in Melbourne, examining business opportunities and visiting Mick and Olivera Janevski's toy and gift business at the Sunshine Plaza Shopping Centre on a number of occasions. Their business was located a few shops from the Sunshine branch of what was then the Bendigo Building Society and is now the bank, and they were longstanding customers of the bank with several business and personal accounts and accounts in the names of their companies, Jenski Nominees Pty Ltd and Vicmar Pty Ltd. During Mr Simonovski's visit, they introduced Mr Simonovski to the manager of the Sushine branch, Frank Panebianco, with whom they had dealt since 1985. But Mr Simonovksi did not have any business dealings with Panebianco or otherwise with the bank during that visit.

13 On 4 December 1988, the appellants and their children returned to Australia. They brought with them a large amount of foreign currency and traveller's cheques resulting from what they alleged were sales of businesses and properties and other earnings. They had the opportunity of settling in Australia but they had not made a final decision.[3] Mrs Simonovski wanted to settle here with Mrs Simonovski's brothers and parents. But Mr Simonovski was not as enthusiastic. He came from a family that was wealthy before the communists came to power in Yugoslavia and his businesses and family were in Sweden and Macedonia. He also spoke little English and Mrs Simonovksi spoke none. They remained in Australia until 1 February 1989 and then returned to Sweden where they have since resided.

14 Before returning to Sweden, however, on 31 January 1989 the appellants went with Mick Janevski to the Sunshine branch of the bank and opened account 0801 with a deposit of Deutschmarks which, following conversion, came to the value of about $122,000. According to the evidence, they handed the Deutschmarks to Panebianco and signed a Letter of Instruction authorising the bank to pay and honour all withdrawals on the account if signed by Mr Mick Janevski of 48 Melaleca Drive, Thomastown 3074. Panebianco then entered the account and other details on the bank's retail finance system (RFS) computer system using one of the branch computer terminals, and produced from the system an account 0801 passbook recording the details of the deposit. The RFS system recorded the appellants as customers at 12.08 p.m. with the customer number of 1575604, and allocated to them an account number 0801 at 12.21 p.m. The judge found that the label on the rear side of the account 0801 passbook had been printed by a dot matrix printer used by the bank, probably an Olivetti PR 2845, connected to the RFS system. That type of printer was particularly equipped for use in a financial institution and could not be bought off the shelf.

15 There was a conflict of evidence about account 1089. Unlike account 0801 it was not established on the bank's RFS computer system. The appellants' evidence was that after leaving the meeting concerning account 0801 they chanced to meet Panebianco in a café where they were lunching near the bank and that he there persuaded them to return with him to the bank in order to make the deposit of $650,000 worth of Deutschmarks. They swore that once back at the bank they had handed over the Deutschmarks to Panebianco and that Panebianco had given them a passbook for account 1089 evidencing the deposit. They produced that book. Panebianco swore that there was only one meeting on 31 January 1989, and he denied ever receiving a deposit of $650,000 and any knowledge of the account 1089 passbook.

16 There was a considerable amount of expert evidence about the authenticity of the account 1089 passbook. It was established that the book was in the December 1988 form or print run, which was in use at the bank as at January 1989 but which ceased to be used in the early 1990's, and that the book label had been printed with a dot matrix printer which was the same as or similar to the printer used to print the label on the account 0801 passbook. Dr Found (who was one of the bank's experts) gave evidence that the labels on the account 0801 and 1089 passbooks were directly superimposable and he observed that they had a common font, with common spacing between the characters, spacing between the words where the pins struck the paper and the formatting of the account number and the address itself. The judge observed that the label on the account 1089 passbook closely matched the label produced for the account 0801 passbook.

17 Dr Found and Dr Whitehouse (who was one of the appellants' experts) were, however, both of the view that the book label could not have been printed by the RFS system. The account number 1089 was not capable of being allocated by the system and thus it followed that the label had to have been printed while the printer was off-line. The judge found that the label could not have been printed on-line.

18 It was common ground that the label could have been printed by a bank printer taken off-line. But Dr Found considered that it would have been an extremely difficult thing to do if starting from scratch. He stated that one would have "a devil of a time" purchasing a computer with the appropriate software drivers, and that one would have to "play around" with the output to get the correct font, formatting the actual information and the interline spacing; running a few test prints to see if they were superimposable, and then finally, assuming that one had a blank passbook, putting that through the printer and hoping that it printed correctly. Mr. de Simone, another of the appellants' experts, thought that it could be done more easily. But the judge was not persuaded that Panebianco had the time or skill to have done it on 31 January 1989.

19 Other evidence established that a carbon ribbon typewriter had been used to make two notations on the account 1089 passbook. The first was the words "Building Society Bank" on the front cover. The second was the words and figures on the first line of the inside portion. There was a carbon ribbon typewriter at the bank's Sunshine branch in January 1989. But there was no way of determining whether the entries had been made with that typewriter or another. Bank passbooks were ordinarily kept under lock and key and there was no evidence of physical or chemical erasure from the account 1089 passbook. But as at January 1989 the bank was not a bank and was known only as the Bendigo Building Society. No entries had been removed from the transaction line portion of the account 1089 passbook. But the stamp on the account 1089 passbook was not the stamp used by the bank to validate manual entries.

20 Panebianco was an experienced bank employee and had been employed by the bank since 1981 in a series of managerial positions. As at January 1989, he was a business development manager and a relieving branch manager. He was also self-taught in computers, and like a number of other bank officers he was able to operate the Sunshine branch computer terminals himself, and he had built and sold a number of computers to staff members. He was exposed as a thief following complaints by the Janevskis in about April 1998 about their inability to obtain information concerning the state of their accounts. A number of irregularities were then discovered. They included unauthorised transfers between accounts, paper work prepared for customer deposits without any record of the deposits in the bank's systems or records, and accounts held under aliases. Panebianco admitted to an internal auditor that he had made a number of unauthorised transactions on customer accounts. It then emerged that he had started misappropriating moneys from customers' accounts in 1982 or 1983. Customers thought that accounts had been created with the bank, but Panebianco had not created the account on the bank's computer system. Instead he held the cash in the safe over a period of months.

