Anderson v National Australia Bank

[2007] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 8379 of 1997

RAYMOND JOHN ANDERSON and BEVERLY ANDERSON

v

NATIONAL AUSTRALIA BANK (ABN 12 004 044 937)

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JUDGES:	MAXWELL P, CHERNOV and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2006
DATE OF JUDGMENT:	29 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 172

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EQUITY – Unconscionable conduct – Special disadvantage – Banker-customer relationship – Customer suffering from manic depressive illness – Whether psychiatric condition sufficiently evident to bank to make enforcement of mortgages prima facie unfair – Louth v Diprose (1992) 175 CLR 621 – Whether customer had sexual relationship with bank manager – Whether “situational disadvantage”.

COURTS AND JUDGES – Bias – Allegation that trial judge biased – Whether judge favoured defendant’s counsel and witnesses – Whether judge’s conduct of trial created apprehension of bias – Proper function of interventions by trial judge in course of evidence.

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APPEARANCES:	Counsel	Solicitors
The Appellants in person
For the Respondent	Mr G H Garde AO RFD QC with Mr A T Schlicht	Dibbs Abbott Stillman

MAXWELL P:

1. In April 1991, Beverly Anderson and Raymond Anderson purchased three properties in Ararat.  They borrowed money from the National Australia Bank (“the Bank”) to complete the purchases.  They mortgaged the properties to secure the borrowings.   Ms Anderson described Raymond Anderson as “a friend of long standing” who had decided to join with her in investments.[1]  His name was Raymond Moon but he changed it to Anderson in July 1991.  He is not married to Ms Anderson, although he is occasionally referred to in Bank documents as her husband.  (For convenience, I shall nevertheless refer to them as “the Andersons”).  Mr Anderson contributed funds of his own to the purchases.

   [1]T 150, 166-7.

1. The Andersons subsequently defaulted on the borrowings and the Bank sought to enforce its securities.  Ultimately, the Bank took proceedings for possession of the properties. 

1. The borrowings were effected through the Ormond Branch of the Bank.  The manager at the time was Mr Brad Beecham.  Ms Anderson had dealings with Mr Beecham during 1990 and 1991.  In answer to the Bank’s claim for possession, the Andersons contended that the Ararat properties were purchased on the advice of Mr Beecham, and that the advice was negligent.  They also contended that, at the time the mortgages were entered into, Ms Anderson was suffering from a special disability because of psychiatric illness and that the Bank unconscientiously took advantage of this disability.  (This claim relied in part on an allegation that Ms Anderson had had a sexual relationship with Mr Beecham during the relevant period).

1. The trial Judge dismissed both of these contentions and entered judgment for the Bank.  The Andersons appeal from that judgment.  Ms Anderson has conducted the appeal on their joint behalf.  Mr Anderson is unwell and has given her his power of attorney for this purpose.

1. The grounds of appeal fall into five categories, as follows:

(a)       the trial Judge should have disqualified himself for ostensible bias.  His conduct of the trial was neither impartial nor fair (grounds 1, 9);

(b)      the trial Judge should have found that Ms Anderson suffered from a special disability constituted by her mental illness (grounds 2, 6, 7, 8, 10 and 11);

(c)       the trial Judge should have found that Ms Anderson suffered from a special or situational disadvantage by reason of a sexual relationship with Mr Beecham and Ms Anderson’s emotional dependence on him (grounds 3, 4 and 5);

(d)      the trial Judge misdirected himself on the question of unconscionability, and failed to address the submission that the Bank had acted “unfairly, unjustly and unreasonably in financing an imprudent and improvident commercial development in Ararat” (grounds 12, 13, 14 and 15);  and

(e)       the trial Judge ought to have found that Mr Beecham (negligently) advised the appellants to undertake that imprudent development (grounds 16 – 20).

1. I defer for later consideration the allegation that the judge displayed bias.  I deal first with the grounds concerned with Ms Anderson’s mental illness.

Ms Anderson’s mental illness

1. The evidence concerning Ms Anderson’s mental illness consisted of a series of medical reports, which were tendered at the trial without objection.  The reports came from four different psychiatrists, none of whom gave evidence at the trial.  This Court is therefore in the same position the trial Judge was in, to assess Ms Anderson’s mental state at the critical times.

1. An appreciation of Ms Anderson’s psychiatric condition is essential to  understanding – and evaluating – the central allegations in the case.  Ms Anderson herself is very critical of the trial judge’s treatment of the psychiatric evidence.  It is necessary, therefore, to set out the key extracts from the reports, highlighting passages of particular relevance.

1. Dr David Horgan was Ms Anderson’s treating psychiatrist.  He saw her on approximately 100 occasions between 1985 and 1989.  In March 1989, he expressed the view that she had –

“stress-induced symptoms manifesting as anxiety, depression and transient psychotic ideas.”[2]

In July 1990, Dr Horgan said that Ms Anderson’s illness consisted of:

“severe anxiety which has progressed into a combination of anxiety and severe depression. … [S]he has described multiple symptoms of depressive illness, including lowered mood, sleep disturbance, increased appetite with associated weight gain, total loss of libido, social withdrawal, loss of interest in her normal activities and enjoyments, crying, poor concentration, marked impairment of her memory, a sense of negativism and pessimism, chronic fatigue, and ideas of wishing she was dead, and at times describing suicidal ideas.”[3]

[2]AB 3/948.

[3]AB 3/965.

1. In a February 2001 report, written in connection with the proceedings at first instance, Dr Horgan said:

“From her initial presentation, one of the most striking features of Ms [Anderson] was her gross level of disorganisation and her very poor memory, so that she would frequently forget appointments or arrive at the wrong time.”[4]

In December 1988, Ms Anderson had described visual hallucinations which, Dr Horgan said, amounted to evidence of psychosis.[5]

[4]AB 3/973.

[5]AB 3/976.

1. Dr Paul Kornan expressed this view of Ms Anderson’s mental state in a December 1988 report:

“I gained the impression that this woman may be moving towards a psychotic illness.  There were raised paranoid features.  In general terms, I thought it possible that she might be delusional, but she did not actively show overt delusions at this interview.  She seemed to have some inappropriate affect at times.  Her mental faculties tended at times to be variable.  At times she talked in a somewhat rambling way, moving tangentially from one topic to another.  Her mental faculties were quite variable.  Her intelligence level was above average.  She did appear to be somewhat tense, but I did not gain the impression that she was depressed.”[6]

Dr Kornan noted that there were “disturbed behaviour patterns” and “some chronic anxiety features”. [7]

[6]AB 3/942 (emphasis added).

[7]AB 3/943.

1. Dr Kornan’s concluding comments were as follows:

“She is delusional now, and one wonders if in fact the marriage to the eighty-two year old man, as she described to me, actually took place.  I took the view that it probably did take place, but her behaviour throughout that marriage was another sign of her oncoming mental ill health patterns.  She claims that this elderly man has died, and left her one hundred and forty thousand dollars, which she spent basically on clothes, and overseas trips for her daughter.  I gained the impression that she wanted to have as little as possible to do with the daughter, but somehow gained emotional satisfaction from her daughter spending the money.

It appears, as well, that the property business ventures, which she went into, have been concluded.  She indicated to me that she merely broke even on those ventures, and I did not gain the impression that she was continuing with them.

It is clear, from my reassessment of her, that I now form a totally different diagnosis with her.  Previously I had thought that she was a worldly woman, who was shrewdly manipulating people for her own advantage.  I now form the view that she has a mental ill health problem which is showing itself more and more as being of the paranoid type as time goes on.  I gained the impression that she is moving towards a psychotic ill health pattern, which will soon become overt.  Her behaviour problems in recent years, her business ventures, and the eighty-two years [sic] old man whom she married, such as they exist, were early indications of her oncoming mental ill health problems.  Given her deteriorating psychiatric health, as she moves towards a psychotic presentation (mental ill health, and not merely just stress), it is clear that I do not feel that she will be able to return to teaching.”[8] 

[8]Emphasis added.

1. Dr G N Gibney prepared a report in April 1990, at the request of WorkCare,[9] which records the following statements made by Ms Anderson:[10]

   [9]Ms Anderson had made a compensation claim relating to her former employment as a teacher.

   [10]AB 3/960-962.

·her memory was very poor;

·since she stopped teaching she had had “dreadful depressions” and “crazy highs”;

·she felt convinced that she had “a bit extra” in her brain – some extra-sensory perception;

·she was firmly convinced that she “sees” things but is reluctant to tell people for fear that they would not believe her.  “She has foreseen the future, mainly in dreams”;

·she was convinced that people listened to her phone calls;

·during her “high” periods, she wanted to get out and spend a great deal of money.  She had done some “outrageous spending” even in recent weeks;

·an elderly friend started sending her messages indicating that he wanted to see her.  Finally, during a “high”, she went to visit him.  He asked to marry her and they were together for two years before he died quite quickly of liver cancer.

1. Dr Gibney’s opinion was as follows:

“This woman gives a clear account of a manic depressive illness and there is a strong probability that she becomes psychotic and delusional in the course of the fluctuations of that illness.

Her account of previous premonitory dreams and extra-sensory perception suggests that she has always had a vulnerable personality although she claims to have been a steady and calm person and not a ‘mood swinger’ before.

…

Her condition has not stabilised and her prognosis is doubtful.  She will need ongoing psychiatric care.”[11] 

[11]AB 3/962 (emphasis added).

1. Dr M J Nathar reported in February 1990, also for WorkCare.  He described Ms Anderson as –

“a difficult historian due to two factors;  firstly her speech and thought pattern were significantly disorganised, and secondly she had severe memory lapses of events of the past few years.”[12]

Dr Nathar said:

“…[S]he has apparently been unwell for some years.  This was at the time she returned back to relieving teaching duties and she frequently ended up at different schools, thereby showing evidences [sic] of disorganisation in her behaviour.  During that time also she unrealistically married an older man in a somewhat bizarre relationship which she has asked me not to elaborate any more and to keep confidential, but details of which are available to you in Dr Kornan’s report.  She now in this interview informed me that perhaps that marriage was another one of her strange ideas and could even have happened in the context of some unrealistic expectations or beliefs on her part or in the context of being elevated in mood and somewhat grandiose in mood and ideas.”[13]

[12]AB 3/953.

[13]AB 3/954 (emphasis added).

1. Under the heading “Present Situation and Lifestyle”, Dr Nathar reported:

“Presently she describes her situation as one of being somewhat disorganised.  In the last three months there has been increasing evidence of elevated mood and also mood swings from feeling depressed in the morning to feeling elevated later on in the day.  In fact her anti-depressant Prothiaden recently had to be reduced in dosage because of elevation of her mood.  She described mood elevation as associated with feeling grandiose, hyperactivity and performing multiple tasks at once without finishing any, her excessive overspending which needs to be carefully curtailed by Dr Horgan and her friends, so unrealistic in expectation of being able to go back to teaching now and reform the Education Department, severe insomnia and hyperactivity when high, increased confidence level with the elevated mood.  Dr Horgan had discussed with her the possibility she may be showing evidence now of manic depressive illness.”[14]

[14]AB 3/955 (emphasis added).

1. Dr Nathar described Ms Anderson’s mental status examination as “very interesting”: 

“She presented as a reasonably dressed and well presented lady who showed during the interview mainly euthymic mood with a normal range of response.  She was not anxious nor unduly depressed nor elevated in her mood.  Her speech pattern was disorganised, rambly but there was no formal thought disorder as any topic of conversation eventually arrived back at the original starting point and she would be able to finish off eventually the original subject after rambling on excessively for a while.  There was no pressure of speech on this occasion.  Her memory testing revealed difficulty recollecting four objects at five minutes and events of her illness over the last three or four years, but otherwise digit span and long term memory normal.  She appears to be a girl of reasonable intelligence, and there were no psychotic phenomena discernible now.”[15]

[15]AB 3/956 (emphasis added).

1. Dr Nathar’s opinion was that –

“there is now evidence of a manic depressive illness probably her main problem over many, many years.

…

Her illness is still evolving and recent manifestation of manic behaviour is in fact becoming blatantly obvious only in the last three months.  I think her condition could be subjected to further fluctuations in terms of her mood.

