Carnemolla v Adelaide Bank Limited

[2012] NSWCA 278

Court of Appeal

New South Wales

Case Title:

Carnemolla v Adelaide Bank Limited

Medium Neutral Citation:

[2012] NSWCA 278

Hearing Date(s):

29 August 2012

Decision Date:

29 August 2012

Before:

Allsop P at [1]

Decision:

1.Order the Adelaide Bank Ltd on or before 12 September 2012 to produce to the Registrar of the Court of Appeal two copies of a folder with copies of documents answering the description of the documents required in the schedule attached to the notice of the motion of the Carnemollas filed on 15 May 2012. The folder is to be accompanied by an affidavit by a solicitor certifying that the copies are of originals or if the originals are unavailable the copy in the bank's possession, identifying any documents not held and identifying which documents were produced at any earlier hearing and identifying that hearing.

2.Order the Bank on or before 12 September 2012 to serve one copy of the folder upon the Carnemollas.

3.Order the Carnemollas on or before 3 October 2012 to file and serve any further affidavit, submissions or document identifying or substantiating their appeal or the grounds thereof.

4.Direct the Registrar of the Court of Appeal after 3 October 2012 to approach the Bar Association to seek the assistance of counsel to act as an amicus curiae at the hearing referred to in the next order.

5.Direct the Registrar of the Court of Appeal to list the matter if possible in the November list but otherwise at the earliest opportunity at a date suitable to Mr Sirtes and to counsel acting as amicus curiae.

6.Reserve the question of costs.

7.Stand over the notice of motion of Adelaide Bank Ltd dated and filed 10 April 2012 to the hearing.

8.Leave to the Registrar the question of any further directions for the preparation of the appeal. He is, however, directed to take an approach which will limit the production of any further documents to a minimum. That direction is not to bind his appropriate discretion. It is a reflection of the Court's anxiety not to have any more documents prepared than are absolutely necessary.

9.Stand the matter over to 5 November 2012 at 9.30 am for directions. The Court authorises the Registrar to vacate the date when he makes final directions for the hearing of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Category:

Principal judgment

Parties:

Sebastian Carnemolla (First Applicant)
Lucia Carnemolla (Second Applicant)
Adelaide Bank Limited (First Respondent)
Bendigo Bank (a Division of Adelaide Bank Ltd) (Second Respondent)

Representation

- Counsel:

Counsel:
In person (Applicants)
Mr G Sirtes SC (Respondents)

- Solicitors:

Solicitors:
In person (Applicants)
MacGillivrays Solicitors (Respondents)

File Number(s):

2012/22709, 2012/81298

Decision Under Appeal

- Before:

Hislop J

- Date of Decision: 

14 October 2011

- Citation:

[2011] NSWSC 1202

- Court File Number(s):

2007/263386

JUDGMENT

1. ALLSOP P: I have considered the material in the Court file including the material filed by the respondent to the appeal, which I will call for ease and understanding 'the bank', as well as the material in response from the Carnemollas.

2. Before the Court are, first, the Carnemollas' motion for pro bono assistance and production of documents and, secondly, the bank's motion for dismissal of the appeal for incompetence based on the form of the appeal.

3. Considering the matter there may also be a third issue that needs to be dealt with and that is an extension of time for filing the appeal. But this has not been at the forefront of the bank's concerns because it arises out of a misguided view by the Carnemollas that they needed leave to appeal, which application was filed in time.

4. I will leave the extension of time question to one side.

5. It is appropriate to begin by saying that there is a considerable basis for the textual complaints by the bank about the form of the notice of appeal. Mr Pearlman in his affidavit of April 2012, which contains both evidence and submissions, largely the latter, deals succinctly and in significant respects legitimately with the form of the notice of appeal drafted by the Carnemollas themselves.

6. No doubt it was the form of the notice of appeal that led to Justice Whealy in May making an order for pro bono assistance. The Bar was approached pursuant to that order and a member of the Bar responded and the matters relevant to that exercise are contained in an affidavit of Mr Pearlman of July 2012. The long and the short of it is that the barrister does not appear before the Court and has not thought it appropriate for his professional reasons to seek to put any matters on behalf of the Carnemollas. The Court is always anxious not to draw conclusions from the absence of submissions after an exercise involving what may be legal professional privilege.

