Gutta v Ierino - [2010] WASC 402

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GUTTA -v- IERINO [2010] WASC 402

CORAM: MAZZA J

HEARD: 10-12 MARCH, 31 MAY & 2 NOVEMBER 2010

DELIVERED : 22 DECEMBER 2010

FILE NO/S: CIV 1168 of 2007

BETWEEN: MARIA TERESA GUTTA
Plaintiff
AND
ANTONIO GUISEPPE IERINO
Defendant

Catchwords:

Fraud - Allegedly forged transfer of land form - Constructive trust - Account - Equity of exoneration - Turns on its own facts

Evidence - Similar fact evidence - Admissibility in civil proceedings

Legislation:

Evidence Act 1906 (WA), s 31A
Transfer of Land Act 1893 (WA), s 201

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff: Mr A J N Aristei
Defendant: Dr P R MacMillan

Solicitors:

Plaintiff: Carlo Primerano & Associates
Defendant: Gibson Lyons

Case(s) referred to in judgment(s):

Bell Group Ltd (in Liq) v Westpac Corporation [2008] WASC 239
Briginshaw v Briginshaw (1938) 60 CLR 336
Farrugia v Official Receiver in Bankruptcy (1982) 43 ALR 700
Grivas v Brooks (1997) 69 SASR 532
Hall v Hall (1911) 1 Ch 484
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Parsons v McBain [2001] FAC 376; (2001) 192 ALR 772
Re Pittortou (a bankrupt); Ex parte the trustee of the property of the bankrupt v The bankrupt and anor [1985] 1 All ER 285
Wirth v Wirth (1956) 98 CLR 228

MAZZA J:

Introduction

The plaintiff and the defendant were in a personal, but not a de facto, relationship between early 2001 and March 2006. On 5 March 2004, they acquired, as joint tenants, a block of land situated at Hartog Road, Dalyellup (the property). On 21 April 2005, the plaintiff's joint interest in the property was transferred into the sole name of the defendant. The plaintiff alleges that she did not agree to her interest in the property being transferred to the defendant and that her signature on the transfer of land form (the transfer) is a forgery. Although the statement of claim alleges that the transfer was forged by either the defendant or his servants or agents, in closing the plaintiff's counsel alleged that the forger was Mr Mark D'Silva, a finance broker. The plaintiff alleges that either the defendant knew that the plaintiff's signature on the transfer had been forged or alternatively that the defendant was recklessly indifferent to whether the plaintiff had genuinely executed the transfer. On or about 19 December 2005, the property was sold. The proceeds were used to discharge some of the defendant's indebtedness.
The plaintiff seeks equitable relief by the declaration of a constructive trust. She seeks an order for an account in a sum she estimates to be either $36,644.02 (referred to in opening) or $39,244.02 (referred to in the plaintiff's written closing submissions). She also claims compound interest on this sum.
The defendant alleges that the plaintiff agreed to the transfer of the property to him and signed the transfer. He denies the allegation that the plaintiff's signature was forged by Mr D'Silva or, for that matter, that he forged the plaintiff's signature.
In any event, the defendant says that there was no equity in the property when it was transferred to him. Further, he says that any amount he owes to the plaintiff is set off in part by moneys he paid after the purchase of the property, including some moneys paid for vehicles purchased by the plaintiff.
There are three principal issues to be determined in this case:
1.Whether, as the plaintiff alleges, she did not sign the transfer and her signature was forged.
2.If so, did the defendant know that, and with that knowledge cause the transfer to be registered in his name.
3.If the plaintiff establishes her case against the defendant, what remedy does she have? In particular, is she entitled to an indemnity against the defendant in respect of her share of the proceeds of sale of the property, which the plaintiff says were used, in effect, to discharge the defendant's personal borrowings.
There are some other, more minor, matters relevant to the claim for relief.

The onus and standard of proof

The onus is upon the plaintiff to prove on the balance of probabilities the allegations that she did not sign the transfer, and that her signature was forged by Mr D'Silva with the knowledge of the defendant. From the outset, I acknowledge the seriousness of these allegations. I proceed, having in mind the principles set out by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361 ‑ 362 and by Mason CJ, Brennan, Deane and Gaudron JJ in their joint judgment in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449 ‑ 450.

The undisputed facts

I make findings in accordance with the following undisputed facts.
The nature of the relationship between the plaintiff and the defendant was boyfriend and girlfriend. At no stage did they live together as a de facto couple.
The plaintiff was employed during the relationship as an office administrator. The defendant managed a long‑running family business called Ierino Plastering Contractors and in July 2004 began a second business called Aqua Trucks WA. In essence, this was a water‑carting business. Throughout their relationship, the plaintiff assisted the defendant with some of his bookwork, internet banking and documents such as bank statements.
In early 2004, the plaintiff did not own any real estate, but the defendant owned a number of properties including properties situated in Kenwick and Wattle Grove. The plaintiff had experienced a degree of financial difficulty in the past which had adversely affected her credit rating.
In or about February 2004, the plaintiff and the defendant obtained a loan facility from the Home Building Society (HBS) in the form of a line of credit in the sum of $150,000. On 5 March 2004, they purchased, as joint tenants, the property for a total cost of $58,000, of which the land component was $54,400. Nearly all the purchase price, $56,685.72, came from the HBS line of credit. By the end of April 2004, the defendant had drawn down $91,258.19 (expressed during the trial in the rounded up sum of $92,000) from the line of credit for his own business purposes. The HBS line of credit was secured by a first registered mortgage over the property and against the defendant's property at Lalor Road, Kenwick.
The plaintiff and the defendant agreed that the monthly mortgage repayments would be divided between them so that the plaintiff paid an amount of approximately $400 per month and the defendant paid the balance, approximately $650 per month. The $400 per month to be paid by the plaintiff was calculated as the proportion of the monthly repayment attributable to the purchase of the property.
In accordance with this agreement, between 5 March 2004 and 16 April 2005, the plaintiff made payments to the HBS in the total sum of $5,200. The property was purchased as an investment. Although the plaintiff and the defendant discussed building a house on the land, that did not occur and the land remained vacant.
In March 2005, the defendant entered into a contract to purchase a property situated at Victoria Road, Kenwick. The settlement for that property was due to take place some time between April and June 2005. The defendant also wanted to purchase a water‑carrying truck at a cost of $71,500 (invoice for truck, exhibit 12, page 27), to be used by Aqua Trucks WA.
At some point, in approximately the early part of 2005, the defendant decided to refinance the HBS loan and to obtain further funds to acquire the water‑carrying truck. To do this, he sought and obtained the services of Mr Mark D'Silva, who was, at all relevant times, a finance broker employed by Independent Mortgage and Finance Services. Mr D'Silva acted as the defendant's agent throughout the transaction. Mr D'Silva was able to obtain finance for the defendant from Tonto Home Loans Australia Pty Ltd (Tonto). Tonto agreed to advance the defendant $220,000, of which $147,136.24 was to be used to discharge the loan from the HBS and $71,500 was to be used to purchase the water‑carrying truck. The loan was to be secured by a first registered mortgage on the property and on another property owned by the defendant at Park Road, Kenwick.
In order to obtain the loan from Tonto, it was thought necessary by the defendant and Mr D'Silva that the plaintiff's interest in the property be transferred to the defendant. This may have been because of the plaintiff's adverse credit rating.
There is no dispute that the plaintiff was aware, in general terms, of the defendant's desire to refinance and that, as part of the transaction, the HBS line of credit would be discharged. She had no objection to this course.
On or about 5 April 2005, the plaintiff and the defendant signed a HBS Discharge and Disbursement Authority (exhibit 8). This document was provided to Mr D'Silva.
Mr D'Silva gave instructions to a settlement agent, Ms Lorenza De Luca, to arrange the settlement of the transfer of the property to the defendant.
On 15 April 2005, Ms De Luca received from Mr D'Silva a valuation report, which valued the property at $90,000. On the same day, Ms De Luca prepared a draft transfer of land form for the property and sent it to Tonto's solicitors. The draft transfer is in the same terms as the executed version.
The draft transfer provided for the transfer of the plaintiff's joint share in the property to the defendant and stated that the consideration for the transaction was $80,000. How the figure of $80,000 was arrived at is unclear. The defendant said it should have been $40,000. The defendant's evidence was it was never intended that any money would change hands with respect to the transaction, and that any stated consideration was only included in the transfer for the purposes of the assessment of stamp duty. The plaintiff is not suing for any sum based on the stated consideration in the transfer.
On either 15 or 18 April 2005, Ms De Luca provided Mr D'Silva with a transfer of land form, an authority to act and a stamp duty valuation form.
To the best of Ms De Luca's recollection, those documents were returned to her in an executed form on or about 18 April 2005 (Ms De Luca's witness statement, exhibit 12, par 14).
The authority to act form, which purportedly bears the signatures of the plaintiff and the defendant, is dated 18 April 2005. It is headed:
Authority to Act
Transferor: Antonio Guiseppe Ierino and Maria Teresa Gutta
Transferee: Antonio Guiseppe Ierino
Address: Transfer of 3 Hartog Road Dalyellup
The plaintiff denies that she signed this document, and there is no expert handwriting evidence in relation to it.
The transfer which was apparently signed by the parties was undated when it was received by Ms De Luca. She inserted the date of 18 April 2005. Her recollection is that she inserted this date because it was the date upon which the other documents she had received from Mr D'Silva had been signed.
On 21 April 2005, a settlement took place at which:
(a)the moneys advanced by Tonto were paid to the HBS, discharging the parties' existing indebtedness in the sum of $147,136.24 (exhibit 1, page 26) and for the purchase of a water‑carrying truck in the sum of $71,500;
(b)the mortgage to the HBS was discharged;
(c)the property was transferred into the defendant's sole name; and
(d)a first mortgage in favour of Tonto was registered against the property.
On the same day as settlement was effected, a settlement statement with respect to the transfer of the property was sent to the defendant. A letter dated 21 April 2005 was sent to the defendant informing him that the settlement had been effected that day (exhibit 12, page 28).
On or shortly before 28 April 2005, Ms Annette Lowe, a sales consultant at LJ Hooker, Bunbury, was requested either by the plaintiff or the defendant to provide a market appraisal for the property. This she did, estimating that the property was worth $127,000. On 28 April 2005, Ms Lowe conducted a title search through a company called RP Data Ltd, which revealed that the property was still in joint names. Later that day, an exclusive selling agency agreement was sent by facsimile to the plaintiff.
Ms Lowe was instructed to sell the property. The plaintiff does not dispute that she wanted the property sold. Both the plaintiff and the defendant signed the exclusive selling agency agreement in favour of LJ Hooker, Bunbury, on 2 May 2005. That agency agreement was subsequently amended. The amendment was initialled by the parties.
In October 2005, the plaintiff purchased a BMW motor vehicle for $24,000. Of this sum, the defendant paid $990 which were the transfer and stamp duty costs associated with the purchase.
The BMW turned out to be an unreliable motor vehicle. As a result, the plaintiff decided to trade it in for a new Mazda 3 vehicle in December 2005. The defendant contributed $6,000 towards this purchase.
On or about 19 December 2005, the property was sold for $140,000. It is not disputed that the property was sold to a bona fide purchaser for value without notice. The proceeds of sale payable to the defendant were $131,288.04 (plaintiff's witness statement, exhibit 1, page 70). The plaintiff did not himself receive any part of the proceeds of sale.
The plaintiff admits that she witnessed the defendant's signature on the transfer of land form for this transaction, but says that she did not note the contents of the document, as she witnessed many documents for the defendant.
The proceeds of sale went to discharge Tonto's mortgage over the property or at least part of that loan. Up to this point, the defendant had paid mortgage instalments to Tonto totalling $20,520, as well as outgoings. The plaintiff made no contribution to these payments.
At some point after the property was sold, but still in December 2005, the plaintiff became aware of the sale.
After the plaintiff and the defendant broke up, the plaintiff claimed from the defendant payment of part of the proceeds of the sale of the property in December 2005. In response, the defendant's solicitors wrote to the plaintiff by letter dated 10 May 2006 (responsive statement of the plaintiff, exhibit 2, page 11). The letter asserted that the plaintiff had transferred her interest in the property to the defendant on or about 18 April 2005 and purported to enclose a copy of the transfer for her reference. The copy of the transfer was omitted from the letter. As a result, on 12 May 2006 the plaintiff telephoned Mr Simon Davey, who was then employed as a solicitor at Gibson Lyons. I will refer later in these reasons to this conversation.

