Malouf v Malouf - [2006] NSWCA 83

No judgment structure available for this case.

Reported Decision: 65 NSWLR 449

Court of Appeal

CITATION: MALOUF v MALOUF [2006] NSWCA 83

HEARING DATE(S): 13 February 2006

JUDGMENT DATE:
21 April 2006

JUDGMENT OF: Mason P at 1; McColl JA at 182; Bryson JA at 183

DECISION: Appeal dismissed with costs

CATCHWORDS: PRACTICE – Unrepresented litigants – Procedural fairness – Duties of trial judges – Judges to ensure litigant understands what is happening at the trial – No duty to advise litigant how to conduct case. - PRACTICE – Directions – Pre-trial directions as to filing of process and affidavits – Mandatory nature of. - EVIDENCE – Experts – Reports – Must be inherently explicable. - APPEAL AND NEW TRIAL – Whether fresh evidence on appeal justifying new trial – Supreme Court Act 1970, s 75A. - LEGAL PRACTITIONERS – “Unbundling” of legal services – Partition of advocacy between lawyer and client – Whether represented litigant may appear as advocate. (D)

LEGISLATION CITED: Supreme Court Act 1970, s 75A

CASES CITED: Akins v Abigroup Ltd (1998) 43 NSWLR 539
Blackwood Foodland Pty Ltd v Milne [1971] SASR 403
Briginshaw v Briginshaw (1938) 60 CLR 336
Damjanovic v Maley (2002) 55 NSWLR 149
Hubbard Association of Sociologists International v Anderson and Just (No 2) [1972] VR 577
Longworth v Yelverton (1867) 1 LR Sc & Div 218
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85, 166 ALR 129
Moscati v Lawson (1835) 7 Car & P 32; 173 ER 14
Newton v Ricketts (1848) 2 Ph 624; 41 ER 1084
Parkinson v Hanbury (1867) 2 LRHL 1
Queensland v J L Holdings (1997) 189 CLR 146
R v Maybury (1865) LT 566
Shuttleworth v Nicholson (1883) 1 Moo & Rob 254; 174 ER 87
State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487
Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213
Warwick George Malouf v John George Malouf & Anor [2005] NSWSC 9
Watson v Foxman (1995) 49 NSWLR 315

PARTIES: Warwick George MALOUF v John George MALOUF

FILE NUMBER(S): CA 40102/2005

COUNSEL: Appellant: P Bates/ Appellant
Respondent: R Newlinds SC/ J Stephenson

SOLICITORS: Appellant: None
Respondent: Phillips Fox Lawyers

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 1477/2001

LOWER COURT JUDICIAL OFFICER: Nicholas J

CA 40102/05
ED 1477/01

MASON P
McCOLL JA
BRYSON JA

Friday 21 April 2006

Warwick George MALOUF v John George MALOUF & Anor

APPEAL AND NEW TRIAL – Whether fresh evidence on appeal justifying new trial – Supreme Court Act 1970, s 75A.

EVIDENCE – Experts – Reports – Inherent explicability.

LEGAL PRACTITIONERS – “Unbundling” of legal services – Partition of advocacy between lawyer and client – Whether represented litigant may appear as advocate.

PRACTICE – Directions – Pre-trial directions as to filing of process and affidavits – Mandatory nature of.

PRACTICE – Unrepresented litigants – Procedural fairness – Duties of trial judges – Judge to ensure litigant understands what is happening at the trial – No duty to advise litigant how to conduct case.

The appellant sold his shares to the first respondent at what he alleged was a gross under-value calculated on the basis of a deflated operating profit. The appellant sued alleging fraudulent misrepresentation, the nub of the fraud being that suppressed sales had generated a lower than usual operating profit figure for the relevant year. An expert report was filed in which only one paragraph addressed the fraud in the most general of terms. The respondents filed affidavits in reply annexing, inter alia, an expert report refuting the finding. Pre-trial directions requiring the appellant to file affidavits in reply were ignored on five occasions. Three days before the trial was due to commence the appellant claimed to have found material “nailing the fraud” in primary business records that hade been produced on discovery over a year earlier. The appellant appeared in person. The trial judge throughout assisted him by explaining such procedures as cross-examination and re-examination. The new material was presented on the first day of the trial and rejected as being unfair to the respondents in having to meet new material so late in the proceedings, particularly in view of his disregard of earlier directions, which, if followed, would have cured the defect. The case failed for want of evidence.

On appeal, the appellant argued that the trial judge had wrongly rejected his evidence and did not afford him procedural fairness as an unrepresented litigant by explaining the course and conduct of the trial. He also sought ought to tender a new forensic report prepared by the same expert. During the hearing, the appellant retained counsel to address the Court on some issues only.

HELD:

(1) (Per Mason P, McColl JA and Bryson JA agreeing) The evidence was rightly rejected, principally because it would have occasioned a positive injustice to the defendants to have to meet new evidence at an advanced stage. (at [81])

(2) Directions, whether pre-trial or otherwise, requiring the filing of process and affidavits are not options for the parties directed, but mandatory instructions. (at [79]-[81])

State Pollution Control Commission v Australian Iron & Steel Pty Ltd

Akins v Abigroup Ltd

Queensland v J L Holdings

(3) Trial judges dealing with unrepresented litigants have a duty to ensure the litigant understands what is happening. This might include explaining the role of cross-examination and re-examination. They have no duty to advise them how their case would be best conducted. The restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented (at [94]-[95], [100])

Victims Compensation Fund Corporation v Nguyen

(4) Expert testimony needs to be explicable in its own right. A good report will show on its face the reasoning that leads to the conclusion propounded. A report that depends upon the advocacy of a barrister to explain its thrust is uncompelling, though perhaps admissible. (at [148])

(5) Accordingly, special grounds justifying reception of the updated expert report were not established. (at [142], [156])

Supreme Court Act 1970

Observations (by Mason P) on the impropriety of the procedure adopted by the appellant in sharing the advocacy role with his counsel. Splintered advocacy has the tendency of much mischief. Overlapping may unduly prolong trials. Untenable or scandalous submissions that a barrister would not advance for fear of disciplinary censure would be made. The capacity of lawyers to perform their duties to the Court, such as confining the issues to those truly in dispute, would be compromised. Departure from this principle is exceptional and only to be contemplated where not to allow it would work an injustice.

Damjanovic v Maley (2002) 55 NSWLR 149 and Blackwood Foodland Pty Ltd v Milne [1971] SASR 403 at 411, approved. Shuttleworth v Nicholson (1883) 1 Moo & Rob 254; 174 ER 87; Moscati v Lawson (1835) 7 Car & P 32; 173 ER 14; Newton v Ricketts (1848) 2 Ph 624; 41 ER 1084; R v Maybury (1865) LT 566; Parkinson v Hanbury (1867) 2 LRHL 1; Longworth v Yelverton (1867) 1 LR Sc & Div 218 and Hubbard Association of Sociologists International v Anderson and Just (No 2) [1972] VR 577 at 580, followed.

ORDERS: Appeal dismissed with costs.

CA 40102/05
ED 1477/01

MASON P
McCOLL JA
BRYSON JA

Friday 21 April 2006

Warwick George MALOUF v John George MALOUF & Anor

JUDGMENT

1 MASON P: An action for damages for fraud was dismissed with indemnity costs by Nicholas J (Warwick George Malouf v John George Malouf & Anor [2005] NSWSC 9; references hereafter to J1, J2 etc are to paragraphs of that judgment).

2 The appellant seeks a new trial on grounds that include wrongful rejection of evidence, want of procedural fairness by the trial judge and reliance upon additional evidence from the appellant and a forensic accountant, Mr Banks.

Facts

3 The first respondent is the appellant’s brother, John Malouf. The second respondent, Osmal (Holdings) Pty Ltd (“Holdings”), is a family company established by the brothers’ father.

4 Holdings owns a warehouse and office building known as Osmal House in Surry Hills. Its principal asset, however, is a wholly owned subsidiary, Osmal Products Pty Ltd (“Products”), an importer and wholesaler of garments.

5 For many years prior to February 1995 the appellant held a minority interest (22.79 per cent) in Holdings. He was not a director and held none of the A Class shares that conferred the right to attend and vote at meetings. Holdings was controlled by John Malouf and his sister Pamela, and John was the managing director. The directors were permitted to determine which class of shareholders might participate in dividends and the appellant had not been paid a dividend since 1974.

6 The appellant was in dispute with his siblings from at least 1991 onwards. He claimed to be the victim of oppression and he alleged mismanagement. He threatened litigation and retained solicitors and other financial advisers to this end. Audited financial statements were produced year by year but their accuracy was disputed by the appellant.

7 There was an exchange of correspondence between solicitors in 1993-94. The appellant’s solicitors demanded accounting, banking and other records from the companies. Holdings’ solicitors denied any wrongdoing.

8 There were negotiations between the solicitors and directly between the brothers throughout 1994, exploring the terms on which the appellant might relinquish his claims and his shares. These were accompanied by threats of litigation on the appellant’s part and threats by John Malouf to leave the appellant locked in as a minority shareholder. The negotiations included assertions and counter-assertions as to the true value of Holdings and of the appellant’s minority interest in it.