21 Further investigations revealed that Panebianco had been motivated by money worries, which were the product of mishandling bank accounts and gambling, and it was very probable that by early 1989 he was running a considerable number of alias accounts. He created a fictitious person "N. Simonovski" and a fictitious account number that could be thought to be related to the appellants. He made up fictitious account numbers. There were a lot of accounts where names where slightly changed in terms of the identity of the person. When interviewed by the police on 3 July 1998 Panebianco admitted that he made up printouts for Simonovski, [Jenski] and Farranella and he stated that he only started keeping records from the late 1980s or early 1990s. Before that he destroyed everything for fear of being caught. He said that in 1989 and onwards, he used customers' cash deposits to replenish or repay other customers' accounts coming due plus interest earned. He prepared a summary for police of accounts and printouts on accounts that had been used to deceive bank customers. It included account 0801 but not account 1089.

22 The appellants did not make any inquiries about account 1089 between 31 January 1989 and January 2001 and did not disclose the existence of the account to the Janevski's until January 2001. They first became aware of problems in 1998 when they were notified by the Janevskis that Panebianco was suspected of criminal conduct. At that time they gave instructions for the institution of proceedings for the recovery of the amount of account 0801. But they did not make any claim in respect of account 1089 until January 2001, after Mr Simonovski had come to Melbourne to attend the trial in the County Court of the claim for recovery of the amount of account 0801.[4]

23 On 6 September 1999 Panebianco pleaded guilty before the County Court at Melbourne to 13 counts of theft and obtaining financial advantage by deception, as follows: that on 7 July 1990 he stole $133,451.36 belonging to Anna Ellul; that on 5 May 1992 he stole $67,760.57 belonging to M & O Janevski; that on 7 July 1992 he stole $101,048.82 belonging to C. & E. Borg; that on 26 March 1996 he stole $30,000 belonging to Eileen Henry; that on 1 June 1994 he stole $80,000 belonging to Angelo Ciciulla; that between 30 June 1997 and 1 May 1998 he stole $10,000 belonging to Concetina Cutrale; that on 15 July 1996 he stole $118,910.23 belonging to the Estate of M G Jobling; that between 1 January 1989 and 12 February 1996 he stole $66,000 belonging to Paul Farinella; that between 25 July 1997 and 23 October 1997 he dishonestly obtained from Bendigo Bank $12,500 with the intention of permanently depriving Bendigo Bank of $12,500 by deception, namely, by falsely representing that an overdraft account no. 5721428/1401 in the name of Mihailo Nateski was opened and operated by the said Mihailo Nateski; that on 18 September 1997 he stole $20,000 belonging to Bendigo Bank; that on 23 October 1997 he dishonestly obtained from Bendigo Bank $7,000 with the intention of permanently depriving Bendigo Bank of $7,000 by deception, namely, by falsely representing that a revolving credit account no. 5820287/7601 in the name of Paraskeva Nasteski was opened and operated by the said Paraskeva Nasteski; that on 17 January 1998 he stole $50,000 belonging to TNR Investments Pty Ltd; and that on 6 February 1998 he stole $150,000 belonging to 31st Octelda Pty. Ltd. At the time of giving evidence in this proceeding Panebianco was at risk of being charged with further offences and therefore may have had reason to lie about account 1089.

The appellants' contentions

24 In written form the appellants' contentions occupy the better part of 40 pages of a document entitled "Outline of Submissions on Behalf of Appellants". In oral argument the appellants' counsel repeated most of the propositions contained in that document, sometimes several times and often with variations and gradations of emphasis. In the result, the appellants make many criticisms of the judge's findings and the criticism ranges over most of what his Honour said. It is therefore not practical to deal with each of the applicants' complaints individually. There are simply too many and in any event a large number of them are directed at one or other of the judge's findings of fact on peripheral issues. There are, however, several distinct themes of criticism in the appellants' submissions and it appears that most of the individual criticisms fall under the heading of one or other of those themes. I propose therefore to deal principally with those themes of criticism and in detail only with the major specific criticisms.

25 The first theme of criticism is of alleged inconsistency between the way in which the judge treated the appellants' evidence concerning account 0801 and their evidence concerning account 1089. They say that since the judge accepted their evidence about account 0801, and stated that he did not conclude that they were lying about 1089, it was nonsensical for his Honour not to be satisfied that the appellants had made out their claim in respect of account 1089.

26 I think that criticism is misconceived. Of course if one accepts the evidence of a witness about one aspect of a matter, it is more probable that one will accept the witness's evidence about another aspect of the matter. The process not only accords with forensic precepts of the assessment of credit and credibility but is consistent with good common sense. But the fact that one accepts a witness's evidence on some aspect of a matter does not compel one to accept everything that the witness says. Just as in everyday affairs, where one may be persuaded by what a person says about a matter and reject or not be persuaded by what that person may say about another matter, so in a trial it is open to accept a witness's testimony about some aspects of a matter and to reject other parts of what the witness says. Juries are inevitably told to do just that. In point of principle therefore, the judge was entitled to accept the appellants' evidence about account 0801 and be not persuaded by what they said about account 1089.

27 The second theme of criticism, as I discern it, is alleged inconsistency between the judge's observation that he did not say that the appellants were lying about account 1089 and the judge's expressed lack of satisfaction by what they said about that account.

28 I think that criticism is also misconceived. To say that one is not persuaded by what a witness says about a matter is not necessarily or even usually to conclude that the witness is a liar. It is to say only that the witness's version of events does not strike one as convincing; even allowing for the logical possibility that it may be true.

29 The third theme of criticism appears to be one of alleged inconsistency between the judge's unqualified rejection of Panebianco as a witness of truth, and his Honour's lack of persuasion as to what the appellants said about account 1089. The argument as I apprehend it is that because Panebianco denied what the appellants said about the $650,000 deposit, and because the judge rejected Panebianco as a witness of truth, it followed that the judge was logically bound to accept the appellants' version of events.

30 I think that process of reasoning is flawed. Where two witness give competing versions of events it does not follow from the fact that one of them is shown to be a liar that the other of them must be right. That is why juries are warned in civil and criminal trials that they are not to reason from a conclusion that the accused has lied about a subject matter that what the complainant says on that subject matter is necessarily so.[5] When there is a conflict of testimony of that kind, one logical possibility is that both witnesses are lying. Another is that one is lying and the other is mistaken. There is also a third possibility, which the judge found here to be the case, that one witness was a liar and while the judge could not and therefore would not say that the others were being untruthful, their story and the circumstances of it were so unlikely as to leave him unpersuaded. As the judge put it:

"333. ...there were aspects of the plaintiffs' evidence which I would not accept as representing a likely course of events. I give two examples: first, that Mr Panebianco chanced to come upon the plaintiffs as they were lunching; they having finally decided to deposit the balance of their cash with the defendant. Second, that Mr Panebianco returned cash, in dollars, to Mr Simonovski after the calculation was complete."