7. For the reasons that I will give briefly today, I think it best to approach this matter in a way that directs itself as far as possible to the substance of the matter rather than the form of it. That view is informed by two things. The first thing is the minimisation of time and expense for the parties and the Court. What often appears to be the quicker route to an end ends up being longer than what appeared to be the long way. I do not suggest that what I will be ordering is a long way but for the reasons that I will give I think it is preferable to taking a procedural approach to this matter.

8. The second is to ensure that no litigant before the Court thinks that it, he or she has had it, her or his matter resolved, apparently practically finally, without the substance of the matter being dealt with. This is particularly important with a litigant or litigants in person and here one of those litigants has not been well over the last few years, partly I would apprehend brought on by the strain of the litigation. That is not a statement in advance of any criticism of the bank, it is a natural but unfortunate human product of the litigious process.

9. The Carnemollas appear on the material that I have considered, that is in the Court file, to consider themselves to have been done a great injustice. The perceived injustice appears to arise from the circumstances of the taking out of the two loans in 2004 and 2005. They say at times, in their papers, that they have been the subject of fraud, in particular when one looks at the material by those who were acting for them.

10. Without expressing any final conclusions or even any preliminary conclusion, to a significant extent these complaints appear to have been the subject of the litigation, at least on the crossclaim before the primary judge, Justice Hislop. As I said, that is not either a final or preliminary conclusion. Nevertheless, to this point the Carnemollas have now had ample time and opportunity to put all they wish to in writing, subject to the question of the documents to which I will return.

11. The only matter further by way of information they seek are the documents which attend the two loans and which are described tolerably precisely in the notice of motion filed 15 May 2012. That notice of motion has a schedule. There are seven categories of documents relating to the 2004 loan and eight categories of documents relating to the 2005 loan. There is some material before me to indicate that counsel who previously acted for the Carnemollas had access to at least some of these documents, though precisely which is not clear.

12. On the last occasion I directed the bank to provide a document as to the history of the lending relationship between the parties. I notice in looking at the orders in preparation for today that there is a typographical error in order number three where it is stated, "including the history of the binding relationship and the litigation history". The parties would naturally, I would have thought, have understood that as "the history of the lending relationship and the litigation history". Given the difficulties of changing orders on the new computer system, I will not make a correction but it will be noted that that is the position.

13. A clear document was produced in answer to that direction. I should add that in the discussion on that occasion on 12 July with Mr Sirtes, I indicated to him that the document to be produced, while to a significant degree within the discretion of the bank as to its form, should traverse the detail of the facts concerning the relationship and thus would be directed closely to the kind of facts to which the schedule of the subpoena was itself directed. I thought it better to allow the bank and its legal advisors to provide me with a clear document as to the history rather than directing themselves precisely to the subpoenaed documents.

14. The Carnemollas have responded to the bank document in an affidavit of both of them sworn on 30 July 2012. It is unnecessary to deal with that in detail. It suffices to say that it adds to the material explaining the Carnemollas' complaints.

15. If I deal with this matter as requested by the bank, and if it were the case that I was prepared to make the orders today, the Court would be in this position, as would the bank: there would or may be a decision by a single judge able to be open to review by three judges of appeal; that matter, if found in the bank's favour on the documents, would lead to an interlocutory judgment. That interlocutory judgment by its character would not be final and would not prevent of its own force further applications being made for an extension of time to file a further notice of appeal which, if rejected, would itself be subject to review by a further three judges.

16. I do not consider that the bank's application is meritless and I understand why instructions were received to make it. That comment is made without having formed any final view about it but it is a matter that naturally flows from the form of the document, that is the form of the notice of appeal.

17. Not without some hesitation I have come to the view that it is not in the interests of time or expense to deal with this matter on a procedural basis leading to interlocutory orders. That conclusion is firstly for the reason I have just given: that I do not think that that course will be productive of any saving of time and expense; and, secondly, for a reason I adverted to earlier: that this matter should be resolved in a manner which displays to all the litigants before it that it has been dealt with substantially and justly on the merits.

18. Thus, I am not prepared to make the orders in the bank's notice of motion. I will deal with that, but I do not propose to dismiss it. I will stand it over to the final hearing of the appeal.

19. That leaves the Carnemollas' motion for further pro bono assistance and the subpoena. As to the pro bono assistance, I am not prepared to order that. An order has been made already. I am not prepared to seek to persuade another counsel to look at the matter. Though in many cases, and this is one, it is of assistance and sometimes importance to have a legal representative crafting submissions and the structure of the appeal, this is a matter in which the fundamental complaints of the Carnemollas are ones that they can express and have done so. One does not need a lawyer to say that a transaction has taken place in a way that was inappropriate.