…

The prognosis is poor.  She has been virtually continuously ill now for an extended period of time.  She has a psychotic illness with various manifestations such as paranoid features, much fluctuations in mood, and much disorganisation in behaviour.  She is also receiving very intense treatment indicating the severity of her illness.”[16]

[16]AB 3/956-7 (emphasis added).

1. Dr Nathar prepared a further report in April 1991, in which he said:

“She continues to have some agitation and anxiety and … her mood swings still remain as previously but now her mood swings are more towards depression rather than towards mania.”[17]

He described her “mental status examination” in these terms:

“She presented in a friendly smiling and relaxed way.  She gave a clear coherent account of her problems without showing any mood swings or anxiety or psychotic problems.  She was neatly dressed, with curly brownish red hair.

She was not paranoid, no symptoms of any psychotic illness such as hallucinations.”[18]

[17]AB 3/969.

[18]AB 3/970 (emphasis added).

1. His opinion was expressed in these terms:

I have not deferred from previous opinions in my belief that this complex lady has a severe psychiatric illness, basically I believe one of a manic depressive illness but also with a significant associated anxiety reaction. 

…

There is an ongoing mood instability as a result of a manic depressive illness with recent exacerbation with anxiety reaction when she returned to work.

…

The immediate and chronic causations of her psychological disturbance has to do with a constitutional illness which renders her unfit for any work or to face up to any pressure.  She is sick, disorganised, has poor judgement and is very fluctuating in mood.  She could not possibly work.”[19]

[19]AB 3/970-1 (emphasis added).

The significance of the medical evidence

1. Several critical aspects of Ms Anderson’s condition emerge clearly from these reports.  First, in the period 1990-1991, she was suffering from a mental illness characterised by psychotic episodes.  She was, from time to time, delusional.  Dr Gibney, for example, diagnosed manic depressive illness and said there was “a strong probability that [Ms Anderson] becomes psychotic and delusional in the course of the fluctuations of that illness.”[20]

   [20]AB 3/962.

1. The terms “psychotic” and “delusional” both describe the condition of being out of touch with reality.  According to the Diagnostic and Statistical Manual of Mental Disorders (4^th ed, Text Revision) (“DSM-IV-TR”):

“The narrowest definition of psychotic is restricted to delusions or prominent hallucinations, with the hallucinations occurring in the absence of insight into their pathological nature.”[21] 

“Delusion:  a false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof or evidence to the contrary.”[22]

[21]DSM-IV-TR, 827.

[22]Ibid 821.

1. Secondly, Ms Anderson’s susceptibility to delusions raised doubts at the time about whether events she described actually happened.  Thus, Dr Kornan said:

“She is delusional now, and one wonders if in fact the marriage to the 82-year-old man, as she described to me, actually took place.”[23]

Ms Anderson herself, while evidently not doubting the occurrence of that marriage, suggested to Dr Nathar that it was perhaps –

“another one of her strange ideas and could even have happened in the context of some unrealistic expectations or beliefs on her part or in the context of being elevated in mood and somewhat grandiose in mood and ideas.”[24]

This insightful remark has obvious relevance to a consideration of Ms Anderson’s “expectations or beliefs” about her relationships (business and personal) with Mr Beecham, referred to below.

[23]AB 3/945.

[24]AB 3/954.

1. Thirdly, the prevailing diagnosis – and the one relied on by Ms Anderson – is of manic depressive illness.[25]  Both Dr Gibney and Dr Nathar recorded Ms Anderson as reporting mood elevation.  She told Dr Nathar that this state was –

“associated with feeling grandiose, hyperactivity and performing multiple tasks at once without finishing any [and with] excessive overspending …”[26]

Ms Anderson told Dr Gibney that, after stopping teaching, she experienced both “dreadful depressions” and “crazy highs”.[27]  The marriage to the elderly man had occurred during a “high”, she said.  In his April 1991 report, Dr Nathar said that Ms Anderson’s –

“mood swings still remain as previously but now her mood swings are more towards depression rather than towards mania.”[28] 

[25]Gibney, above n 14;  Nathar, above n 18.

[26]AB 3/955.

[27]Above n 11.

[28]AB 3/969.

1. Fourthly, the reports record Ms Anderson’s vivid accounts of her excessive and intemperate spending.  She told Dr Kornan that her late husband had –

“left her $140,000, which she spent basically on clothes, and overseas trips for her daughter.”[29]

She said to Dr Gibney that, during her “high” periods, she wanted to get out and spend a great deal of money.  She said that she had done some “outrageous spending” in the weeks before seeing Dr Gibney in April 1990.[30]  Dr Kornan expressed the view that her business ventures (amongst other things) were –

“early indications of her oncoming mental ill health problems.”[31]

[29]AB 3/945.

[30]AB 3/961.

[31]AB 3/945.

1. Engaging in “unrestrained buying sprees” and making “foolish business investments” are specifically recognised in DSM-IV-TR as diagnostic criteria for manic episodes in manic depressive illness.[32]  These features of her illness have obvious relevance to Ms Anderson’s seemingly impulsive conduct in purchasing the Ararat properties, as described below.

   [32]Above n 21, 362 – criterion B(7).

1. Fifthly, the reports refer repeatedly to Ms Anderson’s very poor powers of recollection during the relevant period.[33]  Ms Anderson herself described this eloquently in evidence at the trial.  She said that until 1999 her powers of recollection were “shocking”.[34]  As at April 1991, Ms Anderson said, she –

“was still in a vast deterioration of forgetfulness.”[35]

[33]Horgan, above n 10;  Nathar, above n 15;  Gibney, above n 13.

[34]T 101.

[35]T 175.

1. Finally, the reports show that, even though she had a serious mental illness, Ms Anderson could present at interview without showing any signs of the illness.  Thus, in February 1990, Dr Nathar said Ms Anderson –

“presented as a reasonably dressed and well presented lady who showed during the interview mainly euthymic[36] mood with a normal range of response.  She was not anxious nor unduly depressed nor elevated in her mood.  Her speech pattern was disorganised, rambly but there was no formal thought disorder …”[37]

Likewise, in April 1991, Dr Nathar recorded Ms Anderson as having –

“presented in a friendly smiling and relaxed way.  She gave a clear coherent account of her problems without showing any mood swings or anxiety or psychotic problems.   She was neatly dressed, with curly brownish red hair.

She was not paranoid, no symptoms of any psychotic illness such as hallucinations.”[38]

[36]“Euthymic” is defined as follows:  “mood in the ‘normal’ range, which implies the absence of depressed or elevated mood,” DSM-IV-TR, 825.

[37]AB 3/956.

[38]AB 3/970.

1. Dr Gibney, in April 1990, described Ms Anderson’s “animated and cheerful manner”.[39]  Dr Gibney recorded Ms Anderson as saying that she –

“still tends to get exhausted after social outings.  She can only converse with people for an hour or so.”[40]

In short, Ms Anderson was capable of relatively normal functioning in a social setting.

[39]AB 3/959.

[40]AB 3/962.

1. Even on her own evidence, Ms Anderson was able, despite her illness, to effect the significant transactions with which this litigation is concerned.  The objective record reveals an impressive degree of confidence and commercial competence.  Albeit that she maintains that she was acting on Mr Beecham’s advice and instructions, Ms Anderson was able to get herself to and from Ararat on successive occasions and to purchase the three properties from the different vendors. 

1. In her evidence-in-chief, Ms Anderson said that she had purchased two of the properties (the motel and 116 High Street) “subject to the restaurant getting a permit.”[41]  It was, of course, entirely prudent to have made those purchases conditional on the receipt of planning permission for a restaurant, that being the centrepiece of the planned development.  What matters for present purposes, however, is that – unwell as Ms Anderson may have been – she could nevertheless act astutely to protect her own interests.

   [41]T 156.

Unconscionable conduct

1. The case advanced on behalf of the Andersons was that, at the time of entering into the transactions and mortgaging the properties, Ms Anderson was “at a special disadvantage in that she was incapable of looking after her own interests.”  The incapacity was said to be the result of her psychiatric illness, of which the relevant symptoms were identified as:

“•       confusion, depression and anxiety;

·poor concentration and memory loss;

·paranoia and delusions;  and

·inability to organise her daily life and erratic behaviour.”[42]

[42]AB 1/63.

1. At the trial, counsel for the Andersons conceded – quite properly – that:

“any case the defendants might have to support some form of equitable relief in respect of the … mortgages would depend, not only upon Ms Anderson suffering from a psychiatric condition but also that that psychiatric condition was of such a degree that there was an absence of any reasonable degree of equality between her and the Bank and that it was sufficiently evident to the Bank to make it prima facie unfair or ‘unconscionable’ for the Bank to procure, accept or retain the benefit of her assent to the mortgages she now seeks to impugn.”[43]

[43][2004] VSC 193, [48]; see also Louth v Diprose (1992) 175 CLR 621, 637 (Deane J).

1. Ms Anderson’s evidence was that she had told Mr Beecham (and his predecessor at the Bank) that she suffered from manic depression.  She said that in March 1990 she had shown Mr Beecham Dr Kornan’s report.[44]  According to Ms Anderson, when Mr Beecham learned that she had manic depression, he replied, “I love you the way you are, I love your manic side.”[45]    

   [44]See [11]-[12] above.

   [45]T 139.

1. Other witnesses were called by Ms Anderson to give evidence concerning her condition in the period 1988-1991.  Ms Anderson’s daughter gave evidence of conversations with Mr Beecham on unspecified dates, in which she said she had told him that her mother was mentally unstable.  Other witnesses referred to Ms Anderson’s appearance as having been dishevelled and untidy from time to time, to her conversation having been disjointed and her behaviour inappropriate.  As the Judge commented, however, much of this evidence “was unfocused as to time and vague as to detail”.

1. Evidence was given by Mr Beecham and by other witnesses who had been bank officers at the Ormond Branch of the Bank at relevant times.  That evidence was – consistently – to the effect that, when Ms Anderson attended at the Bank, she appeared to know what she was doing and to know what she wanted, and was able to give clear and coherent instructions to bank staff.[46]  Mr Beecham recalled Ms Anderson as having always been well-groomed and well presented.[47]  Unsurprisingly, Mr Beecham said that if he had known that “she wasn’t of sound mind” he would have referred the matter to more senior management.[48]

   [46]See, for example, Beecham, T 748-9.

   [47]T 749-50, 790.

   [48]T 749.

1. As his Honour noted, the documents produced by the Bank showed that, in the periods immediately prior to the execution of the mortgages, the Andersons –

“were fully informed of the loans which were being made to them and of the securities which they were providing as security for those loans.  Copies of letters of offer from the bank setting out these matters were acknowledged by each of the [appellants] by [their] signing of them.”[49]

[49][2004] VSC 193, [70].

1. The trial Judge expressed his conclusions in these terms:

“71.     Notwithstanding the evidence of Ms Anderson’s daughter [Ms Collinson] and her friend Ms Kelly I am not satisfied that any report of Dr Kornan was ever seen by Mr Beecham or any other officer of the Bank.  I prefer the evidence of Mr Beecham over that of those witnesses and Ms Anderson.  Neither Ms Kelly nor Ms Collinson were impressive witnesses.  In particular, Ms Kelly displayed a similar rehearsed quality in her evidence to that displayed by Ms Winks.  Ms Collinson appeared confused and, indeed, conceded as much.  Her ability to place events at particular times or to put them in sequence adds a degree of unreliability to her evidence even if such unreliability is understandable having regard to the passage of time.

72.      As far as Ms Anderson’s appearance is concerned I am not satisfied that it was ever such that whilst she was present at the Bank it was sufficiently evident to the relevant bank officers that she had a psychiatric disability of such a nature and of such severity as would render it unconscionable for the Bank to enter into ordinary banking dealings with her.  On any view Ms Anderson conducted banking transactions with the plaintiff Bank and other banks over an extended period whilst she suffered from the psychiatric condition described either by Dr Kornan or Dr Horgan.  Those transactions involved numerous loans and other banking transactions and, of course, at the same time she engaged in extensive buying and selling of real estate.  Indeed, in an affidavit which she swore in support of an application to set aside a default judgment in this proceeding she described herself as having, from the early 1980s, dealt in real estate, buying properties and doing them up for re-sale.  She continued to undertake such activities even after 1985 when, it would appear, she began to suffer, to a greater or lesser degree, from some form of psychiatric illness.  There is no suggestion that she was unable to undertake these activities or that any of the numerous transactions which were described could have been set aside as being unconscionable on the part of those with whom she dealt.”

