Davidson v Suncorp-Metway Limited (No 2)

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FEDERAL COURT OF AUSTRALIA

Davidson v Suncorp-Metway Limited (No 2) [2020] FCA 879

File number: QUD 18 of 2020
Judge: JACKSON J
Date of judgment: 22 June 2020
Catchwords:

PRACTICE AND PROCEDURE - application to transfer proceeding to Queensland registry to be heard in person - no practical injustice to the parties to proceed by audio link - application dismissed

PRACTICE AND PROCEDURE - application for leave to file expert opinion - evidence irrelevant to present proceeding - application dismissed
Legislation: Federal Court of Australia Act 1976 (Cth) ss 47A, 47B, 47C
Cases cited:

Davidson v Suncorp‑Metway Limited [2020] FCA 795

JKC Australia LNG Pty Ltd v CH2 Hill Companies Ltd [2020] WASCA 38
Date of hearing: 22 June 2020
Registry: Western Australia
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 19
Counsel for the First Prospective Applicant: The first prospective applicant appeared in person
Counsel for the Second Prospective Applicant: The second prospective applicant did not appear
Counsel for the Prospective Respondent: Mr DJ Ananian-Cooper
Solicitor for the Prospective Respondent: Gadens Lawyers

ORDERS

QUD 18 of 2020
BETWEEN:

WILLIAM JAMES ALEXANDER DAVIDSON

First Prospective Applicant

RISA NAGATSUMA

Second Prospective Applicant
AND:

SUNCORP-METWAY LIMITED (ABN 66 010 831 722)

Prospective Respondent

JUDGE:

JACKSON J

DATE OF ORDER:

22 JUNE 2020

THE COURT ORDERS THAT:

1.Paragraphs 1, 2 and 3 of the first prospective applicant's interlocutory application filed on 11 June 2020 are dismissed.

2.The hearing of the first prospective applicant's interlocutory application for the order set out at paragraph 4 of the application is listed to be heard on 2 July 2020 at 10.15 am AWST.

3.The costs of the interlocutory application insofar as it has been determined to date are to be the prospective respondent's in any event.

4.For the purposes of the hearing on 2 July 2020, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), the court directs that the parties and/or their legal representatives will appear before the court by audio link for the purposes of making submissions.

5.Paragraphs 4 and 5 of the orders made on 26 May 2020 are vacated.

6.By 4.00 pm AWST on Friday 26 June 2020, the prospective applicants must file and serve written submissions in relation to the orders sought by paragraph 1 of the originating application.

7.By 4.00 pm AWST on Tuesday 30 June 2020, the prospective respondent must file and serve written submissions in relation to the orders sought by paragraph 1 of the originating application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal court Rules 2011.


REASONS FOR JUDGMENT
(edited from the transcript)

JACKSON J:

  1. The first named prospective applicant, Mr Davidson, has brought an interlocutory application for this proceeding to be removed from Perth to Brisbane and for it to be heard in person.  He also seeks an order that leave be granted for the opinion of a person said to be…

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Details
Case
[2020] FCA 879
Decision Date

CaseChat Overview and Summary

In Davidson v Suncorp-Metway Limited (No 2), the plaintiff, Mr Davidson, sought various interlocutory orders against Suncorp-Metway Limited in the Federal Court of Australia. The application primarily sought to transfer the proceeding to the Queensland registry to be heard in person, to allow the submission of expert evidence regarding the authenticity of certain documents, and to address the validity of securities held by the defendant. The defendant opposed these applications, arguing that they were untimely and irrelevant to the current proceeding for preliminary discovery.

The court was required to determine whether the applications for transfer and expert evidence were appropriate at this stage of the litigation and whether the substantive questions about the validity of securities could be heard interlocuterily. The court concluded that there would be no practical injustice in proceeding with the hearing via audio link, and that the expert evidence sought by Mr Davidson was irrelevant to the preliminary discovery application. Additionally, the substantive questions about the validity of securities were deemed inappropriate for determination at this interlocutory stage.