The pleadings on the issue of forgery

The allegation of forgery is pleaded in the plaintiff's amended statement of claim as follows:
2.The Property was transferred solely to the Defendant by the effect of a transfer of land document dated 18 April 2005 (which was subsequently registered at the Department of Land Information on 21 April 2005 by transfer J258787T) ('the Transfer').
2AThe said Transfer was made and registered (as pleaded in the previous paragraph herein) in circumstances whereby the Defendant knew that no actual agreement had been made with the Plaintiff for the transfer of her interest in the Property at the date of the Transfer, and in circumstances whereby the Defendant knew that the Plaintiff's signature on the Transfer had been forged either by himself or by his servants or agents. Alternatively, the Transfer was made in or about April 2005 and registered on 21 April 2005 by the Defendant with reckless indifference as to whether the Plaintiff had genuinely assented to, and had executed, the Transfer.
PARTICULARS
i.The Plaintiff has sighted the Transfer and denies that she, in fact, executed the said Transfer;
ii.The purported execution of the Transfer by the Plaintiff has been examined by a handwriting expert, who has concluded that the signature of the Plaintiff apparently executed on the Transfer is not a genuine signature by the Plaintiff thereon;
iii.The Plaintiff refers to paragraphs 7‑11 of the Defendant's earlier defence filed 16 March 2007 and denies that any such oral agreement was made between the parties as alleged (and detailed by the Defendant) therein;
iv.The Transfer (which provides for payable consideration of $80,000 for the transfer of the Plaintiff's interest) is inconsistent with the consideration alleged to have been agreed in the sum of half of the net equity in the property as pleaded in paragraph 7(c) of the Defendant's earlier defence filed 16 March 2007, calculated in the sum of $11,000;
v.The Plaintiff and the Defendant executed a selling agency agreement for the property on or about 3 May 2005 with LJ Hooker, Bunbury, real estate agents in their capacity as joint owners, notwithstanding their earlier alleged entry into the Transfer on 18 April 2005 and its registration with the Department of Land Information on 21 April 2005.
3.Pursuant to the Transfer, the Property was transferred to the Defendant on 21 April 2005 as the sole registered proprietor, but in point of law or alternatively equity, the joint tenancy was thereby severed, and the Defendant subsequently held the Property as a constructive trustee for himself and the Plaintiff as equitable tenants‑in‑common in equal shares by reason of the fraudulent nature of the Transfer referred to in paragraph 2A herein.
The defendant, in his amended defence, admitted par 2 of the amended statement of claim. He denied each and every allegation in par 2A and, save for admitting that the property was transferred to him on 21 April 2005, he denied each and every allegation in par 3 of the amended statement of claim.
In his supplementary closing submissions on 2 November 2010, counsel for the plaintiff said that the plaintiff was suing in equity for fraud. He eschewed any other cause of action, including fraud under s 201 of the Transfer of Land Act 1893 (WA).

Evidence in relation to the allegedly forged transfer

The original of the allegedly forged transfer which was registered at Landgate is exhibit 7.2. The signatures of the parties appear on the attestation sheet, which is page 3 of the document. In the transferor section is the signature of the defendant and the questioned signature of the plaintiff. The witness to each signature is Mark D'Silva. All of the handwriting is in black ink, except for the plaintiff's signature which is in blue ink.
The document is, as Ms De Luca said, dated 18 April 2005. On the front page is a stamp duty endorsement which shows that stamp duty was paid at 11.07 am on 21 April 2005. The document was registered at Landgate at 4.03 pm on that day.

The evidence of the plaintiff

The plaintiff said that the defendant told her that he wanted to refinance and that he had to remove her name from the title. She said that she did not say anything one way or the other to this proposal (ts 122 ‑ 123). She said that as far as she was concerned 'that was the end of it' and that the defendant did not ask her about it again (ts 123).
She said that she recalled a meeting at the defendant's property situated at Freeduff Drive, Wattle Grove, at which both the defendant and Mark D'Silva attended. She described this meeting in the following terms in her witness statement (exhibit 1):
Meeting at Tony's Wattle Grove property
20.In particular, I do recall that in early 2005, Mark D'Silva met Tony at Tony's house at Freeduff Drive, Wattle Grove. Tony's sister and brother‑in‑law (Gina and Carmelo Terranova) and their little son Sam were staying there whilst they were building their own house.
21.I am unable to give a firm date that this meeting took place but it was at about the same time Tony was talking about re‑financing with Mark D'Silva. I recall that meeting occurred in the evening after dinner[.]
22.During this meeting, I recall Mark D'Silva and Tony discussing re‑financing and possibly consolidating finances. I was merely there to listen and to provide bank statements for the various loans that Tony had.
23.I was certain that I was not given any transfer of land documentation.
24.Nor did I see or sign any documentation relating to a transfer of land from me to Tony.
25.I was going between the dining table and lounge where I was playing with Sam (Tony's nephew). I recall that Gina and Carmelo Terranova were not at the table, but were watching TV on the lounge. I am certain that they would not have observed any signing of documents.

At par 10 of the statement, the plaintiff said:
I am now aware that in April 2005, a transfer of land relating to the Property was allegedly signed by me. This transfer transferred my interest in the Property to Tony. I categorically state that at no stage did I sign the transfer of land. I have seen the transfer and the signature is not mine. I did not sign any contract or transfer effecting this transaction.
Under cross‑examination, she remained resolute that she had not entered into any agreement to dispose of her interest in the property to the defendant and that she had not signed the transfer. She accepted that she had signed the HBS discharge and disbursement authority (ts 154), although she said she had no recollection of doing so. She said that she thought that 'he may have been able to get finance with my name on the property' (ts 155). She denied that she ceased making mortgage payments in April 2005 because she had transferred her interest in the property to the defendant. She said she ceased making the payments because the defendant told her to stop due to the refinancing (ts 171).

The defendant

In the defendant's witness statement, exhibit 19, the defendant said:
14.I purchased another property in Kenwick in about March 2005. I also wanted to purchase a vehicle for my business for the sum of $75,000. I wanted to use the Dalyellup property as security. The bank would not lend me sufficient money because the Plaintiff's name was on the title of Dalyellup, and because of her credit rating.
15.I could not raise the funds. My next door neighbour suggested I speak to Mark De Silva [sic], a finance broker. I telephoned Mark. De Silva suggested that the property be transferred into my name alone. The truck I wanted to buy, and the Dalyellup property, would assist in providing security for the loan I needed.
16.I discussed the problem with the Plaintiff. She accepted that she be removed from the title. I did not discuss what she would get in return. I just said that I needed to do this. She agreed.
17.She did not put any more money into the mortgage after that. That was around mid‑April 2005.
18.I told the Plaintiff that we needed an appraisal of the block to complete the transfer document. The Plaintiff and I obtained an oral appraisal from an [sic] real estate [agent] in Bunbury whose name I cannot recall. The appraisal was that the block was worth $80,000.
19.I spoke to Mark on the telephone and asked him to go ahead and prepare the documents. I told Mark of the appraisal of $80,000.
20.Mark came to my house in Wattle Grove at about 6.30 pm one night. My sister, Gina Terranova and brother‑in‑law, Carmello Terranova, were present, as was the Plaintiff. The Plaintiff, Mark and I sat around the table in the kitchen. Mark produced a transfer document. This was the first time I met Mark.
21.I had explained to the Plaintiff who Mark was, why he was there, and what we were doing. I had no other business or financial dealings with the Plaintiff.
22.We both signed the transfer that Mark had prepared and brought with him. He witnessed both our signatures. I produce a copy of the transfer document.
23.The consideration paid in the transfer shows a figure of $80,000. This is a mistake. It should have been $40,000. I did not notice the mistake until this litigation was on foot.
24.A discharge of mortgage authority document was prepared which the Plaintiff and I signed. My solicitors have made inquiries with HBS for a copy of the documentation. I produce a title search of the block. As far as I can recall, the discharge authority was signed at the same time as the transfer, and Mark took the documents away with him.
25.The settlement agents arranged for the transfer, discharge of the HBS mortgage, and the registration of a fresh mortgage. It was all done on 21 April 2005.
In cross‑examination, the defendant agreed that he needed finance to complete the purchase of the property at Victoria Road, Kenwick, and to purchase the water‑carrying truck (ts 382). He agreed that his bank would not lend him enough money because the plaintiff's name was on the title of the Dalyellup property (ts 383). As he put it:
They wouldn't give me any money at all. I couldn't borrow money with the plaintiff's name on the title (ts 384).
Later he agreed he would not have been able to settle the purchase of the property at Victoria Road, Kenwick, unless the plaintiff's name was 'removed' from the title to the Dalyellup property (ts 407).
The defendant said that he discussed the matter with the plaintiff and that she agreed to transfer her interest in the property to him (ts 397). He said that he sought her permission before he contacted Mr D'Silva (ts 397).
He said that his understanding was that there was no agreement to pay any price to the plaintiff for her interest in the property (ts 396).
In cross‑examination, the defendant was adamant that the plaintiff signed the transfer of land at the meeting at the property at Freeduff Drive, Wattle Grove.
In cross‑examination, the following exchange took place concerning this meeting (ts 377 ‑ 378):
In relation to that, what's your recollection of the transfer of land documentation that she was given?‑‑‑My recollection was that we sat there and we all signed them and the broker had witnessed our signatures.
Is that it in detail? Can you recall, were the three of you sitting down at the table at the same time when this document was being signed or prepared?‑‑‑That's correct.
The three of you?‑‑‑All three at one time[.] Yes, that's correct.
Do you recall what was said in relation to the transfer to Maria, if anything?‑‑‑I can't recall the conversation, no.
Who do you recall signing the transfer first?‑‑‑I can't recall that either.
Do you recall any other documents being signed at the meeting?‑‑‑Yes. There was a few documents there. Yes, there was.
What were those documents?‑‑‑I can't recall the documents there but there were several there. I can't remember exactly in total but there were several documents.
This meeting took place in the evening after work. Correct?‑‑‑That's correct.
You didn't explain, did you - you didn't give any detail to Ms Gutta as to exactly what was going to be taking place during the meeting?‑‑‑Yes, I did and before the meeting arose, yes, I did.
Do you recall the words to the effect of what you said?‑‑‑Pardon?
Can you recall the effect of the words of what you said?‑‑‑Yes. I did explain to Maria what was happening and why it was happening, the refinancing, because we needed to do other things.
Because you what?‑‑‑We needed to do other things or I needed to - sorry, I withdraw that. I needed to do other things such as refinancing - with the refinancing.
You said you needed to do other things?‑‑‑Yes. I said - myself, yes.
Is it the case that you didn't have a discussion other than you were saying - you may have mentioned that you were having a refinancing meeting with Mr D'Silva?‑‑‑Yes. We had spoken to Maria about the refinancing before Mr D'Silva was coming and did explain to Mr D'Silva what's coming. That's why she came over that night, for the meeting.
That's why she what?‑‑‑That's why she came over to my place that night, for the meeting.
The defendant said that one of the documents that he signed at the meeting was the HBS discharge and disbursement authority. In cross‑examination, he agreed that this was incorrect (ts 387 ‑ 388).
Just before the cross‑examination concluded, he said that he signed the transfer first followed by the plaintiff (ts 421).