9 By late 1994 the parties were exchanging valuation reports prepared by their advisers. There was huge disagreement both as to the value of the appellant’s minority interest and as to the value of Holdings itself. Also in dispute was the methodology for determining the value of the major asset, ie the trading subsidiary.

10 In September 1994, the appellant retained Mr John Banks of KPMG Corporate Pty Ltd to prepare a valuation of his shareholding. He provided information supporting his claim to be an oppressed shareholder, including a note stating that it was clear that John and Pamela were intending to “defraud the minority and to buy my shares at an enormous undervalue” (J23).

11 On 23 December 1994 the respondents’ solicitors, Phillips Fox, sent the appellant’s then solicitor, Mr Vrisakis, Holdings’ draft accounts for the year ended 30 June 1994. Also enclosed was a report from Mr Lonergan of Coopers & Lybrand stating that the fair market value of the appellant’s interest was $100,000. The appellant had earlier claimed that it was in the vicinity of $3.7m dollars.

12 There were meetings between the brothers in February 1995 mainly to discuss factors relevant to valuation of the shares that the appellant would relinquish if settlement could be reached. The appellant said that he definitely wanted to “get out quickly”. John Malouf indicated that, if settlement could not be reached because of the difference in valuations, the appellant was “welcome to remain as a shareholding with Holdings with the rest of us”. Doubtless there was much posturing between the two determined and intelligent brothers. (The appellant’s professional background is in investment banking.)

13 At a meeting between the brothers on 16 February 1995 John tabled a hand-written note he had prepared indicating how he arrived at a figure of $1,218,172 representing the appellant’s 22.79 per cent share in Holdings.

14

John Malouf’s proposal included the following calculations:

Operating Profit 850,000

Wages Adjustment <100,000>

Rent Adjustment <100,000>

Interest Received- Personal

<156,000>

494,000

Tax at 33%

163,000

331,000

x P.E. 6 $1,986,000

15 There were further adjustments and deductions producing a resultant $1,218,172 referable to the appellant’s share.

16 The operating profit of $850,000 was Products’ operating profit for the year ended 30 June 1994. (The draft accounts that Mr Vrisakis had sent on 23 December 1994 showed the figure at $841,000 and this was rounded up to $850,000.)

17 John Malouf’s proposal to use a price-earnings (“PE”) ratio of 6 involved a compromise within the range of 2½ - 14 that had been suggested by the respective valuers.

18 Further adjustments were negotiated to take account of matters of concern to the appellant.

19 At the end of the discussion the appellant agreed on the figure of $1,262,500 as the price for his shares and it was this sum that closed the deal. On 21 February 1995 there was a formal contract for the sale of the appellant’s shares and this sum was paid shortly thereafter.

20 On 23 February 1995 a Deed of Compromise and Release was entered into between the appellant as releasor and John, Pamela, Products, Holdings and others as releasees. The extensive recitals summarised allegations made by the appellant over the previous five years. The Deed contains widely-drawn releases.

21 In June 1996 Products purchased a property at St Peters for $1.6m, assisted by a bank mortgage of more than $1m. According to the appellant it was the size and nature of the new premises that “tended to confirm [his] apprehension” that the representations made to him by his brother on 16 February 1995 were false.

22 The solicitors corresponded in 1997 and 1998 in relation to these allegations. The appellant made an unsuccessful application for preliminary discovery of financial documents of Holdings and Products in 1998-1999.

23 These proceedings were commenced on 16 February 2001, ie six years less a day after the critical meeting.

24 The appellant claims that he was induced at the meeting on 16 February 1995 to sell his shares for much less than their true worth by reason of John Malouf’s fraudulent misrepresentation. The allegations are that:

1. Products’ 1994 operating profit, represented to be $850,000 (rounded), was knowing false and fraudulently understated;

2. This operating profit included suppression of the full sales figures;

25 Other causes of action were pleaded, but only those alleging fraud were maintained at the hearing.

The lead-up to the trial

26 The proceedings came under the case management of Master Berecry and later the trial judge, Nicholas J.

27 The appellant was legally represented until 2 August 2004.

28 Discovery was initially given in 2002. Fraud was first pleaded by an amendment permitted by Registrar Riznyczok in December 2002 after a contested hearing at which the appellant was represented by his present counsel. Extensive particulars were thereafter provided. Supplementary discovery in June 2003 armed the appellant and his advisers with the accounting records and remittance advices that are now said to “nail the fraud”.

29 The further amended statement of claim filed on 27 December 2002 contains the allegations and particulars upon which the appellant went to trial. One must infer that, from December 2002 onwards, the appellant and his legal and financial advisers in the proceedings considered themselves to be in a position to establish to the requisite degree the serious allegations maintained in the pleading.

30 According to the audited accounts, the operating profit of the Osmal Group for the year ended 30 June 1992 was $1,404,000; for the year ended 30 June 1993 it was $1,449,000 and for the year ended 30 June 1994 it was $841,000. The last figure was rounded up to $850,000 in the document presented by John Malouf as the basis for negotiations in February 1995. The respondents have always maintained that the audited figure is genuine and that there was no suppression of sales in 1994, even though there was obviously a significant dip below the sales figures of the previous two years. The appellant has always maintained that the 1994 figures were understated by “not less than $200,000”, being the figure estimated by his expert, Mr Banks in a March 2002 report.

31 There was I infer an order that the trial proceed on affidavit evidence.

32 The appellant’s solicitors filed affidavits sworn by the appellant on 26 November 2001 and 17 May 2002 and an affidavit sworn by Mr Banks on 1 August 2002.

33 Mr Banks’ affidavit annexed several valuations and reports dated October 1994. It also annexed a supplementary valuation report from Mr Banks dated 27 March 2002 which contained the following:

5.1.7 We also note from the “Receipts” schedule of Osmal Products Pty Ltd for the year ended 30 June 1995 that the cash received from debtors in July 1994 is $843,166, which is significantly higher than the debtors balance as at 30 June 1994 of $515,689. It would appear to us that the sales have been suppressed for the year ended 30 June 1994. For the purposes of this report, we have assumed that the sales and operating profit for the financial year ended 30 June 1994 have been suppressed by not less than $200,000.

“suppressed”

34 The respondents must have been informed that these affidavits represented the totality of the evidence in chief. Four affidavits were filed on their behalf in the period June – August 2003. Two were sworn by John Malouf in one of which there was a sworn denial of fraud.

35 A third affidavit was sworn by Ralph Goodman, chartered accountant, the person responsible for the accounting records of the Osmal Group from 1984 onwards. Mr Goodman had audited the 1994 and 1995 accounts, he knew of the allegations of fraud and of suppressed sales, and he deposed that he was aware of nothing suggesting grounds to support the appellant’s allegations (Blue 147-8). In relation to Mr Banks’ supplementary report of 27 March 2002 he pointed out that:

… the majority of Products’ customers pay 14 days or less after being invoiced and in respect of the year ended 30 June 1994 the trade debtors’ turnover averaged 17 days.

36 The fourth significant item of evidence filed for the respondents was the expert report of Mr Lonergan dated 26 August 2003. Mr Lonergan addressed several topics in detail including:

•

37 Mr Lonergan had been briefed with copies of Mr Banks’ affidavit and the primary and secondary accounting records of Products for the critical period (Blue 224-5). He expressed reasoned opinions as to the accuracy of the alleged representation as to the operating profit (Blue 230) and in rebuttal of Mr Banks’ opinion that there was evidence that sales had been suppressed for the year ended 30 June 1994 (Blue 31-3).

38 Between 5 June 2003 and 9 December 2003 Registrar Berecry ordered the appellant on no less than five occasions to file and serve his lay and expert statements in reply. The appellant failed to comply on each occasion.

39 The appellant’s barrister, Mr Bates, informed the Court that the reason why no further report was produced from Mr Banks prior to the trial was that hard evidence to “nail down” the fraud could not be located during 2003-2004 (CA Tr p6). The appellant does not suggest that discovery was deficient, and he and his advisers could also have issued subpoenas to gather documents from third parties. They were working for many months on the theory that the fraudulent suppression was connected with certain Coles Myer documents, but this hypothesis was abandoned shortly before the trial date (9 August 2004).

40 In an affidavit read on the voir dire in this Court, the appellant states that he discovered the evidence he was seeking two or three days before the trial. He showed Mr Banks a document referred to as an aide-memoire together with a bundle of documents from items 67 and 68 of the discovered documents. According to the appellant, Mr Banks told him: “I can see instances of suppressed sales” (Orange 81).

41 I shall examine this evidence and consider its relevance later in these reasons. For the moment I record that the appellant through his counsel accepts that, apart from the portion of Mr Banks’ March 2002 report set out above, no evidence to support the allegation of fraud in relation to 1994 operating profit was filed prior to the commencement of the trial. This, despite discovery, the directions referred to above and the firm joinder of issue in the evidence from the two experts intended to be called in the defence case.

42 It is convenient to return to the pre-trial narrative.

43 By 6 February 2004 the appellant and his lawyers had failed on five occasions to comply with directions to file and serve evidence in reply. I infer that they never indicated to the respondents that no such evidence would be filed or relied upon.

44 On 10 February 2004 the proceedings were, on the respondents’ application, listed for hearing to commence on Monday 9 August 2004. It was ordered that the appellant could serve no further evidence without leave of the trial judge. The hearing date was confirmed on 10 March 2004.

