IGA Distribution Pty Ltd v King and Taylor Pty Ltd

[2002] VSC 439

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2068 of 2001

IGA DISTRIBUTION PTY LTD	Plaintiff
v
KING & TAYLOR PTY LTD	First Defendant
DELAHEY PROPERTIES PTY LTD	Second Defendant

---
RULING NO. 9

JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATES OF HEARING:	12 and 13 September 2002
DATE OF RULING:	16 October 2002
CASE MAY BE CITED AS:	IGA Distribution Pty Ltd v King & Taylor Pty Ltd and anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 439

---

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.M. Garratt QC with Mr M.K. Moshinsky	Cornwall Stodart
For the First Defendant	Mr J.D. Hammond QC with Ms J.E. Richards	Richard Szental
For the Second Defendant	Mr P.J. Hayes with Ms L. Hannon	Efron & Associates

HIS HONOUR:

1. During cross-examination of Mr Szental on 12 September 2002, Mr Garratt put the following questions to Mr Szental:

Have you brought to court a better copy of the trust account statements that you produced yesterday?---Yes, Your Honour, I have.

What day was the deposit paid?---The 6^th of the 7^th 2001

That is the date in your hand, or in your clerk’s hand?---That’s my hand…

The moneys for the payment of the deposit were telegraphically transferred?---Yes.

I suggest to you that they were telegraphically transferred the following week and you entered it up in your trust record as received on 6 July?---That is not the case, Your Honour.  It’s simply not the case…

1. A short time later, Mr Hammond objected that the effect of those questions was to put to Mr Szental that he had falsified his trust account.  I was not certain, however, what the effect of the questions was, or what further questions were intended to be asked on the subject, and so I said that I would listen to further questions before doing anything about the objection.

1. Contrary to my expectation, Mr Garratt thereafter directed questioning to other matters and thus, after a time, when it appeared to me that he did not intend to return to the subject, I enquired of Mr Garratt as follows:

Are we going back to the trust account?

Mr Garratt responded:

No, Your Honour.  I was not imputing any wrongdoing or intending to.

1. Mr Hammond then submitted that it should be made clearer that Mr Garratt withdrew any imputation of trust account falsification.

1. In my view it had been made clear that no such imputation was being suggested but, because of the sensitivity of the subject, I asked Mr Garratt:

Mr Garratt.  Do you suggest that there’s been any falsification of the trust account?

Mr Garratt responded:

No, I do not.  I was enquiring whether there’d been some – as to the actual timing of the receipt of the moneys, that was all.  I was not imputing any intentional falsification of the record.

1. A little later I asked Mr Szental:

Mr Szental, it’s clear is it in your mind that the money, the deposit moneys, came in on the Friday afternoon of 6 July and not the following week?

Mr Szental answered:

That’s right, Your Honour.  I actually checked it, I actually checked it again and the actual deposit was on the 6^th, I don’t get my statements until a few days later…But the actual deposit was made on 6 July 2001.  I don’t know time of the day, I don’t know what time they make their transfers but---

1. To remove any doubt about the matter, at the end of that day I also made the following announcement:

I think it should also be plain, although not to Mr Szental whilst he’s still under cross-examination, that any suggestion that he’s falsified his trust account- if there were one implicit in what Mr Garratt put-has been unconditionally withdrawn so that there is not intended to be any reflection upon his integrity with respect to the operation of his trust account as solicitor.

1. Mr Hammond appeared, nevertheless, not to be satisfied with the way the matter stood.  He submitted:

Your Honour, I propose to make what probably is an unusual application tomorrow after having the opportunity of looking at the transcript and the application that we intended to make tomorrow, after the benefit of reading the transcript, we ask that any reference to that allegation be removed from the transcript so that no person can get hold of part of the transcript and just use that in some way.

It is a grave accusation and ought not to have been put (in the absence of) clear instructions.  We are very concerned; my learned friend Ms Richards and I were very concerned that that is on the record and can be used in a abstract (sic) in part.  In other words one can read that far and then no further.  We haven’t yet, as I say, had the opportunity of reading it but we would ask Your Honour that probably it’s more appropriate to leave it over until tomorrow so that we can make an application with respect to particular parts.  So that the relevant aspects are considered by Your Honour as to whether they should be struck from the record.

1. I responded:

I will of course listen to anything that you wish to say, Mr Hammond.  I know myself of no precedent for removing from the transcript of proceedings what has been said in them.  No doubt it could be ordered that some part of it be treated as ‘Confidential’ if it is necessary to go that far, then I would be prepared to listen to you.  I would have hoped, however, that by making it plain as Mr Garratt has now done that there is no imputation intended to be cast upon Mr Szental’s operation of his trust account, that it would be plain to any one who subsequently happens to come across the transcript that there was no substance in the suggestion if one were intended to be made.

1. Mr Hammond did not thereafter renew his application that passages of the transcript be removed, or struck from the record as he put it, but the next day Mr Hammond applied that all of the sections of the transcript in which were recorded the questions, answers and discussion which he said bore on the subject, should be kept confidential.  To prevent further loss of time at that point, I made an interlocutory order that pages 932 to 942 of the transcript be kept confidential and that I would deal with the issue finally in the course of final submissions.

1. Having now had the benefit of final submissions on the point, I think there to be no substance in the point.  In my view it is plain from the passages of the transcript set out above that any imputation of the kind feared, if there were one, was immediately and unqualifiedly withdrawn.

1. For those reasons I now vacate the confidentiality order which I made on 13 September 2002 in respect of pages 932 to 942 of the transcript.

--------