31 The fourth and last main theme of criticism is of alleged inconsistency between the objective evidence and the judge's lack of persuasion as to the appellants' version of events. The appellants contend that inasmuch as the judge accepted that the account 1089 passbook was genuine, in the sense that it came from the bank's store of books, and discounted Panebianco's denial of the appellants' version of events, the judge was bound to accept the appellants' version of events.

32 That contention appears to me to be predicated upon a false assumption. It assumes that the only way in which the passbook could have got from the bank to the appellants was via Panebianco. But while there was not a great deal of evidence as to what and who else may have been involved, it cannot be gainsaid that there were any number of ways and any number of people in which and by whom it could have been done.

Specific criticisms

33 I turn to the appellants' major specific criticisms, which by and large are directed to the judge's conclusions as to the provenance and authenticity of the account 1089 passbook. Of those matters his Honour said that:

"322. In my opinion the plaintiffs have failed to prove on balance of probabilities their claim that they deposited $650,000 with the defendant on 31 January 1989. That is not to say, and I do not conclude, that they lied about the matter.

323. The pass book, Exhibit A2, raises more questions than it answers. There is certainly the fact that the pass book is a type current in 1989, long out of use. No claim was made on the pass book before Mr Panebianco's criminal conduct was unmasked in 1998. Is it to be supposed that the plaintiffs then acquired the pass book? How could they have done so? There is, I add, nothing to show that another label had previously been affixed to the pass book; or that there had been any other entry on its interior portion.

324. There is next the fact that the label closely matches the label produced for the account 0801 pass book. A printer of a type used by banks and similar institutions in early 1989 seems to have been used to print the label on exhibit A2.

325. There is the fact, again, that the ink type of the label was indistinguishable from the ink type of certain entries on the account 0801 pass book.

326. There is also the evidence of Dr Found that it would have been easier to print a dot matrix entry onto the interior of the pass book than to print the details on the rear cover. If the label was forged, it followed that the plaintiffs or their forger must have had available a pass book showing the label set-up. On that assumption, the set-up of entries on the interior of a pass book should have been observable. Why, then, make an entry on the inner portion of Exhibit A2 that would be certain to attract attention?

327. As against the considerations which I have just mentioned, the label could not have been printed on-line, for it contains a ledger reference which I conclude the defendant's RFS would not have printed. The label could have been printed by a bank printer taken off-line. But that would have had required time and expertise which I conclude - notwithstanding vigorous cross-examination, and bearing in mind, when considering his evidence, his lack of credit generally - Mr Panebianco did not have.

328. Again, the typewritten entry on the inner portion of the pass book is incompatible with the type of entry that would ordinarily have been made if the RFS was down. Apart from the odd way in which the date was written, the stamp was not a bank stamp in use by the bank to validate a manual entry; and no transaction method was disclosed by the entry.

329. Further, directing my attention to the typewritten words 'Building Society Bank', the defendant was not a bank in 1989. It did not become a bank for years thereafter. Yet Mr Simonovski understood it to be a bank. Even so, why would he type or have typed on the front cover something which was entirely unnecessary? Conversely, does the fact that what was typed was a nonsense make it more likely that it was typed by someone - like Mr Simonovski- unfamiliar with the distinction drawn in Australia between building societies and banks? Or should the typewritten words on the front cover of the pass book, and the obvious anomalies on the label and on the internal entry, be considered to be the work of Mr Panebianco, work designed to achieve rejection of the plaintiffs' claim on the pass book if and when such a claim was made?

330. Associated with but distinct from the content of the pass book is the fact that, as the evidence showed, the defendant's records included what was described as a purged account record. If an account had existed, but had been closed, it should show up in that record. Nothing showed up with respect to account 1089. This confirms, if confirmation was needed, that account 1089 was never a real account with the defendant - which is not to say that the plaintiffs did not give $650,000 to Mr Panebianco and that he did not give them the pass book, Exhibit A2."

Printing the label

34 The appellants submit that there is no justification for the judge's conclusion[6] that Panebianco lacked the time and expertise to print the label using a bank printer off-line. They point to the fact that Panebianco had a long record of undetected fraud and deception which dated from 1982 and continued until 1998; that he was a manager of long standing with responsibility for the operation of the RFS system within the Sunshine branch; that he was an experienced operator who was shown to have made the account entries for account 0801 on 31 January 1989; that in 1989 he was building computers and selling them to staff members; and that he told a number of demonstrable lies. In those circumstances, the appellants say, the judge should have rejected Panebianco's evidence that he did not have the skill to print the label off-line.

35 The appellants also contend that the judge's view about Panebianco having insufficient time to print the label off-line is at odds with his Honour's finding that Panebianco had the ability in early 1989 to create an interlocking series of documents and transactions quite quickly. They point to the fact that the judge instanced the closure of one account at a particular branch, the issue of a manager's cheque, the creation of two new customer accounts at a different branch, and the deposit of funds to the credit of those customers all in the one day. They direct attention to evidence given by one of the bank's experts, Mr Ellery, that it would be a "relatively quick operation" - "a bit more than 20 seconds once you've got it set up".[7] They submit that in as much as Panebianco had the demonstrated ability to act very quickly in relation to fictitious or real transactions or both, there was every reason to think that that is what he did in relation to account 1089. They contend that the judge placed far too much weight on the apparent degree of difficulty in printing a false label. They say that it is likely that Panebianco had done it many times, and that the judge appears to have overlooked evidence of Mr de Simone as to the ease of doing it. They complain that the judge did not undertake an analysis of that evidence. As the appellants would have it there was no one else who had the fraudulent intent or ability to have produced a label with false account numbers.

36 Forceful though that criticism may seem, it does not persuade me that the judge was in error. It was not in issue that Panebianco had the ability to assemble accounts quickly and move money between them as he chose, and more or less when he chose. It was also not in issue that he had been in the habit of doing so for a considerable period of time. The point was, however, that as far as could be told he had always done so manually or by computer within the confines of the bank's RFS system, which is to say by using account numbers that were within the RFS system so as to enable printing on-line. The difference with account 1089 - indeed the unique feature of it on the evidence - was that it was created by computer but had an account number that was not within the RFS system and which therefore did not allow for printing on-line. The question then was how the account 1089 passbook label might have been printed if not on-line, and the weight of evidence was that it might have been done by connecting a personal computer to the bank printer. But the difficulty with that possibility was that it would have taken a degree of skill and time to set up the personal computer and to match it to the printer, and there was a difference of expert opinion as to how much skill and how much time it would have taken.