45 Nicholas J conducted a pre-trial review on 7 June 2004. The appellant’s solicitor, Mr B Dennis, said that Mr Banks had told him that he had drafted his final report but wanted the solicitor to clarify some factual issues. Mr Dennis hoped that the report could be finalised during “the next week or so”. Counsel for the respondents protested. His Honour stood the matter over to 16 June, informing the solicitor that he was on notice, given the history of the matter, that the onus would be fairly and squarely on him to demonstrate the basis for any new material.

46 By 16 June 2004 Mr Banks’ report was still not available. He had gone to Italy and, not surprisingly, the appellant’s then counsel, Mr C K Stewart, was not in a position to make any promises. Mr Stewart stated his belief that the anticipated Banks’ report would go some way to refuting the material in the Lonergan report “on the crucial issue of June, July 1994 sales receipts”. Nicholas J indicated that, if any application were to be made to file further evidence, it ought to be done formally by motion supported by affidavit. The matter was stood over to 29 July for further directions.

47 On 29 July the appellant was represented by different counsel, Mr D Quinn, who indicated that he may no longer be instructed by his client, who was sick. He was not in a position to consent to any directions. Counsel for the respondents again protested vigorously. The matter was stood over for further directions on 2 August 2004.

48 On 2 August 2004 Mr Dennis informed Nicholas J that he was no longer instructed and was granted leave to cease acting. Neither then nor later was any indication given to the Court as to why he and the barristers withdrew. One is left to speculate, but in a context where the record is silent as to financial reasons.

49 Mr J Stephenson, junior counsel for the respondents informed his Honour that, apart from housekeeping matters relating to tender bundles and notice of objections to evidence, “we think it is ready to go”. The appellant (by then representing himself) agreed, indicating his belief that he could meet the timetable for the housekeeping matters. Nicholas J explained what was required and confirmed that the matter was fixed for hearing the following week. The appellant said that he understood this and stated:

I have prepared a draft report. I am working on the other things as best I can, about 17 hours a day.

50 The appellant told his Honour that he had done “my own report” in the form of a transaction by transaction audit that reconciled the relevant financial information for July 1994. He said that he was under the impression that he could swear that in an affidavit “as my own work”. His Honour correctly observed on this topic:

I am not here to advise you.

51 Counsel for the defence reminded the judge about the earlier direction that any application to adduce further evidence had to be made formally. There was the following exchange between the appellant and the judge (Tr 02/08/04 p6):

MALOUF:

I would foreshadow an application because I do recall in May we received a letter from Mr Macdonald’s firm saying that unfortunately they felt that certain documentation had been destroyed which we have been continually seeking and seeking for a very long time, but however, it seemed to me then if I did a transaction by transaction audit of the assumptions that seem to have been made by Mr Lonergan in his report that the individual assumptions would either be validated or invalidated by a transaction by transaction analysis. So that’s what I have spent my time on. I foreshadow I would like to ask the Court in my own affidavit to put it up, bearing in mind ---

HIS HONOUR: Mr Malouf, Mr Stephenson draws my attention to directions that have been made about getting the evidence on and apparently precluding you from putting that evidence on unless leave has been granted to do so. Now what you will need to consider, firstly, is whether the matters to which you have referred attract the application of those directions, so you will need the Court’s leave to put it on because it hasn’t been put on much earlier.

MALOUF: I feel it is likely but not certain.

HIS HONOUR: You better look at that pretty hard and fast because we are running out of time. It comes back to one is not going to be vacating this hearing date simply on the basis you are not ready or you are having difficulty getting evidence in an admissible form.

MALOUF: You Honour, I believe I have the evidence in admissible form. I am ready. I am happy for the hearing date and I look forward to it.

52 A little later, Mr Stephenson expressed concern about the further report, indicating that the respondents maintained their objection to it.

53

The following ensued:

MALOUF: Your Honour, I have done the transaction by transaction work that apparently hasn’t been done by either expert. It took a long time and a great deal of effort, but however, I would very much like to have my transaction by transaction audit considered because it is entirely relevant in terms of the subject. If necessary, I could, I suppose, sit here in Court, I have notes of every transaction involved for the month of July and I could, I suppose, point to each transaction and read it through. But however, I have tried to prepare it into a report that’s partly typed, at this stage partly handwritten. It would be of similar length, I feel, to Mr Lonergan’s report which contained 100 points. It does tend to refute a lot of assumptions.

HIS HONOUR: We will have to deal with it as it comes. In order for this matter to proceed in any realistic way you should provide to your opponents such expert material.

MALOUF: By Wednesday 9am?

HIS HONOUR: Yes, certainly, but if you can do it earlier you should. Bear in mind that it may well fall within the direction to which Mr Stephenson has referred that you may not be permitted to rely upon it unless you get the leave of the Court that you should. One of the reasons that they may choose to run against you on that is that it has been so late in coming that they are unable to deal with it. I am not running that argument now, but what I want to say to you is it is very much in your interests ---

MALOUF: --- I would like to mention Mr Banks was away for six weeks, which I presume is his annual holidays, in Italy. As I mentioned to Bruce Dennis, I didn’t believe it was within my power to try to call him back; I would have thought he was silly if he came. I went to KPMG, we got a letter, provided it to Mr Macdonald here. He was away for six weeks. It is my bad luck, I guess.

HIS HONOUR: Mr Malouf, you have got to decide what evidence you wish to bring, in the usual way the other side will consider it. If they object to it, they object to it; if they don’t, they won’t. I have to deal with that and rule upon it as the occasion arises.

MALOUF: I’ll get some advice.

HIS HONOUR: I think it would assist you enormously if you did.

54 Mr Stephenson again stated that the defendants maintained their objection in relation to additional material. His Honour told the appellant that he was not making any rulings about evidence at that stage, but that:

The Court will deal with such evidence as you put forward as it comes. If there is any objection taken to it, then there will have to be a ruling one way or the other about it.

55 I have set out what happened on this occasion at some length. In this Court, Mr Bates submitted that these passages contain the clearest indication by the appellant of what he was proposing to do at the trial. The correctness of that submission may be assumed. I would however add that the judge made it crystal clear that he was not ruling upon the foreshadowed evidence. It is equally clear that the appellant disclosed nothing more than his own assertion that something useful would emerge from his transaction by transaction analysis.

56 The “Wednesday [4 August] 9am” deadline, promised by the appellant, came and went.

57 The trial commenced on Monday 9 August 2004. The appellant arrived two hours late and, as it soon emerged, without all of the documents he wanted to present his case.

58 The appellant presented for the first time an affidavit that he had sworn that day and that contained, he said, “accounting arithmetical calculations I have made of Osmal’s 1994 transactions” (Black 4). He obtained leave to file the affidavit in court.

59 The judge invited the appellant to open his case and explained what would later happen in relation to the admission of evidence.

60 It is significant that the appellant at no stage then or later sought an adjournment. Indeed, he agreed with the trial judge that the time had come for the matter to be finally resolved one way or the other (Black 10).

61 The appellant identified the affidavits upon which he intended to rely. They included Mr Banks’ affidavit of 1 August 2002 and the appellant’s freshly filed affidavit. These were said to be the evidence upon which the appellant wished to rely in his case (Black 12).

62 Senior counsel for the respondents at trial, Mr Finch SC, proceeded to take various objections. These had previously been notified, except for the objections to the affidavit of 9 August 2004. Nicholas J ruled upon the objections, explaining what he was doing as he progressed. He then turned to the affidavit of 9 August 2004.

63 The respondents had been given a handwritten copy over the weekend. It was objected to in its entirety on a number of grounds (Black 13ff).

64 Paragraphs 10 to the end of the affidavit were rejected because they contained irrelevant, embarrassing and scandalous material and there is no complaint as to this ruling.

65 The presently material paragraphs are 1-9, stating:

1. Annexed hereto and marked with the letters AA is my report based on a transaction by transaction analysis of the Osmal Products July 1994 Sales banking and transactions.

2. In the report of Mr Wayne Lonergan, he notes that he has not attempted to audit or reconcile the Osmal July 1994 documents which were provided by subpoena.

3. It seemed crucial that this be done as any opinion rendered on this matter is likely nugatory in the absence of a transactional audit in order for the experts to consider closely.

4. I crave the indulgence of the Supreme Court in order to lodge my affidavit in as close accordance as is humanly possible with this consent order made on Monday.

5. A copy of those orders made by Mr Justice Nicholas and amended by me in accordance with his changes is attached here to as annexure “A”.

6. I have made all efforts possible in order to try to achieve compliance with the orders.

7. I started work at 3am on Tuesday 3rd August on my draft report on the sales transactions and banking of Osmal Products Pty Ltd for the period of July 1994 -

8. The report considers the expert report of Mr Wayne Lonergan which was lodged with the court.

9. My then solicitor, Mr Bruce Dennis always envisaged that a reply would need to be made to Mr Lonergan’s report as in the best interests of justice and fairness. He could not and should not be permitted to have the finality of this matter without right of response.

66 Annexure “AA” consists of copies of Products’ Aged Trial Balance as at 30 June 1994 (three pages), typewritten schedules prepared by the appellant giving details of invoices of various dates in April, June and July 1994 together with “date[s] of advice” and “payment terms” referable to each invoice (21 pages) and a barely legible copy of a Products’ business record referable to a major customer, Lowes – Manhatten (19 pages). The annexure was compiled by the appellant and is not explained beyond what appears in the first nine paragraphs of the affidavit itself.