1. His Honour went on to make the important point that, in any event, the Bank did not act unconscionably.  After all, the taking of the mortgages was an entirely orthodox approach to obtaining security for the loan finance which the Bank had provided, on ordinary commercial terms, to the Andersons.  If finance had not been obtained from the Bank, the Andersons would have had to obtain similar loans from other lending institutions to meet the obligations they had undertaken under the purchase contracts which they had signed.  Had they not done so, they would have been in default under those contracts.

1. No error has been demonstrated in any of his Honour’s conclusions.  On the contrary, having reviewed the evidence, I respectfully agree with them.  This is, of course, a case where there were basic conflicts of evidence and where, as a result, the trial Judge was constrained to decide which of the competing versions should be accepted.  His decision on those issues was, inevitably, reflective of the view he formed of the credibility of the various witnesses, having seen them give evidence and be cross-examined. 

1. As McHugh, Kirby and Callinan JJ said in Walsh v Law Society of New South Wales:[50]

“… [T]he appellate court will be bound generally to defer to any conclusions on the questions of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses.  In particular circumstances, it will be open to an appellate court to reach conclusions contrary to those of the court or tribunal below, notwithstanding a credibility finding.  Sometimes it will be authorised to reject those findings where they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ of the case.  But the caution required of all appellate courts in such matters has long been recognised and frequently upheld in decisions of this Court.”

[50](1999) 198 CLR 73, 92.

1. As their Honours there recognised, there may be circumstances where the appellate court is entitled to reject the trial Judge’s findings, for example on the basis of “incontrovertible facts or uncontested testimony”.[51]  But this is not such a case.  As appears from his Honour’s reasons, the contemporaneous documents reinforce the conclusions to which he came.  So do the features of Ms Anderson’s psychiatric condition, as described in the medical reports discussed earlier.  Ms Anderson was giving her recollection of events from a period in which she experienced delusions, periods of elevated mood, unrealistic and grandiose ideas, and severe memory lapses.  These are all factors which the court was bound to consider in assessing the reliability of her recollection.

   [51]Fox v Percy (2003) 214 CLR 118, 128 [28]–[29], 139 [66], 165-6 [148]; CSR Ltd v Maddalena [2006] 80 ALJR 458, [21] (Kirby J, with whom Gleeson CJ agreed).

The alleged sexual relationship with Mr Beecham

1. Ms Anderson gave evidence that she had had a sexual relationship with Mr Beecham.  As pleaded, the alleged sexual relationship was not said to constitute, or contribute to, a special disability.  Rather it was pleaded as a particular of the Bank’s knowledge of Ms Anderson’s special disability.[52]  In the event, however, the case for the Andersons was run on the basis that Ms Anderson did suffer from a “special or situational disadvantage” by reason of the alleged sexual relationship, and her emotional dependence on Mr Beecham.  The grounds of appeal reflect this. 

   [52]AB 1/66.

1. The Judge’s reasons set out Ms Anderson’s account of the events leading up to the commencement of the alleged relationship.  Ms Anderson said that on first meeting her in 1990 Mr Beecham said –

“I have applied to the Ormond bank especially to look after you and your financial affairs.”[53]

She described these as “the wonderful words”.[54]  She felt that she had an immediate “soul connection” with Mr Beecham.[55]  She was very pleased that he was going to look after her because “I looked into his eyes and I liked what I saw there”.[56]  She said that she felt that Mr Beecham had taken over from her husband.[57]

[53]T 128.

[54]T 130.

[55]T 129.

[56]Ibid.

[57]T 129, 133, 137.

1. Ms Anderson said that shortly after she met Mr Beecham, he called her in to the Bank and said that it was time for her to buy another investment property.  She said that he told her that she should go and look for some and that he would “okay them”.  Mr Beecham had said that he would “triple her money”.

1. According to Ms Anderson, after this meeting with Mr Beecham she drove around with a friend looking at different properties, collected brochures and took them back for him to see.  She said he selected a property in Tooronga Road, East Malvern and suggested that she buy it with her niece as an investment.  She went to the auction of the property with her niece and bought it for $320,000.  She borrowed money for the purchase from the Bank, arranged by Mr Beecham.

1. Ms Anderson said that, in about August 1990, roughly two weeks after the purchase of the Tooronga Road property had been settled and after she had moved in, she and Mr Beecham went to look at the property.  Whilst there she drank a glass of champagne which, because of medication she was on at the time, had the effect of making her feel “really good”.  She said that she and Mr Beecham then had sex.  In her words:

“We were there in the house on our own, and he put his arms around me and I did – he was just like a husband to me at the time, and I am afraid, well, it got out of hand, or in hand, or – we had sex.”[58]

The event occurred, she said, in her bedroom.

[58]T 133.

1. Ms Anderson said that she had had “plenty of lunches” with Mr Beecham, that he put his arm around her and that he had said he was “really going to look after (her)”, but this was the first act of sexual intercourse between them.[59]  She said that sexual intercourse occurred on about five occasions, four at Tooronga Road and one in Mr Beecham’s office at the Bank, at about 6:30 pm one evening.

   [59]T 134.

1. In cross-examination Ms Anderson maintained that the relationship had existed.  As she put it:

“The affair took place.  The connection took place.  The love took place.”[60]

[60][2004] VSC 193, [34].

1. His Honour was unimpressed by this evidence:

“Whilst being questioned about her relationship with Mr Beecham Ms Anderson moved in the witness box as if she was uncomfortable, in the manner of a person who is either embarrassed or seeking to appear so.  She claimed to be disgusted with herself.  I found her actions in this regard and her evidence generally on the question of her sexual relationship with Mr Beecham to be theatrical and entirely unconvincing.”[61]

[61]Ibid.

1. His Honour then dealt at length with the evidence given by a friend of Ms Anderson’s, Anita Winks.  Ms Winks said she had gone to the Tooronga Road house to pick up Ms Anderson and had found Ms Anderson engaged in an act of sexual intercourse with a man she did not know.  Crucially, Ms Winks described this man as having hair of a “mousey browny colour”.  Mr Beecham had black hair, however.  As the Judge noted, Mr Beecham’s hair was –

“completely and totally black with no sign of grey.  It might be described as being almost unnaturally black … it could not be described as being ‘brownish’ or ‘mousey brownie’.”[62]

[62]Ibid [41].

1. Mr Beecham said in evidence that he had never met Ms Anderson until he became the manager of the Ormond branch of the Bank.  He denied the statement which she attributed to him at the time they met.  He denied ever having had lunch or having socialised with her, apart from on one occasion in Ararat after the Dominica restaurant had opened.  He denied having had anything to do with the purchase of the Tooronga Road property and said that he first knew of its existence, and of Ms Anderson’s having purchased it, when she approached him to obtain finance after she had bought it. 

1. Mr Beecham denied having ever had any personal or social relationship with Ms Anderson.  Specifically, he denied that he had ever had sexual intercourse with her.  He said that he had been happily married for 25 years and had three adult children.  He said that he had never heard of Anita Winks and that he had certainly never had any conversation with her in the kitchen of Ms Anderson’s house in Tooronga Road, to which he had never been.

1. His Honour’s conclusion was in these terms:

“In this instance the problem presented by the diametrically opposed evidence of Ms Anderson and Ms Winks on one side and Mr Beecham on the other is not as difficult of resolution as it might be in many cases.  I accept the evidence of Mr Beecham.  I do not believe Ms Anderson.  Whether she is suffering from a delusion or has deliberately concocted the story of her relationship with Mr Beecham there is no need for the Court to decide.  It is sufficient that the evidence of Mr Beecham is clearly to be preferred.  Even accepting that he may have had a strong motive to lie were he to have been unfaithful to his wife of (now) 25 years the probabilities are strongly in his favour.  From Ms Anderson’s bizarre account of her first meeting with Mr Beecham to her much repeated assertion that he said he was going to look after her (whatever that really means) I find her story of their whole relationship improbable and unconvincing.  In particular and specifically I do not accept that Mr Beecham had any sexual relationship with Ms Anderson at any time.  I do not accept that his relationship with her was ever any closer than that of bank manager and customer.”[63]

[63]Ibid [45].

1. His Honour did not accept Ms Winks’ evidence either, expressing the view that –

“her evidence suffered from a rehearsed quality, especially as to what Mr Beecham was supposed to have said as to his looking after Ms Anderson immediately after the incident which Ms Winks claims to have witnessed.”[64]

[64]Ibid [46].

1. Once again, his Honour was much better placed than is this Court to evaluate the “diametrically-opposed” accounts given by the witnesses.  As his Honour said, his task was to decide which was the more probable account.  Judgments about credibility were critical, informed as they always are by observation of witnesses actually giving their evidence.  I see no error in his Honour’s careful analysis or in his conclusions.

The alleged advice

1. As noted earlier, the Andersons alleged that the purchase of the three Ararat properties was undertaken on the advice of Mr Beecham.  Their case was that Mr Beecham had recommended that these three properties be purchased and then combined to create a tourist facility.  The context of this allegation appears from the summary of evidence by the Judge, which I adopt.

1. “Dominica” is a Victorian era mansion on the western side of Barkly Street, Ararat.  Ms Anderson told the Court that she became aware in February 1991 that Dominica was to be sold.  She said she told Mr Beecham and asked him if he thought it would be a good investment property.  She said she gave him a photo of the house which he kept.  Mr Beecham’s response, according to Ms Anderson, was that the house would make a wonderful restaurant.  She said she had not thought of that possibility herself, although she recalled that in October 1990 Mr Beecham had suggested to her that she invest in a “local” restaurant.  She said that she did not accept Mr Beecham’s suggestion at that time.

1. After speaking with Mr Beecham about Dominica, Ms Anderson said that she telephoned her brother, who was an estate agent in Ararat, and told him what Mr Beecham had said.  She said that he expressed the view that Ararat would not be able to carry a restaurant like that.  When she reported this conversation to Mr Beecham, Mr Beecham suggested to her that the property could be the basis of a “wine and food experience”.  It would – he allegedly said – be bigger than just a restaurant and would involve accommodation and groups who would get “special stay-over deals”. 

1. Ms Anderson said that this conversation occurred in late February 1991, in a coffee shop in Ormond.  At the time it occurred, she said, she showed Mr Beecham an estate agent’s brochure advertising the forthcoming auction of the property.  Mr Anderson said that after this conversation Mr Beecham, who was then on holidays, telephoned her and said that he had “seen Ararat” and that she should come and see him on 17 April.  She was unable to date this conversation.

1. Ms Anderson then described a meeting with Mr Beecham on 17 April 1991, three days before the scheduled auction of Dominica.  She said she was becoming very nervous about Mr Beecham’s proposal which, she said, involved buying a motel in Ararat, a restaurant in Ararat and a house at the back of the restaurant to use as a car park.  At the time of this discussion she had not seen inside Dominica.  Nor, to her knowledge, had Mr Beecham.

1. Ms Anderson said that at this meeting she was accompanied by Mr Anderson.  At the meeting, she asked Mr Beecham if he was quite sure that she should go ahead with “this”.  She said she was referring to the auction in three days time.  At this point in her evidence Ms Anderson interpolated that earlier, in February, Mr Beecham had recommended that she buy a cheap small accommodation place that could be renovated and used as a “combined dine and stay deal”. 

1. Ms Anderson said that the day following her meeting with Beecham, 18 April, she drove to Ararat, went to the Chalambar Motel and bought it from a Mr Eric Kilbride for $180,000.  She had not inspected it.  Nor had Mr Beecham.  She bought it, she said, because Mr Beecham had told her to.

1. Ms Anderson explained that, although Mr Beecham had never have seen the property, he had seen a plan of it on the auction brochure which she had shown him.  That document, a photocopy of which was produced, had an unscaled sketch plan on it.  It also had the imprint of lips on it, as if it had been kissed by someone wearing lipstick.  Ms Anderson explained that when she gave it to Mr Beecham she kissed it as “this was my future and he done it for me so I gave him a kiss on the document”.  She said he returned the document to her.

