Bernstrom v National Australia Bank Ltd

[2003] HCATrans 777

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B49 of 2002

B e t w e e n -

ANITA BERNSTROM

Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 12.39 PM

Copyright in the High Court of Australia

MR J.T. BRADSHAW:   If your Honours please, I appear for the applicant.  (instructed by the applicant)

MR R.I.M. LILLEY:   If your Honours please, I appear with my learned pupil, MR Q.T. CREGAN, for the respondent. (instructed by Thynne and Macartney)

GUMMOW J:   Yes, Mr Bradshaw.

MR BRADSHAW:   If your Honour pleases, I seek leave to file an affidavit sworn by the applicant on 17 June.

GUMMOW J:   Well, we have not got it.  Has your opponent got this?

MR BRADSHAW:   Yes, your Honour.

GUMMOW J:   What does this go to?

MR BRADSHAW:    The applicant was concerned that at the hearings she has been portrayed as a person that did not meet her obligations and she wished to present material which she considers indicates that the Bank have been difficult on occasions as well in their dealings with her.

GUMMOW J:   What do you say about this, Mr Lilley?

MR LILLEY:   We object to it on the grounds of relevance, but if the Court is ‑ ‑ ‑

GUMMOW J:   Yes, we do not think it is relevant.  Yes, would you proceed, Mr Bradshaw.

MR BRADSHAW:   If your Honour pleases, the record indicates a number of grounds of appeal.  I would indicate to the Court that a number of them I will not pursue.

GUMMOW J:   Perhaps you might indicate that by reference to the draft notice of appeal, which is at page 151.

MR BRADSHAW:   If your Honour pleases.  Could I put it in another way, your Honour.  I only propose to deal with narrow grounds and they are 1, 2, 3, 4, 5 and 7.  The rest I do not pursue.

GUMMOW J:   Thank you.  That is 1 to 5 and 7.

MR BRADSHAW:   Yes, your Honour.

GUMMOW J:   Thank you.

MR BRADSHAW:   The applicant asserts that the questions raise a conflict in laws which needs resolution in the interpretation of 293, which is of the Uniform Civil Procedure Rules 1999, where this case is now used as authority for an extension of the law in relation to triable issues or real prospects of success. I did file, your Honour, section 293 of the relevant rule and this is an application in relation to a summary judgement ‑ ‑ ‑

GUMMOW J:   Yes.

MR BRADSHAW:   Thank you, your Honour.  The other aspect I wish to raise on behalf of the applicant is that the administration of justice requires a consideration of the judgment itself.

GUMMOW J:   One matter that strikes one, on looking at the papers, is what is said by the respondent at page 166 point 1.2.  Do you have page 166 there?

MR BRADSHAW:   Yes, your Honour.  That is a matter I wish to canvass, your Honour, but at the outset, in relation to that, the learned Chief Justice, when the matter of cross‑examination was raised by my learned friend, suggested a conversation outside court, which took place, and then Buckley said he substantially agreed with the ‑ ‑ ‑

GUMMOW J:   Yes, I know.  Then if you go to page 167 paragraph 6 of the respondent’s submissions, that seems to be an important practical consideration, looking at it in an overall way.

MR BRADSHAW:    If your Honour pleases, may I immediately go to the further and better particulars, particularly at page 12 of the application book.  The further and better particulars are signed by the applicant on 17 September 2001.  At page 10 paragraph 5 they refer to the consideration for the agreement which is contended for on her behalf and throughout the further and better particulars, commencing at page 8, she refers to a conversation at the Bank and the terms and agreement that she says was reached.

I submit to the Court that it is a matter of consideration that the Bank succeeded on a bank note, when the author of that note did not give affidavit evidence, and yet that was given strength, but the further and better particulars, the author of which is the applicant herself, was given no weight at all, or was given no attention.

In my submissions to the court, your Honour, I relied simply on the fact that the pleadings, including, of course, the further and better particulars, raised a triable issue or a matter where – that is at page 111 – it raised a difference of opinion which required a trial.  At line 31 I said:

In my submission, to be selective in a bank notation, ignores the state of the pleadings where we allege an agreement and that is denied and that then, calls for evidence and as I’ve said in my outline for argument, why would the bank wish to cross‑examine Shane this morning before your Honour suggested a conversation –

With respect to the Chief Justice, the conversation outside court was without any guidelines.  I do not know of any precedent.  It really is a situation, in my experience, where you discuss things outside court where a ready agreement is going to occur.