67 Objection was taken to the late arrival of the document in light of the pre-trial directions and the history of broken promises made on the appellant’s behalf by his former legal advisers. Objection was also based upon (Black 14):

[the] bizarre and jumbled reference in the first three paragraphs to some report which is said to be Annexure AA. If your Honour looks at annexure AA, it is simply an unexplained and frankly inexplicable list of transactions, not prepared by anybody said to be an expert, not accompanied by any commentary that makes any sense, proffered half way through the first day of the hearing. For those reasons we say the affidavit should be rejected in its entirety.

68 The luncheon adjournment intervened. Upon resumption, the appellant was invited to reply to the objections. He gave a brief, non-informative response (Black 16).

69 Nicholas J rejected the affidavit in its entirety, stating:

In relation to the affidavit of the plaintiff sworn 9 August 2004, Mr Finch of Senior Counsel objects to it in its entirety. I uphold his objection.

In my view the affidavit is of such a nature as to attract the Court’s power pursuant to Pt 38 r8 in that where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit the Court may order that the matter be struck out. It seems to me that when one reads each paragraph, a fair description of its contents is that some of the paragraphs raise matters which I consider to be oppressive, some of the paragraphs raise matters which are quite frankly plainly irrelevant, and some of the paragraphs raise matters which can be fairly recognised as scandalous.

Furthermore, with regard to s135 of the

Evidence Act

, I refuse to admit the contents of the affidavit. With regard to the pleaded issues in these proceedings, in my opinion the affidavit contains matter of no probative value whatsoever. To the extent that there is any matter of probative value in the document which may be discerned, it seems to me it is outweighed by the danger that the evidence would be unfairly prejudicial to the defendant, would be misleading or confusing and almost certainly cause or result in an undue waste of time. In all of the circumstances, in the exercise of my discretion, I reject the affidavit.

Grounds 7 and 10: Wrongful rejection of evidence and denial of procedural fairness in rejection of affidavit

70 It is convenient to address the grounds of appeal challenging this ruling and contending that there was want of procedural fairness and/or miscarriage because the judge failed to understand the case that the appellant was advancing through this affidavit and/or failed to give appropriate assistance to a self-represented litigant.

71 The arguments were mainly developed by counsel in his written and oral submissions on the appeal. We were referred to Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85, 166 ALR 129.

72 These submissions are entirely unpersuasive. The appellant had legal representation until a week before the trial. He also informed Nicholas J that he had been receiving legal assistance from Professor Phillip Bates shortly before the trial. Indeed he arrived at court half a day late on 9 August 2004 without many of the key documents, explaining that these were in the Document Exchange en route to him from Professor Bates (Black 7). There was no suggestion that Mr Banks ever ceased acting for him. Indeed, evidence recently filed in this Court shows that the appellant and Mr Banks were conferring during the week prior to the trial.

73 Nicholas J went to great pains to ensure that the appellant knew what was happening at the trial. He explained the procedure being adopted and outlined the steps to be taken.

74 This was as sorry a history of procedural default as one could ever expect to encounter. After all, this was an extremely stale allegation of fraud that related to transactions involving third parties that were said to have escaped the notice of those responsible for the audited accounts. The primary documents now said to “nail down” the fraud had been in the hands of the appellant and his team of lawyers and accountants from mid 2003.

75 I accept the proposition that a cunning fraud may be cunningly concealed. But this cannot be used to reverse the onus of proof or to excuse the repeated procedural defaults of the present case.

76 In this Court, Mr Bates endeavoured to show the suppression of sales with the aid of a report from Mr Banks prepared in December 2005 that was tendered as evidence on the appeal (see below). What emerged most clearly was that the explanation proffered in this Court depended to a degree upon records, evidence, “instructions” and inferences relating to the primary material proffered in the annexures to the appellant’s affidavit of 9 August 2004. Equally clearly, there was nothing in that affidavit or in any explanation given to the trial judge that came remotely close to the submissions advanced in this Court.

77 The affidavit of 9 August 2004 was properly rejected on evidentiary grounds. I agree with the trial judge’s reasons. It is also noted that the appellant did not profess any expertise referable to whatever was represented in his last minute aide memoire. The affidavit also made no attempt to show that John Malouf was in some way privy to the suppression of sales and the false accounting records.

78 The appellant had had ample warning that any such evidence would have to be justified in its lateness and also comply with the rules of evidence.

79 Furthermore, and independently of its evidentiary deficiencies, the affidavit was properly rejected because it would have been grossly unfair to the respondents to allow this material to be thrown into the ring on the first day of the long-awaited trial. The directions of Master Berecry had been designed to achieve a fair and efficient trial, yet they had been repeatedly ignored without explanation or justification (see generally State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 492-3, Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 552). The affidavit presents as responsive to the report of Mr Lonergan. In truth, it was an attempt to plug a yawning hole in the case in chief which up to that stage had nothing more than Mr Banks’ thin, unsubstantiated opinion in his 2002 report. The appellant recognised this when he proffered the new affidavit in his case in chief, but in reality that affidavit signalled an attempt to prove fraud on a novel basis.

80 Even if the appellant had, on 9 August 2004, placed before Nicholas J all of the additional evidence, information and submissions proffered to this Court by Mr Bates, the case remains one in which fraud is sought to be inferred from ambiguous materials demanding exposition by expert witnesses. Many avenues of inquiry would have been opened up which, in fairness to the respondents, would have necessitated taking detailed instructions, issuing subpoenas to third parties such as customers, and briefing the respondent’s witnesses and experts on the new case. It would have been grossly unfair to have forced the respondents to meet such a case on 9 August 2004, even had it been properly offered that day.

81 The appellant cited Queensland v J L Holdings (1997) 189 CLR 146 , but the case is clearly distinguishable. It involved an application to amend a defence by adding an arguable ground that was likely to result in the deferral of a trial fixed to commence six months ahead. It was held that there were no sufficient grounds to justify refusal of the application to amend. The primary judge’s decision, in J L Holdings, to refuse leave to amend was found to be vitiated for allowing considerations of case management to prevail over the justice of determinating the issues between the parties. Here, by contrast, no amendment was sought, no adjournment was sought, and the late affidavit was properly rejected both on evidentiary grounds and because it would have been a positive injustice to the respondents to have forced them to choose between meeting it on the run or themselves seeking the adjournment of the long-awaited fraud trial.

The trial continues

82 Having had his affidavit rejected by Nicholas J, the appellant then sought to tender some of its annexures (Black 18). He foreshadowed that other documents might be added, but said he was unable to produce them at that stage because “I can’t retrieve the documents that Professor Bates put in the DX”. The judge offered advice that led the appellant to agree that it would be preferable to defer tendering further material until the bundle was completed and put in order (Black 19).

83 The appellant was then cross-examined on his earlier affidavits, particularly on the issues of representation, reliance and loss. The cross-examination occupied the balance of 9 August, the whole of 10 and 11 August and a fair portion of the morning of 12 August 2004.

84 The cross-examiner elicited that the negotiations between the brothers on 16 February 1995 proceeded on the basis that the operating profit of the company could be taken at $850,000, this being a (rounded up) figure that accorded with the accounts (Black 222). The reasons why the brothers settled on a price-earning ratio of six when the possible range was between 2½ and 14 were also explored (Black 224-226).

85 At one stage on 11 August 2004 Mr Finch SC put to the appellant that he knew that Mr Banks had performed no analysis of the company books to see if they were false. The appellant agreed, adding “recently I have” (Black 261).

86 The cross-examination was incomplete when Mr Banks was interposed at 12.25pm on Thursday 12 August 2004 (Black 317). After the witness was sworn and identified as the author of the reports annexed to his affidavit of 1 August 2002 there was the following exchange (Black 318-320):

HIS HONOUR: Now Mr Malouf, do you have any questions for Mr Banks?

PLAINTIFF: Thank you, only a couple. There are subsequent documents that I have provided to Mr Banks and I would have asked him had he looked at these and considered them.

HIS HONOUR: Well, Mr Malouf, Mr Banks has a report. You have tendered that report and this is the evidence, as I understand it, from Mr Banks that you wish to rely upon.

PLAINTIFF: Yes, your Honour.

HIS HONOUR: Is there anything further that you want to take Mr Banks to in chief in his evidence before he is questioned about the contents of his report? The report speaks for itself. You don’t have to read it to us, we have it here and we can read it.

PLAINTIFF: Yes, your Honour. I gave him and provided to Phillips Fox certain sheets of paper which were calculations and arithmetic relating to the 1994 financial year, last month to June 1994 July bankings for Osmal and I was wondering if you have had a look at those.

OBJECTION.

HIS HONOUR: An objection is taken to you asking that question. Before I rule on it, I am not altogether clear on what your question is. What is it you are asking Mr Banks?

PLAINTIFF: In the plainest English I can manage, I tried to do a transaction-by-transaction analysis of a particular month, the closing month of 1994 accounts for Osmal. I had provided that on sheets of paper to Mr Banks. I have provided copies of it.