1. According to Ms Anderson’s evidence, at some time during the 17 April discussion she left the Bank to speak to her daughter who was outside.  She was away about 20 minutes.  Upon her return Mr Beecham said “Raymond has agreed to change his name to Anderson”.  She was surprised at this and asked Mr Beecham why this was happening.  He replied, “Look, we’ve worked it out ourselves.  Don’t you worry”.  He then reminded her that she was the one with the severe psychiatric problem.  Mr Beecham said that Mr Moon’s changing his name to Anderson would help with loans.  The meeting with Mr Beecham took about an hour.  Following the meeting she and Mr Moon left the Bank.

1. The following day, Ms Anderson said, she drove to Ararat and bought the Chalambar Motel as already described.  At the same time, she spoke to people who owned an old house at the back of Dominica.  She offered them $70,000 for the house, which they immediately accepted.  Just as she had not inspected the Chalambar Motel, so she bought the house at the rear without inspecting it.  She told Mr Beecham the following day (19 April) by phone that she had bought the motel and the other property.

1. On Saturday, 20 April 1991 Ms Anderson attended the auction of Dominica with Mr Moon.  She bought it, after the auction, for $245,000.  Mr Beecham phoned her that day and she told him that she had bought the property.

1. For his part, Mr Beecham said that, until he saw an internal bank memo of 6 June 1991, he was unaware of the purchase of property in Ararat by Ms Anderson.  Until then, he had not been aware of the existence of a property in Ararat that she might be interested in.  He said that he had no familiarity with Ararat, its streets or its property values, and never gave any advice to Ms Anderson or Mr Anderson with respect to the purchase of any property in Ararat.  He denied ever having suggested that Ms Anderson should buy a restaurant in Ormond or that Mr Moon should change his name.  He went further and said that, at the time Mr Moon said that he suggested the name change, he (Beecham) did not even know that such a thing was possible.

1. Mr Beecham gave evidence that on 13 August 1991 he began to process an application for finance by the Andersons.  The amount sought was for total accommodation by the Bank of $430,000 in favour of the Andersons.  The application was accompanied by a two page hand-written description of Ms Anderson’s business and investment activities (which included a description of plans to renovate Dominica to turn it into a restaurant), a reference to the proposed sale of her Tooronga Road property, a description of the progress of a sub-division in Ararat and the prospect of its yielding available cash (a completely separate venture).  A reference to money owed to her by the Education Department accompanied the application.  Mr Beecham said that this document was created by him on Ms Anderson’s instructions.  Also attached to the loan application was a statement of Ms Anderson’s financial position at that time, signed by her.  It was proposed that the loan sought by the Andersons would be provided in two amounts of $350,000 and $80,000 respectively; the first amount being made available on an interest only basis, the second on overdraft.

1. By formal bank letters dated 21 August 1991, the Bank offered the Andersons the loans which they sought, on the security of first mortgages over Dominica and the car park and, in the case of the overdraft, over a property at Evelina Road, Toorak.  The security was to be supported by a term deposit of $60,000 and guarantees by each of the Andersons and by Collinson Holdings Pty Ltd, a company associated with Ms Anderson and her daughter.  The Andersons’ acceptance of each of the loans was verified by their signatures on each of the letters of offer, which signatures were dated 26 August.  Mr Beecham said he believed those documents were signed in his office on the date they bore, but he could not be certain of this.  Crucially, as the Judge noted, there was no challenge to the authenticity of any of this documentation.

1. The Judge explained his conclusions in these terms:

“108.   The [Andersons’] case as to the Bank’s manager, Mr Beecham, having given them the advice alleged in their counter-claim depends for its acceptance upon the Court accepting as probable that a bank manager, upon being shown a real estate agent’s auction brochure for a Victorian mansion in a country town of which he knew virtually nothing gave customers of the Bank advice that they should buy the mansion, extensively renovate it so as to turn it into a restaurant, buy another property to use as a car park, buy a motel to accommodate patrons for the restaurant and buy a bus to transport them to and from wineries and other attractions.  Their case also seems to involve acceptance of the proposition that contemporaneously with giving them this advice the Bank manager offered them a loan of $430,000 without any application having been made by them to the Bank and without any valuation or even inspection of the properties which would, presumably, have had to have stood as security for the loan.  The sheer audacity of the plan which the [Andersons] say Mr Beecham advised them to undertake casts some doubt upon their case even before consideration is given to Mr Beecham’s denial of ever having given such advice, serious credit issues which particularly affect Ms Anderson and contemporaneous documentation.  To these can also be added that Mr Beecham or someone else would have to have completely reconstructed the Bank's file to hide the truth as asserted by the [Andersons] and have done so without any discernible trace.

109.     The Bank’s case is that Mr Beecham first learned of the purchase of Dominica when he read Mr Borg’s memorandum of 6 June 1991 recording a telephone conversation he had with Ms Anderson on that day.  Ms Anderson never denied that such conversation took place and no satisfactory explanation was ever given as to why she phoned the Bank to convey this information to Mr Beecham in June if the April meeting had occurred as she said it did and she had subsequently purchased the relevant properties and reported that fact to Mr Beecham as she also asserted.  [Counsel for the Andersons] in his argument, was unable to offer any explanation for this glaring inconsistency in the [Andersons’] case other than to argue that it was not really inconsistent at all.  I am unable to accept this argument.  When this inconsistency is added to the inherent improbability of the [Andersons’] case the situation of the [Andersons] becomes grave indeed.

110.     But that is not all.  The Bank documentation to which I have referred (the loan application of 13 August 1991, with its long supporting description of the [Andersons’] (particularly Ms Anderson’s) proposals, the documents approving that loan and the defendants’ signatures on those documents, corroborates Mr Beecham and the Bank's position.  If the loan had been approved, as the [Andersons] assert, in April there would have been no need for the August documentation.  Further, Mr Beecham had no authority to approve a loan of the size contemplated.  He needed to submit it to a more senior bank officer.  No reason has ever been advanced by the [Andersons] as to why he would not follow the Bank’s ordinary procedures for loans of the type contemplated in their particular case.”

1. Once again, nothing advanced on the appeal persuades me that his Honour here erred in any way.  On the contrary, the analysis is, in my respectful opinion, compelling.  For all the reasons which his Honour gives, the conclusion which he arrived at was almost irresistible.

Fresh evidence

1. Between the trial and the appeal, Ms Anderson filed a series of affidavits, with extensive exhibits.  Four of the affidavits were sworn by Ms Anderson herself, the fifth by a person who gave evidence at the trial.  This material is sought to be relied on as “new evidence”. 

1. The content of Ms Anderson’s various affidavits is, in fact, a commentary on documents which were discovered before the trial and which were, in most instances, dealt with during the trial.  The affidavits contain a variety of contentions about the inferences which should have been, and should now be, drawn from particular documents.  In addition, the affidavits variously allege that –

(a)       contemporaneous documents were improperly altered, either at the time or subsequently;

(b)      documents or parts of documents were fabricated to suit the Bank’s case; 

(c)       Mr Beecham knew more about Ms Anderson’s plans, and knew at an earlier time, than he admitted in evidence;

(d)      Mr Beecham deliberately misled the Court;

(e)       the learned Judge manipulated the facts in his account of events;

(f)       the Bank made inadequate discovery;

(g)      the Bank acted on inaccurate information regarding Ms Anderson’s net assets;

(h) the Bank acted in breach of provisions of the Commonwealth Constitution.

1. It is unnecessary to rehearse the detail of any of the allegations, or to refer to the voluminous documentation exhibited to the affidavits.  I have reviewed the material and I am quite satisfied that the allegations are without foundation.  In particular, I am satisfied that there is nothing in the documents exhibited to these affidavits which would justify, let alone require, any different factual conclusions from those arrived at by the Judge.

1. Ms Anderson made repeated reference, in successive affidavits and again in argument on the appeal, to a Bank document dated 17 April 1991, apparently recording the Bank’s approval of an application to transfer $50,000 from the account of Collinson Holdings Pty Ltd to an ANZ account in the name of Ms Anderson at Ararat.  The document is said to bear Mr Beecham’s initials as authorising officer.  Ms Anderson contends that these funds were transferred to enable her to pay the deposit on the purchase of Dominica.  She also relies on a photocopy extract from an old ANZ cheque book of her own, which she apparently found after the trial, which shows the deposit for Dominica being paid from an ANZ bank account in Ararat on 20 September 1991.  Ms Anderson relies on these documents as showing that Mr Beecham must have known on 17 April 1991 of the proposal to purchase Dominica, contrary to his sworn evidence that he first knew when he received the file note of 6 June 1991.[65] 

   [65]See [68] above.

1. In my opinion, there is no substance in this point.  It seems clear that the Andersons had dealings with the Bank on 17 April 1991, most notably the completion of a line of credit application, which was in evidence.  The transfer authorisation had been discovered and was available to be used in cross-examination of Mr Beecham.  He was not, however, cross-examined about it, although he was extensively cross-examined about the 17 April line of credit application.[66]  As the Judge recorded, Mr Beecham had no recollection of meeting with the Andersons on 17 April, though he could not deny that it might have occurred.[67]  Mr Beecham specifically denied having been told by Ms Anderson as at 17 April 1991 that she had seen the Dominica property.[68]  The question of his knowledge of the Ararat purchases was at the heart of the factual issues which the Judge had to decide.    No error has been demonstrated in his Honour’s findings.

   [66]T 810.

   [67][2005] VSC 193, [101].

   [68]T 814.

1. The affidavit from a witness (the vendor of the motel) deposes to his having realised as soon as he left the witness box that he had made a mistake on a matter of fact.  No explanation has been advanced for the failure of those representing the Andersons at trial to have the witness recalled immediately to correct the mistake.  Nothing can now be done, though even if the correction had been made, it would not have affected the outcome of the case.

The claim of bias

1. While the grounds of appeal speak only of ostensible bias, Ms Anderson made clear in the course of argument that she believed the trial Judge had been actually biased against her and Mr Anderson.  She contended that the Judge had made his mind up before the trial began.  She said, “From the first day I felt I had no chance.  He did not believe anything I said.”

1. Ms Anderson argued that the Judge’s conduct of the trial was neither fair nor balanced.  She contended that his Honour had behaved in what seemed to be a friendly manner with the Bank’s witnesses and counsel, which contrasted with what she said was his “sarcastic and incredulous” response to her own evidence and that of the witnesses she called, and his “insulting” treatment of her counsel.

1. Having reviewed the transcript, and examined all of the particular exchanges to which Ms Anderson draws attention, I reject her claims of bias.  At a number of points during Ms Anderson’s evidence, the Judge responded with questions which clearly conveyed his Honour’s scepticism about the evidence being given.  But these responses were, in my opinion, fully justified by the sheer improbability of the account which Ms Anderson gave.  Moreover, it was preferable that his Honour express such doubts at the time, in the presence of the witness, and seek clarification or confirmation of what was being said.  This is not pre-judgment.  On the contrary, it is perfectly proper for a judge to convey to the parties and their representatives his or her reactions to matters of fact or law as they emerge.  The significance of such comments can then be assessed and, where necessary, they can be responded to.

1. For example, Ms Anderson was giving evidence about Mr Beecham having said to her in late February 2001 that he would organise a planning permit to enable Dominica to be converted into a restaurant.  His Honour responded in these terms:

“His Honour:   Listen, just let me get this straight.  You’re having a discussion with the bank manager in Melbourne about a property so far as you’re aware that he’s never inspected, that was previously used as a private home?---Yes.

Which might have been able to be converted into a restaurant and he’s talking to you about getting a permit?---Yes.

Did you know whether there were any – the house – had you ever been inside this house?---No, not at that time.

And so far as you were aware he’d never been inside the house?---No.

It had never been used as a restaurant before?---No.

Been a private home?---Yes.

So you were having – just let me get this straight.  You’re saying that in April, on 17 April, he’s having a discussion with you about getting a permit, what a building permit or a planning permit or - - - ?---No in February he was discussing getting a restaurant permit because when I showed it to him he said, that would make a wonderful restaurant.

Permit, what sort of permit?  A permit – a liquor licence or - - - ?---Yes to run it as a restaurant.