37 The appellants contend that Mr de Simone gave unchallenged evidence that the entries in the account 1089 passbook could have been produced quite easily by a staff member with a basic knowledge of the bank's RFS computer system and equipment and processes. But that evidence did not go unchallenged. Mr de Simone's report was challenged by Mr Ellery in his second report wherein Mr Ellery strongly disagreed with Mr de Simone's estimates and provided reasons for his disagreement, and such was the strength of that disagreement that the judge afforded the appellants an opportunity to produce a further report dealing with the issue. It is significant that none was forthcoming.

38 In the uncertain state of affairs which that created, the judge was entitled to conclude that he was not persuaded that Panebianco had either the skill or the time, no matter that he had some skill with computers.

39 It is true, as the appellants complain, that the judge did not summarise all of the expert and other evidence which bore upon the issue and it is true that his Honour did not undertake the task of expressly contrasting the various opinions and providing a closely reasoned analysis for the conclusion to which he came. But his Honour did refer to the evidence as follows:

"303. The plaintiffs ultimately accepted, for practical purposes, the proposition that in order to produce the label on the 1089 pass book using one of the defendant's printers on 31 January 1989 it would have been necessary for whoever wished to perform that task to disconnect the printer from the bank's line 1 computer and attach it to a PC. There was conflicting expert evidence about the ease or difficulty of setting up a proper connection between PC and printer, and about the ease or difficulty of using a system thus established to print a label in the format found on the account 1089 pass book. Further, Mr Panebianco was vigorously cross-examined to suggest that he had the necessary computer expertise in early 1989. I shall refer again to that evidence later on, though it will not be necessary to do so in much detail."

And later again at paragraphs 327 to 330 which are set out above.[8]

40 In the circumstances of this case, I do not think that it was incumbent upon his Honour to do any more than that and I do not think that it would have been productive of anything of value if he had done any more than that. Bearing in mind the volume of evidence and the nature of its content, the judge's conclusion on the issue could never be more than an incomplete statement of the judge's impression of the primary evidence and, in the words of Lord Hoffman,[9] the judge's expressed feelings in such a case are necessarily "surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit an exact expression..." Having regard to the judge's reasons, I do not doubt that his Honour considered all the evidence and took it into account in reaching his conclusion and, having looked at the evidence myself, I am not inclined to disagree with that conclusion.

Keeping secret about account 1089

41 The appellants also criticise the significance which the judge attached to the fact that the appellants did not make any inquiries about account 1089 for the better part of 11 years and his Honour's disbelief of what were suggested to be reasons for keeping the matter secret. The appellants say that the judge failed to take into account or give sufficient weight to the fact that the account was said to be a private account which the appellants wished to keep secret from the Janevskis, and that the bank did not have an office in Stockholm at which the appellants might have made personal inquiries about the account, and that an inquiry by post would have necessitated assistance of an interpreter to translate the letter into English. The appellants submit that it is significant too that the judge held that Mr Janevski had no understanding and was duped by Panebianco. They argue that in circumstances of that kind their failure to make inquiries was readily understandable.

42 In my opinion it is enough to dispose of the contention to say that I share the judge's incredulity that anyone, least of all someone as educated and intelligent as the judge found Mr Simonovski to be, could make a deposit in a foreign country of $650,000 and allow 11 years to pass without making a single inquiry as to the state and security of the investment. There may be people who are so rich that $650,000 would be nothing more than a trifle, although even to state that possibility highlights how unlikely it is. But so far as Mr Simonovski was concerned, the evidence was all the other way. If he were not obsessed with money, he was certainly very interested in it and in preventing anyone else getting hold of it.

Delay in the issue of proceedings

43 The appellants further criticise the significance which the judge attached to the fact that they gave instructions in late 1999 for the institution of proceedings to recover the amount of account 0801 and yet did nothing about account 1089 until January 2001. The appellants submit that that was all perfectly understandable given that they were from a different cultural experience with different values, were totally unfamiliar with the Australian legal system, and had no past experience of litigation, and that Mr Simonovski gave evidence that he intended to proceed by two steps: he wanted the first matter in relation to the $122,000 in account 0801 settled before he brought a claim in relation to the $650,000, and that he simply did not believe that the money had been stolen internally.[10]

44 I am no more convinced than the judge. When $650,000 is at stake, I think such an excuse is lame. Certainly, there are some differences between the Australian legal system and continental systems, although on the civil side they are not as great as are sometimes imagined.[11] Equally, the cultural traditions of Yugoslavia and Sweden differ in some respects from our own although, after more than half a century of continental emigration to Australia, there is no longer all that much between us. But even allowing for such differences as there may be, and the appellants' lack of familiarity with this country and its ways, the fact is that they had close relatives who had lived and carried on business here since the 1970's, they had no hesitation in "keeping tabs" on account 0801 through those relatives, and they had no hesitation in instituting proceedings in respect of account 0801 as soon as there was word of a problem. I am unable to see why the same sort of approach would not have been adopted with respect to account 1089, if it had existed.

The circumstances of the second meeting of 31 January 1989

45 The appellants' final specific criticism of the judge's findings of fact concerns the disbelief which his Honour expressed about the circumstances in which the appellants were said to have had a second meeting with Panebianco on 31 January 1989 - in particular, the suggestion that Panebianco chanced to come upon the appellants as they were lunching - and that, having finally decided to deposit the balance of their cash with the bank, Panebianco returned cash, in Australian dollars, to Mr Simonovski after the calculation was complete. The appellants contend that neither matter was a sufficient reason to doubt the appellants version of events.

46 As to the first, the appellants submit that since the café in which they say were lunching was only a few doors from the Sunshine branch and that it adjoined the Janevskis' business it is not at all surprising that the appellants should have been there lunching and been spotted by Panebianco. After all, as they would have it, Panebianco had seen the appellants with a large wad of cash at the first meeting on 31 January 1989, and would doubtless have wanted to get his hands on the cash in order to advance his nefarious schemes. They say that Panebianco was aware of how much they had and would have approached them instantly. He would have been like a bee to the honey-pot. According to them, it was no wonder that Mr Simonovski said in evidence that it was as if he were "pulling their tongues out".

47 As to the second, the appellants say that bearing in mind that Panebianco calculated the foreign currency conversion, it was only to be expected that there might be some change returned to them and after all the appellants gave like evidence in relation to the deposit into the account 0801 where the amount calculated was $122,000, which the judge accepted.