HIS HONOUR: It won’t be appropriate, absent consent of the other side and query even so, to have Mr Banks comment upon calculations that you may have done. Mr Banks’ report is now before us and that will contain his evidence-in-chief for you. I disallow that question, I reject that question.

PLAINTIFF: I don’t understand then, if I would like to ask Mr Banks about those documents, I don’t understand how I then proceed. I don’t try to read them into evidence. I am a bit confused now.

HIS HONOUR: I am unable, I am afraid, to advise you. My simple question to you is, do you have anything further to ask Mr Banks?

PLAINTIFF: Ah – I did have some other questions here but if anything in respect of those calculations, just so I can understand, is disallowed, the questions related to those and what do they mean in terms of his previous report.

HIS HONOUR: It seems to be all bound up together.

PLAINTIFF: It seems to me it is so.

HIS HONOUR: I have rejected your first question. You can make a judgment as to whether your other questions will be covered by that rule.

PLAINTIFF: Seems to me they will.

HIS HONOUR: Have you got any questions on any other different topic you would like to ask Mr Banks about?

PLAINTIFF: In respect to his calculations it would be considerable but with those calculations I made, am I able to read them into evidence? They were handed up separate to my affidavit.

HIS HONOUR: We are dealing with Mr Banks’ evidence, not your evidence, you understand? If you have further material to put before the court after Mr Banks has finished his evidence, then we can consider that.

PLAINTIFF: I see. I was under the impression that these tables were handed up to the court already an annexure to my affidavit of 2 August or I could easily be confused.

FINCH: They were part of the affidavit that has been rejected.

PLAINTIFF: Rejected. I understand. In that case, I think all of those, having been rejected, I can’t read them into evidence then, even if I had to.

HIS HONOUR: We are [now] dealing with Mr Banks. That may be a matter for you. I will ask you, in due course, whether you wish to put any further evidence before the court but it does not seem to me, from what you have said that anything you have referred to will be admissible through Mr Banks. Do you follow?

PLAINTIFF: I think so, your Honour.

HIS HONOUR: So you will have a chance to deal with any outstanding matters after Mr Banks has given his evidence.

PLAINTIFF: I see. But Mr Banks then wouldn’t have a chance to be called back to deal with what I have done.

HIS HONOUR: That may be so. I won’t say anything more about it.

PLAINTIFF: I understand. It seems to me we should ask Mr Banks about his affidavit and I should sit down.

Grounds 11-13: Denial of procedural fairness and miscarriage in conduct of trial

87 In this Court, Mr Bates was critical of the stance adopted by Mr Finch SC and the trial judge in this passage (Grounds 11-13). He submitted that the refusal to allow the appellant to supplement the evidence at this stage in the trial resulted in miscarriage.

88 The criticisms are misplaced and the fraud case on suppressed sales was doomed to fail for want of evidence.

89 Mr Finch was perfectly entitled to remind the judge that the annexures to the affidavit of 9 August 2004 had been rejected along with the affidavit itself. No one needed reminding that it was open to the appellant to tender the primary records obtained on discovery if they were relevant. Leave to do so had previously been reserved (Black 19; see par [82] above). The judge pointed this out towards the end of the passage quoted.

90 It was also correct for the judge to have remarked that no part of the appellant’s affidavit would be “admissible through Mr Banks” (Black 320). Part of the annexure was the appellant’s own compilation. The balance were copies of primary documents produced on discovery.

91 Mr Banks was then cross-examined. Understandably, senior counsel endeavoured to confine his questions to the reports annexed to Mr Banks’ affidavit of 1 August 2002 and the assumptions upon which those reports were based. Mr Banks was taken to his statement in par 5.1.7 of his supplementary valuation report dated 27 March 2002 (set out above). He explained the assumptions and thought processes that led him to his view (Black 345). There was the following evidence (Black 345-346):

Q. Then you have said, “For the purposes of this report we have assumed the sales and operating profit have been suppressed by not less than 200,000?

A. That’s true but it isn’t the only thing that I did and that was sort of shorthand of what it was. I did look at the close margins and see how the margins did change and for the year in question they were lower than the previous year. The following year was higher again. Other factors were there that made it look like there had been a difference.

Q. I will come back to this exercise in a moment but of course every sale has a cost, doesn’t it?

A. Not when you suppress sales. That’s Mr Lonergan’s mistake in his report. When you suppress a sale you only suppress the income. You don’t suppress the expense.

Q. Doesn’t it depend on how you suppress it?

A. No. A suppressed sales is normally – I’ve seen one actual example in a remittance advice from one of the people they sold to. There is an example there that I’ve seen. All you do with it is your invoice date is after the end of the financial year. You’ve delivered the goods, you’ve had the costs of the goods into your current financial year, you invoice date after it and so that all you are missing out on in your profit and loss account is the credit, having got the expense into that year. So it is only a one side transaction.

Q. Can I suggest to you that the mere comparison of the cash received in July ’94 with the level of debtors as at June ’94, the previous month, and saying the difference between them is significant doesn’t necessarily indicate that there has been any suppressed sales of course?

A. No. I’d agree with that.

Q. There could have been a lot more sales in July?

A. There could have been.

Q. And you know, don’t you, from your looking at the books, that the derived average terms of trade in this business were about 15 to 17 days?

A. No. I don’t believe that’s true. That’s been a calculation made by Mr Lonergan based on looking at the two 30th Junes and that is not a proper way forensically to look at the debtors term. When you get to one particular date in a year and you say that’s going to be one date in there to take into account ---

Q. You have done no such exercise in your report, have you?

A. No but you can do those sorts of things mentally. But the term based on those figures does look to be about twice a month – what is it, 22 times a year – based on those figures. But the end of the year balances – I mean, in your practice as lawyers, I mean, usually the end of the year balance is very small because you’ve suppressed your sales going into the next year.

Q. Quite the contrary, I assure you, and no doubt his Honour will remember much the same experience, Mr Banks. What I’m putting to you though is this: You would acknowledge though that the mere comparison of the level of debtors at the end of the month and the cash received the next month doesn’t tell you anything about whether there has been any suppression or not?

A. It can only provide indicators. It doesn’t actually [prove] anything.

Q. And you know that terms of trade of this business traditionally show that July and August are the busiest sales months?

A. Yes.

92 This was the end of Mr Banks’ cross-examination.

93 The example of a suppressed sale seen by Mr Banks “in a remittance advice from one of the people they sold to” was not otherwise identified at the trial. This part of Mr Banks’ evidence was an unresponsive answer to the cross-examiner’s question. Nor was there any attempt to tender any documents that Mr Banks may have taken into account or had been adverting to in this vaguely expressed piece of evidence. The cross-examiner chose to leave his confrontation of the witness in the broad terms set out in the passage quoted and there the matter was allowed to rest.

94 It was not incumbent on the trial judge to advise the appellant how he might deal with this situation. Not only was the oral evidence rather vague, but his Honour would have been entitled to proceed on the basis that each party for his own reasons may have decided to leave matters as they were. The restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented.

95 The judge explained the role of re-examination to the appellant, who elected not to re-examine Mr Banks.

96 The appellant was then asked whether there was further evidence that he wished to lead in support of his case. He indicated that he wished to tender the “arithmetical calculations” he had prepared that had been part of the annexure to his rejected affidavit. There was the following exchange (Black 347):

HIS HONOUR: I have already ruled on them Mr Malouf.

PLAINTIFF: I’ve got no idea what I’m doing. I would, if I were able, but it seems I’m not able to tender these.

HIS HONOUR: If I have already ruled on them then the answer is I’ve ruled on them.

PLAINTIFF: And they’re not admissible even as a written annexure?

HIS HONOUR: If I have rejected them you are bound by my ruling. So is there anything additional to the evidence that is now already before us that you wish to put before us?

97 I do not accept Mr Bates’ submission that this passage discloses any error or occasioned any miscarriage. The appellant’s summary proved nothing by itself and needed the support of the primary records to which it referred, plus additional records, plus expert testimony to get to first base in establishing the allegation of fraud.

98 The appellant’s counsel also submitted that the evidence proffered at trial from the appellant personally and from Mr Banks was similar in effect to that embodied in Mr Banks’ report of 25 November 2005 tendered in the appeal (see below). But this is not so. Nothing remotely approaching the recent Banks’ report/affidavit was proffered to the trial judge.

99 Mr Banks swore in his affidavit of 5 December 2005 that the opinions expressed in his report of 30 November 2005 are ones that he would have expressed in evidence on 12 August 2004 if he had been “permitted” to answer questions about the appellant’s aide memoire and the exhibited bundle of documents. However, no questions in proper form were put to Mr Banks at trial about the aide memoire. Nor was there any attempt at the trial to take Mr Banks to any primary document such as the Best & Less remittance advice.

100 The appellant’s repeated breach of pre-trial directions and his inability to produce evidence in proper form cannot be used to support the claim of procedural unfairness. The trial judge gave ample opportunity for the appellant to present his case in accordance with the rules of evidence and the dictates of fairness to the other side. As I observed in Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 at 219[37]:

The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. A party’s failure to make proper use of that opportunity is not the concern of this branch of the law:

Allesch v Maunz

(2000) 203 CLR 172 at 185[38] (Kirby J),

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah

[(2001) 206 CLR 57 at 86[99]] (Gaudron J).