KIRBY J:   Not necessarily.  I mean, many cases in which I was involved in busy practice lists, a judge would send you outside the court to try to narrow the issues.

MR BRADSHAW:   Yes.

KIRBY J:   That must have happened in your experience.  Then you go outside and you say, “Well, now, is this really in issue or is this really in contest or do you dispute this document or do you wish to canvass this subject matter?”  Counsel then, very sensibly, or parties, narrow the issues of contest, and that seems to have been what happened here.

MR BRADSHAW:   With respect, your Honour, it was the showing of a document to a labourer and, without going through it item by item, just asked in a blanket way, “Do you agree with it?”  And he said he substantially agreed with it.  Contained within that document, a labourer, where $10,000 is a significant amount of money, saw within that document an acknowledgement that he had paid $10,000 in reduction of the overdraft and also undertook to make monthly commitments. 

In that regard, your Honour, the court did not seem to take into account, in considering the weight to be given to that document, the notation on page 23 of the application book, where Mr Pope said that a meeting should be arranged:

updated income to be clarified with capacity of family members to service to be investigated to enable assessment.  If they are prepared to service borrowings will they agree to signing a [guarantee]?

It is therefore within the Bank’s range of remedies to the situation sought to be finalised on 1 November that the family members would be bound by contractual obligation.  It is line 25, your Honour, of that typed statement of Mr Pope’s and that is dated 11 October, which, of course, is two weeks before the meeting.  So it was certainly within the Bank’s contemplation that some legal obligation with the legal remedies available would be ‑ ‑ ‑

GUMMOW J:   Our task, Mr Bradshaw, is to look at the case in view of what the Court of Appeal decided.  Now, if the Court of Appeal gave this  anxious and very comprehensive consideration, where do you say they went wrong?

MR BRADSHAW:   Firstly, your Honour, relying on the fact that I did not call evidence, except for a handwritten note by Shane Buckley.  At page 130 paragraph [21], his Honour Mr Justice Jones says:

No other evidence was adduced by or on behalf of the appellant detailing any terms of the alleged agreement upon which her cause of action was based.

Well, with respect, your Honour, a bank note, not attested to or sworn to by the author, Mr Matson, was given full weight, but a further and better particular signed by the applicant was given no attention, no weight and no consideration.  In my submission, paragraph [21] is an error.  There should have been some consideration to the pleadings in those circumstances.  There was no evidence ‑ ‑ ‑

KIRBY J:   That hardly seems the sort of matter that would warrant the attention of the High Court of Australia.  It is simply a very particular factual contention in a dispute of extremely modest proportions between these parties.

MR BRADSHAW:   Your Honour, the UCPR ‑ ‑ ‑

KIRBY J:   Your special leave point, good or bad, was your contention that a procedural irregularity occurred in the way the Chief Justice dealt with the matter and that was really the gripe of your client and I can understand the way you put it, but it just seems to me that what happened was a particular procedure where counsel or parties were sent outside and they had to narrow the issues and they did so on the basis of a document and it is really a bit of a storm in a teacup.

MR BRADSHAW:   With respect, your Honour, if I had said nothing – and it has been said that I did not object and I did not ‑ ‑ ‑

KIRBY J:   But you did not say nothing.  You went along with the procedure.

MR BRADSHAW:   I did not object to it, but surely when I came back into court and said we should not rely on selective evidence and we look at the pleadings, and I am not consenting to that conversation being given its full weight, I am suggesting that the matter should still go to trial, which is hardly reaching the consensus which an informal out-of-court discussion should take place.  Being inexperienced, I would say this, your Honour, that if I am to be criticised, then surely the chamber judge should have then questioned me about the out-of-court conversation, because I am saying that I do not agree with that being used as the basis of a judgment.  I am saying there are matters there that should go to trial.

So, if I had said nothing – leave it in your Honour’s hands, then I could be taken, impliedly, to be consenting to the conversation out of court, but here is a woman with her whole livelihood being dismissed outside on a substantive issue on her counsel’s negligence, if I can put it that way, in not being firmer and stronger in my opposition to that procedure.

KIRBY J:   It is not negligence; it is simply inferring where the facts lay from the narrowing of the issues that the Chief Justice invited the parties to endeavour to do.