But he didn’t know what was inside of it at that stage?---No but evidently he’d had something to do with houses that were made into restaurants before.  He tried to talk me into a restaurant in Ormond somewhere in October.

Yes all right go on.  You didn’t know what was in the house?---No.”[69]

To similar effect, his Honour queried Ms Anderson’s evidence that Mr Beecham had told her to go ahead and purchase the motel and the adjacent house, even though he had never seen either of the properties.[70]

[69]T 152-153.

[70]T 156.

1. His Honour intervened frequently in the course of cross-examination of  Bank witnesses by counsel for the Andersons.  But these interventions were, in my respectful opinion, no more than was required for the proper discharge of the trial Judge’s function of controlling the proceedings and, in particular, ensuring that cross-examination was both fair and relevant to the issues.  It is the judge who must decide the case and who determines questions of relevance. 

1. At one point his Honour said this to counsel for the Andersons:

“I think you’d need to plan your cross-examination because I may not let it continue.  At the moment it has not helped me at all.  If it’s designed to help me, and I assume it is, this court has other litigants who have their cases to be heard.  You do not have an open-ended – not in this court, you do not have an open-ended right to cross-examine as long as you like.  While you ask relevant questions I’ll permit you to continue.  So far barely 50 per cent of the questions have been relevant or have gone to any issue that will ultimately assist me.  If you persist in this I’ll put a time limit on you and I’ll stop you.  Do you understand?”[71]

[71]T 830.

His Honour was here expressing a quite legitimate concern to avoid unnecessary or unproductive cross-examination.  Time spent in court is enormously expensive, both for the parties and for the public purse which funds judges and courts, and there are always other cases waiting to be heard.  Judges can, and should, intervene as required to ensure that the available time is profitably used.

Conclusion

1. As none of the grounds of appeal has been made out, the appeal must be

dismissed.

CHERNOV JA:

1. I have had the advantage of reading the draft reasons of the learned President in this matter and consider that, for the reasons his Honour gives, the trial judge did not err as was contended for by the appellants.  It might be said that the judge’s attitude to Ms Anderson and her counsel bordered on the belligerent and was in stark contrast to his dealing with counsel for the Bank.  The question, however, is not whether the judge behaved badly but whether his conduct of the trial was the manifestation of his bias against the appellants.  This matter must be determined in the context of the evidence given by Ms Anderson which was, in relevant respects, inherently not believable, and the time wasting questioning and cross-examination conducted by her counsel.  It is understandable that these circumstances tested the judge’s patience, and although he probably should not have allowed this to influence his demeanour so as to become involved in argument with counsel and otherwise display his impatience, I consider that his impugned behaviour fell far short of amounting to ostensible bias on his part.  I would dismiss the appeal.

NETTLE JA:

1. I have had the advantage of reading in draft the reasons for judgment of the President.  I agree with his Honour that the appeal should be dismissed.

1. Like the President, I see no reason to doubt the judge’s assessment of the various witnesses’ credibility or otherwise his findings of fact.  From the outset, the objective circumstances of the matter rendered it inherently improbable that the Bank knew of or had reason to suspect the extent of Ms Anderson’s mental problems.  The improbability of much of what she said in evidence, coupled with her demeanour in the witness box, strengthened that impression. 

1. Equally, as the judge held, the objective circumstances made it unlikely that

any officer of the Bank would have given Ms Anderson the sort of business and financial advice which she alleged.  In turn Ms Anderson’s performance under cross-examination provided strong support for that conclusion.

1. The possibility of a bank manager engaging in a sexual relationship with a female client was not of itself so improbable.  But, as the judge explained, the bulk of the evidence was clear that Mr Beecham was not involved in any such relationship with Ms Anderson, or indeed associated with Ms Anderson at all except professionally as the bank manager responsible for her account.  Ms Anderson’s testimony leaves little doubt that she believed she had a sexual relationship with Mr Beecham.  But, as the medical and some lay evidence established, Ms Anderson was a psychotic afflicted by florid delusions.

1. Much was made in written submissions filed on behalf of the appellants of the manner in which the judge behaved towards counsel for the appellants below.  We were provided with a table (which is annexed to these reasons) said to show some of many occasions when the judge demonstrated pre-judgment and therefore bias by asking sarcastic and demeaning questions of the appellant and her witnesses and by frequently and unfairly admonishing counsel (to the point at least once of threatening without cause to deal with counsel for insolence). That was to be contrasted, it was said, with numerous helpful “Dorothy Dix” questions asked by the judge of the Bank’s witnesses, and the courteous, amiable fashion in which the judge related to counsel for the Bank. The point was also made that counsel for the appellants below had not waited until after judgment before complaining about the judge’s attitude.[72]  He had applied during the course of the trial for the judge to disqualify himself from proceeding with the trial, on the basis that his Honour’s attitude and conduct towards the appellant’s case bespoke apparent bias.

   [72]Cf Vakauta v Kelly (1989) 167 CLR 568, 572.

1. Arguably there is some force in that complaint.  As will be seen from the table and appears more clearly from the transcript, the relationship between the judge and counsel for the appellants became unfortunately strained and heated in the course of the trial.  There were instances of pointed sarcasm, asperity sometimes amounting to discourtesy, and, occasionally, truculence.  There were also occasions when the judge asked questions of the appellant in terms sufficiently sarcastic to imply that he thought that what she said was unlikely.  Contrastingly, there was very little asperity in the judge’s remarks to counsel who appeared for the Bank, and no hint of incredulity in his Honour’s questions of the Bank’s witnesses.  Perhaps is not surprising, therefore, that counsel who appeared for the appellants below should have thought in terms of bias.

1. As against that, however, it is not easy to conduct a complex and lengthy trial without betraying at least some sign of emotion, and I do not doubt that the judge was considerably provoked.  A large amount of the cross-examination was irrelevant and afflicted by other deficiencies of the kind identified in the table.  Much of it was focussed at the periphery and took an inordinate amount of time. 

1. Furthermore, the judge was entitled if indeed not bound to attempt to contain the delay and ensure fairness and precision in the formulation of counsel’s questions.[73]  Presumably, his Honour thought it necessary to behave as he did in order to convey to counsel his dissatisfaction with counsel’s performance. Putting aside the use of sarcasm,[74] there was also nothing wrong in the judge seeking to convey to the appellant his initial reaction to some of the things which she said.  It served to avoid the risk of misunderstanding and to enable her to amplify or qualify points of misgiving. 

   [73]Budd v Kambah [2001] NSWCA 180, [102]-[103].

   [74]About the propriety of which views may perhaps reasonably differ.

1. In Budd v Kambah Tea Tree Plantations Pty Ltd,[75] Heydon JA sanctioned the sort of approach adopted by the judge in this case as the modern and not unacceptable technique of conducting a trial, particularly in a busy trial court under pressure from crowded lists. As his Honour remarked, trial litigation often calls for plain speaking, directness and sometimes asperity.  Unquestionably, a trial judge like any judge should strive to avoid truculence and discourtesy.  But in the scheme of things, it is almost inevitable that there will be some of it in any hard fought cause. 

   [75]Above n 73.

1. In my view, it would require a good deal more of it than occurred in this case to amount to apparent bias.

---

ANNEXURE

Transcript references:  indicia of ostensible bias

 

TAB	TRANSCRIPT REF	PARTICULARS
1.	p. 152 line 29 to line 23 of p. 153	HIS HONOUR:  Listen, just let me get this straight.  You’re having a discussion with the bank manager in Melbourne about a property so far as you’re aware that he’s never inspected, that was previously used as a private home?---Yes. -Which might have been able to be converted into a restaurant and he’s talking to you about getting a permit?---Yes. -Did you know whether there were any – the house – had you ever been inside this house?---No, not at that time. -And so far as you were aware he’d never been inside the house?---No. -It had never been used as a restaurant before?---No. -Been a private home?---Yes. -So you were having – just let me get this straight.  You’re saying that in April, on 17 April, he’s having a discussion with you about getting a permit, what a building permit or a planning permit or - - -?---No in February he was discussing getting a restaurant permit because when I showed it to him he said, that would make a wonderful restaurant. -Permit, what sort of permit?  A permit – a liquor licence or - - -?---Yes to run it as a restaurant. -But he didn’t know what was inside of it at that stage?---No but evidently he’d had something to do with houses that were made into restaurants before.  He tried to talk me into a restaurant in Ormond somewhere in October.
2.	p. 156 line 16-31	HIS HONOUR:  Just before you get to that.  At the point at which he told you to go ahead he’s never seen the motel? ---He told me he’d seen Ararat so I don’t know whether he meant he’d seen them all or not.  I don’t know what he meant by “I’ve seen Ararat”.  I assumed he’d seen them. -The High Street property that was to be for a car park?---Yes, yes it was a house with - - - It had a house still on it?---M’mm. Mr SELIMI:  Adjacent to the Dominica?---The Dominica went there and then there was a block of land as a car park at the house and he felt that if we brought the whole lot you could cut the house off and use the back as a car park and sell the house, which we did. HIS HONOUR:  but as far as you’re aware he’d never inspected these properties?---Not inspected them.  As far as I’m aware, no.  Didn’t say.
3.	p. 177 line 6-11	HIS HONOUR:  So he told you – you’re saying that he told you the kitchen would cost 90,000 when he’d never seen the inside of the building?---No, but there was no kitchen.  The agent told me there was no kitchen.  So I mean, if it’s going to be a restaurant it had to have the kitchen, so he did discuss that.
4.	p. 179 line 9-12	HIS HONOUR:  Mrs Anderson will put Mr Becham in it almost in the (indistinct) that’s become pretty obvious.  How did you – just describe to me how you went about getting these two chefs.  Just tell me the steps you took?
5.	p. 191 line 1-28	“HIS HONOUR:  What is the relevance of that?  She can give evidence about what she heard, what people told her.  What her understanding is has got nothing to do with anything, has it Mr Selimi?  What is the relevance of her understanding?  This is not a state of mind point.  It’s what happened that’s important. MR SELIMI:  Yes, but what she understood is also important - - - HIS HONOUR:  Why? MR SELIMI:  Because our whole case, Your Honour, is that this is a person who suffers from a mental disability and clearly any matter occurring during the relationship affecting finances is a matter which is relevant to  determining the extent to which her mental disability impaired her capacity to manage or  control her affairs and this is all part of - - - HIS HONOUR:  This is all after the event. MR SELIMI:  Yes, Your Honour but - - - HIS HONOUR:  Well, what is the relevance of her state of mind?  The event that you have got to concentrate on is the events of 17 April.  That’s when you say all this happened.  This is all in January 92.  This is eight months later.  What’s that got to do with anything? MR SELIMI:  Well in my submission it simply goes to the witness’s capacity to understand relevant matters occurring during the customer/banker relationship. HIS HONOUR:  Disallowed.  You can ask questions about what she was told about the bills and what happened.
6.	p. 192 line 14-31	HIS HONOUR:  Mr Selimi, what’s the relevance of this? MR SELIMI:  Your Honour, the relevance - - - HIS HONOUR:  This is eight months after the event. MR SELIMI:  Yes.  But the relevance Your Honour is that it goes to the nature of the relationship between the chief protagonist in this case and the extent to which this witness was entirely dependent upon him.  And what happened - - - HIS HONOUR:  The dependence has got to be back in April. MR SELIMI:  Yes Your Honour, however in my respectful submission Your Honour one cannot simply look at the case in a vacuum.  The whole nature of the relationship and the interdependency throughout the course of the relationship is a relevant matter for inquiry.  In my submission what happened after April 1991 is extremely probative in determining the extent to which Ms Anderson in fact relied upon Mr Beecham before.  So what I’m really putting Your Honour is to have the whole picture.
7.	p. 194 line 10-20	“HIS HONOUR:  What’s the relevance of this?  How can what this witness believes have any bearing on the ultimate issues? MR SELIMI:  Your Honour, again it goes to the matter that I addressed Your Honour on earlier.  I’m loath to elaborate in the presence of the witness.  However, the essence Your Honour, is that I’m simply seeking to elicit evidence which indicates the extent to which this witness was entirely dependent – during the course of Mr Beecham’s involvement – was entirely dependent upon him for her financial well being. HIS HONOUR:  Yes, all right.  Go on.”
8.	p. 202 line 6-31 to line 2 of p. 203	“HIS HONOUR:  What’s that got to do - - - MR SELIMI:  Your Honour, it goes to the thrust of the whole case.  In terms of the question of negligence, the whole case Your Honour is that the course of action proposed by Mr Beecham, that is to essentially put all of the funds into Ararat, was extremely imprudent, improvident and - - - HIS HONOUR:  What’s Ms Anderson’s investment goals to do with it.  One can assume, I would have thought, that she didn’t intend to lose the money. MR SELIMI:  Naturally Your Honour. HIS HONOUR:  One might also draw the assumption that she intended to make money.  But outside that, what’s the relevance of it?  She wanted to triple her money - - - MR SELIMI:  No Your Honour, I’m simply laying the foundation for the evidence of Mr Nightingdale. HIS HONOUR:  As to - - - MR SELIMI:  As to what prudent – what a prudent investment would have been. HIS HONOUR:  But that’s got nothing to do with her investment goals. MR SELIMI:  Yes it does with respect Your Honour. HIS HONOUR:  How? MR SELIMI:  Because a prudent financial planner or investment adviser, the first thing a prudent person does in that field Your Honour is to ask the investor “what are your investment goals, what is your objective”. HIS HONOUR:  We’ll save time.  Get the evidence.”
9.	p. 206 line 13 to line 12 of p. 207	“HIS HONOUR:  Yes, what is the relevance of that Mr Selimi? MR SELIMI:  Your Honour the relevance again, it’s a continuation of the theme.  You have a lady psychiatrically ill relying on a bank manager to protect her interests.  She does effectively whatever the bank manager advises her to do.  And what we have is a situation where the bills are rolled over and new loans or facilities are extended time after time in accordance with the advise of the bank and then - - - HIS HONOUR:  What else could they do?  She couldn’t pay them. MR SELIMI:  Yes, but this is the whole point Your Honour.  It simply illustrates the crux of the defendant’s case.  They directed her - - - HIS HONOUR:  Her understanding is not – what Mr Garde’s getting at, her understanding, it’s the fact that’s important. MR SELIMI:  It’s also, Your Honour, the level of the understanding is a reflection also of the extent to which she relied upon – it goes to the reliance aspect. HIS HONOUR:  But there’s no reliance at this stage.  The reliance all happened in April.  That’s what you say is the cause of action what you’re pleading. MR SELIMI:  Yes Your Honour, however what we say further is there is continuing reliance - - - HIS HONOUR:  But so what?  It doesn’t sound in any – in any form of relief.  You’re seeking to set these mortgages aside.  They were entered into at the time these properties were bought. MR SELIMI:  We’re also seeking damages and the damages in part relate to the continuing reliance. HIS HONOUR:  Yes, all right, go on.  It’s quicker to get the evidence, I suppose.
10.	p. 212 line 25 to line 5 of p. 213	“MR GARDE:  Your Honour, we object to all of this - - - HIS HONOUR:  Yes.  What’s this got to do with - - - MR SELIMI:   Your Honour, it goes to the unconscionability defence - - - HIS HONOUR:  As to whether the - - - MR SELIMI:  - - -the emotional dependence upon Mr Beecham and the fact that this witness felt lost after he had departed from the scene, one would have thought with great respect, is  extremely relevant in terms of the relationship of interdependence - - - HIS HONOUR:  I will let you ask the question.  It’s relevance I will hear you when you make your address.  Yes, go on.”