20. Having looked at all the papers and examined the complaints of the Carnemollas, I am not prepared to direct the Registrar to approach the Bar again for pro bono assistance. I will, however, direct the Registrar, once all material is on, to approach the Bar to seek to have available at the hearing counsel who is briefed with all the papers who appears as an amicus curiae to put any submission that the papers reveal should be put in the interests of the Carnemollas.

21. Courts are here to do justice to all parties before them. The Carnemollas have a deep sense of injustice. I have not drawn any final conclusions or even any preliminary conclusions about the legitimacy of that sense of injustice. Sometimes in affairs such as this, where financial disaster has broken upon people, their perception of reality and who is to blame can become distorted. I do not conclude that that has occurred here, but my reservation as to the legitimacy of that deep sense of injustice should not be taken as having a foundation and any view preliminary or final that I have formed about the issues.

22. It may be, when one analyses all the material that has been put forward, that the matter has either been litigated and lost or at least is not perhaps the responsibility of this bank. I was in two minds as to whether to order production of the documents requested by the notice of motion filed on 15 May. They should have been gathered in order to comply with my previous order. Documents of that kind should have been the subject of a search in order to brief accurately the practitioner drafting the document.

23. In that light I do propose to require production of photocopies certified by a solicitor acting for the bank as copies of the original, or if a copy only exists to identify that. A folder of the documents answering the description of the fifteen classes of documents for 2004/2005 should be served within fourteen days. There should also be a schedule accompanying the documents indicating whether or not they were produced at any trial, whether in the District Court or Supreme Court, and an affidavit to that effect.

24. This order that I propose to make may perhaps be seen by the bank as an unjustified indulgence to the Carnemollas. I hope that that is not the way the matter is viewed. I think the best course is to have the documents produced. The Carnemollas have a further opportunity to say anything they wish about them and then the appeal can be heard this year.

25. Thus, the orders that I propose to make today are as follows:

    1.Order the Adelaide Bank Ltd on or before 12 September 2012 to produce to the Registrar of the Court of Appeal two copies of a folder with copies of documents answering the description of the documents required in the schedule attached to the notice of the motion of the Carnemollas filed on 15 May 2012. The folder is to be accompanied by an affidavit by a solicitor certifying that the copies are of originals or if the originals are unavailable the copy in the bank's possession, identifying any documents not held and identifying which documents were produced at any earlier hearing and identifying that hearing.

    2.Order the Bank on or before 12 September 2012 to serve one copy of the folder upon the Carnemollas.

    3.Order the Carnemollas on or before 3 October 2012 to file and serve any further affidavit, submissions or document identifying or substantiating their appeal or the grounds thereof.

    4.Direct the Registrar of the Court of Appeal after 3 October 2012 to approach the Bar Association to seek the assistance of counsel to act as an amicus curiae at the hearing referred to in the next order.

    5.Direct the Registrar of the Court of Appeal to list the matter if possible in the November list but otherwise at the earliest opportunity at a date suitable to Mr Sirtes and to counsel acting as amicus curiae.

    6.Reserve the question of costs.

    7.Stand over the notice of motion of Adelaide Bank Ltd dated and filed 10 April 2012 to the hearing.

    8.Leave to the Registrar the question of any further directions for the preparation of the appeal. He is, however, directed to take an approach which will limit the production of any further documents to a minimum. That direction is not to bind his appropriate discretion. It is a reflection of the Court's anxiety not to have any more documents prepared than are absolutely necessary.

    9.Stand the matter over to 5 November 2012 at 9.30 am for directions. The Court authorises the Registrar to vacate the date when he makes final directions for the hearing of the appeal.

26. [Discussion ensued.]

27. I will stand the matter over to 1 November 2012 at 9.30. I am only doing that because I cannot stand matters over to a date to be fixed because of the computer system. That date will be for directions if necessary and I authorise the Registrar to vacate the date when he makes final directions for the hearing of the appeal.

28. [Discussion as to length of hearing.]

29. I think the best course in this matter would be to note that counsel for the bank who has extensive knowledge of the matter is of the view that it would take one day. I think it would be safe to set the matter down for onedayplus.

30. [Discussion of what is to be produced.]

31. I am not going to require original documents now. Court is adjourned.

    **********