Black v Walker

[2007] NSWSC 543

CITATION:	Black v Walker [2007] NSWSC 543
HEARING DATE(S):	28/05/2007
JUDGMENT DATE :	31 May 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	Refer to Paragraph 23
CATCHWORDS:	Judgment procured by perjury in Local Court - proceedings to have it set aside in this Court - fresh probative evidence likely to produce a different result - proceedings remitted back for retrial
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW)
CASES CITED:	Wentworth v Rodgers (No. 5) (1986) 6 NSWLR 534
PARTIES:	Richard Black Sandi Pau Yin Walker
FILE NUMBER(S):	SC 15994/06
COUNSEL:	Mr P. E. King (Pl) No Appearance (Def)
SOLICITORS:	Forshaws Neill (Pl)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	558/96
LOWER COURT JUDICIAL OFFICER :	Coon LCM
LOWER COURT DATE OF DECISION:	5/2/1997
LOWER COURT MEDIUM NEUTRAL CITATION:	Richard Black v Sandi Pau Yin Walker

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

31 May 2007

15994/06 Richard Black v Sandi Pau Yin Walker

JUDGMENT

1 HIS HONOUR: The plaintiff is a solicitor. In November 1993, he became engaged to the defendant. The relationship failed.

2 Mr Black retained a solicitor (Mr Carr) and he sent two letters of demand for the return of the engagement ring. The ring was not returned.

3 There is evidence that the defendant had two telephone conversations concerning the ring. One was had with Mr Carr. She made an admission that she still had the ring and further said that she felt she should be able to keep it. The other was had with the plaintiff’s mother. In that conversation, the defendant made a further admission that she still had the ring.

4 On 1 April 1996, the plaintiff brought proceedings 558 of 1996 in the Local Court to recover the ring (the detinue proceedings). He relied on a count in detinue.

5 In May 1996, AVO proceedings were commenced involving the defendant and the plaintiff (the AVO proceedings). On 26 July 1996, a hearing of the AVO proceedings took place. The defendant gave oral evidence. The proceedings were dismissed.

6 On 22 August 1996, the hearing of the detinue proceedings commenced before Coon LCM. Judgment was delivered on 5 February 1997.

7 The plaintiff gave evidence. His oral evidence was supported by oral evidence from Mr Carr and his late mother. The defendant gave competing oral evidence and relied on a diary entry. The effect of that oral evidence was that she did not have the ring because on 31 May 1994 the plaintiff had removed the ring from her premises.

8 The Magistrate accepted the evidence of the defendant. He proceeded to enter a verdict for her. He has since retired.

9 In the AVO proceedings, the defendant had some weeks earlier given evidence, which was in conflict with the evidence given by her in the detinue proceedings. For reasons that have been largely left unexplained, this conflicting evidence seems to have had little use in the detinue proceedings.

10 The plaintiff brought an appeal against the decision in this Court, The appeal was unsuccessful. A holding appeal was also filed in the Court of Appeal.

11 The plaintiff alleges that on or about 1 July 1999, the defendant telephoned him. On 14 October 2002, the plaintiff swore an affidavit containing evidence concerning that conversation. The evidence is as follows:-

“On or about 1 July 1999 the Respondent telephoned me at my home. She Said ‘It’s Sandi ringing from my sister’s house in Singapore. My solicitor, Garry Foster, will not return my calls. Will you take less for your legal costs?” I said “You’ve got a hide calling me after the lies you told at Kogarah Local Court in 1996. You knew I never took that engagement ring yet you subjected both my mother and me to cross examination.” She said “I think a cleaning lady took the ring.” I said “That was not your evidence at the Court. You told the Court that I took the ring and boasted that no Magistrate would believe a solicitor would commit perjury. You know that conversation never happened and your diary entry was a forgery. How dare you phone me!” She said “I wish I hadn’t said that. I wish I’d never caused those proceedings.” I said “It’s too late now. You obtained a verdict by deceit. I expect the decision will be overturned by the appeal.” She said “Will you think about accepting less for your legal work?” I said “No”.”