101 Nothing that happened as the trial had developed gave any reason for thinking the appellant’s aide memoire had become admissible.

102 The appellant’s case then closed and the case for the defendants commenced (Black 348).

103 Mr Finch read the affidavits of John Malouf dated 30 June 2003 and 21 August 2003, tendering the bundle of documents exhibited to them. He also read the affidavits of Mr Goodman and Mr Lonergan.

104 The appellant then proceeded to cross-examine his brother (Black 356ff). At one stage he commenced to cross-examine on July 1994 receipts. These do not appear to have been in evidence at that stage and the appellant was granted some leeway given that he had trouble finding particular documents and he did not have multiple copies of them (Black 370ff). There were questions about Products’ normal trading terms in 1994. John Malouf said that he believed they were seven to fourteen days (Black 376). Some questions were asked about the trading terms of David Jones and Lowes (Black 377-380). Unsurprisingly, John Malouf had difficulty remembering the situation 10 years previously (Black 379).

105 These questions reveal the appellant endeavouring to establish a case relating to suppression of sales at the relevant period. This confirms that issue was joined, to a degree, although the appellant did not get any significant concessions or adduce much in the nature of primary material with which to build the type of case sought to be presented in this Court.

106 Mr Goodman and then Mr Lonergan were also cross-examined. Mr Lonergan adhered to his opinion that there was no foundation for Mr Banks’ view that there had been a suppression of sales of $200,000. He conceded that he had not done a transactional audit, but explained his reasoning (Black 406):

What I did was obtain the auditor’s work papers where they had traced this thing through. It is conventional to trace payments in the month of July to the amounts owing at the end of July to test the veracity of that figure. They had in fact performed that analysis, so that in substance two different people had looked at it. They had looked at it and were happy with it. I had looked at it and was happy with it.

107 When the case for the defendants closed the judge explained to the appellant what would be involved by way of evidence in reply (Black 420).

108 The appellant made fleeting reference to his transactional analysis. Nicholas J ruled that he would not permit this material to be introduced at that stage. He said (Black 420):

If it was to have been a matter for evidence there was ample opportunity in accordance with the directions given as to the pre-trial conduct of this case to have put such material on to enable, amongst other things, the defendants to be able to deal with it.

Closing submissions and judgment below

109 The appellant made brief, generalised oral submissions. From time to time he was prompted by the judge to address on particular points. He was invited to put in a written submission covering any further matters and he promised to do so within seven days (Black 430).

110 Senior counsel for the respondents then spoke to his written submissions. He dealt with the allegation of suppression of sales briefly and firmly (Black 441).

111 Despite his promise and despite further directions granting generous extensions, the appellant did not file his submissions until 17 December 2004. Further submissions were filed on 31 January and 1 February 2005.

112 Judgment was delivered on 3 February 2005.

113 The background facts were recited. His Honour reminded himself that the plaintiff had to establish each element of the cause of action to his satisfaction, in accordance with the principles stated in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 and Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.

114 The first two allegations of fraud were rejected for of lack of serious evidence to support them or to contradict the evidence of Mr Lonergan (J48-55).

115 The third allegation, ie that John Malouf falsely represented the 1995 net profit to be nil or near to nil and fraudulently understated it, was rejected on the basis of preferring John Malouf’s sworn denial of the relevant conversation (J56-69). John Malouf had not been cross-examined on his denial. On the other hand, the appellant was cross-examined extensively. Nicholas J had the firm impression that the appellant’s evidence should not be accepted or relied upon unless independently corroborated or consistent with the accepted evidence (J69). There was no documentary support except for a post-it note that had its own problems (see J68).

116 The fraud claim was also rejected because the appellant did not establish to the satisfaction of the judge that he relied upon the representation alleged (J72-85).

117 The proceedings were dismissed with an order for indemnity costs.

Remaining issues on appeal

118 I have already rejected several of the grounds of appeal.

119 The remaining grounds were divided into two groups some of which were addressed by counsel, the balance being retained by the appellant personally. I explain below the impropriety of this procedure.

Grounds

Ground 1: Failure to take account of written submissions

120 Nicholas J recorded that the court received written submissions from the appellant on 17 December 2004, 31 January 2005 and 1 February 2005. His Honour stated that these had been taken into account in preparing the reasons for judgment (J12).

121 This notwithstanding, the appellant submits that the judge failed to take account of his spreadsheet (aide-memoir), ie the transactional summary forming part of the annexure to his affidavit of 9 August 2004.

122 The submission is baseless because the aide-memoir was (a) not in evidence, (b) meaningless without explanation and (c) not referred to in the written submissions.

Ground 2: Factual error at J32

123 The trial judge found at J32 that there was a meeting between the brothers on 9 February 1995 at which factors relevant to the valuation of the shares were discussed. He also found that the appellant accepted the accuracy of John Malouf’s note of the discussion (Ex 2, p375: Blue 1115). In this ground of appeal the appellant disputes this finding “if the substance of the accuracy of the note includes the words … ‘which he might reduce to $1,8000,000’[sic]”. The submission is meaningless both standing alone and when compared with the note itself and the peripheral findings derived from it.

Ground 3: Wrongful rejection of evidence from Marrickville Council

124 The appellant complains that documents from the Council (Orange AB vol 3) would have established a sudden capital expenditure within 12 months after John Malouf represented that there would be nil or near to nil profit. This representation was not established because John Malouf’s testimony was preferred to that of the appellant (see J56-69).

125 Furthermore, these documents were never tendered at trial, although the appellant knew of the redevelopment from as early as June 1996 and an exchange with the judge (Black 347) shows that the appellant was contemplating tendering the evidence at trial. An improper attempt to tender Council documents attached to written submissions sent to the judge on 17 December 2004 was properly objected to and was implicitly upheld.

126 This explains why the documents are not referred to in the judgment. In any event, they have no probative weight. Most of the purchase price of the new premises was borrowed.

127 This is one of several submissions that indicates strongly that counsel was not prepared to argue the grounds run separately by the appellant.

Grounds 4, 5, 13 and 15: Error in rejecting first and second allegations of appellant

128 This was a topic where the appellant and his counsel trespassed on each other’s area.

129 The first and second allegations related to the falsity of the representation touching the 1994 operating profit of $850,000. The allegations were rejected (J48-55) on grounds that included the appellant’s failure to adduce any evidence to show that the accounts were false and/or that sales effected before 30 June 1994 were knowingly suppressed.

130 The appellant and his counsel contend that there was evidence to support the allegations and that the judge ought to have accepted and preferred the evidence of Mr Banks on the matter.

131 The “evidence” in Mr Banks’ supplementary report of 27 March 2002 consisted of little more than assertion based on instructions that the witness was unable to support under cross-examination. It was correctly rejected as next to worthless by the trial judge (see J51-52, 54). Mr Banks’ passing reference in oral evidence to having seen “one actual example” of a supposed sale in a remittance advice unidentified at trial (Black 345, in the passage set out at par 91 above) does perhaps offer a scintilla of evidence, but the failure of the trial judge to refer to it is inconsequential given its minimal weight. The appellant’s real complaint is directed to the failure to accept the material he proffered on the first day of the trial that was correctly rejected.

132 These grounds also fail to grapple with the judge’s acceptance of Mr Lonergan (J53) and John Malouf (J66). The submissions advance nothing to indicate that his Honour misused his advantage or otherwise erred in assessing the material before him.

133 The trial judge did not misuse his advantage of having seen the witnesses at trial. The fact-finding was sound on the central allegations of fraud. Any other conclusion would have been perverse, given the weight of evidence supporting the defendants. When he came to award indemnity costs, Nicholas J reiterated his finding that the allegation concerning the $850,000 was “entirely baseless”. In my view, this conclusion was entirely justified.

Ground 14: Application to receive further evidence on appeal

134 The appellant tendered four affidavits prepared for the appeal: affidavits of the appellant sworn 5 December 2005, 22 January 2006 and 5 February 2006, and an affidavit by Mr Banks sworn 5 December 2005. The portions that were read were received on the voir dire, without cross-examination.

135 The appellant’s affidavits identify the substantive evidence now sought to be relied upon and seek to explain why it was not tendered at trial. The business records of Products that are sought to be tendered in this Court include those annexed to the appellant’s rejected affidavit of 9 August 2004 and some additional documents that were also available from discovery but were not tendered at trial. Also included is the appellant’s “aide-memoir” or transactional analysis.

136 The recent affidavits also seek to explain what the appellant was proposing or endeavouring to do at trial. In this sense, they are marginally relevant to the grounds relating to want of procedural fairness, miscarriage through failure to give adequate information to a self-represented litigant and wrongful rejection of evidence at trial. However, this part of the further evidence adds little to the trial transcript, beyond identifying the significant gap between what the appellant told Nicholas J and what he now seeks to prove in the Court of Appeal with the benefit of Mr Banks’ recent report and Mr Bates’ advocacy.

137 The main intended function of the recent affidavits is to demonstrate special grounds for this Court to receive the further evidence of Mr Banks in the report dated 25 November 2005 that is annexed to his affidavit sworn on 5 December 2005.

138 Mr Banks’ 2005 report goes significantly further than his 2002 report in that it finds or infers evidence of suppressed sales in the business records of Products at the critical period and proffers reasons for the expert’s inferred conclusions. The report identifies the primary source material taken into account and some of that material is identified. Some (but not all) of that material was part of the rejected affidavit of 9 August 2004.