11.	p. 239 line 5-6	“HIS HONOUR:  Why? MR SELIMI:  Because it’s a vague question.  “He was involved in the preparation of some documents to assist you.”  In my submission - - - HIS HONOUR:  I permit the question.  Sit down Mr Selimi please.  It’s cross-examination.”
12.	p. 249 line 27 to line 1 of p. 250	MR SELIMI:  Your Honour, I object to that.  Your Honour, I object - - - WITNESS:  Yes, yes - - - HIS HONOUR:  What’s the basis of the objection, Mr Selimi? MR SELIMI:  It’s ambiguous and vague. HIS HONOUR:  It’s overruled.  Go on, Mr Garde.
13.	p. 299 line 14-23	-Ms Anderson you were fully involved in the arrangements with Mr Moran in trying to defeat the bank’s claim through some strategies which we’ll come to weren’t you. MR SELIMI:  Your Honour I object to that.  There were a number of questions in that proposition. HIS HONOUR:  I think the witness can handle it …”
14.	p. 321 line 3-5	HIS HONOUR:  Ms Anderson, in the whole of your career, have you ever heard of a bank manager picking out properties for a customer to buy?
15.	p. 321 line 25-29	HIS HONOUR:  Have you ever heard of a bank manager selecting properties for people to buy?---
16.	p. 344 line 29-30	HIS HONOUR:  Mr Beecham had never seen this property?---No, he told me to acquire one.  He had - - -
17.	p. 365 line 4-22	“MR GARDE:  We object to that Your Honour.  That doesn’t rise out of - - - HIS HONOUR:  No it doesn’t rise out of any cross-examination Mr Selimi. MR SELIMI:  In my respectful submission Your Honour my learned friend cross-examined in relation to whether she had legal advice, whether it was available. HIS HONOUR:  The legal advice is clearly available.  The accounting advice is clearly available.  You don’t need evidence about that.  This woman’s had accountants.  I disallow the question.  Go on to something else.  It’s got to be common ground.  There are accountants galore in the - - - MR SELIMI:  With great respect Your Honour, unless I ask a question, how can Your Honour rule on its admissibility?  I haven’t even asked the question yet. HIS HONOUR:  I’ve ruled on it and I won’t permit you to ask the question that you were going to ask.  Go on to another question.”
18.	p. 382 line 29 to line 25 on p. 383	“HIS HONOUR:  Yes., no I disallow the question Mr Selimi. MR SELIMI:  With great respect Your Honour hasn’t even heard my reply to the objection. HIS HONOUR:  How can you justify that on the ground of relevance.  Go on. MR SELIMI:  This case Your Honour is about a special disability suffered by Ms Anderson. HIS HONOUR:  Yes. MR SELIMI:  If those who knew her intimately are not able to give evidence about her appearance I respectfully submit that I will be deprived of leading admissible evidence – relevant evidence in regards to her appearance at the relevant time and that in my respectful submission shuts the gate to a whole vast range of admissible evidence which bears on the critical question as to what the bank knew or ought to have known what the bank ought to have known in part depends upon her appearance.  In my respectful submission to be deprived of the ability  - - - HIS HONOUR:  There’s no need to shout, Mr Selimi.  You’re not very far away.  I can hear you. MR SELIMI:  Yes.  Well Your Honour, to be deprived of the ability to ask that question, with great respect, I might as well sit down. HIS HONOUR:  You have an unfortunate style of advocacy.  I’ll allow the question.  How does Ms Anderson appear to you in 1991?
19.	p. 386 line 12-26	-What precisely did you see though, madam?--- A gentleman’s bare bum in the air making love. HIS HONOUR:  I think you could – Ms Wincks, I think you can be a – observe the decorum of the court.  You can describe these things without being coarse?---Well, I’m trying to observe decorum myself.  I was trying not to be coarse.  I didn’t know how to explain it because I’m not brought up in the era of this day.  We don’t talk about things like that. -Yes.  Well, I think you’ve just demonstrated familiarity with coarseness that doesn’t reflect any credit on you? ---Well, I beg your pardon, Your Honour. -Would you just simply answer the questions and observe the decorum of the court and describe what you saw without descending to vulgarity.
20.	p. 555 line 21-31	“HIS HONOUR:  Well what’s the relevance of that? MR SELIMI:  Well Your Honour will perhaps give me an indulgence. HIS HONOUR:  No I won’t give you any indulgence.  Ask relevant questions or you won’t ask any questions. MR SELIMI:  The relevance Your Honour - - - HIS HONOUR:  What is the relevance of it? MR SELIMI:  I don’t wish to lead the witness. HIS HONOUR:  What is the relevance of it? MR SELIMI:  The relevance is the – what she took in there Your Honour is relevant in terms of her condition.
21.	p. 560 line 11-26	“HIS HONOUR:  The relevance of this escapes me, Mr Selimi. What is it? MR SELIMI:  Just to identify the document, Your Honour. WITNESS:  It looks – yes - - - HIS HONOUR:  What has the identification of the document by this witness got to do with anything?  Dr Kornan can probably identify it too if you called him but what would the point of that be?  Or his secretary could probably identify it but what is the point? MR SELIMI:  Well, the point, Your Honour, is that Ms Anderson carried this report around. HIS HONOUR:  So?”
22.	p. 572 line 13-29	-You also said in answer to my learned friend’s questions “everything she did was about the bank manager”.  Now what is it that you observed which led you to that view? ---  Well she talked about him all the time. MR SCHLICHT:  I object to the answer Your Honour. HIS HONOUR:  I will permit it, yes go on. MR SELIMI:  What did she say? HIS HONOUR:  Well you can’t tell – that’s irrelevant.  She talked about it, you can go that far but you can’t go any further that’s hearsay. MR SELIMI:  Well what did she talk about?  ---  How wonderful he was. “HIS HONOUR:  Mr Selimi, stop.  Stop, this is becoming ridiculous. MR SELIMI:  With respect Your Honour. HIS HONOUR:  No, with all the respect in the world, I disallow the question.
23.	p. 580 line 8-20	“HIS HONOUR:  It’s irrelevant, isn’t it?  What’s it got to do with it? MR SELIMI:  Your Honour has asked many questions during --- HIS HONOUR:  That’s a matter for me, Mr Selimi.  I won’t have any impertinence from you either. MR SELIMI:  With respect, Your Honour --- HIS HONOUR:  You just – I’ll ask you to sit down if you’re not careful. MR SELIMI:  Your Honour, with respect --- HIS HONOUR:  You ask questions that I permit and questions that are relevant. MR SELIMI:  Yes, Your Honour. HIS HONOUR:  Now just go on.
24.	p. 718 line 28 to line 28 of p. 719	HIS HONOUR:  You have got the file note that was on 6 June, what happened after that in relation to the property in Ararat, can you recall, what was the next step?  ---  Am I able to look at the file? -Yes if you need to, see if you need to refresh your memory from the court book or the file. MR SELIMI:  Your Honour I object to that. HIS HONOUR:  I’m asking the question Mr Selimi, you can’t object to my question would you sit down please.?  ---  What number am I looking at? HIS HONOUR:  Look at 461, the file note, do you recall what happened next in relation to the Ararat property?  ---  I can’t fully recall but normally when something like that would have been given I would have --- -What would the normal course be?  ---  Well the normal course of action I would have probably contacted Mrs Anderson to ask her what was going on and then she would have provided me with whatever information I required.  What are we looking for here and --- -This note – file note doesn’t indicate any request for borrowing, it just says there are a lot of expenses but it doesn’t say what needs to be borrowed?  ---  Yes, knowing John Borg, very vague on probably what his notes were but he would have been spelling it out that she’’d rung and said she’d purchased the property and – well normally if a customer rings me for – they’ve purchased a property well it would be for finance, I would have then --- It’s not much point in telling you otherwise?  --- No.  Then I would have proceeded with requesting whatever documentation I required. Possibly Mrs Anderson and Mr Moon may have been in for an interview at that stage. -Yes, go on Mr Garde.
25.	p. 723 line 2-11	MR SELIMI:  Your Honour I object to that.  The witness just gave evidence as to what it would have been.  It is clearly irrelevant and inadmissible. HIS HONOUR:  Why? MR SELIMI:  He can give evidence as to what his actual recollection is. HIS HONOUR:  Well if he has no recollection, he can say what he would have done.  Have you got any actual recollection of the conversation in which she filled out this document? ---No, it’s too long ago.
26.	p. 769 line 25-27	“What sort of question is that Mr Selimi, please.  This is a court not a dramatic presentation.  Ask the proper questions”.
27.	p. 788 line 5-8	“Did she ever tell you that she liked to disguise herself because she believed that she would be returned to a start called Sirius?”