12 On 20 April 2004, the plaintiff successfully brought an application for leave to institute private proceedings against the defendant for perjury. A judgment was delivered by Syme LCM (coincidently she had also heard the earlier AVO proceedings). There appears to have been difficulties in effecting service (the Magistrate observed that the proceedings had been served on her at the courts direction). She did not appear and the matter was dealt with ex parte. The Magistrate appeared to be of the view that she had chosen not to defend the proceedings.

13 On 6 December 2006, the plaintiff filed a Summons in this Court. The process seeks, inter alia, an order setting aside the decision of Coon LCM. The basis of the application is that the decision made by him was procured by perjury. The Court has been told that one of the reasons for the bringing of the proceedings is to resolve questions of credibility that concern the plaintiff (this was also a matter advanced before Syme LCM).

14 A hearing of the Summons took place on 28 May 2007. Mr King of Counsel appeared for the plaintiff. There was no appearance by the defendant. Again, there appear to have been difficulties in effecting service.

15 The material placed before the Court suggests that she has been attempting to avoid service (the problems seem to be similar to those encountered in respect of the service of process in the proceedings before Syme LCM). Again, it appears that she has taken the course of choosing not to appear and defend the proceedings.

16 For completeness, I should mention one further matter concerning service. A bundle of documents (purporting to have been left with the Court by “Barry Maher”) had been located in the Court file. The Court brought the documents to the attention of Mr King. He examined the material and asked the Court to have them marked for identification (they were marked MFI 1). The plaintiff did not tender the documents.

17 Before proceeding further to deal with the substance of the application, I should briefly mention certain preliminary matters. There was the question concerning service. I satisfied myself as to these matters and made a precautionary order pursuant to Part 10 Rule 14 of the Uniform CivilProcedure Rules 2005 (NSW). A Statement of Claim is usually required. However, in this case, the issues were simple and it was in the interests of the parties to keep costs down. Accordingly, I allowed the proceedings to continue on a Summons. There were questions of jurisdiction. I made an order transferring the detinue proceedings to this Court. I was satisfied that there was sufficient reason for proceedings in that matter to be in this Court (which has inherent jurisdiction to set aside a decision procured by perjury). I also obtained a referral of power from Hoeben J in the event that such an order be required.

18 There is well settled authority that perjury by a successful party, if later discovered, warrants the setting aside of a judgment on the ground that it was procured by fraud (see Wentworth v Rodgers (No.5) (1986) 6 NSWLR 534 at p539).

19 The plaintiff has put before this Court evidence which falls within the category of fresh evidence and which, if accepted, is capable of leading to a finding of perjury by the defendant in the detinue proceedings.

20 In my view, it is probative evidence. Further, if the evidence is accepted it is capable of producing a different result in respect of the claim for detinue.

21 The plaintiff bears the onus of demonstrating an entitlement to have the decision in the detinue case set aside. In my view, that onus has been discharged.

22 I propose to set aside the decision and orders made by Coon LCM on 5 February 1997 and remit the detinue proceedings back to the Local Court for re-trial according to law.

23 I record the making of the following orders:-

1. Order that proceedings No 558 of 1996 in the Local Court of New South Wales at Kogarah be transferred to the Supreme Court of New South Wales pursuant to the Civil Procedure Act 2005 (NSW), section 140.

2. Order, pursuant to UCPR Part 10 Rule 10.14(3), that the Summons herein filed 6 December 2006 and the Affidavit of Malcolm Carr in support sworn 10 November 2006 be taken to have been served on the Defendant on 31 January 2007.

3. Order, pursuant to UCPR Part 10 Rule 10.14(3), that the letter dated 7 February 2007 giving notice of the hearing in this Court be taken to have been served on the Defendant on 7 February 2007.

4. Order that the judgment and orders dated 5 February 1997 of the Local Court of New South Wales at Kogarah in proceedings No 558 of 1996 in the Registry of that Court between Richard Black and Sandi Pau Yin Walker and listed before Mr Max Coon LCM be set aside.

5. Order that the Local Court of New South Wales proceedings at Kogarah No 558 of 1996 be remitted to the Local Court at Kogarah for retrial according to law.

6. Order that the Defendant pay the costs of the Plaintiff in these proceedings.
7. The exhibits may be returned.
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