Kelly v Australian and New Zealand Banking Group Limited
[2013] NSWSC 938
•04 July 2013
Supreme Court
New South Wales
Case Title: Kelly v Australian and New Zealand Banking Group Limited Medium Neutral Citation: [2013] NSWSC 938 Hearing Date(s): 4 July 2013 Decision Date: 04 July 2013 Jurisdiction: Common Law Before: Campbell J Decision: (1) The plaintiff is to pay the balance of his share of the fees payable to the expert, which I calculate to be $10,175, by some means acceptable to the expert by 4pm this afternoon.
(2) I direct Ms Novotny to provide her original report and the original notebooks in a sealed envelope, with the case name and number clearly printed on the front, to the court by 4pm on Friday, 5 July 2013. A copy of the report should be provided to each party no later than that time.
(3) I direct that the plaintiff serve his written submissions on senior counsel and solicitor for the defendant by 5pm today. A hard copy of the submissions should be delivered to Hall J's chambers. I direct that the defendant serve its written submissions on the counsel and solicitor for the plaintiff by 5pm on 5 July 2013. A hard copy of the submissions should be delivered to Hall J's chambers.
Catchwords: No question of principle Category: Interlocutory applications Parties: David Kelly (plaintiff)
Australian and New Zealand Banking Group Limited (defendant)Representation - Counsel: Counsel:
P. Loiterton (plaintiff)
A. McInerney SC (defendant)- Solicitors: Solicitors:
Longmores Lawyers & Property Conveyancers (plaintiff)
Gadens Lawyers (defendant)File Number(s): 2011/201022
EX TEMPORE JUDGMENT
This matter, which is listed for hearing on Monday next with an estimate of seven days, has been fixed for hearing before Hall J. The plaintiff's claim is founded upon an allegation of breach of contract or alternatively misleading and deceptive conduct. The defendant cross-claims seeking orders for possession and recovery of a debt in respect of various loans advanced by it to the plaintiff and his wife in respect of business and other purposes.
An issue arose in the proceedings concerning whether an email that the plaintiff relies upon as evidence in his case was ever sent. In respect of that issue, a subsidiary issue arises in relation to the reliability of what was said to be contemporaneous records kept by the plaintiff in notebooks written in his own hand.
The matter has frequently been before the Court for directions and resolution of interlocutory issues. The matter has been before Rothman J three times in the last two weeks. His Honour made orders - I am informed largely by consent - which included the appointment of a court appointed expert, a Ms Michelle Novotny, to inspect the notebooks, to carry out non-invasive examinations, and to provide expert opinion - I will put it this way - so far as science permits, which assists the Court to determine the reliability of the notebooks as a contemporaneous record of their contents.
A dispute has arisen between the parties about two issues. The first relates to certain additional assumptive information sought by Ms Novotny and, secondly, the advance payment of her fees which have proved to be much greater than initially envisaged.
Amongst the orders made by Rothman J was an order that the parties were to bear the costs of the expert report in equal shares. In accordance with what I understand to be the almost invariable practice of experts required or asked to give reports for litigation, Forensic Documents Services Pty Limited, through which Ms Novotny's report will be provided, requires payment in advance.
Dealing with the first issue, I have read the affidavit of Ms Anna Petrova, affirmed today, and the correspondence and email printouts attached to the affidavit which document the issue, and I was taken to the salient features by Mr McInerney of senior counsel who appears for the defendant.
The information requested by Ms Novotny relates to a series of seven questions providing factual context as to the method of compilation of the notebooks. The questions are set out at page 23 of Ms Petrova's affidavit, which is a printout of an email from Ms Novotny to both Ms Petrova and her opposite number, Ms Jane Button. I will not recite them here.
In an email sent at 4.53pm on 3 July 2013 to both solicitors, Ms Novotny explained her purpose as follows:
I apologise that the purpose of my email was not clear. I certainly do not need the information for my examination and to reach my findings. In fact, I have reached my findings already but I have not yet completed preparation of my preliminary summary advice. The information was requested so that my findings would have some contextual significance in terms of what's being claimed about the production of the documents and thereby to provide as much assistance as possible to the court, in keeping with my role as an independent expert.
Asking such questions is commonplace in matters where the manner in which a document is prepared is an issue. With knowledge of how it is alleged that the notebooks were prepared, I can comment on whether or not my findings are consistent with that version of events.