48 I do not find either aspect of the argument persuasive. To begin with, given that the appellants say that they wished to keep the $650,000 secret from the Janevskis, there seems to me to be considerable difficulty in the proposition that Panebianco saw the appellants' wad of cash at the first meeting and knew how much they had. In the second place, if Panebianco were as hungry for cash as is claimed and saw the appellants with such a large wad of currency when they were at the bank on the first occasion on 31 January 1989, why would he not attempt to get it out of them then? In the third place, if he had tried to get it out of them on the first occasion at the bank and failed, why should he imagine that he had a better chance of getting it out of them later without the assistance of an interpreter and in the relatively haphazard conditions of a café? I do not suggest that the appellants' version of events is so improbable as to be impossible. Stranger things have been known to happen to people who are in the habit of transacting their business in cash, and no doubt that is why the judge stated that he did not say that the appellants were lying. But the circumstances are very odd to put it at its lowest, and such I think as to excite a high degree of suspicion. Like the judge, I regard that as a powerful reason to take leave to doubt the story.

Burden of proof

49 The appellants contend that the production of the passbook for account 1089 constituted prima-facie evidence of the accuracy of the entries in the book and so imposed on the bank an evidential onus of controverting the truth of the entry. They submit that the judge erred by failing to accord any weight to the prima facie significance of the book and in approaching the matter as if the evidential onus were upon them to establish that the entry was genuine.

50 I do not accept that submission. The law has long been that the contents of a passbook may bind both the bank and the customer. As the appellants contend, the starting point is sometimes taken as Simson v Ingham[12] where it was held that if an entry were made in a book kept for the use of both parties the party who had made the entry would be bound by it and could not alter it once it had been communicated to the other party. Another case to which reference is sometimes made is Akrokerri (Atlantic) Mines Ltd v Economic Bank[13], where Bigham, J. observed that a passbook belonging to the customer and the entries made in it were statements on which the customer was entitled to act. According to that line of authority, the passbook is evidence of a stated and settled account, and therefore binding on both bank and customer. But with respect, there is no special body of law applicable to entries in passbooks. It is the same law as applies to entries in other books. An entry in a document made by or under the control of a party is capable of constituting an admission against the interest of that party and may thus be admissible as an exception to the hearsay rule as evidence of the truth of the contents of the entry.[14] It is however first necessary to prove that the entry was made by or under the control of the party by whom it is said the admission is made.

51 Hence, in Commercial Bank of Scotland v Rhind[15], the House of Lords held that the entries in a passbook were not an account stated, but were only prima facie evidence of the transactions described in the entries and thus liable to be rebutted prout de jure.[16] Similarly, in Gaden v Newfoundland Savings Bank[17], the Privy Council held that entries in the passbook were not conclusive but "admissions only, and....[which did] not debar the party sought to be bound by them from showing the real nature of the transactions which they are intended to record". So too in British and North European Bank Ltd v Zalzstein[18] Sankey, J. observed to similar effect concerning the law relating to passbooks:

"I do not think it can be dogmatically asserted that an entry made in a pass-book is in all cases conclusive and binding on the bank, or conclusive or binding on the customer, but each case must be judged on its own particular facts, although the customer in whose favour the entry stands starts with the advantage that prima facie it is an admission by the bank in his favour, which cannot in some cases be rebutted."[19]

52 In the result, the extent to which entries in a passbook will be treated as binding on the bank will depend upon the particular circumstances of the case. If a passbook is shown to be genuine and it appears that an entry in it has been made by an officer of the bank having actual or ostensible authority to make entries of that kind, the entry will constitute an admission against the interest of the bank and therefore prima facie or rebuttable evidence[20] of the truth of its contents. If on the other hand it is shown that the book is not genuine, or that the entry was not made by an officer of the bank having actual or ostensible authority to make entries of the kind, the entry will not operate as an admission against the bank and if the book or entry is shown to have been concocted, it may be perceived of as powerful evidence against the claimant. The point is made in Perpetual Executors and Trustees Association of Australia Ltd v Wright[21] albeit in a different context:

"... If, however, the document produced by the respondent as his wife's writing be genuine, there is not merely corroboration but actual admission of his allegation of fact. On the other hand, if that document be not genuine, not only does he lose the benefit of an admission, but in the circumstances in which it appeared there would be an irresistible inference that he had concocted the document and the evidence he gave in support of it. It is therefore necessary to consider whether it is genuine or spurious...[22]"

53 So it is in this case. The evidential burden was upon the appellants to prove that the passbook was genuine and that the entry in it was made by an officer of the bank with actual or ostensible authority to do so. They sought to essay that task by their testimony that the entry was made in the book by or at the instance of Panebianco at the time of the second alleged meeting with Panebianco on 31 January 1989. But although the book was shown to be genuine in the sense that it was likely to have come from the bank's store of books, the judge was not persuaded that the entry was made by Panebianco in the circumstances alleged. As has been seen, the judge was not satisfied that Panebianco had either the time or the skill to do it, and the circumstances in which the meeting was alleged to have occurred made it less than likely that he had done it. Since the appellants did not suggest that any other officer of the bank had made the entry in the exercise of actual or ostensible authority, the appellants failed to establish that the entry was genuine, and the result of their failure was not only that the entry did not operate as an admission against the bank but was also an indication that the appellants were not telling all that they knew about the matter.

Against the evidence and the weight of the evidence

54 The contention that the judge's conclusion about the $650,000 deposit is against the evidence and the weight of the evidence imposes on this court the burden of reviewing the whole of the evidence and examining for itself all issues of fact, including inference from the evidence.[23] But in the circumstances of this case that comes down to the question of whether the appellants are to be believed in their evidence that they returned to the bank on a second occasion on 31 January 1989, and following the conversion of the Deutschmarks deposited $650,000 with Panebianco, and at that point received from Panebianco a passbook recording the deposit of $650,000 and some cash back. The judge was not persuaded that they did so, and nor am I.

55 All of the matters which the judge identified as casting doubt upon the account 1089 passbook lead me also to have strong doubts as to how the appellants might have got hold of it. In my opinion it is remarkable that out of all the accounts which Panebianco is alleged to have created by computer, the alleged account for $650,000 was the only one not established within the RFS system; the only one for which the passbook was not printed on-line; and, upon the evidence, the only one for which the passbook referred on its face to the bank as a building society/bank - purportedly at a time which was years before the bank converted from a building society to bank status.

