Textralian Enterprises Pty Ltd v Perpetual Trustees

COUNSEL : Mr Conditsis - claimants/appellant Mr Walker - opponents/respondents SOLICITORS : Conditsis & Associates - claimants/appellants Freehill Hollingdale & Page - opponents/respondents CATCHWORDS : amendment of transcript of proceedings CASES CITED: Vakauta v Kelly (1988) 13 NSWLR 502 DECISION : Motion dismissed. Costs reserved to Court hearing appeal

Friday 17 September 1999 TEXTRALIAN ENTERPRISES PTY LTD AND TWO ORS v PERPETUAL TRUSTEES VICTORIA LIMITED AND TWO ORS

1 REGISTRAR: This appeal has been expedited and has been case managed by Mason P. 2 On 8 June 1999 Mason P made several directions, including the following: "(2) Subject to order 3, the transcript of the hearing is to be deemed corrected in accordance with the document entitled "Agreed Transcript Corrections 25 August 1998" referred to by Mr Insall in his fax of 26 May 1999.

(3) Wiithin 14 days the appellant is to file and serve affidavits indicating any other corrections to the transcript (including corrections noted in the document referred to in order 2 which are disputed).

(4) Within a further 14 days the respondents are to file and serve their affidavits touching any dispute as to the transcript. (5) The dispute as to the transcript is then to be referred to the Registrar to be settled by him." 3 Mason P also directed that the matter be referred to the Registrar's next callover to be set down for hearing as soon as practicable as a three day matter. At this time the matter has not been fixed for hearing. 4 Pursuant to Mason P's directions, the appellants have filed four affidavits dealing with the disputes as to the transcript. Three of those affidavits have been read on the application today. They are the affidavit of Michael Brookes Evans of 5 July 1999, the affidavit of Bennett Joseph Slattery of 22 June 1999 and Rhonda Daily Slattery of 22 June 1999. 5 On 7 July 1999 Deputy Registrar Howe noted that all the affidavits of the appellants in respect of the issue had been filed and directed that the respondents file and serve any affidavits regarding the issue by 21 July 1999. No affidavits have been filed by the respondents in respect of the issue. 6 The matter was listed for mention before me on 23 July 1999 in chambers. On that occasion I was supplied with a letter dated 15 July 1999 from the respondents to the appellants which sets out the respondents' submissions to this issue. Those submissions have been repeated by Mr Walker today. Essentially the respondents have taken the view that no further amendments to the transcript can be made at this time. The basis of the respondents' argument is that there is no agreement as to further amendments to the transcript other than those which had previously been agreed to by Mr Evans in response to the agreements proposed by Mr Insall in August 1998. They have further argued that the appellants' agreement to those amendments suggested by Mr Insall means that they have waived a right to make any further amendments to the transcript. 7 There may be an issue as to what the terms of the agreement between Mr Evans and Mr Insall were. Did the appellants say that the appellants agreed to the amendments suggested by Mr Insall but did they also reserve the right to say that further things were said that were omitted from the transcript? The letter dated 8 June 1999 from Mr Evans to Mr Insall, which has been marked as part of exhibit 1 on this application, seems to expressly reserve the appellants' right to say that the transcript may be incomplete in so far as that there may have been additional things said. 8 Mr Walker has also drawn my attention to the case of Vakauta v Kelly (1988) 13 NSWLR 502 and in particular to the judgment of McHugh J at page 524 where he said, "But at all events when what is in issue is what a trial judge in a court of record has said, an appellant court should not permit evidence to supplement the transcript unless both parties agree as to what was said."

Further in the judgment McHugh J says, "If a matter is being discussed which counsel thinks ought to be recorded, it is his ( sic ) duty to ensure that the statement is recorded."