Evidence of Mark D'Silva

Mr D'Silva in his witness statement (exhibit 24) said that he had two meetings with the defendant, both at an address in Wattle Grove. At the first meeting, the defendant completed a loan application. It is not suggested that the plaintiff was present at that meeting. Mr D'Silva said that this first meeting was in the first quarter of 2005.
Mr D'Silva's recollection of what occurred at the second meeting was as follows:
4.I can recall the second meeting taking place at Tony's Wattle Grove home. I had not previously met with Maria Gutta. I recall that present in the home at that time was myself, Tony, Maria, Tony's sister and brother-in-law. It took place after work one evening. Tony met me at the door and we walked into the dining room which adjoined the kitchen and sitting room.
5.We sat at the dining room table. Maria was in the adjoining kitchen. I told Tony what we could do by way of refinancing. I told Tony he was required to sign the transfer the mortgage and the discharge. I recall watching Tony signing the transfer and the other documents and then me witnessing it. Tony then called Maria by saying words to the effect of 'Maria you need to sign these papers'.
6.Maria sat down at the table opposite me. I recall she was wearing a white top and blue jeans. She said 'Hi' to me. I pointed out where she needed to sign while seated at the table. I watched her sign, then turned the transfer around and I signed it as a witness. Now produced and shown to me is a copy of the transfer and the mortgage.
7.Tony and I continued to discuss other financial matters and Maria left the table. I recall I was at the Wattle Grove property for approximately 40‑50 minutes at the most.
In cross‑examination, the plaintiff's counsel referred Mr D'Silva to a loan that he had negotiated in or about September and October 2005 on behalf of a relative by marriage, Shaun Wellbourne‑Wood and his partner, Lisa Paris. He agreed that he had signed a mortgage document in the name of Mr Wellbourne‑Wood. He said that he did this because Mr Wellbourne‑Wood was away and the transaction needed to be settled. He agreed there was some urgency about the provision of the finance to Mr Wellbourne‑Wood and Ms Paris. He said that, when he signed the mortgage, he simply signed the name 'Shaun' in running writing. He said, 'Anyone could read "Shaun"' (ts 460). At ts 459, he said:
I purposely sabotaged myself when I did it and wrote 'Shaun' that any Tom, Dick and Harry off the street would not accept that and let that settle. I thought that would purposely delay this from settling, no charges would recur for late settlement, Shaun would then return to Perth and this could be finalised properly.
There is a copy of a mortgage annexed to the witness statement of Ms Janine Carpenter (exhibit 6). Ms Carpenter was one of the directors of Independent Mortgage and Finance Services. The signature said to be Mr Wellbourne‑Wood's is indistinct. It is impossible to discern the word 'Shaun'. However, the copy of the mortgage in the statement is likely to be a later document actually signed by Mr Wellbourne‑Wood as a substitute for the document signed by Mr D'Silva (ts 514 ‑ 515).
In cross‑examination, Mr D'Silva's attention was drawn to the HBS discharge and disbursement authority. He agreed that he wrote the word 'Urgent' twice on the top of the document. Mr D'Silva did not take issue that the defendant's refinancing was urgent (ts 463).
With respect to the transfer of land form, he denied forging the plaintiff's signature (ts 481).
In re‑examination, Mr D'Silva said, at ts 486, that he signed the mortgage on behalf of Mr Wellbourne‑Wood:
(1)to save him on late fees,
(2)because he's my cousin and
(3)just to save time, try to get something done.

Evidence of Gina Terranova

Two witness statements were signed by Ms Terranova.
In the first statement, dated 5 February 2010, Ms Terranova stated:
4.I do recall on one particular evening Carmelo and I were at home with Tony and Maria was present [sic]. A man, who, from discussions with Tony I understood to be his finance broker, Mark D'Silva, came to the house in the evening. I recall the three of them sitting down at the dining room table and looking at some documents and having a discussion about them.
5.I recall them signing various documents, but I do not know what they were.
In Ms Terranova's second statement, dated 31 May 2010 (which was the fourth day of the trial), Ms Terranova expanded on what she had said in par 4 of her earlier statement. She said:
4.I do recall on one particular evening Carmello and I were at home with Tony and Maria was present. I was quite good friends with Maria at the time and I recall having had a telephone discussion with Maria earlier that day or around about that time, during which she said to me words to the effect that she was coming around that night to sign some papers with the broker.
Ms Terranova said that she recalled the conversation with the plaintiff, 'while [she] was waiting in the room at the last court hearing' (ts 437), referring to the first three hearing days of this trial in March 2010.

The expert evidence - allegations of forgery

The plaintiff called expert handwriting evidence from Mr Adrian Lacroix as to the authenticity of Ms Gutta's signature on the transfer of land form. Mr Lacroix provided two reports, the first (exhibit 13.1) was dated 1 June 2007. Mr Lacroix was unable to provide a 'fully conclusive opinion' in that report because he had examined a copy of the transfer rather than the original document. However, on 29 April 2009, Mr Lacroix examined the original document at Landgate. The defendant's handwriting expert, Mr John Gregory, also examined the original transfer.
Later, Mr Lacroix produced a second report dated 1 October 2009 (exhibit 13.2). Mr Lacroix came to the conclusion that the questioned signature was 'a very poor attempted "simulation" of the Maria Gutta signature' (exhibit 13.2, page 8). When Mr Lacroix used the word 'simulation', he really meant 'forgery'.
In Mr Gregory's report, dated 7 July 2008 (exhibit 16), he concluded:
[T]hat the questioned signature is more likely to have been written in a modified form by the writer of the specimen comparison signatures than being a simulated signature written by another person (exhibit 16, page 16).
Stripped of jargon, Mr Gregory's conclusion was that Ms Gutta had signed the document, but she had deliberately done so in a modified form.
Before I deal with the evidence of each expert in greater detail, it was evident that the two handwriting experts agreed on a number of important matters. First, both Mr Lacroix and Mr Gregory adopted the same methodology. Each was provided with a number of specimen comparison signatures known to have been written by the plaintiff. These specimen signatures were closely examined, macroscopically and microscopically, in order to determine the characteristics and writing habits of the plaintiff. Having ascertained those characteristics and habits, the questioned signature was then examined and a determination was made in light of the characteristics and habits shown by the specimen comparison signatures, whether the questioned signature is genuine. No evidence was given of any comparison between Mr D'Silva's handwriting and the questioned signature.
Second, Mr Lacroix and Mr Gregory both agreed that the questioned signature was a poor imitation of the plaintiff's signature. Having viewed the specimen signature used by each expert and compared them with the questioned signature, I agree with this conclusion.
Third, both identified the same differences between the initial 'M' and the first four letters of the defendant's surname in the questioned signature compared with the specimen signatures. Both agreed that the letters 't' and 'a' at the end of the questioned signature were similar to the specimen signatures in that they were aligned almost identically to the specimen signatures, and the 'A' had a two‑stroke construction.
The defendant took issue with Mr Lacroix' evidence as to his training and experience.
Mr Lacroix said, in his report:
In January 1997, I commenced a comprehensive five year training program in the field of Forensic Document Examination in Hobart. I trained under the former Head of the Document Examination Section of Tasmania Police. My training involved learning and experiencing different aspects of document examination case‑work received for examination, comparison and report. I have received the relevant training in the required areas of Document Examination. I have studied the required text‑books and articles in relation to this field of work. I have successfully participated in various proficiency tests. I became a Forensic Handwriting and Document Examiner with Australasia Document Examination in Perth, Western Australia, between December 2002 and January 2006. I then commenced with Forensic Document Examiners Pty. Ltd. in February 2006 (exhibit 13.2, page 1).
In cross‑examination, Mr Lacroix said that he was trained by his father who was the head of the document examination section of the Tasmanian Police and had 35 years experience in the field. Mr Lacroix said that, over a period of five years, he was trained by his father, mostly at night and on weekends.
He said that between 2002 and 2006, he worked on a full‑time basis as a document examiner in Perth. During this period, he completed a Bachelor of Commerce degree at Curtin University (between 2002 ‑ 2005), and worked in the hospitality industry. He said that he was able to manage his study and work in the hospitality industry on weekends and at night during the week. Dr MacMillan asked him how many cases he worked on during the period he was in Perth. Initially, he said that he was engaged in a couple of hundred cases, but, when pressed, reduced this number to around about 100.
Between February 2006 and trial, he was employed by Forensic Document Examiners Pty Ltd, and during that time he had undertaken work in a 'couple of hundred' cases.
Mr Lacroix, in his letter by letter analysis of the questioned signature on the transfer, concluded that, although there was what he described as 'a partial similarity in the relative positioning of [the last] two letters' of the questioned signature when compared to the specimen signatures, he said:
[T]he overwhelming weight of the remaining document examination and comparison evidence, clearly shows significant differences throughout, compared to the genuine Maria Gutta Specimen signatures. Those numerous significant differences are all indicative of it being a botched attempted simulation by another writer. An experienced and skilled forensic document examiner would normally interpret them as such (exhibit 13.2, page 9).
Mr Lacroix dealt with Mr Gregory's view that the questioned signature was a modified signature written by the plaintiff, by quoting a textbook which both experts regarded as authoritative, Wilson R. Harrison, Suspect Documents: Their Scientific Examination, 419 (exhibit 18):
When the signature on a formal document has been deliberately modified, two discoveries may confidently be expected on close examination. The first is that the modification is in some rather prominent feature of the letter design which is almost invariably pointed out by the person disclaiming the signature, and the second is that, apart from this one obvious feature, the rest of the signature appears to be normal. The tremor of forgery and any delicate retouching are absent, and all the minutiae of the handwriting of the genuine signature are present in the disclaimed specimen.
Before the discrepancy can be accepted as proof of forgery, one has to accept a forger who is sufficiently skilful to reproduce the minutiae to perfection and yet is sufficiently stupid to introduce, quite unexpectedly, a feature which, according to the person disclaiming the signature, has never appeared in a genuine signature. The extreme unlikelihood of this will negative the suggestion that the signature is forged.
A signature which reproduces all the grosser features of the genuine but none of the lesser, may safely be denounced as a forgery. [The converse does not apply, for a signature which produces to perfection all the less conspicuous features is unlikely to have been written by anyone other than the presumed signatory, in spite of some obvious difference in letter design which could have been deliberately introduced.]