28.	p. 788 line 22-23	“What is the point of putting it to  Mr Beecham he has said – he’s given his evidence”.
29.	p. 789 line 3 to 12	HIS HONOUR:  How can you ask that.  Mr Beecham can only give the evidence on what he saw, what she does elsewhere is not something he can comment on.  You’ve left out the fact that Mr Custance also said that she was – I think he described her as she is now.  He certainly didn’t agree with the dishevelled --- MR SELIMI:  Well we will get to Mr Custance in argument Your Honour. HIS HONOUR:  But you can’t put that to Mr Beecham, it doesn’t help anyway, the answer won’t help you.
30.	p. 790 line 2-5	HIS HONOUR:  Mr Selimi how is it going to help you, it doesn’t matter what he answers, where does it get you.  He has got his version of events, you can attack that, but what do you expect him to do, suddenly say I am wrong. MR SELIMI:  Your Honour this is cross-examination and I am seeking to put a particular matter to the witness.
31.	p. 793 line 1-17	-MR SELIMI:  What I suggest to you is this, you told her from the first moment you saw her that you would indeed – you indeed would be looking after her financial affairs, you’d be looking after her affairs, is that correct?  ---That would have been put in those lines, yes. But I don’t --- And indeed --- -HIS HONOUR:  No, just let the witness answer the question? ---But they wouldn’t have been the words I used to talk about financial affairs, I would have said – I know what my background is, I would have actually stated I’d be here to look after your accounts, I’m the branch manager of Ormond. Mr  SELIMI:  Well what is the truth, you have just given two different answers. HIS HONOUR:  He hasn’t.  He hasn’t Mr Selimi, you – I will let you continue but – yes, go on.
32.	p. 794 line 8-20	“MR GARDE:  Well Your Honour --- MR SELIMI:  Pardon me I haven’t even asked the question. HIS HONOUR:  Well Mr Selimi what is the point of this, where it is going. MR SELIMI:  Your Honour if I cannot cross-examine this witness in regard to this critical matter, I respectfully submit I am not even being given the latitude to cross-examine and challenge (indistinct) witness. HIS HONOUR:  You are putting multiple propositions to him in the one question.  It’s impossible”. MR SELIMI:  I will put this proposition, if I may.  Do you draw a distinction between financial affairs and accounts?
33.	p. 796 line 25 to line 4 of p. 797	-Yes, but you didn’t receive any guidance from your superiors, during the course of your management of the Ormond Branch.  Correct? -HIS HONOUR:  Mr Selimi.  What on earth does that mean?  We have had copious evidence of his superiors overseeing then work he is doing.  We have got the superiors initials and their comments on documents.  Can you try and keep this relevant to the issues that this case is about.  This cross-examination is not helping me, at all.  In the task that I have to perform here.  Not at all.  I suggest that you get onto the issues that this case is about.  Specifically.  The sooner you do it, the quicker that it will help me to understand where your case is going.  At the moment it is not helping me at all.
34.	p. 799 line 22-23	“HIS HONOUR:  Did you ever advise Ms Anderson it would be a good idea to buy investment properties?---No I didn’t”.
35.	p. 801 line 8-26	“HIS HONOUR:  Of course he is.  So am I now.  I mean he is familiar with that venture.  Mr Selimi this cross-examination is not helping me.  I am familiar with the Ararat venture. MR SELIMI:  Your Honour I am not asking that --- HIS HONOUR:  Mr Garde is familiar with it.  My associate is familiar with it.  We all know about it. MR SELIMI:  I am not asking about – with respect, Your Honour. HIS HONOUR:  Could you keep – would you be quiet and let me finish.  Would you keep your questions relevant. MR SELIMI:  In my respectful submission, I am asking for the first time, this witness about the Ararat venture.  This is cross-examination.  This is the first time I have approached this witness. HIS HONOUR:  Mr Selimi the question you asked is, you are familiar with the Ararat venture, aren’t you?  Everyone in this court is familiar with it.  The question is absurd.  Now would you please ask relevant questions, in cross-examination, or I will stop you.
36.	p. 803 line 31 to 14 of p. 804	His Honour:  Yes.  What is the relevance of this Mr Selimi.  How is it going to help me decide this case?  Unless your questions are directed to that end, there is no point to them.  Wasting time. MR SELIMI:  The relevance is this.  You – I will answer Your Honour’s question.  The relevance, Your Honour – well, frankly, I don’t wish to answer the question in the presence of the witness, Your Honour. HIS HONOUR:  Well I am not going to send the witness out.  What is the relevance of it? MR SELIMI:  The relevance Your Honour is that this man used the phraseology of a business plan in April of 1991.  He was always talking about a business plan, and that is exactly the phrase that was used on 17 April. HIS HONOUR:  All right.  Well put that to him, and get to it.
37.	p. 806 line 1-23	MR SELIMI:  Do you agree that before you provide any such advice, you would make enquiries if you were acting prudently of their investment objectives, correct?--- HIS HONOUR:  He said he doesn’t give that sort of advice. What --- MR SELIMI:  That doesn’t mean I have to accept the answer Your Honour in cross-examination.  I’m --- HIS HONOUR:  But you can’t preface the next question on the assumption that he said “Yes”. MR SELIMI:  What I suggest --- HIS HONOUR:  You might be able to ignore but you can’t twist the answer round.  MR SELIMI:  I’m not twisting the answer with respect to Your Honour. HIS HONOUR:  Well you are. MR SELIMI:  I’m entitled to ask questions on a hypothetical in cross‑examination.  It is done every day. HIS HONOUR:  Mr Selimi, I’ll stop you in a minute.  This cross examination at the moment is of no assistance to me whatsoever and if it continues to be of no assistance to me and continues to involve irrelevant matters, I will stop you.  Now would you start asking some relevant questions.
38.	p. 808  line 13-19	“MR GARDE:  Your Honour, we object.  It’s not for him to be asked questions about expectations of business people.  HIS HONOUR:  Yes.  How does that help – how does the answer help Mr Selimi, how does it get anywhere? MR SELIMI:  Your Honour, the answer and the question are so relevant to the whole case conducted in this matter that I frankly am at a loss to know why I even have to answer the question - - - HIS HONOUR:  Yes, go on, go on.”
39.	p. 815  line 12-25	HIS HONOUR:  How can the witness answer that?  I couldn’t answer that. MR SELIMI:  Well do you accept - - - HIS HONOUR:  What’s the point of the question?
MR SELIMI:  What I suggest to you is that you have different handwriting on different documents don’t you?---No, I - - - Different styles of handwriting on different documents?---I don’t believe so.  I pick those as being the same just one’s in a heavier pen and one’s not and one was two days after holidays and - - - Now sir, as at the - - - HIS HONOUR:  As well as being harassed by clients for months on end.  (at line 24-25)
40.	p. 817  line 15-31	“MR SELIMI:  What I suggest to you is you were indeed aware that according to your discussions with Ms Anderson, you were aware that the anticipated renovations at April 91 was $80,000 for the kitchen, correct?---I wasn’t aware of it at that stage. HIS HONOUR:  Where do you say that figures comes from Mr Selimi, what is your case as to that, where did the figure in April 1991 come from? MR SELIMI:  The figure came from - - - HIS HONOUR:  Do you say Mr Beecham suggested it? MR SELIMI:  The figure came in discussion with Mr Beecham and Ms Anderson - - - HIS HONOUR:  This is in a circumstance where Mr Beecham has never seen the property, your client has never been inside the property. MR SELIMI:  As I said Your Honour they have clearly on the evidence – and I will take your Honour to the relevant evidence in due course. HIS HONOUR:  That’s uncontested isn’t it.  Doesn’t your client say she had never been in side the property at this stage. MR SELIMI:  At that time? HIS HONOUR:  Yes.
41.	p. 823 to p. 825	at p.825: HIS HONOUR:  Just so I understand what you are putting.  You say this was all written on 17 April?  That is your case? MR SELIMI:  Yes.  Now can I draw the witness’ attention to this, Your Honour.  If the witness could please be shown this document.  Can you have a look at the bank value.  You see, you said yesterday, on your evidence, that the first line was written in on the 17th, but not the second line.  Right?---That’s correct. Well the red ink that appears on both lines is the same colour, isn’t it?---They are both red, but they are not the – I don’t believe they are the same shade. I suggest they are. HIS HONOUR:  You can argue – it will be a matter for me in the end.