139 Much is sought to be made of a remittance advice from Best & Less Retail to Products dated 1/07/94. The document lists seven pages of invoices from Products, identifying them by date (although the column heading is “account no.”), invoice number, invoice amount, discount, and amount paid (representing the difference between the discounted amount and the invoice amount). The range of dates span 27/06/94 to 4/07/94 with all but six of the invoices having an “06” date. The sequence of invoice numbers does not always correspond with sequence of dates.

140 Mr Banks in his report states that this was the remittance advice to which he made passing reference in his cross-examination at trial. He could not contemplate an explanation for invoices and a credit note dated beyond a remittance advice date other than suppressed sales.

141 This evidence was untested and may therefore be accepted at its highest in support of the purpose for which it is tendered in this Court, ie reception pursuant to s75A(8) of the Supreme Court Act as the basis of a new trial being ordered.

142 In my view, the remittance advice is by no means compelling enough to warrant a new trial. It is the unexplained record of Products’ customer, Best & Less. It may conceivably have been completed after its stated date (1/07/94). There is a credit entry for $100 with an “account no.” of 4/07/94 that to my mind suggests a query in relation to the true date of the remittance advice. The remittance advice does not serve as a clear pointer to dishonest conduct to which John Malouf was privy. The dates in the first column may be those when the entries were posted by Best & Less. The invoices in question have not been produced either from the records of Best & Less nor from Products. None of the invoiced sums in the six invoice numbers having an “account no.” after 30/06/94 is other than a small amount, with nothing to distinguish it from the majority of items dated on or before 30/06/94.

143 The second major piece of evidence relied upon by Mr Banks in his latest report is a remittance advice from Lowes-Manhattan dated 29 June 1994 that calculates its payment sum as $187,536.12 ($192,330.55 less discount of $4,794.43). This sum was banked on 1 July 1994, according to Products’ records.

144 Mr Banks attempted to trace the amount paid by Lowes-Manhattan to the aged debtors trial balance of Products as at 30 June 2004. The sum banked roughly corresponds with that aged trial balance, which is broken up into “current”, “1 month”, “2 month” and “3 months”. Mr Banks sees an indication of irregularity in the fact that:

14. The Lowes-Manhattan gross amount of $192,330.55 exceeds the total amount owing at 30 June 1994 of $175,443.20. The amounts owing by Lowes-Manhattan include amounts owing for March ($2,520.25), April ($8,742.00), May ($51,508.80) and June 1994 ($112,672.15). It is unusual that a debtor would pay more than owing particularly when the same debtor has substantial outstanding balances from earlier months.

145 I do not find this evidence compelling. It does not exclude the possibility of several innocent explanations. Much turns upon the conditions of payment in 1994. Unsurprisingly, there was little in the way of evidence on this topic.

146 Copies of the discovered documents were sent to Mr Banks in July 2003. The report of 30 November 2005 is a thin outcome of well over 2 years’ access to the records coupled with awareness, according to the appellant and his expert, that the fraud had at last been “nailed down”. Once again, one is left to speculate as to the primary documents touching this transaction that have not been produced even at this late stage.

147 The high point of the new material was extremely difficult to comprehend merely from reading the relevant portion of Mr Banks’ recent report (pars [17]-[20]). Mr Banks examined some of the auditor’s working papers for the following year, ended 30 June 1995. He perceived that the “treatment of Lowes is not consistent” (in some undisclosed way). This confirmed “that EDI Debtors (Lowes) was not recorded as a part of the aged debtors but brought to account separately at 30 June 1995”. Mr Banks considered “treatment of EDI debtors demonstrates that either $192,330.5[5] relating to Lowes-Manhattan or at least the $234,069.25 disclosed as EDI was not brought to account as sales at 30 June 1994 and should have been.”

148 These statements might be clear proof of fraud to a trained accountant. It is not clear to me, and to that extent the proffered evidence is unhelpful. It does not overcome the significant threshold which the appellant must pass at this stage in the proceedings. Expert testimony needs to be explicable in its own right. A good report will show on its face the reasoning that leads to the conclusion propounded. A report that depends, as this one did, upon the advocacy of a barrister to explain its thrust may be admissible, but is certainly uncompelling. When Mr Bates endeavoured to explicate the report, it became even more apparent that “nailing the fraud” turned upon equivocal inferences and, in part, on “instructions” about matters not otherwise proven.

149 Mr Bates placed considerable reliance upon a handwritten entry on a ledger relating to Lowes that stated:

EDI.

$134,069.21

Disc

4,794.43

$129,274.82

JUNE BANKED

26/8/94

150 This was said to prove that money related to June 1994 was banked in August 1994. The sum is also said to be additional to the abovmentioned sum of $187,536.12 recorded as having been banked on 1 July 1994.

151 Mr Bates said that he was instructed that the note was in the first respondent’s handwriting. He pointed to no evidence proving this. This is yet another indication of the incompleteness of the material even at this stage of the proceedings. A similar comment can be made in relation to counsel’s submission that “EDI” means “electronic data insert” and that it is a pointer to “some form of additional account of books somewhere which has been brought into account for the following financial year as revenue” (CA Tr p66).

152 The transcript of argument in this Court is testimony to the range of issues left hanging in the air by the incomplete and equivocal material touching Lowes-Manhattan now said to be the overwhelming proof of John Malouf’s fraud (see Tr pp59-70). The information may possibly bear out Mr Banks’ conclusions, but it raises as many questions as it (tentatively) answers. In no way does the recent report “nail down” the fraud. It is a very unsatisfactory product from a forensic accountant who has had more than ample time to produce evidence said to be vital to the outcome of the case.

153 Nor does the evidence persuade me that it is in the interests of justice to permit its reception in the appeal, leading inevitably to a new trial to explore the relevance and cogency of this material. As this Court struggled to understand the meaning, relevance and cogency of Mr Banks’ recent report Bryson JA aptly remarked (CA Tr P61):

The object of making directions requiring information be exchanged in advance is to give people opportunity to address questions like that and find out, give evidence in explanation, if there is any. The possibilities that the answer is adverse to the defendant are only one of the many possibilities that would be tested if the directions for preparing for hearing were complied with.

154 The appellant’s counsel did not suggest that Products’ customers were privy to the creation of false records designed to cheat the appellant, or the taxation authorities for that matter. Nor did he offer a compelling reason why John Malouf would have been party to false records being created in July 1994 for the purpose of cheating his brother given the incipient state of negotiations taking place at that point of time.

155 The respondents oppose the admission of this further evidence. They accept that a new trial would be inevitable were it to be admitted. I have already adverted to the range of issues that could be thrown up if a new trial were to proceed from this type of material (see par [80]).

156 Special grounds have not been established for the reception of this evidence (cf Supreme Court Act, s75A(8)). Indeed, it would be unjust to order a new trial based upon it. The allegation of fraud was in the pleading from December 2002 onwards. The only “evidence” tendered on the suppressed sales issue prior to the start of the trial was the paragraph in Mr Banks’ supplementary valuation report of 27 March 2002 that did not get beyond assertion based upon instructions. Against it was the evidence from the respondents’ witness, Mr Lonergan, who had been the auditor of the company for many years. John Malouf had also sworn denying the allegations of fraud and misrepresentation (Blue 133).

157 The appellant and his advisers recognised the difficulties in the months advancing up to the trial. This Court was informed that they were originally pursuing the Coles Myer theory for proving the pleaded fraud allegation, but that this was abandoned by the time the appellant became self-represented. The trial judge was bound to disregard the material in the rejected affidavit of 9 August 2004. The suggestion that a single non-responsive answer from Mr Banks in cross-examination could overcome the yawning gap in the appellant’s case is itself entirely baseless.

158 The inferences of fraud that the expert belatedly seeks to draw proceed from equivocal starting points and/or are, in part, unexplained in the contestable manner required by Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. But more to the point, there is inadequate justification for the failure to produce even this equivocal material at trial. As indicated previously, it is based upon primary records that were in the hands of the appellant and his advisers, including Mr Banks himself, for over 12 months before the trial. According to the recent affidavits, the significance of the material was actually perceived before the trial commenced. Yet, if in truth Mr Banks was in a position to give the evidence in August 2004, why was no attempt then made for him to offer a report at that time? Why was no application made to adjourn the trial?

159 If, as I conclude, it would have been an intolerable injustice for the appellant to have been permitted in August 2004 to have gone to trial on the basis of the aide memoir, then it is all the more intolerable to contemplate ordering a new trial to test the same theory even allowing for the fact that the appellant has belatedly proffered some expert support for this new theory.

160 There has been no attempt to gather the invoices or remittance advices or to check the theories and inferences against the records of Product’s customers.

161 Counsel sought to meet the problem of the relative weakness of the new evidence by pointing out that the appellant had put his toe in the door with his ineffectual attempt to present the aide memoir and its annexures on 9 August 2004. I do not think that it is possible to bridge the gap this way. If anything, the fact that the appellant and Mr Banks claim to have nailed down the fraud before the trial only adds to the injustice of permitting them to tender the further evidence on appeal.