The bracketed portion was not included in Mr Lacroix' report, but was later referred to by Mr Gregory in his evidence.
Mr Lacroix considered that this definition contradicted Mr Gregory's claim that the questioned signature was more likely to have been written in a modified form by the plaintiff because, apart from the alignment of the last two letters in the questioned signature, the questioned signature did not have any of the normal features of the plaintiff's signature.
Mr Lacroix said that the last two letters in the questioned signature were separated from the other letters in the plaintiff's surname, indicating to him that the writer lifted the pen off the page, and then separately hand printed the letters, having had time to pause and check their relative position and alignment (exhibit 13.2, page 10).
At ts 314, the following exchange took place while Mr Lacroix was under cross‑examination:
Do you agree that the alignment point that Mr Gregory has made that you accept - do you agree that that is not an indicator of a simulated signature by way of the questioned signature?‑‑‑It's important to note that it is easier to simulate, or it would be easier to simulate the last part of that signature given that there is opportunity for the simulator to lift their pen to pause. It is also printed writing as opposed to free flowing simulation so, yes, it would be easier for somebody to simulate the last part of that signature.
You said that I think yesterday, didn't you, that perhaps the alignment could be achieved or could have been achieved by the writer pausing to get the alignment right. Is that what you said?‑‑‑I'm just saying that it's simpler to simulate printed writing than it is to simulate a signature that's done purely by freehand with no pen lift.
So are you saying that the writer could have paused to get the alignment right?‑‑‑Yes. There's certainly evidence that the writer has paused. There's been lift in the A.
Mr Gregory's expertise was not challenged by the plaintiff (ts 335). He is a forensic document examiner with over 30 years continuous experience in handwriting and document examination. He was a forensic document examiner with the Western Australia Police Force and later became responsible for the management of the Document Examination Section. In 1984, he joined the Document Fraud Section of the Department of Immigration. He became, in due course, Director of Document Fraud in that department. In 1988, he commenced private practice as a forensic document examiner and has worked in that capacity ever since. When asked how many times he had given evidence in court where his evidence had been contested, he said that although he had never kept a record, 'It would be in the hundreds' (ts 336). Mr Lacroix, on the other hand, said that before this trial he had only given evidence on a contested basis in court on one prior occasion (ts 252).
Mr Gregory said that having examined the specimen signatures and compared them with the questioned signature, he considered the following propositions:
(a)That the questioned signature had been written by the person who wrote the specimen comparison signatures.
(b)That the questioned signature had not been written by the person who wrote the specimen comparison signatures and had been simulated by another person.
(c)That the questioned signature had been written by the person who wrote the specimen signatures in a deliberately modified form.
(exhibit 16, page 13, ts 338).
In examination‑in‑chief, Mr Gregory explained why he had come to the conclusion that it was more likely that the questioned signature had been written by the plaintiff, rather than it being a simulation by another person, as follows (ts 338 ‑ 339):
In relation to looking at the signature in question my first comment I must make is that the signature itself in question was not representative of the style of signature that had been used in the specimen signatures. The specimen signatures themselves were of a simple construction that was not a complex signature and looking at this when I did my evaluation, I looked at the aspect of why, if the signature has been simulated, does it not contain a pictorial resemblance to the specimen signatures. The objective of anybody trying to simulate or imitate another person's signature is to give a pictorial representation that is similar to what the genuine signature looks like. In this instance it wasn't, therefore I was left with looking at: was this signature not written by the author of the specimen signatures? I considered that but through my examination I had found that at the end of the signature in the T and the A there had been a writing habit that had occurred throughout all the specimen signatures whereby the alignment of the letter A was lower than the second T in all of those, except for in S14 where it was higher, but in this question signature I was finding a writing habit whereby the letter A had been constructed in two strokes and this writing habit of the alignment between the A and T. With this evidence coming forward I looked at the aspect of it and thought that I cannot just write this off that it wasn't written because there are features appearing in the question signature which indicate that it may have been a modified signature with the writing habits of the author of the specimen signatures, and that's how I came to my conclusion by going through the three propositions.
Your conclusion was what, Mr Gregory?‑‑‑I concluded that it was more likely that the question signature had been written as a modified signature by the writer of the specimen signatures rather than it being a simulation by another person.
In order to ensure that there was no ambiguity, I asked Mr Gregory if his conclusion was that it was more likely that the questioned signature was in fact written by the plaintiff. His response was, 'That's what I'm saying, sir' (ts 340).
I asked Mr Gregory if the questioned signature could have been simply a poor effort by the plaintiff. Mr Gregory rejected this proposition. He said, at ts 344:
[T]he questioned signature itself had been constructed in such a way that it perhaps could be considered as one of the worst efforts of simulation I'd seen over many years. It had no general representation to the examples of Ms Gutta's signature.
In cross‑examination, Mr Gregory agreed that apart from the last two letters in the questioned signature, all the other parts of the signature do not exhibit the plaintiff's writing habits (ts 346).
Mr Gregory was taken to the extract from Harrison that Mr Lacroix referred to. Mr Gregory noted the missing sentence from the quotation in Mr Lacroix' report.
Mr Gregory said that the deliberately modified signature described by Harrison was the most common style of modifying signatures (ts 355). But he went on to say, at ts 356:
With having intentionally disguised signatures, as I said, you sometimes cannot find any trace of the normal writing habits of that particular person who has imitated his or her own signature, but as I said, in this instance I go back to the writing habits I found.
Further, Mr Gregory said that, having regard to Harrison's statement, the questioned signature had some of the less conspicuous features of the plaintiff's specimen signatures, referring to the alignment between the A and T and the design of the A (ts 358). As I understood Mr Gregory, the effect of his evidence was that Harrison was describing, in his work, the most common style of modifying signatures. However, there were occasions where, in an intentionally disguised signature, no trace of a person's normal writing habits could be found. However, in this case, what told him that the questioned signature had been written by the plaintiff was the writing habit of Ms Gutta in the last two letters in her surname.
Mr Gregory agreed with Mr Lacroix' observation that there was a pen lift before the last two letters of the plaintiff's surname (ts 350), which would have involved a pause in the writing. Mr Aristei then put the following proposition:
There is that opportunity that if the first part has not been done sufficiently similar to the signature in question there's that opportunity to make sure that the last letters do accord with the signature. That would be consistent with what we see here, wouldn't it?‑‑‑Yes, that's a possibility. Yes (ts 351).
At ts 360, Mr Aristei put to Mr Gregory that a sufficient answer to the point that only the last two letters in the plaintiff's surname resembled the plaintiff's signature, was that those letters were the forger's best opportunity to get it right. Mr Gregory answered in the affirmative. However, his answer was interrupted by an unfortunately timed objection from Dr MacMillan which I overruled. I then asked Mr Gregory to answer the question. His response was:
I said before, yes, hypothetically there could be a chance to do that, but they're not represented the same as in the first part of the signature where it was just totally different from the specimen writings, yes (ts 360).
The last part of this answer is not altogether clear. However, it seems to me that Mr Gregory accepted, at least hypothetically, that the last two letters in the questioned signature were a forger's best opportunity to accurately simulate the last two letters of the plaintiff's signature.
Mr Gregory accepted the possibility that the alignment of the last two letters in the plaintiff's signature is something that could be easily duplicated (ts 372).
He said that from his own experience as a document examiner, officers at Landgate do not test or look or compare a signature on a particular document lodged in that office with other known signatures of the person concerned. As he put it:
Until it's actually given a test, well, the people in Landgate would not know about the signatures anyway, because … They've got nothing to compare it to (ts 372).

Disputed evidence concerning the events after the alleged execution of the transfer

The defendant's alleged conversation with Ms Lowe

With respect to Ms Lowe's engagement, Mr Ierino said, at par 16 of his responsive statement (exhibit 20), that he and the plaintiff engaged her after the transfer had been signed, but before it had been registered. He said he rang Ms Lowe to inform her about the transfer. Ms Lowe, he said, advised him that the selling agency agreement should be in both names, because the title, as far as the RP Data records showed, was in joint name. He said that Ms Lowe wanted both names on the selling agency agreement, as the transfer had not then been properly processed.
Ms Lowe said, in her witness statement (exhibit 4), at pars 12 and 13:
12.To the best of my recollection and belief, neither Ms Gutta nor Mr Ierino informed me (whether verbally or in writing) that Ms Gutta's interest in the Property had been transferred to Mr Ierino or that he owned the Property solely as from 21 April 2005.
13.If such a statement had been made to me, I would not have prepared the selling agency agreement between both of them and L.J. Hooker Bunbury. Instead, I would have prepared the agreement to reflect that only Mr Ierino was the owner of the Property.
She also annexed a number of documents, including the selling agency agreement, which was executed by the plaintiff and the defendant on 2 May 2005. This was 11 days after the transfer had been registered at Landgate. Ms Lowe, in cross‑examination, had no recollection of any of her conversations with the plaintiff and the defendant. However, she said that if she had been told that Mr Ierino was not sure whether Ms Gutta's interest in the property had been transferred:
I would have probably asked for a copy of the transfer first of all, or some indication that it wasn't in both their names because it would - when I check on RP Data, it would be on RP Data, both their names (ts 143).

The alleged conversation in December 2005

In December 2005, after the settlement of the property had been effected, the plaintiff alleges that she had a discussion with the defendant while they were driving in his Landcruiser ute to Lancelin (where the defendant had a house and the parties stayed from time to time). She said that she asked the defendant, 'How did the property settle if I didn't sign anything?' She said that the defendant's response was, 'I don't know. Mark must have taken care of it'. She said that the defendant became angry with her when she questioned him about the sale of the property and how he had sold it without her signing any documentation.
In cross‑examination, the plaintiff said that she was aware that the property had been advertised for sale. She said that prior to the conversation she had with the defendant in the Landcruiser, the defendant had told her that an offer to purchase had been made on the property (ts 163 and 164).
She was asked in cross‑examination what her response was when the defendant told her, in the Landcruiser, 'Mark must have taken care of it'. She said that she said, 'Oh,' and that she did not question him further (ts 165 ‑ 166).
In her witness statement (exhibit 1, par 18), the plaintiff said that she asked the defendant in or around December 2005 (shortly after the settlement), 'for an amount of $10,000.00 from my entitlement to the proceeds' in order to buy a vehicle. She said that the defendant told her that the proceeds of the sale of the property 'would go towards the mortgage in Kenwick because that's where we would live together'.
Apart from admitting that the plaintiff asked him what was to happen to the proceeds of sale of the property, the defendant denied the conversations in which the plaintiff asked for $10,000 and how the property was sold without her signing anything.

The plaintiff's conversation with Mr Davey

Earlier in these reasons I referred to a telephone conversation the plaintiff had with the defendant's solicitor, Mr Simon Davey.
The letter Mr Davey sent to the plaintiff was supposed to include a copy of the signed transfer, but it did not. The plaintiff asked for it to be emailed to her. This occurred and, after receiving it on 12 May 2006, she telephoned Mr Davey.
Mr Davey made a file note of this conversation with the plaintiff on 12 May 2006, which was annexed to his witness statement (exhibit 15). He also telephoned and spoke to the defendant. He made a note of this conversation. The file note he made of the conversations is as follows:
Knew the title was no longer her name.
She stopped paying the mortgage because it was not in her name any longer.
Doesn't recall signing any documents. Surprised she came off title.+
TA Tony
Let him know to [sic] CT was ~~not~~ in Maria's [the plaintiff's first given name] opinion not her signature.

The parties' submissions on the issue of forgery

The plaintiff's case

Mr Aristei, on behalf of the plaintiff, submitted that the motive for the forgery was to enable the defendant to refinance his borrowings.
It was submitted that I should accept the evidence of the plaintiff that she did not sign the transfer. If her evidence on this point is accepted, it was submitted that it would follow that the document was forged.
Mr Aristei submitted that I should accept the evidence of the plaintiff's handwriting expert, Mr Lacroix, and reject the evidence of the defendant's handwriting expert, Mr Gregory. It was submitted that the plaintiff had no motive to deliberately modify her signature, and that the questioned signature does not have the features of a deliberately modified signature, as described by the textbook writer, Harrison.
Counsel for the plaintiff submitted that the person who forged the plaintiff's signature was Mr D'Silva. It was submitted that the circumstances in the present case were strikingly similar to those of the case where Mr D'Silva admitted forging the signature of Mr Wellbourne‑Wood in October 2005.
The plaintiff submits that some of the events subsequent to the execution of the transfer are consistent with the plaintiff having not executed the transfer. Mr Aristei relied on:
(1)Ms Lowe requesting and obtaining the signatures of both the plaintiff and the defendant on the selling agency agreement in May 2005;
(2)the conversation which the plaintiff alleges that she had in December 2005 with the defendant in the Landcruiser, when the plaintiff questioned the defendant about how the property was sold without her signing any documentation; and
(3)her conversation with Mr Davey in May 2006, where it is alleged that she told him that she had not signed any transfer.
Mr Aristei submitted that the defendant must have known that Mr D'Silva had forged the signature.

The defendant's case

Dr MacMillan, on behalf of the defendant, submitted that the plaintiff had not discharged the onus which was upon her to prove that her signature on the transfer was a forgery.
It was contended that the plaintiff was an unsatisfactory witness. He submitted that evidence that she gave in her statement that she could not recall signing the HBS discharge authority (exhibit 8) should not be accepted, having regard to her acknowledgment in evidence that she had signed the document.
Dr MacMillan described a number of aspects of the plaintiff's evidence as curious. He submitted that her 'curious' conduct included:
(a)giving no answer, one way or the other, to the defendant's request that she transfer her interest in the property to him;
(b)it was alleged that she showed little interest in the refinancing and apparently did not ask anything about it at the meeting attended by the defendant, Mr D'Silva, at the Wattle Grove property; and
(c)in December 2005, during the conversation in which the plaintiff had allegedly been told by the defendant that Mark D'Silva had taken care of it, she made no further inquiry as to what Mr D'Silva actually did.
Dr MacMillan further submitted that I should find that during her telephone conversation with Mr Davey, she told him that she had stopped paying the mortgage because she was no longer on the title to the property.
Dr MacMillan was critical of the plaintiff 'having no idea what she was asking for'. I understood Dr MacMillan to be saying, by this submission, that the plaintiff had not been consistent when specifying the amount of money she claimed from the defendant.
In relation to the evidence of Mr D'Silva, Dr MacMillan conceded that Mr D'Silva's actions in forging Mr Wellbourne‑Wood's signature on a mortgage in October 2005 was a matter I could consider in assessing Mr D'Silva's credibility. However, Dr MacMillan submitted that his testimony was inadmissible as proof that Mr D'Silva forged the plaintiff's signature. This was because, according to Dr MacMillan, the circumstances surrounding the signing of the mortgage were 'substantially dissimilar' to the circumstances surrounding the execution of the transfer.
With respect to the handwriting experts, Dr MacMillan submitted that Mr Lacroix was not an experienced or competent expert, and that his evidence should not be accepted. On the other hand, Dr MacMillan submitted, Mr Gregory was experienced and his opinion, based on the presence of a recognised writing habit of the plaintiff in the last two letters of the surname in the questioned signature, demonstrates that the signature was a modified signature deliberately written by the plaintiff or, at the very least, the evidence was inconclusive as to whether it was a forgery.