It seems to me that the information sought goes beyond clarification of assumptions that an expert might be required to make and goes into an informal process of interrogating the plaintiff about the subject matter of the questions.
As the trial is to commence on Monday, and as most interlocutory processes have long since been completed, I am not persuaded that I should direct the plaintiff to provide the information sought. It seems to me, from what limited information there about the nature of this litigation, what has been said by counsel, and from my experience in litigation, that the type of information sought by Ms Novotny - with every respect for her - is the type of information which is likely to be elicited in cross-examination and has a bearing which may give rise to credit issues in the case.
As Ms Novotny has said that she does not need the information for her examination or to reach her findings, and as she confirms that she has made findings already, I think it inappropriate that that information be provided at this time. It seems to me, to the extent to which it is the function of the expert to provide evidence about whether findings made by her are consistent with any version of events put forward by either party, that process ought to take place in the context of the trial after the issues have been refined by the course of the evidence. Mr McInerney has informed me that it is to be expected that Ms Novotny will be giving oral evidence before the trial Judge.
For those reasons, I decline to make a direction that the plaintiff provide the information sought.
The second substantial issue relates to the cost of the report. Apparently it has significantly grown from the original estimate and Mr Loiterton, solicitor, who appears for the plaintiff, makes valid complaints about the extent to which the estimate has grown. However that may be, I regard that as, what might be loosely termed, 'the fortunes of litigation'.
I am also informed that the plaintiff's understandable dismay over that matter was ventilated before Rothman J on Monday 1 July 2013 and his Honour, for reasons then expressed, declined to make any variation of the orders he had made in respect of the matter.
Doubtless, this litigation will be, in the end, very expensive. From what I have seen of the various claims, it involves considerable sums of money. The evidence of the expert is likely to be important in the case. Moreover, I do not understand any complaint to be made about the reasonableness of the proposed charges, only about their growth.
It seems to me understandable that the expert, having, as she says, completed the work, is now in a much better position to state what it has cost. These things are unfortunate but they do occur frequently in litigation.
I think, the work having been done, findings having been reached, and the order having been made already, that it is incumbent upon the plaintiff to pay his share of the cost of the report and I propose to make a direction in that regard.
A third issue arose during the course of argument about what should happen to the original notebooks once Ms Novotny's report has been completed. The plaintiff wishes to have access to the documents over the weekend for the purpose of preparing himself to give his evidence next week. Mr McInerney has submitted that all parties have copies of the documents and any preparation can be undertaken by reference to those copies.
It seems to me that, when material is in the hands of a court appointed expert for the scientific inspection and examination of them, there is - without criticising either or any party - a lot to be said for the position for which Mr McInerney contends, that is that the documents ought to be kept, as it were, within the control and possession of the Court rather than of the parties at least until the commencement of the trial.
It seems to me, if copies are in the possession of the parties, that should be sufficient for preparation and I propose to direct, once Ms Novotny has completed her task, the original notebooks be returned to the court together with her original report.
There has been non-compliance by the plaintiff with directions made by Rothman J in relation to the preparation and lodgement of court books and filing of submissions. This is unfortunate, but I will not make any further comment about it.
I make the following directions:
(1)The plaintiff is to pay the balance of his share of the fees payable to the expert, which I calculate to be $10,175, by some means acceptable to the expert by 4pm this afternoon.
(2)I direct Ms Novotny to provide her original report and the original notebooks in a sealed envelope, with the case name and number clearly printed on the front, to the court by 4pm on Friday, 5 July 2013. A copy of the report should be provided to each party no later than that time.
(3)I direct that the plaintiff serve his written submissions on senior counsel and solicitor for the defendant by 5pm today. A hard copy of the submissions should be delivered to Hall J's chambers. I direct that the defendant serve its written submissions on the counsel and solicitor for the plaintiff by 5pm on 5 July 2013. A hard copy of the submissions should be delivered to Hall J's chambers.
I note that the solicitor for the defendant has undertaken the burden of preparing the court books previously directed to be prepared and filed by the plaintiff's solicitors. I note that Ms Petrova will make contact with Hall J's chambers if possible to make arrangements to have those documents delivered to his Honour's chambers at some convenient time. If no such arrangements can be made, the Court books should be delivered to the registry by 1pm tomorrow, 5 July 2013.
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