Westpac Banking Corporation Ltd v Kelly

EX TEMPORE Judgment 1Westpac Banking Corporation which I will refer to as the "bank" is suing Mr Kelly for possession of his home at Kingscliff and for an amount which at the time the statement of claim was issued in May 2013 exceeded $2.8 million. That amount is said to be due in part on guarantees that Mr Kelly gave in respect of the indebtedness of what I will refer to loosely as family businesses in which he did not have an active part and also in respect of what was then the re-financing of his home loan in respect of the Kingscliff premises, the latter at least according to the bank's case. 2Mr Kelly, who is self-represented, is defending the proceedings which have been set down for hearing on 13 October 2014. He is applying for an adjournment of the hearing dates. His grounds relate to the late service of two additional affidavits the bank wishes to rely upon at the hearing. Each of the witnesses is a former bank officer and their evidence goes principally to the question whether the bank made disclosure to Mr Kelly before he signed the guarantee, and entered into other transactions, in accordance with, as I understand it, what is referred to as the Banking Code of Conduct. 3The issues in the case extend to a claim by Mr Kelly for relief under the Contracts Review Act 1980 (NSW), claims relating to what he says are a limitation of the extent of the guarantee he gave, breaches of the Banking Code of Practice and, in a recent amendment, an allegation that at least some of the documents on which he is sued were forgeries by one of his brothers (but see [6]-[7] below). 4 This case has been closely case-managed by her Honour Schmidt J who has from time to time made orders to facilitate the overriding purpose of civil litigation in this state. As happens, there has not always been strict compliance with timetables imposed by the Court and frequently the timetable has been varied by her Honour, including on the application of Mr Kelly. It is unnecessary for me to detail the full chronology in relation to her Honour's management of the case. 5The question of forgery by one of Mr Kelly's brothers was raised comparatively late in the day and in making that comment I am not being pejorative. In the affidavit that Mr Kelly read in support of his application to amend to allege the forgery he explained how it had taken some time to get his brother to admit to it. 6Mr Kelly has corrected me that the person whom he says forged his signature was in fact his father and the reason for the delay was that he suffered from ill health. 7 Mr Kelly has corrected my grasp of detail in relation to why the application to amend came comparatively late in the day. As I have remarked to him during the course of the discussion, I am not being pejorative about that and he fully explained that matter to the satisfaction of the Court at the time he was granted leave. 8In response to that grant of leave, understandably, Mr Kelly was given leave to file additional evidence dealing with that issue, which he did, and the bank was given leave on 15 August to file evidence in reply in relation to that forgery issue. 9 As Mr Koch of counsel has explained, the bank does not wish to lead evidence to contradict that evidence, but says that in considering Mr Kelly's evidence it became alive to what Mr Kelly said of the lack of disclosure and prepared the affidavits which are in issue before me of Mr Adam Michael Lidbury sworn 5 September 2014 and Ms Sanjesni Lata Singh sworn on 29 September 2014. As I have said, they relate to the disclosure issue, not the forgery issue. 10The bank is in breach of the orders that were made permitting it to file evidence in reply. Initially that was supposed to be done by 5 September and then extended until 25 September, but Mr Kelly was only provided with an electronic copy of the affidavits this morning. He only had them on his smartphone because he had left his home in Kingscliff to attend here for a directions hearing earlier than today. He has had the opportunity over a period of 25 minutes during a short adjournment to read a hard copy of the documents. 11It may be that strictly these documents are not in reply to the forgery issue, as Mr Koch, I think, fairly conceded. However, they are clearly relevant because they provide circumstantial evidence as to whether the bank did make disclosure about the obligations it said Mr Kelly was assuming by way of guarantee in accordance with the Banking Code of Practice. The evidence of those witnesses after all this time is largely circumstantial detailing the practice each of them says he or she invariably followed. Although in Ms Singh's case, according to her testimony, she has a recollection of directly speaking to Mr Kelly, however, she was unable to set out a precise recollection of the details or content of those conversations and in giving any evidence of that at all had to rely again, or fall back, on her usual practice. 12So, as I have said, the evidence is clearly relevant to the issues in the case and Mr Kelly says that he is caught by surprise by the evidence at this late stage. As a self-represented litigant he feels that he is unable in the time available to him now, however one looks at it, either two weeks or, allowing for weekends, eight business days, to adequately prepare to meet the case and he is concerned that an injustice will occur. 13He has referred to the uncertainty that not knowing what the evidence was has created and he is prejudiced by that. Understandably, he has been subject to anxiety wondering whether he would have adequate time to deal with the evidence that the bank was going to put together and all of those things are relevant. It is well-recognised that prejudice in terms of litigation cannot be measured simply in legal costs but the effect of the strain of litigation on individuals is a relevant consideration, as is, of course, the fact that this evidence has been served in breach of court orders. Case management orders are not imposed in the interests of forensic diligence for its own sake but forensic diligence is a virtue which the Court seeks to encourage. 