Admissibility of the similar fact evidence concerning Mr D'Silva

Before I analyse the evidence and make findings on the questions of whether the signature on the transfer said to be the plaintiff's is a forgery, and if so who wrote it, I must decide whether the alleged similar fact evidence concerning Mr D'Silva is admissible as proof that if the signature was a forgery, it was Mr D'Silva who forged it.
The question is essentially one of relevance. The question is whether the evidence is logically relevant to the determination of a matter in issue in this case: Grivas v Brooks (1997) 69 SASR 532, 548. The criminal law is understandably sensitive to the prejudice which can be caused to an accused person by the admission of such evidence. Accordingly, conditions must be met before the evidence is admitted in a criminal case: see s 31A of the Evidence Act 1906 (WA). In a civil case, such considerations do not arise. This is not to say that in a civil case there is no discretion at all to exclude such evidence. Such evidence may be excluded where it 'is only remotely relevant or has small probative value compared to the additional issues which it would raise and the additional time required for their investigation': Cross on Evidence (8^th ed) page 773, [21285]. The plaintiff submits that the circumstances in which Mr D'Silva forged Mr Wellbourne‑Wood's signature on the mortgage are similar, in many respects, to the circumstances in which the transfer was executed. If the plaintiff's signature on that document is a forgery, the fact that Mr D'Silva forged Mr Wellbourne‑Wood's signature on a mortgage some months later rationally increases the probability that Mr D'Silva was the person who forged Ms Gutta's signature.

On behalf of the defendant it was submitted that the circumstances surrounding the forgery of Mr Wellbourne‑Wood's signature on the mortgage are not sufficiently similar to the circumstances surrounding the execution of the transfer, and that the evidence does not bear upon the probability that Mr D'Silva forged Ms Gutta's signature on the transfer.
In my opinion, there are similarities between Mr D'Silva's behaviour in October 2005 and the circumstances surrounding the execution of the transfer. Those circumstances are:
1.In each transaction Mr D'Silva was acting for a borrower in his capacity as a finance broker employed by Independent Mortgage and Finance Services.
2.In each transaction there was a degree of urgency.
3.Each transaction involved a document intended to be registered at Landgate.
4.The signature on the documents is recognisably different to the genuine signature.
While I recognise that the two transactions are not identical and that there are some slight differences, in that, for example, Mr Wellbourne‑Wood was related to Mr D'Silva by marriage, whereas that is not a factor in the transaction the subject of this case, I do not consider these factors as impacting on what I regard as strikingly similar situations.
In my opinion, the evidence is relevant because it bears upon the probability that if the plaintiff's signature on the transfer is a forgery, that signature was, as alleged by the plaintiff, forged by Mr D'Silva. While I hold that the evidence is admissible for this purpose, the question of its weight is something I will examine later in these reasons.

Credibility of the non‑expert witnesses

The plaintiff's credibility is crucial to the success of her claim. Unless I believe her evidence that she did not sign the transfer, her claim, as pleaded, must fail. Accordingly, her evidence must be closely analysed.
While I do not regard demeanour as the definitive guide to credibility, I was impressed by the plaintiff's demeanour in the witness box. Her evidence‑in‑chief in the form of her witness statements was subjected to detailed cross‑examination by Dr MacMillan. In my view, no significant weaknesses were exposed, and she remained firm and consistent that she had not signed the transfer. I found her evidence convincing in this regard.
I do not accept Dr MacMillan's general submission that the plaintiff was an unsatisfactory witness, nor the various specific criticisms he made of her credibility.
I do not think that there is anything in the point that the plaintiff, in her written statement, did not recall signing the HBS discharge authority, but upon being shown a copy of it, agreed that she had signed the document. Given the passage of time, it is understandable that she did not recall signing it.
I did not regard the plaintiff's conduct, when seen in context, as curious. While it is true that the plaintiff said that she gave no answer, one way or the other, to the defendant's request that she transfer her interest in the property to him and, in December 2005, made no further inquiry of the defendant once she had been told by the defendant that 'Mark must have taken care of it', I think her reaction is indicative of the trust she placed in the defendant. When both events occurred, the relationship was on foot. There is no evidence that the plaintiff was in any way suspicious of the defendant or distrustful of him. I accept the plaintiff's evidence as to these conversations.
I do not accept Dr MacMillan's submission that the plaintiff showed little interest in refinancing. The evidence showed that the plaintiff had some interest in the refinancing. She agreed to it, and signed the HBS discharge authority form. The detail of the transaction was not a matter of particular interest to the plaintiff. The transaction was as she put it 'to do with his business' (ts 173). The details and mechanics of the refinancing were matters of concern only to the defendant and Mr D'Silva.
Her statement in evidence that she thought that the defendant might have been able to refinance with her name on the title is plausible, given that the defendant owned other properties. Further, I accept that she ceased repayments because of the refinancing and not because she had transferred her interest to the defendant.
The plaintiff's account of the meeting she attended at the defendant's Wattle Grove residence in which the defendant, Mr D'Silva and Ms Terranova was present is plainly different to the accounts given by those witnesses. She said she did not sign any documents at the meeting. The defendant and Mr D'Silva said that she did and, most importantly, that she signed the transfer. Ms Terranova said that she recalled the three of them sitting down at the dining room table and that she recalled them signing various documents, although she did not know what they were.
I will say more about the evidence of the defendant and Mr D'Silva later in these reasons, but it is sufficient to state, at this point, that I do not accept their evidence that the plaintiff signed the transfer. I think it is unlikely she signed the authority to act.
I accept the plaintiff's evidence that she was present at the meeting to assist the defendant by providing any paperwork he required. I accept her evidence that she did not sign the transfer. I think it is unlikely she signed the authority to act.
The effect of the defendant's evidence is that the plaintiff agreed, without protest, to the transfer of the property to the defendant, and willingly signed the transfer document. If that was so, it is difficult to understand why the plaintiff would have, as submitted by the defendant, deliberately signed the transfer using an altered signature.
In my opinion, it is telling, in favour of the plaintiff, that she has, after the registration of the transfer, consistently behaved as if she was a joint proprietor of the property. It is particularly significant that in early May 2005 she executed a selling agency agreement as a joint proprietor of the property in favour of Ms Lowe's real estate agency. The defendant had the carriage of the sale, but as the year wore on, the plaintiff was aware that the property had been advertised and that, in due course, an offer was made to purchase it.
It is logical, therefore, that when the plaintiff became aware of the sale of the property in December 2005, that she sought to discuss the matter with the defendant. I find that the plaintiff discussed the sale with the defendant shortly after the settlement, and that they did so while they were driving to Lancelin. I further find that her recollection of the conversation is accurate.
After the plaintiff and the defendant broke up, the plaintiff promptly claimed that she was entitled to a share of the proceeds of sale of the property. The defendant responded to this by instructing his solicitors to write to the plaintiff, denying any such entitlement. This resulted in the plaintiff's telephone conversation with Mr Davey on 12 May 2006.
With respect to this conversation, Mr Davey's credibility is not in issue. The only record of it is in the form of Mr Davey's contemporaneous file notes to which I have referred earlier in these reasons.
There are relevantly two conversations noted by Mr Davey. The first is with the plaintiff, followed by a conversation with the defendant in which Mr Davey told the defendant what the plaintiff had said to him.
Mr Davey's note of the conversation with the plaintiff included the words:
Surprised she came off title.
In the note he made of the conversation he had with the defendant he wrote:
CT was ~~not~~ in Maria's opinion not her signature.
The letters 'CT' are a common abbreviation for certificate of title. However, as the defendant's solicitors had by the time of the conversation sent her a copy of the transfer, dated 18 April 2005, the reference to 'CT' must be a mistaken reference to the transfer.
In my opinion, Mr Davey's notes show that in the plaintiff's conversations with him, she said that she had not signed the transfer and that she was surprised that she had somehow been removed from the title.
I have considered, although not pressed by the defendant, the possibility that the plaintiff signed the transfer, but simply forgot that she had done so. I do not think that the plaintiff would have forgotten signing the transfer. It appears to me that the property was a significant asset to the plaintiff. If she has signed the transfer, it is likely she would have remembered it.
I have also considered the possibility that the signature was written by the plaintiff, but was simply a bad version of it. However, this possibility was rejected by Mr Gregory.
Nothing adverse to the plaintiff can be made of her inability to formulate precisely the quantum of her claim. She is not a lawyer and ultimately it is a matter for this court to decide.
Finally, I have considered the credibility of her evidence that she witnessed the defendant's signature on the transfer he signed to sell the property. The plaintiff's evidence that she, in effect, did not realise it was a transfer of the property was not seriously challenged. The transfer, although not in evidence, would not have included the address of the property and, in any event, I accept that the plaintiff witnessed the defendant's signature on many documents, the inference being she paid no real attention to their contents.
I formed a positive view as to the plaintiff's credibility. I found her to be both honest and reliable.

My assessment of the defendant's credibility

The defendant has been consistent in his position that the plaintiff signed the transfer. He denied with some vehemence the accusations that he had forged the plaintiff's signature on the transfer. These matters might be considered to be favourable to him.
However, in cross‑examination, I thought his evidence concerning the execution of the transfer was reconstructed. Initially, he said that he could not recall who signed the transfer first. Later he said that he signed the transfer first. My observation of the defendant was that on each of these occasions he appeared confident in his assertion. Further, he accepted that he had made mistakes in his witness statements. I do not think these mistakes were adverse to his honesty, but they detracted from my assessment of his reliability.
I do not accept some of the defendant's evidence about his dealings with Ms Lowe. He must have known on or very shortly after 21 April 2005, that the settlement transferring the property into his sole name had been effected. I infer this from the urgency that was surrounding the transaction and the letter which Ms De Luca sent to the defendant informing him of the settlement. In these circumstances, I cannot see how he would properly be signing a document on 2 May 2005 as a joint proprietor. His explanation that Ms Lowe told him that she wanted the signatures of both the plaintiff and the defendant on the authority is unlikely in the face of Ms Lowe's evidence. In my opinion, the defendant did not want to let the plaintiff know that the property had been transferred to him. I do not accept that he told Ms Lowe about the transfer prior to the execution of the authority to appoint the agent.
I do not accept the defendant's evidence that there was no conversation with the plaintiff in his Landcruiser on the way to Lancelin in December 2005, shortly after the property had been sold. I prefer the plaintiff's evidence on this matter.
In view of these matters, I am unable to accept the evidence of the defendant except where it is undisputed or confirmed by the plaintiff. Specifically, I do not accept his evidence that he saw the plaintiff sign the transfer. In my opinion, he knew it had not been signed by the plaintiff and he knew this prior to the registration of the transfer.
Specifically, I do not accept his evidence that the plaintiff agreed to transfer her interest in the property to him, and that she signed the transfer in his presence.
With respect to the evidence of Mr D'Silva, I found him to be a completely unsatisfactory witness. His actions in signing a mortgage in the name of Mr Wellbourne‑Wood were plainly dishonest. His evidence that he purposely 'sabotaged' himself by signing it in the name of Mr Wellbourne‑Wood is bizarre and incapable of acceptance. I gained the distinct impression that he was prepared to cut corners in order to get a deal done. I have no confidence whatever as to the reliability of his evidence, and I do not accept his testimony that he saw the plaintiff sign the transfer.
In relation to the evidence of Ms Terranova, while her witness statements are to the effect that she saw the plaintiff, the defendant and Mr D'Silva signing documents, she accepted, under cross‑examination, that she did not in fact observe any documents being signed. She did, however, say in her second statement that she had a telephone conversation with the plaintiff on the day in question and that the plaintiff told her that she was coming to the house that night to sign some papers. If I accept that the plaintiff, during a telephone conversation with Ms Terranova, said that she was coming around to sign some papers, that would tend to contradict the plaintiff's evidence that she did not sign any papers at the meeting.
I do not accept Ms Terranova's evidence on this point. She did not recall the conversation at the time she made her first statement, and only recalled the conversation during the first hearing days of this trial in March. In my opinion, Ms Terranova, in giving this testimony, was attempting to assist the cause of her brother. I find that the plaintiff did not have a telephone conversation with Ms Terranova on the morning of the meeting with the defendant and Mr D'Silva.