The court dismissed the applications for transfer and expert evidence, noting that the proceeding was not intended to determine the merits of Mr Davidson's claims against the bank but rather to seek preliminary discovery of relevant documents. The court also declined to address the validity of securities at this stage, scheduling a separate hearing for this issue. The costs of the interlocutory application were awarded to the defendant, and the parties were directed to appear by audio link for the hearing on 2 July 2020. The court further vacated certain previous orders and set deadlines for the submission of written arguments regarding the preliminary discovery application.

Orders

Orders of the court

1. Paragraphs 1, 2 and 3 of the first prospective applicant's interlocutory application filed on 11 June 2020 are dismissed.

2. The hearing of the first prospective applicant's interlocutory application for the order set out at paragraph 4 of the application is listed to be heard on 2 July 2020 at 10.15 am AWST.

3. The costs of the interlocutory application insofar as it has been determined to date are to be the prospective respondent's in any event.

4. For the purposes of the hearing on 2 July 2020, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), the court directs that the parties and/or their legal representatives will appear before the court by audio link for the purposes of making submissions.

5. Paragraphs 4 and 5 of the orders made on 26 May 2020 are vacated.

6. By 4.00 pm AWST on Friday 26 June 2020, the prospective applicants must file and serve written submissions in relation to the orders sought by paragraph 1 of the originating application.

7. By 4.00 pm AWST on Tuesday 30 June 2020, the prospective respondent must file and serve written submissions in relation to the orders sought by paragraph 1 of the originating application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For those reasons, paragraphs 1 and 2 of the interlocutory application are dismissed. There will be an order directing the parties to appear at the hearing on 2 July 2020 by audio link for the purposes of making submissions.Evidence of the handwriting expert By paragraph 3 of the interlocutory application, Mr Davidson seeks an order that he have leave to put in the opinion of a handwriting expert, Mr John Heath, for the purposes of the hearing of the preliminary discovery application which is listed for 2 July 2020. Mr Davidson says that Mr Heath's opinion is necessary and relevant because it may go to establishing that certain documents which were purportedly signed by him were forged, in particular, certain authorisations which he says were used as the basis for fraudulent deduction of funds from his bank account. Mr Davidson points to what would be the serious implications of a finding to that effect, and the importance of establishing it in order for him to proceed with his various claims against the bank. The answer to that contention is that the proceeding presently before the court is not an application to determine the merits of the claims that Mr Davidson wants to pursue against the bank. It is solely an application seeking preliminary discovery of a range of documents which Mr Davidson says would be relevant to those claims. In particular, it appears from the application that discovery is sought of original letters of authority, being the documents to which Mr Davidson has referred and which he claims are forged. The court will not, on the application for preliminary discovery, determine the merits of the substantive claims that Mr Davidson may or may not have against the bank. If the application is successful, then, the result will be that documents will be discovered to Mr Davidson and, in his view, could then be usefully given to a handwriting expert. But unless and until that occurs, there is no call for further evidence from a handwriting expert and no apparent basis on which such further evidence could be relevant to the present application for preliminary discovery. It is also necessary to note that Mr Davidson has had opportunity, including at times when he has been represented by solicitors, to gather and produce such evidence, and it would be contrary to the efficient disposition of the matter and unfair to Suncorp-Metway to produce such evidence at this late stage at such a relatively short time before the hearing of the application. For those reasons, paragraph 3 of the interlocutory application is dismissed.The application for orders about the validity of securities Paragraph 4 of the interlocutory application raises substantive questions about the validity of mortgages on which Suncorp-Metway relies. In written submissions Suncorp-Metway did not take any procedural objection to the court entertaining that aspect of the application at this late stage, and sought to meet the point on its merits. In my view there is no need to determine this part of the application at an interlocutory hearing which was brought on fairly urgently. It will be listed for hearing at the same time as paragraph 1 of the originating application, that is Thursday 2 July 2020 at 10.15 am AWST.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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