Freeman v National Australia Bank

[2003] HCATrans 613

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B96 of 2001

B e t w e e n -

LYNTON NOEL CHARLES FREEMAN

Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 MARCH 2003, AT 12.46 PM

Copyright in the High Court of Australia

MR P.E. GORMAN:   May it please the Court, I appear on behalf of the applicant.  (instructed by Lynton Noel Charles Freeman, applicant) 

MR I.R. PERKINS:   May it please the Court, I appear for the respondent.  (instructed by Mallesons Stephen Jaques) 

KIRBY J:   Yes, Mr Gorman. 

MR GORMAN:   Your Honours, in relation to this matter I would like first of all to ask you to omit from our application of the applicant’s reply to the respondent’s supplementary summary of argument a paragraph at page 88 of the record, paragraph 3, where it is said that the respondent has made certain admissions.  That is not the case. 

KIRBY J:   Yes. 

MR GORMAN:   It will be from the start of paragraph a to the fifth line, which should be crossed out.  Then it would start at:  “Breaches of the Trade Practices Act”. 

KIRBY J:   Yes, very well. 

MR GORMAN:   It should be left then, but the other be omitted. 

KIRBY J:   We will delete those. 

MR GORMAN:   Thank you.  Your Honours, this case really revolves around a matter of discovery of documents specifically in relation to a mediation which took place in an endeavour to resolve the dispute between my client and his Bank.  My client, although represented at the mediation agreement, you will notice that in the Court of Appeal he represented himself and attempted to overthrow the mediation agreement because of the fact that on the day the mediation agreement was signed, he had been, as it were, psychologically overcome by the effects of what went on.

The Court of Appeal here in Queensland did not give any credence to that matter, nor did the single judge before whom the trial started, but in point of fact, your Honours, if one looks very carefully at the mediation agreement, dated 4 December 1997, there is a clause which does not permit my client to bring any action and is the usual type of clause in mediation agreements where one is estopped from bringing any further actions.  However, in relation to this mediation agreement and that which went before it, it is my submission to your Honours that it was obtained on a basic false premise.  There had been no proper discovery at the time of mediation to show how much my client in fact did owe the Bank.  The mediation agreement itself does not show any amount of money owed to the Bank. 

At the trial of this matter before his Honour Judge Ambrose in our Supreme Court, Judge Ambrose relied very heavily upon a certificate produced by the Bank, a certificate of debt, which was exhibit 3 in that proceeding, which was for the amount of $1,418,695.61.  Between the mediation and the time of the trial, my instructions are there were no Bank statements sent to my client and he was unable until the trial to determine what indeed was actually required to pay off the Bank. 

KIRBY J:   I realise all this, Mr Gorman, but you seem to be going over the facts again as if this were a third level of trial court.  That is not our function.  You have to show error on the part of the Court of Appeal, and moreover, you have to show that something else lifts the case up into one which the High Court of Australia will take on.  You have to do all that in the face of what appear to have been credibility findings which have been made against your client, which makes your task an extremely difficult one, as I am sure you know. 

MR GORMAN:   Yes, I do, your Honour. 

KIRBY J:   So what is the special leave point in the case? 

MR GORMAN:   What I was moving up to and trying to build a background on is the fact that, although my client may well have owed the Bank some money, he did not know exactly how much.  That is, the quantum of the judgment is in doubt.  The quantum of the judgment and the Bank’s attitude to various matters in relation to this are similar to the rare occasions when this Court will permit a retrial where there is a failure to comply fully with an order for discovery of documents.

I draw your Honours’ attention to the case of Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134. In the Quade Case, there were documents discovered to the respondent in the High Court after the single judge had delivered his verdict.  Because of it, eventually there was a determination by the Court as to where and upon what occasions will fresh evidence, as it were, be allowed to appear and to cause this Court to move the approval of special leave.  Your Honours of course, I recognise, will be aware of this case.  However, I will read part of the headnote, which is taken from the Court’s judgment.  It reads: 

In determining whether to order a new trial, the court may take account of a variety of factors including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party, any lack of diligence by the unsuccessful party, and the extent of any likelihood that the result would have been different if the order had been complied with and the undisclosed material had been made available.  While the appellate court does not have to be persuaded in such a case that it is “almost certain” or “reasonably clear” that an opposite result would have been produced, the question of whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that it would have been. 