He concludes on page 525, "Where a transcript is taken, the better practice is to refuse to admit disputed evidence to supplement the transcript of a court of record." 9 The motion that has been filed by the appellants in these proceedings and which is before me today, appears to be asking me to amend the transcript in exactly the way that McHugh J says should not be done. Mr Conditsis has sought to distinguish Vakauta's case from the current situation by pointing out that Vakauta was a bias case and that bias is not an issue in this appeal. With respect, I feel the general principle that McHugh J expounds in Vakauta is applicable to the circumstances of this case. I find therefore that I am probably not entitled to make an order amending the transcript in the manner which the appellant has asked me to do. 10 The consequence of this decision is that the appellants will probably seek to read the affidavits that have been filed or some other affidavits regarding what happened on 5 August 1998 on the hearing of the appeal. If they make such application, they will no doubt face the same objections to the admissions of that evidence as have been raised by the respondents today. There is the added difficulty that the counsel briefed on behalf of each party to the appeal appear to be potential witnesses to what occurred on 5 August last year. If this is going to be an issue on the appeal, they may have to pass on their respective briefs. This was the problem that Mason P hoped to avoid by referring the dispute about the transcript to me. Although I am not prepared to make the amendments to the transcript sought by the appellants, I am also not prepared to make an order preventing them from seeking to lead further evidence as to what may have been omitted from the transcript on the appeal. 11 As I have indicated during the afternoon, it is probably going to be necessary for this matter to be referred back to Mason P for further case management prior to the hearing to resolve the problem. 12 If I am wrong and it was appropriate for me to make some determination of how the transcript should be amended, I propose to address the affidavit evidence that has been filed. It is necessary for me to go into some of the background as to what occurred on 5 August 1998. This was the second last day of a nine day hearing which had commenced on 13 July 1998 (there was a gap between 17 July 1998 and 3 August 1998) before Young J. The proceedings related to an action by the appellants to vary a lease and obtain damages in respect of commercial premises leased from the respondents at Erina Fair Shopping Centre in Gosford and an action by the respondents to eject the appellants and get arrears in rent. The appellants claimed that certain representations had been made in respect of the lease, namely that there was going to be a cinema complex built. Those representations appear not to have been met. 13 On 5 August 1998 Mr Christopher Ian Anderson, a forensic document examiner, had just given evidence on behalf of the respondents. That evidence asserted that Mr Slattery, one of the appellants, had artificially aged a document and had therefore fabricated evidence. The relevant evidence apparently had only become available to Mr Anderson the night before. Young J accepted the evidence of Mr Anderson and his findings against Mr Slattery were consequentially damning and fatal so far as the proceedings by and against him were concerned. At page 26 of his judgment, Young J says, "After Mr Anderson had given his evidence a short adjournment was granted and Mr Evans considered whether he needed an adjournment to call counter-evidence. Doubtless after weighing whether time would give Mr Anderson the opportunity to find something more weighed against the possibility of an expert finding some defence to what Mr Anderson said, Mr Evans, wisely in my view, decided not to call further evidence." 14 What is in dispute is what occurred after Mr Anderson gave his evidence and the reasons why Mr Evans did not apply for an adjournment to lead evidence in reply. This is important in this particular appeal because the appellants will be seeking to lead their own forensic evidence to contradict Mr Anderson's evidence on the appeal. The onus will be on the appellants to establish why that fresh evidence was not led at the trial which would, on the face of it, have been the appropriate course. 15 Each of the deponents to the affidavits that have been read in court today has given a slightly different version of what they say happened. What Mr Conditsis has asked me to do effectively is to construct a composite of the evidence which reflects what is most likely to have occurred. On 23 July this year I asked Mr Conditsis to file a motion setting out specifically what amendments the appellants were seeking to have made to the transcript. Pursuant to that direction a notice of motion was filed on 30 July 1999. Upon reading the claimants' affidavits and noting that there was no evidence put in response, it appears to me that the proposed amendments suggested in that motion are as good a reflection of the various evidence in the affidavits, subject to one slight amendment. The reference in paragraph 1 of the motion to "his Honour will not be able to hear the matter until 1999 or possibly the year 2000" probably should read something to the effect that "there will be a delay in the further hearing of the matter." 16 [The proposed amendment to the transcript would therefore read as follows:

That the transcript at page 417.55 of Volume 2 of the Black Appeal Book be amended to record a paraphrase of what His Honour said as follows:-

"(His Honour said that if Mr Evans proceeds with his application he'll need an adjournment for about two weeks. Then the other side will want to put on material in reply. There will be a delay in the further hearing of the matter, and if the matter goes over then His Honour will need to look at Mr Evan's client's occupation of the premises and whether the interim orders could continue. His Honour said that he had heard Mr Anderson's evidence as he had heard all the witnesses in the case and asked Mr Evans whether it was really necessary to reply and to get some instructions.)"] 17 It appears to me that one of the critical issues that will have to be dealt with when the appeal is heard is what inferences could or should have been drawn by what Young J said or was likely to have said. Mr Evans' evidence says that he inferred that Young J said that he had not put much weight on Mr Andersen's evidence. Although Mr Conditsis has raised that in argument this afternoon, that does not appear to be a matter which I need to concern myself with and I make no findings as to the reasonable inferences which the court may draw in respect of Mr Evans' evidence if it is sought to be read on the appeal.

(Mr Walker sought costs of the motion on the basis that every point in relation to the grounds in the application has been lost by the applicants. Alternatively, if the Registrar is against him on his primary submission, Mr Walker sought that the costs be the respondents' costs in the appeal.)

18 REGISTRAR: This was a matter that was referred to the Registrar. It is unclear to me what the practical consequences of this application will be on the actual outcome of the appeal. I think the appropriate course is to reserve the question of costs to the court that deals with the appeal. 19 I stand this matter over for call-over on 6 October 1999 (at 2.30pm) to fix the hearing date and the parties hopefully will come along with some agreed directions for the further conduct of the appeal at that time.

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