The evaluation of the expert testimony

I have already observed that there is much common between the two experts.
Where the experts differed was as to the significance of the similarity of the last two letters in the plaintiff's signature on the questioned document and the specimen comparison signatures. In Mr Lacroix' opinion, this similarity had to be seen in the light of the numerous significant differences in the preceding letters of the plaintiff's signature, and to him the similarity in the last two letters of the plaintiff's signature did not detract from his overall opinion that the questioned signature on the transfer was a forgery. In his opinion, the last two letters were easier to simulate that the preceding letters and that there was evidence of pen lift, which indicated that the writer paused before writing the last two letters. In other words, in Mr Lacroix' view, there was an opportunity for some deliberation before writing the last two letters in the questioned signature.
Mr Gregory, on the other hand, thought that the last two letters revealed a writing habit of the plaintiff which led him to the conclusion that the signature was a deliberately modified one written by the plaintiff.
Mr Gregory is a vastly more experienced handwriting expert than Mr Lacroix. I did not find Mr Lacroix to be an impressive witness. I think he exaggerated his experience and I have considerable reservations as to the quality of his training. As a result, I am not prepared to rely on his evidence alone to establish that the plaintiff's signature on the transfer was a forgery. However, his evidence cannot be completely disregarded because many of his conclusions were confirmed by Mr Gregory.
Because of Mr Gregory's expertise, his opinion that the signature was written by the plaintiff in a deliberately modified form must be accorded respect and requires close analysis.
Mr Gregory based his opinion, in part, upon the poor degree of pictorial resemblance of the questioned signature to the plaintiff's specimen signatures. He reasoned, in effect, that a person who was attempting to forge the plaintiff's signature would have made a better fist of it because a forger is presumably trying to pass off the forgery as genuine.
This reasoning cannot hold true in all situations. The forger may not have had sufficient skill, time or practice to produce a completely accurate and convincing simulation of the genuine signature. Further, the writer of the forgery may not have been expecting that the signature would be checked or closely compared with a genuine specimen signature. In this regard, I have in mind Mr Gregory's testimony that the signatures on the document submitted to Landgate are not examined and compared with other known signatures of the person concerned.
Mr Gregory gave prime importance to the alignment of the last two letters which he said showed a writing habit of the plaintiff. However, he accepted the possibility that the alignment of the last two letters is something that could be easily duplicated. Like Mr Lacroix, Mr Gregory noted that there was a pause immediately preceding the last two letters in the signature, and that would have given the forger the opportunity to make sure that the last two letters accorded with a genuine specimen signature. It seems to me then that the similarity in the last two letters of Ms Gutta's name could be simulated, even if the preceding letters had not been.
Finally, I am unable to discern any possible motive for the plaintiff to take the most unusual step in deliberately modifying her own signature. Mr Gregory, in his evidence, made the point that, in his experience, a deliberately modified signature is produced 'so it can be disavowed at a later date' (ts 346). On the evidence in this case, there is no rational answer to the question of why the plaintiff would deliberately modify her own signature. The plaintiff never said that she felt under any duress to sign the transfer, nor did she indicate that she was placed under any pressure to do so. The defendant's evidence, if accepted, is that she willingly signed the transfer. In my view, if she had wanted to sign the transfer, as the defendant says she did, she would have done so using her normal signature.
For these reasons, I am not prepared to accept Mr Gregory's opinion that the plaintiff signed the transfer, but deliberately modified her own signature.

The transfer is a forgery

My findings of fact on the issue of forgery are:
1.The defendant urgently desired to refinance his borrowings so that the mortgage to the HBS was discharged and replaced with a loan for a larger sum to Tonto, to be secured by a first registered mortgage over the property (the refinancing). The defendant retained the services of Mr D'Silva for this purpose.
2.The person who stood to benefit from this transaction was the defendant.
3.The defendant believed that the refinancing could only be effected if the plaintiff transferred her joint interest in the property to him.
4.The defendant informed the plaintiff of the proposed refinancing and asked the plaintiff if she would transfer her interest in the property to him. The defendant did not raise the issue of the transfer again with the plaintiff.
5.The plaintiff had no objection to the refinancing, but gave the defendant no indication that she agreed to the transfer. Although unexpressed to the defendant, the plaintiff did not want to transfer her interest in the property to him. The defendant did not raise the issue of the transfer again with the plaintiff.
6.Despite the absence of agreement from the plaintiff, Mr D'Silva, on behalf of the defendant, instructed Ms De Luca to prepare the documents necessary to effect the transfer. Ms De Luca prepared those documents, including the authority to act and the transfer. Those documents were provided to Mr D'Silva.
7.On a date unknown, but between 15 and 21 April 2005, there was a meeting at an address at Freeduff Drive, Wattle Grove. The meeting was attended by the plaintiff, the defendant and Mr D'Silva. Present at the home, at the time, was Ms Terranova.
8.The plaintiff's participation in the meeting was only to the extent that she was to locate and provide financial documentation for the defendant if required.
9.The plaintiff did not sign any document at that meeting. Specifically, she did not sign the transfer. It is unlikely she signed the authority to act.
10.The plaintiff's signature on the transfer bears little physical resemblance to the plaintiff's genuine signature.
11.The plaintiff's signature on the transfer is a forgery. It was not written by the plaintiff and was written by someone else. It was not signed by the plaintiff in a deliberately modified form. The evidence does not allow me to find when precisely the forged signature was written on the transfer, nor precisely how it was done. However, it is most likely that it was done at the meeting referred to earlier.
12.The transfer was registered on 21 April 2005. On that day, the refinancing was completed.
13.On or about 2 May 2005, the plaintiff and the defendant signed an authority to sell the property in favour of Ms Lowe.
14.The defendant did not tell Ms Lowe (or the plaintiff) about the transfer prior to that time.
15.The property was sold on 19 December 2005. Shortly after that date, the defendant informed the plaintiff of the sale. In a conversation at or around that time in late December 2005, the plaintiff asked the defendant how the property could have been sold without her signing any documentation. The defendant replied with words to the effect, 'Mark must have taken care of it'.
16.On 12 May 2006, after the plaintiff received a letter from the defendant's solicitors, the plaintiff spoke to the defendant's then solicitor, Mr Davey. During that conversation, she told Mr Davey she had not signed the transfer.

Background

The facts of the case and my findings are set out in the reasons that I published on 22 December 2010 and do not need repetition.
However, it is necessary to say something about the background of the case.
The plaintiff commenced her action against the defendant on 20 February 2007. The statement of claim indorsed on the writ of summons did not expressly allege fraud. The plaintiff claimed equitable remedies, primarily an account, estimated in the sum of $65,955.78.
At the time the writ was filed, the jurisdictional limit of the Magistrates Court was $50,000. On 1 January 2009, that limit was increased to $75,000: Magistrates Court (Civil Proceedings) Act 2004 (WA) s 4.
The plaintiff's statement of claim was later amended. The amended statement of claim alleged that the transfer of land was forged [2A]. The relief sought by the plaintiff was expanded to include a declaration, tracing and an injunction. The primary relief sought was still an account estimated to be $65,955.78.
In due course, brief interrogatories were administered and answered, discovery was given and the defendant filed a re‑amended defence and set off. The re‑amended reply raised the issue of the equity of exoneration.
On 27 November 2009, Le Miere J made what may be described as routine orders for the conduct of the trial, including the filing of witness statements and books of documents. These documents were filed. They are neither particularly lengthy nor complex.
As far as I am aware, there was no attempt to mediate the dispute either by this court or otherwise. The only attempt to settle the matter that I was made aware of was that the plaintiff offered to settle her claim by receipt of a payment of $45,000 from the defendant. That offer which was made in a letter dated 27 June 2006 was rejected by the defendant.

The trial

The trial took up four sitting days (listed for three sitting days). The parties also appeared before me on 2 November 2010 for the purposes of clarifying certain issues and making further submissions on those issues. That hearing lasted 35 minutes.
In his opening address, the plaintiff's counsel, Mr Aristei, informed me that the sum sought by the plaintiff was $36,644.02. I note that this is an amount which is roughly half of what was estimated in the plaintiff's amended statement of claim. The plaintiff did not pursue at trial any tracing remedy or injunctive relief. In the end, a declaration was made and the defendant was ordered to pay $36,487.66.
I did not regard the case as one which was overly complex either factually or legally. Much of the time at trial was taken up with the issue of whether the transfer of land form at the centre of the case was forged and whether the defendant knew it had been forged.

The affidavit of Carlo Primerano

The plaintiff's solicitor, Mr Carlo Primerano, swore an affidavit on 7 February 2011 in support of the plaintiff's claim for indemnity costs. That affidavit revealed that the total costs incurred by the plaintiff at that date were estimated to be $178,724.33. Of this sum, $75,644.28 related to solicitor's fees and $90,264.25 related to counsel fees. I will say something about the amount of fees later in these reasons.

The parties' submissions

The plaintiff submitted that the case was at all times triable only in the Supreme Court. The plaintiff sought an order for indemnity costs on the basis that the defendant knowingly relied on a forged transfer and that his conduct in defending the proceedings were so unreasonable as to warrant the court exercising its discretion in that way.
The defendant submitted that the claim could have been dealt with in the Magistrates Court pursuant to s 6(1)(b) of the Magistrates Court (Civil Proceedings) Act and that costs should be assessed on that basis. The defendant opposed the making of any indemnity costs order. In this regard, the defendant noted that the amount actually awarded in favour of the plaintiff was very much less than the amount claimed in the amended statement of claim.

Was the claim within the jurisdiction of the Magistrates Court?

The Magistrates Court of Western Australia, unlike this court, has only a limited equitable jurisdiction. The equitable jurisdiction conferred upon it is set out in s 6(1)(b) of the Magistrates Court (Civil Proceedings) Act, which provides:
(1)The Court has jurisdiction to deal with -
…
(b)a claim that involves an equitable claim or demand where the only relief claimed is the recovery of an amount of money or of damages, whether liquidated or unliquidated, and the amount claimed is not more than the jurisdictional limit[.]
If the claim was within the jurisdiction of the Magistrates Court, then O 66 r 17 of the Rules of the Supreme Court 1971 (WA) (RSC) applies. That rule relevantly provides:
If an action is brought in the Supreme Court which could have been brought in the Magistrates Court without the special consent of the defendant, the plaintiff shall recover no greater sum by way of costs than he could have recovered had the action been brought in the Magistrates Court, unless the Court certifies that by reason of some important principle of law being involved, or of the complexity of the issues or of the facts, the action was properly brought in the Supreme Court.
Section 6(1)(b) of the Magistrates Court (Civil Proceedings) Act is the statutory successor of s 32 of the Local Courts Act 1904 (WA) (repealed). While there are some differences in the language used in the two provisions, the differences are, for present purposes, immaterial.
Section 32 of the Local Courts Act was examined by the Full Court in Rapoff v Doropoulos (1990) 3 WAR 451, and by Brinsden J in Dunlop Olympic Ltd v Ellis [1986] WAR 8, 14 ‑ 15. There is nothing in those cases which suggests that the words in s 6(1)(b) should be given anything other than their plain meaning.
The plaintiff's claim, as pleaded, was an equitable claim. However, while the primary relief claimed was the payment of money, it was not the only relief claimed. Further, when the plaintiff commenced her action, the sum of money she estimated that she was entitled to was in excess of the jurisdictional limit of the Magistrates Court. Of course, after 1 January 2009 the sum sought was within the Magistrates Court's jurisdictional limit, but at that point, the plaintiff was still seeking equitable remedies other than the payment of money. I observe that at no time did the defendant seek to have the action transferred to the Magistrates Court. I infer from this that he was, at all times, content for this court to deal with the case.
In these circumstances, I conclude that, having regard to the requirements of s 6(1)(b) of the Magistrates Court (Civil Proceedings) Act, the Magistrates Court did not have jurisdiction to deal with the plaintiff's claim. As the Magistrates Court did not have jurisdiction, O 66 r 17 of the RSC does not apply.
I conclude that the plaintiff's claim, as framed, was not within the jurisdiction of the Magistrates Court. Costs must be paid according to the relevant determination or determinations applicable to this court

Should indemnity costs be ordered?