42.	p. 828  line 2-5	“HIS HONOUR:  This is frustrating in the extreme, Mr Selimi, it really is. MR SELIMI:  Well I’ll marry the point, Your Honour. HIS HONOUR:  Yes, I hope so.
43.	p. 829 line 31 to line 14 of p. 830	HIS HONOUR:  How much longer are you going to be with this witness? MR SELIMI:  Well, clearly Your Honour, I expect to be at least all day. HIS HONOUR:  I think you’d need to plan your cross‑examination because I may not let it continue.  At the moment it has not helped me at all.  If it’s designed to help me, and I assume it is, this court has other litigants who have their cases to be heard.  You do not have an open ended – not in this court, you do not have an open-ended right to cross-examine as long as you like.  While you ask relevant questions I’ll permit you to continue.  So far barely 50 per cent of the questions have been relevant or have gone to any issue that will ultimately assist me.  If you persist in this I’ll put a time limit on you and I’ll stop you.  Do you understand?
44.	p. 835 line 21 to line 14 of p. 836	“HIS HONOUR:  What’s the relevance of that Mr Selimi? MR SELIMI:  I am getting to the issue of the – clearly, Your Honour, the difficult issue of sex. HIS HONOUR:  Say the answer is yes.  Where do you go?  Say the answer is no.  Where do you go?  What does it matter?  I rule it irrelevant.  Don’t answer it Mr Beecham. MR SELIMI:  Well, what I suggest to you is that you married at a very young age? HIS HONOUR:  Well that’s – it is both irrelevant, and obvious.  He was 18. MR SELIMI:  In my submission it is not irrelevant.  We are getting to the topic of sex, Your Honour, and with great respect, although it is not an easy topic to broach, to deal with - - - HIS HONOUR:  I wouldn’t have thought you would have had any difficulty Mr Selimi. MR SELIMI:  What does that mean, Your Honour? HIS HONOUR:  Would you – don’t ask me what it mean.  Just behave yourself. MR SELIMI:  Your Honour. HIS HONOUR:  Don’t you say that to me, either, or I will cease hearing you.  You will behalf yourself in this court, and you will behave yourself as counsel should, or you will be dealt with.  Now ask a relevant question.  I disallow that question.
45.	p. 838 line 29 to line 7 of p. 840	“HIS HONOUR:  You said he’s done it and he’s denied it, I mean  - - MR SELIMI:  What I suggest to you is that you did indeed have sex with Ms Anderson whilst your bum was bare, didn’t you?---That’s incorrect. And further  - - - HIS HONOUR:  I think you don’t need to descend to vulgarity either Mr Selimi. MR SELIMI:  Well Your Honour I’m not with respect descending to vulgarity, I’m putting my instructions.”
46.	p. 844 line 18-31	“HIS HONOUR:  Yes that’s not a proper question Mr Selimi.  What does it mean for a start.  This line is – you can pursue it, but you’re asking Mr Beecham who says at this stage he’d never been – he only went to Ararat once in his life. MR SELIMI:  We’ve heard that 100 times Your Honour, but that doesn’t mean I have to accept the answer. HIS HONOUR:  Of course not, I suppose that’s right, but you’ve got to – that question as to whether people ask bank managers things is not a matter that Mr Beecham can answer.  He can answer about his own experience and people - - - MR SELIMI:  I’m asking from his own experience.  I have asked him from his own experience.
47.	p. 846 line 12-21	“HIS HONOUR:  Where do you get that from Mr Selimi.  Where do you get that from? MR SELIMI:  I put this to you - - - HIS HONOUR:  Are they your instructions? MR SELIMI:  My instructions Your Honour - - - HIS HONOUR:  How can you possibly put that on the evidence in this case? MR SELIMI:  I’ll put this precisely Your Honour.  You suggested to Ms Anderson that she acquire a local restaurant didn’t you?---No I didn’t.
48.	p. 847 line 24-28	“MR GARDE:  It is not for Mr Beecham to speculate on a matter, that a potential business is (indistinct) Your Honour. MR SELIMI:  I am only asking - - - HIS HONOUR:  Potential purchasers are obviously in all sorts of things, how can he answer that. MR SELIMI:  I am exploring and probing this witness’ knowledge of the town planning process. HIS HONOUR:  Disallowed, ask another question.”
49.	p. 854 line 23-31	“Mr SELIMI:  I suggest to you that by showing to your management, in the lending section, that this proposal for finance is for a husband and wife family business, I suggest to you, you regard that as a plus, don’t you? HIS HONOUR: It would be illegal wouldn’t it, Mr Selimi? Be contrary to the Sex Discrimination Act, I think. MR SELIMI:  Well it may well be. HIS HONOUR:  And the Equal Opportunity Act.  It would be discriminating against someone on the ground of their marital status. MR SELIMI:  It may well be, Your Honour.  Yes, but my question is not directed to that.  My simple point to you sir, is that you, in fact, asked Mr Moon to change his name to Anderson, didn’t you?”
50.	p. 855 line 19-23	“HIS HONOUR:  Have you ever suggested to a customer that – or indeed to anybody – that he or she change their name?---I think I stated yesterday I – prior to that one happening, I didn’t realise you could actually physically go and change your name.”
51.	p. 860 line 3-4	“MR SELIMI:  Yes well at the moment Your Honour the transcript literally reads as it does. HIS HONOUR:  Yes transcripts are very accurate records of what actually occurs, but in the end I’m the jury.”
52.	p. 868 line 1-20	“HIS HONOUR:  It’s all on these pages, Mr Selimi.  It’s on p.4 and 5.  He sets it out chapter and verse. MR SELIMI:  Your Honour - - - HIS HONOUR:  What they’re going to do and how they’re going to do it, and - - - MR SELIMI:  Your Honour I can see what’s on p.4 and 5. HIS HONOUR:  What do you want – do you want him to read it out to you? MR SELIMI:  No Your Honour I don’t want him to read it out to me.  I’m simply asking whether he has a recollection, from his own recollection.  Do you or not, as to what the plan was in regards to renovations?---I do recall what was to be done, as in turn it into a restaurant. What to your independent recollection was to be done?---I’m lost on the question - - - HIS HONOUR:  What do you mean what was to be done? MR SELIMI:  In regards to the Dominica property. HIS HONOUR:  Turning it into a restaurant. MR SELIMI:  Beyond that Your Honour.  What renovations were to be done?”
53.	p. 873 line 26 to line 30 of p. 874	“MR GARDE:  Your Honour, again we object.  It is not for this witness to comment on other’s people motives, or intent.  How can he do that” HIS HONOUR:  How can he do that? MR SELIMI:  Your Honour, the witness’s answer yesterday was there was no need for the customer to be there.  Now if I can’t challenge that - - - HIS HONOUR:  No, because of what – he gave the answer.  The reason there was no need was that he was correcting an error the bank had made in relation to a loan.  That’s his answer and there was no need for the customer to be there. MR SELIMI:  I know that is his answer, Your Honour, but I am challenging it.” HIS HONOUR:  Well challenge it properly.  Don’t challenge it by reference to whether – what you are attempting – it seems what you are attempting to do is to say well they had to be there because they couldn’t have gone and bought the property at auction unless they had spoken to you first. MR SELIMI:  Well that’s the case, isn’t it?  That is the case isn’t it? HIS HONOUR:  Of course they could have.  How – I mean - - - MR SELIMI:  I beg your pardon. HIS HONOUR:  That’s got nothing to do with what Mr Beecham knows.  You can make the comment in your address.  You can say, well, why would – the probabilities favour my client, because they wouldn’t have gone to the auction on the 20th, if they hadn’t seen the bank manager on the 17th.  That is an address point you can make.  You have got the evidence that people generally go along to the bank and get their finance arranged before they go to the auction.  But Mr Beecham added, as his common knowledge, not everyone does and not all the time.  So where does it get you?  I don’t know.  Not very far, I wouldn’t have thought. MR SELIMI:  I beg your pardon, Your Honour? HIS HONOUR:  Not very far, I wouldn’t have thought. MR SELIMI:  That is the very reason why I am cross-examining on this area and probing.
54.	p. 882 line 4-15	“MR GARDE:  Your Honour, we object.  This, if you add it to the anticipated purchase price.  This witness hasn’t said anything about the anticipated purchase price. HIS HONOUR:  No. MR SELIMI:  Your Honour, I’m putting the question on the basis of a hypothetical --- HIS HONOUR:  No, no but you can’t ask this question.  You can tell me that Mrs Anderson was told $350,000 if that’s the evidence. MR SELIMI:  Yes, all right --- HIS HONOUR:  And there’s $80,000 in here.  I can add $350,000 to $80,000 but what’s that got to do with Mr Beecham. MR SELIMI:  I’m getting to it Your Honour as quickly as I can, as you will see.
55.	p. 883 line 17-28	“HIS HONOUR:  I don’t know, if you say it is, I suppose it is but what’s the point? MR SELIMI:  Now if I can get to the point Your Honour.  I’m doing it as quickly as I can as Your Honour can see. HIS HONOUR:  Mr Selimi I suspect that you are being insolent again. MR SELIMI:  I’m sorry Your Honour. HIS HONOUR:  Now I’ll deal with you.  I won’t put up with this. MR SELIMI:   Your Honour, I do apologise if that’s what Your Honour feels but I can assure Your Honour I’m not – in fact I’m very mindful of the one hour that I have so that’s why I’m doing this Your Honour.”
56.	p. 888 line 23-27	“HIS HONOUR:  That is a matter for me. MR SELIMI:  Well I am putting to you --- HIS HONOUR:  Not a matter for the witness. MR SELIMI:  I am putting to you --- HIS HONOUR:  I’ve got to determine.”
57.	p. 891 line 4-11	“HIS HONOUR:  Mr Beecham’s evidence is that he did not see anything in relation to Dominica until after 6 June.  That is the position you have to proceed from Mr Selimi. MR SELIMI:  I am proceeding from the position.  What I am putting to you is that you have that position, as you conceded yesterday, I suggest to you, because you are relying on the document prepared by Mr Ball.  Correct? --- That is the only document I have got to ---“
58.	p. 892 line 9-31	“HIS HONOUR:  This is months later. MR SELIMI:  Yes, Your Honour, but I can use what is in the documents Your Honour, and cross-examine on the basis of it. HIS HONOUR:  Well, is the cross-examination designed to help me decide this case? MR SELIMI:  Absolutely, Your Honour. HIS HONOUR:  Well I can assure you, at the moment it isn’t.  I will tell you that now.  It is not – these questions seem to be so wide of the mark, to be based on – that last question.  You know that it would handy to have an adjacent block next to a commercial property? MR SELIMI:  Yes HIS HONOUR:  It is nonsense.  It is a nonsense question, Mr Selimi. MR SELIMI:  Your Honour, with respect. HIS HONOUR:  It makes no sense, whatsoever. MR SELIMI:  Your Honour, with respect, I won’t make any submissions at this stage.  If I may please be permitted --- HIS HONOUR:  Yes.  Go on.  Keep going. MR SELIMI:  If I may please be permitted to ask a question so that I can develop argument in due course.
59.	p. 894 line 3-18.	“HIS HONOUR:  What’s the point of this document Mr Selimi? MR SELIMI:  The point, Your Honour, is to see whether the witness agrees with the characterisation given by the business banking manager, who I understand will be called as a witness in this case. HIS HONOUR:  But does it matter whether he does?  What has it got to do with anything? MR SELIMI:  Your Honour, I certainly would like to know whether the witness and, in my respectful submission, it is probative to know whether this witness agrees with the characterisation. HIS HONOUR:  Why? Mr SELIMI:  Because his evidence thus far, Your Honour, is that she was a professional business-like woman, and I am challenging that observation. HIS HONOUR:  Go, on, yes.”
60.	p.900 line 3-8.	“HIS HONOUR:  Mr Selimi that question is disallowed. MR SELIMI:  May it please Your Honour.  Did you have any conversation with Mr Moon before he handed over quarter of a million dollars? HIS HONOUR:  That’s disallowed, disallowed, ask another question Mr Selimi.”
61.	p.902 line 29 to line 6 of p. 903	“HIS HONOUR:  Do you suggest this is what Mr Moon said? MR SELIMI:  Yes, I am putting my instructions. HIS HONOUR:  Are you saying to this witness, this is what Mr Moon said? MR SELIMI:  This is what Mr --- HIS HONOUR:  You only have to go to the transcript, you can establish that, you don’t need to get this witness to agree that that is what he said.  If the transcript records it,  I will take it that that is what he said.
62.	p.916 line 17 to line 4 of p. 917	HIS HONOUR:  No, no.  You can’t – you have a remarkable capacity for ignoring the facts Mr Selimi.  This witness has said he didn’t have anything to do with this property until after 6 June.  You can challenge that, of course, but you can’t do it in the slippery way that you’re trying to do it at the moment. MR SELIMI:  Well, in my respectful --- HIS HONOUR:  There’s no jury here and if there was, you’d have lost them by now.  I’d have discharged them.  But you’ve got to accept the fact that this witness says he didn’t know anything about this property until after 6 June or whatever it was. MR SELIMI:  That’s his evidence, Your Honour. HIS HONOUR:  That’s his evidence, and you have to accept that for the purposes of your cross-examination.  You can challenge it, but you can’t --- MR SELIMI:  Very well. HIS HONOUR:  You can’t make slippery comments which seem to assume the contrary.
63.	p. 939 line 14-20	HIS HONOUR:  Disallowed. MR SELIMI:  What did it indicate to you? --- HIS HONOUR:  Disallowed, what’s the relevance of it?  How it could it be – what’s it relevant - - - MR SELIMI:  Madam you’ve given evidence --- HIS HONOUR:  I think that’s a matter for me Mr Selimi, not the witness.
64.	p. 967 line 2-7	“ … This case is about giving advice to buy a property in Ararat. MR SELIMI:  Yes HIS HONOUR:  Sight unseen by the bank manager.  That’s what your case.  Now why don’t you get on to that case.  That’s the case.
65.	p. 967 line 11 to line 21 of p. 968	MR SELIMI:  In my respectful submission, I’m entitled to cross examine the witness to extract or illicit answers to the --- HIS HONOUR:  If they’re relevant – if they’re relevant --- MR SELIMI:  Of course if they’re relevant --- HIS HONOUR:  But this is not relevant.  It’s not relevant for the witness, to ask the witness you know to pick or rely on banks to protect their financial interests.  What does it mean?  The answer’s meaningless. MR SELIMI:  Your Honour, if the evidence of the defendant has been as it has been that she indeed was effectively told by the bank, both Mr Da Costa and Mr Beecham that they would – they would look after her financial affairs, in my submission I am entitled with respect to cross examine on this basis --- HIS HONOUR:  Well you can’t, if you look at this --- MR SELIMI:  As a lead up – as a lead up - - - HIS HONOUR:  You can’t if the answers don’t mean thing.  The answers are meaningless --- MR SELIMI:  Well Your Honour --- HIS HONOUR:  Say Mr Da Costa says “Yes” – MR SELIMI:  Well if he says “Yes” then I’ll accept that --- HIS HONOUR:  No, look what use could you make of the answer? MR SELIMI:  The use I make of the answer --- HIS HONOUR:  Yes --- MR SELIMI:  Is that we’re having a discussion in the presence of this witness --- HIS HONOUR:  Well I’m going to continue having the discussion in the presence of the witness.  What use can you make of the answer?  It doesn’t mean anything --- MR SELIMI:  Your Honour --- HIS HONOUR:  It’s meaningless, it’s like saying that you know it’s a good thing that people go swimming.  I mean what’s the answer --- MR SELIMI:  Your Honour, the case if I’m required to answer Your Honour’s question then I will, Your Honour the position is Mrs Anderson relied upon both Mr Da Costa and Mr Beecham to protect her financial affairs.  They told her in essence that they would look after her financial affairs “We’ll look after you Beverley”.  Now that’s the whole --- HIS HONOUR:  Go on, go on Mr Selimi, keep going.
66.	p. 974 line 15-17	HIS HONOUR:  Do we have to deal with the bleeding obvious, I mean the bank lends money, that’s its job, that’s why we have banks, you don’t need to prove that proposition.