MR BRADSHAW:   Yes, your Honour, but that ‑ ‑ ‑

KIRBY J:   I do not think you should be too critical of yourself here.  It is simply a matter of you being sent out to see if there was any real dispute about this particular document.

MR BRADSHAW:   Yes, your Honour, but it is in the context, as I say, of the pleadings.  When you see my submissions, I go back and I rely on the pleadings and your Honour will see that the initial statement of claim was prepared by a non‑lawyer and my learned friend’s solicitor quite properly asked for further and better particulars.  When they were supplied, they clarified the agreement and the circumstances of the agreement and I kept going back to the Chief Justice and saying, “Well, it is all in the pleadings.  That is our case.  It is signed by Mrs Bernstrom.” 

In my submission, it is not a storm in a teacup; it is defining the parameters of the dispute quite clearly when I say, “Mrs Bernstrom’s pleadings are that there was an agreement.”  As I repeat, your Honour, it is in the context of Mr Pope, two weeks earlier, talking about contractual obligations being undertaken by the sons, in the form of guarantees, and that anticipation was the very situation which the applicant alleges occurred.  Another matter I wish to raise, your Honour, is that ‑ ‑ ‑

KIRBY J:   If I thought there were an injustice here, or a procedural injustice, I would be very sensitive to the complaint that you are making, but when one looks at it and one sees that you actually delete the ground of denial of procedural fairness, which I think is a proper deletion, it just does not seem to have the hallmarks of a special leave matter.  It is just a very particular narrow dispute about a particular case and particular factual questions and the determination thereof by a chamber judge.  It is not the sort of matter in the eight years I have sat here that tends to come up into the Court.

MR BRADSHAW:   The proposition put by my learned friend that the law ‑ ‑ ‑

GUMMOW J:   Are you moving to another matter now, Mr Bradshaw?

MR BRADSHAW:    No, I was just going to make this observation, if I could, your Honour, quickly, and I take the point, I am not going to delay matters.  My learned friend said that the law is well settled in relation to this and I have referred you to the annotations of the UCPR, where it is well settled, but this is now becoming new law and it is in conflict with Caxton Street Agencies, where they talk about mini trials should not be conducted, and that should be clarified, in my submission.

I did refer your Honours to a recent District Court case in Cairns, which was heard on 14 February and summary judgment was given on 30 May, which indicates, at least at the level of the District Court, the tremendous confusion as to the simple process summary judgments should be.  It should be obvious, it should be clear.  It should not be a matter of complex lengthy judgments taking four months.  That relates to my argument, therefore, on the resolution of an apparent conflict in the Queensland courts, where they now talk about a robust approach.

My submission is that the procedure adopted here was ill-conceived, that the proper procedure would have been to apply, on a weak case – maybe it is considered the applicant had a weak case – a security for costs could have been applied for, the matter set down for trial and the respondent obtain judgment by way of a default judgment.  But, in my submission, a security for costs was the appropriate procedure to adopt and not – where there was some evidence available, where the applicant herself has not given any material to the Chief Justice, that the summary judgment was inappropriate.  It was on that basis that I raised the second head, about the administration of justice. 

They are the matters I wish to raise and I specifically wish to point out to your Honours the confusion that seems to reign in the courts in

Queensland now, where it takes four months for a summary judgment to be given, and that is quite contrary to the principles enunciated by Justice Dixon, as he then was, about how sure, how unambiguous, how uncontentious the matters should be before the court.

GUMMOW J:   Thank you, Mr Bradshaw.  We do not need to call on you, Mr Lilley.

When the hearing of this application commenced today, the applicant narrowed the grounds of that application.  As so confined the application has been limited to complaints essentially about the course adopted at the hearing of the matter before the primary judge in the Supreme Court of Queensland.

However, it appears plain that that procedure for primary hearing involved no more than the exercise by the primary judge of discretion to excuse a witness from cross‑examination at the behest of the applicant in accordance with an arrangement to which the applicant made no objection at the time.

In those circumstances, the case is not one in which any error or injustice has been disclosed.  The Court of Appeal of Queensland made no error in so deciding.  No other ground in the remaining grounds presents a matter warranting a grant of special leave.  Accordingly special leave to appeal is refused and refused with costs.

We will adjourn until 2.15 pm.

AT 1.00 PM THE MATTER WAS CONCLUDED