The principles applicable to the making of indemnity costs orders were recently summarised by Pullin JA and Kenneth Martin J in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. I accept that an indemnity costs order is a departure from the usual costs order where costs are awarded on a party/party basis, and is appropriate only where there is some special or unusual feature of a case which justifies the making of such an order. An indemnity costs order may be appropriate to mark the disapproval of improper or unreasonable conduct on the part of an unsuccessful litigant. I further accept that fraudulent behaviour on the part of an unsuccessful litigant may be a strong reason for ordering indemnity costs. However, all relevant factors must be considered and balanced.
The amount of legal costs incurred by the plaintiff for a claim ultimately worth $36,487.66 is truly staggering. The trial was not long and the issues which had to be resolved were not particularly complex or difficult. The costs claimed (almost five times greater than the amount awarded) is out of all proportion to the amount recovered. The litigation was completely uneconomic. I assume that the plaintiff was well aware of this fact.
This kind of litigation, where the costs grossly exceed the amount recovered, must be discouraged. It is difficult to see what real benefit it brings to the parties and expends valuable public resources which could be better utilised. Parties and their legal advisors must take a realistic and pragmatic approach to litigation for small claims. The issues to be litigated should be pared so that only those which are really necessary are raised. In this case, until trial, the plaintiff pursued tracing and injunctive remedies which were superfluous. It behoves parties and their legal advisers to look for ways of resolving such disputes other than by the expensive route of a trial, such as by mediation.
I do not overlook that the plaintiff was successful and she established her allegation that the defendant behaved fraudulently. On the other hand, the plaintiff recovered at trial substantially less than she had sought and did not pursue some remedies which she claimed. Further, it seems to me that to award indemnity costs in this case would be to encourage litigation of this type and would not be in the interests of justice.
In balancing all of the factors in the case that I have mentioned, I have decided that the appropriate costs order in this case should be that the defendant pay the plaintiff's costs on a party/party basis.

Order

1.The defendant should pay the plaintiff's costs of the action (including any reserved costs), to be taxed if not agreed, on a party/party basis according to the relevant determination or determinations applicable to the Supreme Court.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GUTTA -v- IERINO [2010] WASC 402 (S2)

CORAM: MAZZA J

HEARD: 10-12 MARCH, 31 MAY & 2 NOVEMBER 2010, 8 FEBRUARY & 21 DECEMBER 2011

DELIVERED : 22 DECEMBER 2010

SUPPLEMENTARY
DECISION :1 MARCH 2012

FILE NO/S: CIV 1168 of 2007

BETWEEN: MARIA TERESA GUTTA
Plaintiff
AND
ANTONIO GUISEPPE IERINO
Defendant

Catchwords:

Civil law - Costs orders - Offers to settle not before trial judge - Whether there was an abuse of process in perfecting costs order during conferral - Whether original costs order should be reopened - Whether indemnity costs should be ordered

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 10, O 24A, O 43 r 3, O 59 r 9

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Ms M L Coulson
Defendant: Dr P R MacMillan

Solicitors:

Plaintiff: Carlo Primerano & Associates
Defendant: Gibson Lyons Lawyers

Case(s) referred to in judgment(s):

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Calderbank v Calderbank [1975] 3 WLR 586
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Gutta v Ierino [2010] WASC 402
Gutta v Ierino [2010] WASC 402(S)
Minister for Education v Klein [2005] WASCA 185(S)
Rogers v The Queen (1994) 181 CLR 251
Smith v New South Wales Bar Association [2002] HCA 36; (1992) 176 CLR 256
St Barnabas Nominees Pty Ltd v Stallard Corp Pty Ltd [No 2] [2011] WASC 289(S)
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1

MAZZA J: Before me is an application by the plaintiff filed 28 September 2011. As will become apparent, it is of an unusual nature. The principal orders sought by the plaintiff are:
1.The Court uplift and remove from the record of the proceedings the extracted order of the Honourable Justice Mazza made on 6 May 2011, which provides that:
'The Defendant pay the Plaintiff's costs of the action (including any reserved costs), to be taxed if not agreed, on a party/party basis according to the relevant determination or determinations applicable to the Supreme Court' ('the Costs Order').
2.The Costs Order as defined at paragraph 1 above be amended to provide as follows:
'The Defendant pay the Plaintiff's costs of the action, including any reserved costs, to be taxed if not agreed, on an indemnity basis such that the Defendant pay all costs incurred by the Plaintiff except in so far as they are of an unreasonable amount or have been unreasonably incurred.'
The application is opposed by the defendant. I have read, in support of the application, the affidavit of her solicitor Carmelo Giuseppe Primerano, sworn 27 September 2011. For the defendant, I have read the affidavits of Timothy Brendan Lyons and Andrea Nicole Lyons, each sworn on 21 October 2011 and a further affidavit from Mr Lyons sworn 30 November 2011. Neither party sought to cross‑examine the other on the affidavit evidence.

Background

On 22 December 2010 I gave judgment for the plaintiff in her action against the defendant: Gutta v Ierino [2010] WASC 402. The present proceedings relate to the costs orders that I made on 6 May 2011. I made an order that the defendant pay the plaintiff's costs on a party/party basis. The plaintiff had sought that I make a costs order against the defendant on an indemnity basis. My reasons for making a costs order on a party/party basis are set out in Gutta v Ierino [2010] WASC 402 (S). These reasons should be read with the reasons I have previously given.
In my reasons delivered on 6 May 2011, I made the following observation at [14]:
… The only attempt to settle the matter that I was made aware of was that the plaintiff offered to settle her claim by receipt of a payment of $45,000 from the defendant. That offer which was made in a letter dated 27 June 2006 was rejected by the defendant.
I was only told about the offer of 27 June 2006 and no others by counsel then appearing for the plaintiff. This offer was of no significance to the exercise of my discretion whether or not to order indemnity costs because it was for a sum greater than the plaintiff was awarded in the action, being $36,487.66.
I was not correctly informed about the offers that the plaintiff had made to settle the action. Mr Primerano deposed that other offers to settle were made by the plaintiff well before trial for amounts less than the judgment sum. No mention of these offers was made in the course of any of the oral or written submissions made to me on costs. Clearly then, I was not aware of them.
The offers to settle made on behalf of the plaintiff prior to trial, of which I was unaware, are:
1.an offer pursuant to O 24A of the Rules of the Supreme Court1971 (WA) (RSC), dated 19 September 2007, in which the plaintiff offered to compromise her claim on the basis that the defendant paid her the sum of $28,000 (the O 24A offer);
2.a letter by the plaintiff's solicitors to the defendant's solicitors, dated 20 November 2008, which expressly referred to the principles in Calderbank v Calderbank [1975] 3 WLR 586 (the Calderbank letter). In that letter, the plaintiff offered to settle the action on the basis that the defendant pay her $30,000, with no order as to costs. The letter stated that the plaintiff reserved her right to produce the letter at trial in respect of costs and particularly in respect of a claim for indemnity costs. On its terms, the offer lapsed at 12 noon on 28 November 2008.
Neither offer was accepted by the defendant.
In his affidavit Mr Primerano explained that the offers were not brought to my attention because, by his oversight, he had not told the plaintiff's then counsel, Mr Aristei, about them. This explanation has not been challenged, and accordingly, I accept it. Certainly, there is no evidence which would allow me to find otherwise.
By the time I made the costs order, the defendant had filed an appeal against my judgment in the substantive proceedings. On 27 May 2011, the plaintiff filed a cross‑appeal in relation to the costs order. On 25 July 2011, the plaintiff filed a notice of discontinuance with respect to that cross‑appeal.
On 16 August 2011, the parties attended before a registrar to settle the appeal book index in respect of the defendant's appeal. It was noted that the costs order I had made and not been extracted: affidavit Andrea Nicole Lyons, par 3.
It is not disputed that on or about 17 August 2011 the parties' solicitors agreed that the plaintiff would extract the costs order. Despite this agreement, the plaintiff did not extract the order. Ms Coulson told me from the bar table, without objection, that at the time this agreement was reached, the oversight was not known. She further said that when she was retained in August 2011 (I infer after the agreement was reached on 17 August 2011) and she became aware of the oversight, she recommended that no steps be taken to extract the order.
A letter dated 12 September 2011 was sent to the defendant's solicitors by Ms Coulson's firm, Coulson Legal. This letter makes the following points:
1.as at the date of the letter the costs order had not been extracted;
2.Ms Coulson had been 'instructed to prepare an application to re‑visit the costs order … on the grounds that critical facts were not brought to the attention of his Honour at the time that the costs order was made'; and
3.the 'critical facts' referred to were the O 24A offer and the Calderbank letter.
Ms Coulson invited the defendant's solicitor to sign, by close of business on 15 September 2011, a minute of consent orders to provide that the defendant pay the plaintiff's costs of the action on an indemnity basis.
Towards the end of the letter, Ms Coulson wrote:
I will telephone you later this week to discuss the application, and to confer for the purposes of O 59 r 9 of the Rules [Rules of the Supreme Court].
Mr Lyons replied on the same day in these terms:
Prior to taking instructions, I would be grateful if you could advise the following:
1.under which Rule it is proposed that the application to which you refer is to be made; and
2.any authorities supporting the course of action which you propose.
We look forward to hearing from you for the purpose of O 59 r 9.
Coulson Legal responded by letter dated 14 September 2011 as follows:
I respond as follows, adopting the same definitions as in my letter to you dated 12 September 2011.
1The costs order has not yet been perfected pursuant to O 43 r 3 of the Rules of the Supreme Court 1971 (WA), and accordingly it is provisional only.
2.The court has the power to review, correct, alter, modify or withdraw the costs order at any time until it has been perfected. See Smith v New South Wales Bar Association (1992) 108 ALR 55; Norman v Norman (1992) 6 WAR 372; Naresh v Millard & Anor [2004] WASCA 241; and Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407.
On 15 September 2011, without notice to the plaintiff, the defendant's solicitor filed an engrossed costs order for entry. A perusal of the file shows that the court apparently was not informed by the defendant of the plaintiff's proposed application.
On 16 September 2011, the court's order was entered and then authenticated in accordance with O 43 r 3 RSC.
Mr Primerano states in his affidavit that on 15 and 19 September 2011, Ms Coulson attempted to telephone Mr Lyons for the purpose of conferring in relation to the proposed application. On each occasion, Mr Lyons was unavailable and a message was left for him to return Ms Coulson's call. Mr Lyons did not return those calls. Mr Lyons' affidavit of 21 October 2011 confirms this.

It is accepted by the parties that, on 20 September 2011, Ms Coulson telephoned Mr Lyons and spoke to him for the purpose of conferral. The content of that conversation is not challenged. Mr Lyons told Ms Coulson that he had extracted the costs order.

The parties' submissions

The plaintiff observed that when the proposed application was brought to the defendant's solicitors' attention, the costs order had not been entered. As such, it was unperfected. It was submitted that at that time an application could have been made by the plaintiff to reopen the costs proceedings to inform me of the O 24A offer and the Calderbank offer. It was argued that this information would have had the likely effect of persuading me to recall my costs order and make an indemnity costs order against the defendant.
The plaintiff submitted that Mr Lyons' action in extracting the costs order after receiving Coulson Legal's letters dated 12 and 14 September 2011, and during the conferral process pursuant to O 59 r 9 of the RSC, was an abuse of process because, although not inconsistent with the literal application of the procedural rules of court, it was manifestly unfair to the plaintiff and brought the administration of justice into disrepute. I was urged to uplift the extracted order from the file to, in effect, put the plaintiff in the position she would have been prior to the costs order being extracted.
The plaintiff further submitted that if I find that there was no abuse of process and the costs order was perfected, I may nevertheless vary the costs order pursuant to either O 21 r 10 of the RSC (the slip rule) or the court's inherent jurisdiction. However it occurs, the plaintiff submits that I should, because of the offers order indemnity costs
On behalf of the defendant, it was submitted that he had the right under the RSC to extract the costs order, and this was particularly so as the plaintiff's solicitor had not complied with his agreement to do so. There was, in these circumstances, no abuse of process.
The defendant submitted that neither the slip rule nor the inherent jurisdiction of the court should come to the aid of the plaintiff when she failed to put before the court all relevant material in relation to the question of costs. Finally, it was submitted that even if I was persuaded to reconsider the costs orders I made, I should not make an indemnity costs order. The defendant submitted that among a number of factors which should lead me to this decision, was that the rejection of the Calderbank offer was not at the time unreasonable.