56 Each of the matters which the judge identified as throwing doubt on the occurrence of the second meeting on 31 January 1989 leads me also to doubt that the meeting occurred. As I say, I regard it as most improbable that having failed to get the $650,000 out of the appellants under the controlled conditions of the first meeting, Panebianco would then approach the appellants as they later lunched at the café, without the assistance of an interpreter, and there succeed in persuading them to do the very thing which, on their story, they had not been prepared to do only shortly before. It is I think even more unlikely that they would invest $650,000 in a foreign country and then not make a single inquiry about it for 11 years, or that, upon learning that Panebianco was probably a thief, be sufficiently concerned to institute proceedings for the recovery of account 0801 and yet say and do nothing about account 1089 for the better part of another two years.

Withdrawal of $3,000 on 27 March 1997

57 The appellants finally contend that the judge was wrong in holding that two withdrawals should go in reduction of the bank's liability on account 0801: one of $3,000 on 27 March 1997 and the other of $2,548 on 11 December 2001.

58 So far as the $3,000 withdrawal is concerned, the judge said:

"470. The defendant's records show that on 27 March 1997 the Niddrie branch suspense account was debited in an amount of $3,000 and that the Preston branch suspense account was credited with that amount. A General Ledger Debit Voucher shows that, by intention, a Jenski account was to be credited with the money. But Jenski's [Nominees Pty Ltd] bank statements show that this did not happen.

471. The face of the debit voucher bears a signature which Mrs Janevski said looked as if it was her signature. I am satisfied by the evidence of Mrs McDonald, a bank employee who had dealings with Mrs Janevski, that the signature is that of Mrs Janevski.

472. Mrs McDonald said that it was not usual for a debit voucher such as this, an internal bank document, to be signed by a customer. 'The only reason a customer would sign is if we needed to verify who had picked up maybe a cash or cheque transaction.' Mr Panebianco admitted that the signature of a customer on such a form was inappropriate.

473. Further as to the debit voucher, Mrs McDonald said that the back of the debit voucher was blank; and this would be unexpected if a customer had collected cash. She, I add, had no personal knowledge of cash being handed over to a customer that day.

474. The meaning of the debit voucher is doubtful. But bank records not the handiwork of Mr Panebianco make it probable that a cash amount of $3,000 was paid out by the Preston branch on 27 March 1997.

475. Mr Panebianco gave evidence that Mrs Janevski had contacted him to arrange for some funds to be picked up from Preston. Then there was this question and answer:

'Did she identify the source from which these moneys were to come? - Simonovski' account.'

476. Mrs Janevski denied receiving $3,000 in cash from the Preston branch. She denied that the money came from the Simonvski account.

477. Having regard to the signature on the debit voucher, I consider it probable that Mrs Janevski did receive the cash to which I have just referred. I would not expect Mr Panebianco to have procured Mrs Janevski's signature on such a document then blank. It is more likely that she signed the document at the Preston branch when receiving the cash.

478. The question remains whether the withdrawal was intendedly against what the Janevskis understood to be an existing Simonovski account. On its face the debit voucher does not assist the defendant. But in this instance the debit voucher which Mrs Janevski signed shows, notwithstanding that I am satisfied that she received cash, that there was an intended flow of funds to Jenski. An account of that company should be excluded as a source of funds the subject of the request to withdraw. The matter is doubtful, but I am persuaded that Mrs Janevski did nominate the Simonovski account as the source of the withdrawal."

59 The appellants submit that the debit voucher was not a sufficient basis to conclude that Jenevski nominated the Simonovski account as the source of the withdrawal, and that the judge's conclusion is against the evidence and the weight of the evidence. In support of that submission they point to the following:

• the supposed intended flow of funds to Jenski [Nominees Pty Ltd] did not proceed;

• it was not in accordance with bank procedures for the customer to sign a debit voucher, and the appellants say that the bank failed to provide an explanation as to why it happened in this case;

• Panebianco was the only source of evidence that Mrs Janevski had specified that the withdrawal should come from Simonovski moneys;

• Panebianco's credit was destroyed and the judge stated that in the event of a contest he would unhesitatingly prefer Mrs Janevski's evidence to Panebianco's evidence;

• the judge relied on the evidence of Mrs McDonald to identify Mrs Janevski's signature on the credit voucher even thought Mrs McDonald had not professed to know Mrs Janevski and had wrongly identified her in court as Mrs Simonovski;

• Mrs Janevski had signed blank documents at the request of Panebianco and documents that were incomplete or on their face ambiguous;

• Panebianco had contrived unreliable notes for the purpose of showing that as of 1998 no moneys were owed by the bank to the appellants;

• the trial judge held that Panebianco wished to conceal from the Janevskis the fact that he had misappropriated Jenski funds;

• the trial judge noted that it was improbable that having made no withdrawals since 1992 the Janevskis should make withdrawals for their own purposes in 1997.

60 I do not consider the judge's findings about the $3,000 payment were against the evidence or the weight of the evidence. The judge took into account that the intended flow of funds to a Janevski account did not appear to have occurred. His Honour also took into account the evidence that it was unusual for the customer to sign the debit voucher. Contrary, however, to the appellants' contentions, there was an explanation as to why the debit voucher may have been signed by the customer, and that was that the customer had picked up the cash. In turn that made it more likely that the cash was paid out to Mrs Janevski on 27 March 1997. Contrary also to the appellants' contentions, Panebianco was not the only source of evidence that the funds were to be sourced from Simonovski moneys. There was also the circumstantial evidence that the moneys were to be paid out to the Janevskis, and the fact that the judge was able to exclude the possibility that a Janevski account was the intended source. That left the Simonovski moneys as a more likely possibility. Moreover, while Panebianco's credit was undoubtedly damaged, it is plain that the judge also had reason to doubt Mrs Janevksi. As his Honour put it:

"455. I have no doubt that the signatures to which I have just referred were Mrs Janevski's signatures. I do not doubt that Mrs Janevski did sign documents that were incomplete, or on their face ambiguous. Some of the documents relied upon by the defendant in the present connection were of such a type. But that does not supply a complete answer to the documents upon which the defendant relied. I shall refer to the detail of the transactions hereafter. For present purposes it is enough to say that Mrs Janevski's credit was to an extent impugned.[24]"

61 Contrary also to the appellants' submissions, Mrs MacDonald's identification of Mrs Janevski's signature on the debit voucher was not questionable. It was confirmed by Mrs Janevski's own testimony that the signature looked as if it was her signature. And the judge took into account that Mrs Janevski had on occasions signed blank and partially completed documents at the instance of Panebianco. But as the judge said, that did not supply a complete answer to the documents on which the bank relied in this case.