14Part of Mr Kelly's concern is that as a self-represented individual, not his words, but the effect of what he said I think, he has been put upon by the bank which is taking advantage of its well-funded position and he is disadvantaged by it serving documents late when it should have complied with the timetable. 15He referred me to the decision of the Full Court of the Federal Court of Australia in Scott v Handley [1999] FCA 404. That case involved an application of the decision of the High Court of Australia in Sali v SPC Limited (1993) 116 ALR 625 at 628-29 where the plurality said that the former rule characterised by Cropper v Smith (1884) 26 Ch D 700: [W]as formulated when Court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art it has now become. In determining whether to grant an adjournment the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. 16Reference was also made to the decision of Griffith CJ in Melbourne Steamship Company Limited v Moorehead (1912) 15 CLR 333 at 342 where the Chief Justice referred to the standard of fair play to be observed by the Crown in dealing with subjects. That, of course, is these days better referred to as the obligation of government to conduct itself as a model litigant. With respect to Mr Kelly, it has not much application strictly to the present case, although his point about the advantage of litigants with deep pockets is not without point and, indeed, the Full Federal Court took those matters into account at [46]. 17I should add that the statement of principle that I have quoted from Sali, of course is the governing principle in civil litigation today. Despite some backsliding in State of Queensland South Bank Corporation v J L Holdings Pty Ltd F.C. (1997) 189 CLR 146, the approach in Sali is now the dominant approach since the enactment of s 56 of the Civil Procedure Act 2005 (NSW) and the decision of the High Court of Australia in AON Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175. 18The purpose of case management is, of course, to do justice and to advance the administration of justice and Mr Kelly's argument puts what he sees as the potential for injustice at its heart and I accept that is appropriate. However, certainly in the case of civil litigation the concept of justice is not an absolute or abstract standard. Justice is a practical concept and when litigants invoke it, generally it is relevant to the exercise of the Court's discretion that practical injustice or prejudice of that type needs to be shown and demonstrated. 19It seems to me that other than the consideration that as a non-lawyer, self-represented litigant, Mr Kelly will take longer to prepare his case and his arguments than an experienced barrister, there was little that could be said at a practical level about why an adjournment was required. I asked specifically about whether or not there were witnesses who might be required to meet this evidence and although he said there could be, he did not identify them. I did not really understand if there were witnesses who could be called to deal with the issues to be addressed by Mr Lidbury and Ms Singh why they could not be spoken to before 13 October to deal with the evidence in their affidavits. I must say it is difficult to see what witnesses could contradict what they say about their business practices within the St George Bank. However, I will leave that last consideration to one side. Had there been some specific step identified by Mr Kelly in relation to the gathering of further evidence that was necessitated by this material if it is admitted, it would have been relevant for me to know what it was to put it in the balance in the exercise of my discretion. 20As things presently stand, I am not persuaded that the interests of justice or of the administration of justice require an adjournment of the hearing set down for 13 October. I think that although the order allowing the bank to put on the evidence in reply was perhaps strictly expressed, I accept that this evidence arises out of the new evidence put on by Mr Kelly and I also bear in mind that a degree of leeway has been permitted to both parties in the preparation of this case by the judges and registrar who have been case-managing it. 21It seems to me that the considerations referred to in Sali and in Aon about the effect of the loss of court time on not only the parties in the present proceedings but on other litigants, and the waste of judicial resources potentially involved, require me to refuse Mr Kelly's application, especially as he has been unable to persuade me that there is any practical injustice in allowing the matter to proceed on 13 October. 22I should say that, naturally, the question of the admissibility of the evidence of Mr Lidbury and Ms Singh will be a matter for the trial judge who, no doubt, will rule upon such objections as Mr Kelly feels advised to take at the point of tender. 23I think it also appropriate that I should allow Mr Kelly some time to put on any evidence dealing with this question of disclosure referred to by the new witnesses if he finds that there is a witness who can assist him in that regard, but I think that that should be done by close of business on 10 October 2014. It seems to me that it would ill- behove the bank, given what I referred to as the leeway afforded both parties in preparation, to object to such a course. 24My orders are: (1)The application to adjourn the hearing date of 13 October 2014 is refused. (2)The defendant to have liberty to file any additional evidence relevant to the matters deposed to by Mr Lidbury and Ms Singh by close of business on Friday, 10 October 2014. (3)Costs of today can be the plaintiff's costs in the cause