The task in apportioning liability amongst concurrent wrongdoers is to be undertaken in a real and pragmatic sense to identify who is to blame for the loss and who should bear the liability. The primary focus in that undertaking is to determine, as best as may be possible, the "causal potency" of the various factors which singularly or together went to bring about the loss caused. In my view the conduct of Mr Kheir was the primary cause of the loss as between him, Aussie and Bank West. He had contractual and statutory obligations to identify the person claiming to be Mr Solak. He was the person best placed to verify identity and, because of that fact, was the person upon whom the obligation was placed by contractual agreement and emphasised as such in the training provided to him by Aussie. He was not told by Mr Gillespie that identification was not necessary and did not make any attempt either to secure the original documents (which of course was unlikely given the nature of the documents) or to ask Mr Gillespie what should be done, not about the form to be conveyed by fax as a remote application, but rather about the documents relevant to identification of the person seeking the funds. He did not state on the form anything that might have put Bank West on notice that a vital element for completion of the transaction (namely, identification of the applicant) had not been completed by him. Page 13 of the 42 page fax he sent to Bank West referred to his conversation with Mr Gillespie but only to state that Mr Gillespie had "acknowledged suitability of product sought". Nothing was said anywhere in the information conveyed by Mr Kheir about the lack by him of sighting of identification documents. A person reading the "100 point signature identification form" on page 10 of the 42 page fax he sent to Bank West, might conclude that it had been defectively completed but that he had in fact sighted the documents. Had he not done so it was incumbent upon him to make that clear, not to complete any part of the form, and to indicate as the results of his check that verification had not been achieved.
His position as the person with primary contact to the applicant made others substantially reliant upon him. The contractual obligations imposed upon him by Aussie, and indirectly by Bank West, reflected the reality of the situation that he was the person in primary contact with the customer. The outsourcing effected by the various arrangements between Bank West, Aussie and Kheir Financial Services, to their mutual financial profit and interest, placed the primary burden upon Mr Kheir to ensure the identity of the person with whom they would in turn contract and deal. In fact his dealing with the person purporting to be Mr Solak was careless in many respects. In addition to those I have already mentioned, I should mention some others. Mr Kheir originally received from the person purporting to be Mr Solak only the signed pages of the loan application documents and could not have known for certain what other information that person was declaring to be true and correct. Mr Kheir first received tax returns that had not been signed by the forger and subsequently received the signed pages (which had previously not been signed), but obviously backdated, by the person he thought was Mr Solak. He also received faxes from the person purporting to be Mr Solak from different post office fax machines rather than the one to which Mr Kheir had sent faxes to him. None of these matters were pursued in any way by Mr Kheir.
The position of Bank West is not free from causative loss. Mr Gillespie may only have been asked about the processing of applications remotely between Melbourne and Sydney but he did not turn his mind to the important task of how identification of the customer would be made. Accepting that Mr Gillespie would have said that the customer should attend a Melbourne branch if he had been asked, does not carry with it (and I do not find) that he was asked or that he did say to Mr Kheir that the customer should attend a branch for identification. I have no doubt that if Mr Gillespie had said that to Mr Kheir that Mr Kheir would, in turn, have said that to the person purporting to be Mr Solak. In other words, I find that Mr Gillespie did not seriously turn his mind to all of the ramifications of a remote application when asked by Mr Kheir about what to do. Mr Gillespie should have done so. Furthermore, Bank West subsequently received and accepted forms which were defective on their face and had insufficient internal processes to ensure that the fraud was not prevented either by a thorough dealing with the forms provided by the broker or at the subsequent stages of the opening of accounts and the payment of cheques from them.
Aussie's contribution to the ultimate loss is insignificant in this case. Its system was essentially to act as intermediary between the broker and the banker. It did have a training system and, in my view, was entitled to rely upon the systems in place which ought to have avoided the fraud. Mr Kheir's counsel also suggested that some culpability was to be borne by Gadens as Bank West's solicitors for not detecting the fraud, and possibly the ANZ Bank (as the collecting bank for the cheques) for not having verified the signatures upon presentation of cheques. In my view neither have been shown reliably responsible for any part of the loss. In no way could either be said to be causative of the loss beyond their participation in a series of transactions which might, at best hypothetically, have enabled either to intervene if something had appeared to be irregular. Neither was joined as a party and none of the hypothetical wrongdoing of the ANZ or Gadens was reliably explored or tested.
In my view the apportionment as between Mr Kheir (including Kheir Financial Services), Bank West and Aussie should be 70%, 30% and 0%.[42] (references omitted)