62 The judge took into account that Panebianco had contrived unreliable notes for the purpose of showing that the bank did not owe any moneys to the appellants, and that Panebianco would have wished to conceal from the Janevskis the fact that he had misappropriated funds from Jenski [Nominee Pty Ltd]. But in the end the force of documentary evidence and surrounding circumstances led the judge to conclude on balance that Mrs Janevksi had received moneys and that they had been debited to the Simonovski account in accordance with her instructions. I do not see that there is any basis in the evidence or otherwise to disagree with his Honour's conclusion.

Withdrawal of $2,548 on 11 December 1997

63 As to the $2,548 withdrawal the judge said:

"518. There is a withdrawal slip dated 11 December 1997 in an amount of $2,548. It was signed, I am satisfied, by Mr and Mrs Janevski. The customer is not identified; nor any customer number. The back of the slip is blank. The slip does not bear a bank stamp or teller's initials.

519. Dated the same day, there is a conversion of foreign currency sheet, apparently completed at the Niddrie branch. The customer is identified as Mrs Janevski. The document apparently shows a conversion of $2,548 into 3,000 Deutschmarks. Save for the signatures, the document is in Mr Panebianco's handwriting. The signatures, I consider, are those of Mr and Mrs Janevski. The document bears nothing to show that this was a bank transaction.

520. Also in evidence and dated the same day is a second withdrawal slip, this time in an amount of $2,500. This document is very similar to the first of the withdrawal slips dated that day. It was signed, I am satisfied, by Mr and Mrs Janevski. No customer or customer number is identified. The back of the slip is blank. The slip bears no bank stamp or teller's initials.

521. The Niddrie branch suspense account record for the pertinent period was put into evidence. It shows that on 16 December there were two succeeding cash withdrawals in amounts of $2,500 and $2,548. Those debits should be taken to relate to the amounts stated in the two withdrawal slips, notwithstanding the time elapse. But it does not follow that the withdrawal slips, themselves, were ever processed by the defendant.

522. Mr Panebianco gave evidence that Mr and Mrs Janevski requested him to provide them with 3,000 Deutschmarks, the source of the moneys to be the Simonovski account. They gave no reason for wanting the German currency. They also asked him, the same day, to give them $2,500 cash. This he did. Thus the two withdrawal slips.

523. Cross-examined, Mr Panebianco said, concerning the slip for $2,548, that stamps 'sometimes can go missing on vouchers'. He agreed that, a stamp aside, there were no teller's initials on the slip. He could not say why, if it had mattered on 11 October 1997 that Mrs Janevski's signature was on a purported Simonovski withdrawal, it did not matter with respect to the withdrawal slip for $2,548.

524. Concerning the slip for $2,500 Mr Panebianco admitted in cross-examination that the document was not in a form that could be processed by the bank; and that on face value it was not processed.

525. Mr Janevski did not deny - he may have gone further - that it was his signature on the slip for $2,548 and on the currency conversion sheet. He said that he did not remember withdrawing any Deutschmarks. He denied making a withdrawal of $2,548. He did not deny that his signature was affixed to the slip for $2,500. He denied withdrawing the same from the 'Simonovski pool of funds'.

526. Mrs Janevski said that the signature on the slip for $2,548 appeared to be her signature; likewise the signature on the currency conversion sheet. She denied receiving 3,000 Deutschmarks from the defendant. She did not dispute that it was her signature on the slip for $2,500. She denied that she and her husband had requested $2,500 from the Simonovski moneys, or that they had been paid such an amount.

527. The evidence concerning the two transactions on 11 December 1997 is, I consider, very confused. I accept that the two withdrawal slips were signed by the Janevskis. Nothing on the slips related any withdrawal to the assumed Simonovski account. It seems highly unlikely to me that either slip was ever processed by the defendant. It appears, however, that amounts corresponding with the amounts of the slips were debited to the Niddrie branch suspense account on 16 December 1997.

528. It is probable, I think, that the $2,548 was used to buy foreign currency. The amount fits the calculation on the currency conversion sheet. Whether the foreign currency was in fact supplied to the Janevskis is uncertain. In favour of such a conclusion is the currency conversion sheet which I accept they signed. There was, however, nothing to show that they travelled overseas in late 1997; or that someone else close to them did so. They denied receiving any money, let alone in Deutschmarks. Then there is the question whether, if they did obtain such an amount, they requested that it be debited to the assumed Simonovski account.

529**.** Concerning the slip for $2,500, there are the disputed issues whether the Janevskis requested such an amount to be debited to the assumed Simonovski account; and whether they received it.

530. There is enough concerning the slip for $2,548 to satisfy me, on balance, that the Janevskis received the Deutschmark equivalent of that amount. Though the matter is doubtful, I also consider, on balance, that the Janevskis requested this amount be debited to the Simonovski account. I am influenced to the latter conclusion by the fact that, once before, the Janevskis had used Simonovski moneys not simply for trip funds, but for foreign currency purchase in that connection.

531. I am not satisfied, to the contrary, assuming but not deciding that the Janevskis asked for and received cash amounting to $2,500 on or about 11 December 1997, that any such request pertained to the Simonovski moneys."

64 The appellants contend that that conclusion was also against the evidence and the weight of the evidence, and they submit in support of that contention that:

• the suggested coincidence between the debit of $2,548 and the purchase of foreign currency is bereft of probative value;

• the appellants had given express approval for the use of their funds for a trip five years earlier;

• there is no evidence that the Janevski's or any family member went on an overseas trip in 1997 or thereabouts;

• even if the co-incidence has any probative value, there were no trip funds withdrawn at or around the same time;

• Panebianco's testimony was the only evidence that the Janevskis had given instructions that the Simonovski moneys were to be the source of the withdrawal;

• Panebianco's credit was destroyed;

• Mr and Mrs Janevski had previously signed blank and incomplete documents at the request of Panebianco;

• Panebianco had contrived unreliable notes for the purpose of showing that as of 1998 no monies were owed by the respondent to the appellants;

• as the trial judge held, Panebianco obviously wished to conceal from the Janevskis the fact that he had misappropriated Jenski [Nominees Pty Ltd] funds;

• the withdrawal slip contained no customer or account name or account number;

• the withdrawal slip was not "processed" by the bank;

• the bank's records do not demonstrate any payment out of $2,548 on 11 December 1997. The judge's conclusion is thus wholly dependent on the coincidence of the amount of a debit to the Niddrie branch suspense account on 16 December 1997;

• if Panebianco did pay $2,548 to Mr and Mrs Janevski on 11 December 1997 there was reason to think that this was one of the occasions where Panebianco paid out of his own pocket and later misappropriated a corresponding amount from a branch suspense account.