Analysis of the submissions

Order 43 RSC is concerned with the drawing up and the entry of judgments and orders. Order 43 r 1(2) provides that a party having the carriage of the order shall have the first option to enter or extract it, but if that party fails to do so within three days from the making of the order, any other party affected by the order may enter or extract it.
The plaintiff had the first option to enter the costs order but did not do so within three days of its making. Accordingly, the defendant had the right to extract it at any time after that.
The defendant was able to have the costs order settled and passed by a registrar, without the knowledge of the plaintiff, by using the procedure set out in O 43 r 10 RSC. This rule allows a registrar, in any case in which he or she thinks it expedient to do so, to settle and pass an order without requiring the parties to attend an appointment and without giving notice to any party. Later in these reasons I will deal with the issue of whether, in the circumstances of this case, this procedure should have been adopted by the defendant. After an order has been settled and passed, it must be filed and once filed, it is duly entered: O 43 r 14 RSC. This process is known as 'perfecting' the order.
It is common ground between the parties that my costs order was entered and perfected on 16 September 2011.
The entry of an order is an important procedural step. Prior to an order being perfected, a court may review, correct or alter its judgment at any time: Smith v New South Wales Bar Association [2002] HCA 36; (1992) 176 CLR 256, 265. But once an order has been perfected, subject to certain exceptions, which include the slip rule and the inherent jurisdiction of the court, the court that made the order has no power to reconsider or alter it. A party dissatisfied by such an order must resort to any right of appeal that may exist: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [15] and Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 539.
In light of these rules and the fact that the plaintiff had abandoned her cross‑appeal with respect to the costs orders, the entry of the costs orders was very much to her disadvantage. If the argument that the entry of the costs orders was an abuse of process fails, she may, at least, have been deprived of the opportunity of having her application reopened and reconsidered. It may be that the plaintiff will be left with an order for party/party costs in circumstances where, having regard to the offers to settle, there should have been an order for indemnity costs.
The first issue for me to resolve is whether the entry of the costs orders was an abuse of the process of the court.
The processes and procedures of a court exist to administer justice. They are not to be converted into instruments of injustice or unfairness: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393. Thus, inherent in every court is the power to prevent its processes and procedures being abused: Rogers v The Queen (1994) 181 CLR 251, 286. The categories of abuse of process are not closed, but two well recognised categories are the use of the court's procedures to unjustifiably cause oppression to a party; or to bring the administration of justice into disrepute. Any procedural step taken in proceedings is capable of being an abuse of the court's process: Rogers v The Queen (286), Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [15].
At the time the defendant's solicitors entered the costs order, the defendant had been put on notice by the plaintiff of her intention to apply to 'revisit' the making of the costs order because that order had not been perfected. Up until then, the defendant had not taken any interest in entering the costs order. From this and the close coincidence between the receipt of Coulson Legal's letters of 12 and 14 September 2011 and the step taken to enter the order on 15 September 2011, I infer that the defendant's solicitor took that step more with the intention of undermining the plaintiff's foreshadowed application than to assist in the preparation of the appeal book.
In her submissions, the plaintiff's counsel placed particular emphasis on the costs order being entered during conferral under O 59 r 9 RSC. That rule states:
(1)No order shall be made on an application in chambers unless the application was filed with a memorandum stating -
(a)that the parties have conferred to try to resolve the matters giving rise to the application; and
(b)the matters that remain in issue between the parties.
(2)The Court may waive the operation of subrule (1) in a case of urgency or for other good reason.
In her letter of 12 September 2011, the plaintiff's solicitor expressed her intention to confer pursuant to O 59 r 9 before filing any application. The defendant's solicitor in his letter of 12 September 2011 indicated his apparent willingness to confer by ending that letter with this sentence:
We look forward to hearing from you for the purpose of Order 59 rule 9.
At the time the costs order was entered, conferral had not taken place in any real sense and it had not been completed.
In these circumstances, although the defendant had the right to enter the order, it was unfair for the defendant's solicitor to have done so without first conferring with the plaintiff.
The defendant's solicitor having given the impression of wishing to confer, took advantage of the information given by the plaintiff to unexpectedly and without notice, take a procedural step which, as I have already found, was intended to undermine the plaintiff's application. These actions were contrary to the duty to confer which is a duty that must be carried out in good faith. The duty, as Martin CJ made clear in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 is a serious one that practitioners, as officers of the court, are expected to comply with to the letter and to the spirit.
Had the defendant's solicitor warned the plaintiff, the plaintiff could have requested the court not to settle and pass the order pursuant to O 43 r 10 RSC. The plaintiff would then have had an opportunity to seek an appointment before a registrar to argue whether the costs order should be settled and passed prior to the making of the plaintiff's proposed application.
There is another matter of relevance. It appears that the court was not informed by the defendant's solicitor of the plaintiff's proposed application when he sought to enter the costs order. In my opinion, the procedure in O 43 r 10 should be used when there is no controversy about the order or judgment sought to be settled and passed. This was not the case here. No doubt the defendant's solicitor believed that he was acting in the best interests of his client, but a practitioner's paramount duty is to this court: r 5 Legal Profession Conduct Rules 2010 (WA). The obligation of complete candour that a practitioner has to the court should have led to the proposed application being brought to the court's attention.
The defendant's solicitor felt justified to act as he did because the plaintiff had not complied with her agreement given on 17 August 2011 to extract the costs order. The answer to this is that at the time the agreement was made, the plaintiff was not apparently aware of the oversight. Further, when the plaintiff became aware of the oversight, the plaintiff informed the defendant and sought to bring the matter before the court for determination. In these circumstances, the plaintiff's noncompliance with the agreement could not justify the defendant's actions.
A finding that an abuse of process has occurred should not be made lightly and all of the circumstances must be carefully considered. I have come to the conclusion that the entering of the costs order was unjustifiably oppressive to the plaintiff and if allowed to stand, would bring the administration of justice into disrepute. I find that the entering of the costs order was an abuse of process.
I will now proceed on the basis that the costs order was unperfected. If I find that a different costs order should be made to the one dated 6 May 2011, I will recall and replace that order. If I decide that no other order should be made, it will be unnecessary to take that course.
The power to reopen an unperfected order is discretionary. In exercising that discretion, an important consideration is the public interest in the finality of litigation. This principle 'serves not only to protect parties to litigation from attempts to re‑agitate what has been decided, but also has wider purposes': Burrell v The Queen [16]. One wider purpose is that the principle 'serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike to get it right the first time': Burrell v The Queen [16].
The principle of finality, depending upon all of the circumstances of the particular case, may not preclude the exceptional step of reviewing an earlier order.
The relevant principles which inform the exercise of the discretion to reopen an unperfected order were, in the context of the position of the High Court and an intermediate court of appeal, set out by Steytler P in Minister for Education v Klein [2005] WASCA 185(S) as follows:
As the High Court has reaffirmed in De L v Director-General, NSW Department of Community Services(No 2) (1997) 190 CLR 207 at 215, there is no doubt that that Court may reopen unperfected judgments or orders if it is convinced that it has proceeded 'on a misapprehension as to the facts or the law' (Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300 at 302) or where 'there is some matter calling for review' (Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 265) or where 'the interests of justice so require' (Autodesk at 322, per Gaudron J). The power is one which, the High Court has said, must be exercised with great caution (State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 at 38; Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684 and Autodesk at 302) and the circumstances that will justify a rehearing, must be 'quite exceptional': State Rail at 38 per Mason and Wilson JJ. That is so because of the obvious public interest in the finality of litigation: De L at 215; Autodesk at 302; State Rail at 38; and Wentworth at 684. However, the judgments of the High Court reveal a preparedness by that Court to reopen an unperfected judgment or order where an applicant can show that 'by accident without fault on his part he has not been heard': Wentworth at 684, per Mason ACJ, Wilson and Brennan JJ; and Autodesk at 302, per Mason CJ, 308, per Brennan J, and 312, per Deane J. That is because a court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue: Pantorno v The Queen (1989) 166 CLR 466 and Autodesk, at 308, per Brennan J [7].
Acknowledging the obvious differences between a court sitting at first instance and an appellate court, those principles by analogy apply here.
The oversight by the plaintiff's solicitor was a serious one. While accidental it occurred because of the solicitor's fault. Judgment was given in the plaintiff's favour on 22 December 2010. The matter was then adjourned to, amongst other things, deal with the question of costs. On 8 February 2011, oral submissions were made in respect of costs. Further opportunity after that date was given to the parties to make written submissions.
It is clear that the plaintiff had ample opportunity over an extended period of time to put to the court all the information which was relevant to the question of costs. Moreover, the plaintiff was seeking indemnity costs, a departure from the usual costs order. The onus was on the plaintiff to demonstrate some special or unusual feature of the case which justified the making of such an order. Accordingly, careful attention needed to be given to the material that was placed before the court. That did not happen.
The costs order was made on 6 May 2011. It was not until some time in August 2011 that the oversight was noticed. By then the appellant's cross‑appeal against the costs order had been filed and discontinued.
The plaintiff's solicitor's oversight is difficult to comprehend. It is hard to see how the offers could have been forgotten, let alone forgotten for so long.
In all these circumstances, the public interest in the finality of litigation causes me to decline to review the costs order.
Had it been necessary to consider the offers of settlement, I would not have made an award of indemnity costs. My reasons for arriving at this conclusion may be briefly stated.
I will refer first to the O 24A offer. Order 24A provides that where an offer is made by a plaintiff and not accepted by the defendant and the defendant obtains a judgment no less favourable than the terms of the offer, the plaintiff will be entitled to an order against the defendant for costs from the date on which the offer was made on a party/party basis. In other words, the making of an offer under O 24A does not contemplate the award of indemnity costs: St Barnabas Nominees Pty Ltd v Stallard Corp Pty Ltd [No 2] [2011] WASC 289(S) [25].
However, the position with the Calderbank offer is potentially different. The principles governing Calderbank offers and an award of indemnity costs as a result of a refusal to accept such an offer were set out by Buss JA (with whom Wheeler JA agreed) in Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115 [16] ‑ [32]. The critical question is whether the offer, when all of the relevant facts and circumstances are considered, was unreasonably refused. In deciding whether the rejection of a Calderbank offer was unreasonable, ordinarily regard should at least be had to the following:
(a)the state of the proceeding at which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offeree's prospects of success assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed; and
(f)whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.
These factors are not exhaustive.
I accept that the Calderbank offer was made at a relatively early stage of the proceedings, that it was clearly expressed and that it, in substance, foreshadowed an application for an indemnity costs in the event it was rejected.
However, in my opinion, indemnity costs should not be given because, at the time the offer was made it was not unreasonable for the defendant to refuse it. At November 2008 there were two main issues in dispute. First, had the transfer of land form been forged? Second, if it had been forged, what damages, if any was the plaintiff entitled to? As to the last mentioned issue, it seems to me that at the time the Calderbank offer was made, it was not at all clear what damages, if any, the plaintiff was reasonably entitled to. As to the issue of forgery, the parties had not at that time exchanged witness statements. Of importance, is that the defendant was not aware of the evidence of Mr D'Silva's actions in respect of the mortgage document he altered in September and October 2005 in the name of Shaun Wellbourne‑Wood: Gutta v Ierino [57] ‑ [58], [121] ‑ [126].
Moreover, lest there be any doubt about it, I still hold to the reasons which I gave between [28] ‑ [31] in Gutta v Ierino [2010] WASC 402(S).
In light of the conclusions that I have reached, it is unnecessary for me to consider the submissions made by the plaintiff in respect of the slip rule and the inherent jurisdiction of the court.

Conclusion

The defendant's solicitor's conduct in extracting the costs order was an abuse of process. I have determined the plaintiff's application on the basis that my orders were unperfected. I have concluded that notwithstanding that I was unaware of the plaintiff's offers to settle, indemnity costs should not be awarded. There is no need to uplift the cost order I made and change it. The plaintiff's application will be dismissed.
The order that I make is:
(1)the plaintiff's application filed 28 September 2011 is dismissed.