Therefore, my submission to your Honours through the various outlines and the arguments submitted is the fact that the non‑disclosure by the Bank’s solicitors had an effect upon the first trial and on the Court of Appeal, and therefore ‑ ‑ ‑

KIRBY J:   Where did Justice White deal with this question, this precise question, Quade? 

MR GORMAN:   It was not raised in the Court of Appeal. 

KIRBY J:   Quite.  Now, why would we grant special leave to allow this matter to be raised for the first time in the High Court of Australia?  In particular, where, in order to examine the applicability of Quade, you would have to go into all the detailed factual questions in the case and ultimately, it would seem to me, would run up in any event against the barrier of the line of authority illustrated by Devries and Abalos and so on, and in any case would reach the end of that journey with a conclusion that perhaps the matters that were not discovered might have been relevant to the quantification but not to the ultimate liability of your client to the Bank. 

MR GORMAN:   Yes, your Honour has it exactly.  However, by way of explanation, my client appeared on his own in the Court of Appeal ‑ ‑ ‑

KIRBY J:   I realise that, and we would endeavour to prevent a miscarriage of justice if we can, but you have to show error.  If a point is not raised in the court below, where can there be the error that the court has made in order to get your leg in our particular door?  It is a door that is always almost shut in cases of this kind where there are just factual considerations depending on credibility questions.  If you add to that the ingredient that you did not raise the point in the Court of Appeal, it is pretty hard to get into this Court, I have to tell you. 

MR GORMAN:   Yes, I understand so, your Honour.  My client instructs me that at the Court of Appeal he attempted to get in certain extra evidence which would have in some part made a difference with regard to the quantum of the original judgment.  There was another part of evidence

which he tried to get in with regard to part of a parliamentary inquiry into banks through an affidavit, and I can understand why that was not let in.  Your Honours, the arguments set out with regard to the outlines for this Court cover the matter completely, and I am unaware that I can assist your Honours any further.  Those are my submissions. 

KIRBY J:   Thank you.  Mr Perkins, the Court does not need your assistance in this matter. 

MR PERKINS:   Thank you, your Honour. 

KIRBY J:   I will ask Justice Heydon to give the reasons for the Court. 

HEYDON J:   On 11 October 2000 in the Supreme Court of Queensland Mr Justice Ambrose made an order for possession of certain real property and an order that the applicant pay money owed to the Bank.  The Bank’s claim initially rested on the terms of the bill facility and mortgage.  After proceedings began, the parties agreed in a deed of mediation that the Bank should have vacant possession of the property if certain conditions were not satisfied.  They were not satisfied.

The applicant resisted recovery under the deed of mediation and the bill facility because of alleged oppressive and unconscionable conduct on the part of Bank officers.  The applicant relied on a contention that his medical condition caused mental incapacity.  After a four‑day trial, at which the applicant was represented, Mr Justice Ambrose made detailed factual findings rejecting the applicant’s contentions.

The applicant appealed to the Queensland Court of Appeal.  He represented himself.  His primary arguments were that Mr Justice Ambrose had erred in his factual findings.  Justice White analysed the facts in detail and rejected the applicant’s contentions.  Justices Davies and Thomas agreed with her.  The court also rejected complaints about the trial judge’s refusal of an adjournment, about the rejection of a documentary tender and about the costs order he made.

Some of the matters now raised by the applicant were not raised below and some relate to procedural issues not meriting the grant of special leave. 

One matter on which particular emphasis was placed in oral argument concerned an alleged failure of the Bank to have given proper discovery of documents.  The matter was not raised in the Court of Appeal and there is, in consequence, no finding and no affidavit evidence establishing the facts necessary to underpin the contention.  In any event, as the matter was argued, it appears to affect only questions of quantification.  The case is, accordingly, not a suitable one for the ventilation of that particular issue in relation to which the applicant relied on the principles stated in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.

While not all the points now raised are factual in character, there is no point in granting special leave unless there are arguable prospects of overturning the concurrent factual findings of the courts below.  There are no prospects since no arguable error has been demonstrated in any of the reasoning of the courts below.  Special leave to appeal is refused with costs.

AT 1.02 PM THE MATTER WAS CONCLUDED