65 Some of those points repeat matters put in support of the contention that the judge's findings concerning the $3,000 payment were against the evidence and the weight of the evidence. They do not improve with repetition. Other matters, however, are more significant; for it is true that the judge's conclusion concerning the $2,458 payment is heavily dependent on the coincidence as between the amount of the payment and the amount of the foreign currency purchase, and it may be allowed that there are facts which cast doubt upon the probability that the Janevski's ordered or received foreign currency out of the Simonovski moneys. On the other hand, there is also powerful evidence in favour of the judge's conclusion in the form of Mrs Janevski's admissions that the signature on the slip for $2,548 and on the currency conversion sheet appeared to be her signature; and in her lack of preparedness to dispute that it was her signature on the slip for $2,500; and in Mr Janevski's admissions that it was his signature which appears on the slip for $2,548 and on the currency conversion sheet; his lack of recall as to whether he had withdrawn any Deutschmarks; and his lack of preparedness to deny that his signature was affixed to the slip for $2,500. Truly, as the judge said, the evidence concerning the two transactions on 11 December 1997 was very confused. But in the end the judge was required to make a decision, and it appears to me that the decision which he made was open to be made.

66 This appeal is in the nature of a rehearing and not a hearing de novo.[25] Relative to the judge, therefore, I consider that we are at a distinct disadvantage in attempting to evaluate the evidence, particularly Panebianco's and the Janevskis' evidence, and quite unable to achieve the sort of perception of the case that his Honour was able to derive from hearing the evidence as a whole.[26] Faced with the limitations which that entails, I am not prepared to say that the judge was in error in the conclusion which he reached.[27]

67 In expressing my conclusion in that way I do not overlook that an appellate court is sometimes said to be in as good a position as a trial judge to determine the facts of a case,[28] particularly where the outcome depends upon no more than drawing inferences from established facts,[29] or that it is becoming more fashionable to imagine that trial judges do not have a monopoly on the assessment of credit and credibility or, if they do, to suppose that it might not be all that important in the assessment of testimony.[30] Hence, the increasing propensity of intermediate courts of appeal to go where they once would not dare.[31] Fortunately, however, this is not the sort of case where it is necessary to consider developments of that kind, and even less to reach a view about whether they should be followed.

68 The outcome of the case was heavily dependent upon a first hand assessment of the subject matter, the circumstances and the personalities, and thus in the end on the way in which witnesses performed in the witness box. Consequently, even if I were inclined to take a different view about the likelihood of the appellants depositing $650,000 with Panebianco in the circumstances alleged, or as to the withdrawals of $3,000 and $2,548, I should be very hesitant to interfere with the judge's conclusion. As it happens, I agree with it.

Conclusion

69 For the reasons given, I would dismiss the appeal.

[1] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598.

[2] As it then was.

[3] They remained in Australia until 1 February 1989, but even at that stage Mr Simonovski spoke only a few words of English and Mrs Simonovski spoke none and ultimately they determined to return to Sweden where they have since resided.

[4] The trial did not proceed. After the claim for account 1089 was instituted both claims were transferred to the Common Law division of the Supreme Court to be heard together.

[5] Edmunds v Edmunds [1935] VicLawRp 35; [1935] VLR 177 at 186-7; R v Tripodi [1961] VicRp 30; [1961] VR 186 at 193; Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515.

[6] Reasons at [327].

[7] My emphasis.

[8] His Honour added in a footnote that the difference in the length of time and the amount of expertise of which the experts gave evidence was not critical to this conclusion.

[9] Biogen Inc v. Medeva plc [1996] UKHL 18; (1996) 36 IPR 438 at [27]; [1996] UKHL 18; [1997] RPC 1.

[10] Agreed Summary at [2.94(7)]; AB Vol 1 C231-2.

[11] Hein Kőtz, Civil Justice Systems in Europe and the United States 13 (2003) Duke Journal of Comparative & International Law 61-78 at 67; J. A. Jolowicz, Adversarial and Inquisitorial Models of Civil Procedure, ICLQ Vol 42, April 2003 at 281 -295; G Downes, QC, The Movement Away from Oral Evidence: How Will This Affect Advocates? 77-88, Ch. 6 in D. Sampford et al. (eds) Educating lawyers for a less adversarial system, at 77.

[12] (1823) 2 B & C 65; [1823] EngR 585; 107 ER 307 at 308-310; Devaynes v. Noble (1816) 1 Mer 529 at 534; 35 ER 767.

[13] [1904] 2 KB 465 at 470.

[14] Alderson v Clay [1814] EngR 3; (1816) 1 Stark 405, (1816) 171 ER 511; Cross on Evidence, Australian Edition at [33510].

[15] (1860) 3 Macq 643 at 648.

[16] See Tyree, Banking Law in Australia, 4th Ed. at page 107.

[17] [1899] AC 281 at 286.

[18] [1927] 2 KB 92 at 97; Chorley**,** Law of Banking, 6th Ed at 175-178.

[19] See too Weaver and Craigie - The Law Relating to Banker and Customer in Australia at pp.3-8057.

[20] In the second sense of "presumptive evidence", see Cross on Evidence, Australian Ed. at [1605].

[21] [1917] HCA 27; (1917) 23 CLR 185.

[22] ibid. at 195, per Isaacs, Gavan-Duffy and Rich, JJ.

[23] Scott v Pauly [1917] HCA 60; (1917) 24 CLR 274 at 279; London Bank of Australia Ltd v Kendall [1920] HCA 53; (1920) 28 CLR 401 at 407; Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 at 222; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551-2; Karabotsos v Plastex Industries Pty Ltd [1981] VicRp 65; [1981] VR 675 at 685; The Secretary to The Department of Health and Community Services v Gurvich [1995] VicRp 44; [1995] 2 VR 69 at 73.

[24] Emphasis added.

[25] Freeman v Rabinov [1981] VicRp 52; [1981] VR 539 at 548; Williams , Civil Procedure, Victoria, at [64.01.160].

[26] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126 at [21]-[25], per Gleeson, C.J. and Gummow and Kirby, JJ.

[27] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23].

[28] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [51] and [95]-[100].

[29] Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179.

[30] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq ) (1999) 160 ALR 588; (1999) 73 ALJR 306; [1999] HCA 3 at [88]; cf Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560 at 573.

[31] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [54] - [63]; Pledge v Roads & Traffic Authority (2004) 78 ALJR 572; [2004] HCA 13 at [46]- [50].