Ground 6: Error in not preferring appellant’s evidence and finding him to be an unreliable witness

162 The appellant asserts error in this regard in his written submissions, but offers no arguments in support.

Grounds 8 and 9: Trial judge harassed appellant by cutting off lines of cross-examination and failing to allow appellant to complete his questioning of Mr Banks

163 I have read the passages referred to in the appellant’s written submissions. They reveal nothing more than a judge giving appropriate rulings rejecting particular improper questions. The passages also show the lengths to which his Honour went to explain the process of the trial.

Represented parties as advocates

164 In an affidavit filed in this Court the appellant stated:

I have retained two barristers, Mr P W Bates and Mr CKS Stewart on a ‘direct’ basis with regard to some aspects of my appeal only. Mr Bates and Mr Stewart do not act for me generally in my appeal, for which I remain self-represented….

On 30 November 2005 Mr Bates settled an Amended Notice of Appeal at my request, which he served that day on the respondents’ solicitors, Messrs Phillips Fox. Mr Bates added new grounds of appeal Nos 10-14. Mr Bates informed me that they are the only grounds of appeal for which he takes professional responsibility. Grounds 1-9 remain in the Amended Notice of Appeal at my request as a self-represented appellant, however, Mr Bates takes no responsibility as a barrister for those grounds of appeal.

165 When the appeal was called on for hearing, Mr Bates announced his appearance for the appellant in relation to Grounds 10-17 in the amended notice of appeal and that he proposed to address first. The appellant said that he would follow in relation to the remaining grounds. Written submissions had previously been filed in two parts, along the same lines. This arrangement had been signalled at an earlier directions hearing before Handley JA.

166 Asked to state his attitude, counsel for the respondents said that it was a matter for the Court whether it should permit this course. In the upshot, the Court reluctantly permitted the appellant to follow Mr Bates and address on “his” grounds of appeal. He spoke briefly. Although he at times strayed from his grounds of appeal it was generally into irrelevancy rather than into the space reserved to his counsel.

167 As it turned out, there was no merit in the grounds retained by the appellant personally. (This should not be read as implying anything either way about the tenability of the grounds argued by counsel.) I infer that counsel formed the view that he could not responsibly support the remaining grounds, and that the appellant elected to press them himself.

168 What procedure should a court adopt at the start of a hearing when confronted with an application of this nature, before it has formed any view as to the tenability of the grounds reserved for argument by the litigant in person?

169 The following observations explain the practice I propose to adopt if confronted in the future with a similar situation, unless persuaded that the litigant has a right to address in the particular circumstances.

170 A litigant is entitled to be self-represented or to retain one or more practising lawyers to act as his or her advocate(s). But the litigant has no entitlement to address or otherwise conduct the case at a time when represented before the Court. This prohibition cannot be circumvented by the device of dismissing the lawyer whose services are no longer required part way through the hearing. A choice must be made at the outset.

171 Splintered advocacy has the tendency of much mischief.

172 Proceedings are likely to be prolonged unnecessarily through overlapping.

173 The device would enable the litigant to propound untenable or scandalous submissions that would not be advanced if the matter remained in the hands of lawyers who may have greater cause to fear disciplinary or costs sanctions than the lay client. This may of course happen if the litigant is wholly unrepresented, but that is the consequence of the right of the self-represented to appear. It does not suggest a reason why the Court should countenance what I would term a right of dual or splintered advocacy.

174 A Court may permit departure from this stringency, just as it may, in its discretion, allow a “friend” who is not a lawyer to address (see generally Damjanovic v Maley (2002) 55 NSWLR 149). The discretion would usually be exercised favourably if impecuniosity or accident left the litigant without representation on a particular occasion.

175 A court may also permit a lawyer to address on a point of law, as amicus curiae. The lawyer who assists in this way has no entitlement to charge a fee, nor has the client any right to recover the lawyer’s costs in the event that an order is made in his or her favour (see Blackwood Foodland Pty Ltd v Milne [1971] SASR 403 at 411).

176 The law understands the concept of a limited retainer. But no authority of which I am aware recognises the right of splintered advocacy at a single hearing. A judge may take the view, especially with a client whose means or English or capacity to speak in public is limited, that half-a-loaf is better than no bread and that assistance from a lawyer as amicus or even from a “Mackenzie friend” may be better than none. But the question at issue is whether the litigant has the right to top-up such assistance by speaking either before or after the advocate (or interrupting the advocate mid stream). In my view there is no such right.

177 Nineteenth century authorities reveal a consistent practice rejecting such entitlement in civil proceedings and identifying the mischiefs in permitting a litigant to conduct a hearing in this manner. See Shuttleworth v Nicholson (1833) 1 Moo & Rob 254; 174 ER 87; Moscati v Lawson (1835) 7 Car & P 32; 173 ER 14 (Alderson B: “If a gentleman at the bar appears, he ought to take the command. In criminal cases, perhaps, it may be different.”); Newton v Ricketts (1848) 2 Ph 624; 41 ER 1084; R v Maybury (1865) LT 566; Parkinson v Hanbury (1867) 2 LRHL 1; Longworth or Yelverton v Yelverton (1867) 1 LR Sc & Div 218.

178 When a lawyer, usually a barrister, accepts responsibility to conduct a case, he or she assumes duties to the court, including duties aimed at the efficient administration of justice (see generally New South Wales Bar Association Rules). These include the obligation to seek to ensure that the case is confined to identified issues that are genuinely in dispute. There are also duties to the court and to the opposing side that may be triggered by matters arising during the course of the hearing. The capacity to perform these duties would be compromised by the practice now under consideration. Where “a litigant is not suing in person (a risk to which any defendant is, of necessity, subject to in the interests of justice) his agent should be a duly-qualified [lawyer] who accepts a professional responsibility for the initiation and conduct of the litigation on the plaintiff’s behalf and is subject to the disciplinary powers of the Court” (Hubbard Association of Scientologists International v Anderson and Just (No 2) [1972] VR 577 at 580 per Adam J (for the Court, Adam, Little and Gowans JJ).

179 The matters I have addressed are limited to those arising out of an attempt to split the public advocacy role (including by written as well as oral submissions). There is a wider discussion about the concept of “unbundling” legal services, in which a lawyer is retained to assist in the preparation of process or submissions that the client presents to the court as his or her own (see, eg Alberta Law Reform Institute, Alberta Rules of Court Project, Self Represented Litigants Consultation Memorandum No 12.18 (March 2005) at [104]-[111]; Hugh Macken, “Unbundling Legal Services: Step-in, step-out litigation” (2003) NSW Law Society Journal 48). Unbundling raises legal, ethical and prudential issues for the lawyer and other issues for the court, but they can be left for another day.

Grounds 16 and 17 and Notice of Contention: Reliance and proof of loss

180 The parties joined issue in relation to Nicholas J’s rejection of the appellant’s case on the additional ground of failure to prove reliance upon the alleged misrepresentation (J82-85) and on a contention point raised by the respondent as to proof of loss. It is unnecessary to address these points.

Disposition

181 The appeal should be dismissed with costs.

182 McCOLL JA: I agree with Mason P.

183 BRYSON JA: Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers, or to retain none. Nor should Courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the Court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent’s obligation to comply with the Court's directions as less than important, or as superfluous. Procedural directions in this case, including Registrar Berecry's five directions to the appellant to file and serve his statements, were made so as to give reality to the opportunity to know in advance of trial the case which the respondents were to meet. The appellant alleged fraud, sued six years after the event and went to trial more than three years after that. There was nothing onerous in directing him to reveal his evidence in chief in advance of trial. There are advantages in not complying with such directions, as one's opponent could prepare to meet the evidence if it were disclosed: if advantages are achievable by non-compliance, non-compliance is likely to occur.

184 My concern is that Nicholas J may have been more forbearing with the appellant and may have given him more procedural indulgences than was fair to the respondents. However it is enough to dispose of the issues in the appeal to say that I agree with Mason P.

**********

Citations

Malouf v Malouf [2006] NSWCA 83

Most Recent Citation

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104

Tsekouras v Evangelinidis S291/2001 [2002] HCATrans 653

Tsekouras v Evangelinidis [2002] HCATrans 543

Eastman v Besanko [2010] ACTCA 15

Cases Cited

13

Statutory Material Cited

1

Damjanovic v Maley [2002] NSWCA 230

Warwick George Malouf v John George Malouf [2005] NSWSC 9

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CITATION:	MALOUF v MALOUF [2006] NSWCA 83
HEARING DATE(S):	13 February 2006
JUDGMENT DATE:	21 April 2006
JUDGMENT OF:	Mason P at 1; McColl JA at 182; Bryson JA at 183
DECISION:	Appeal dismissed with costs
CATCHWORDS:	PRACTICE – Unrepresented litigants – Procedural fairness – Duties of trial judges – Judges to ensure litigant understands what is happening at the trial – No duty to advise litigant how to conduct case. - PRACTICE – Directions – Pre-trial directions as to filing of process and affidavits – Mandatory nature of. - EVIDENCE – Experts – Reports – Must be inherently explicable. - APPEAL AND NEW TRIAL – Whether fresh evidence on appeal justifying new trial – Supreme Court Act 1970, s 75A. - LEGAL PRACTITIONERS – “Unbundling” of legal services – Partition of advocacy between lawyer and client – Whether represented litigant may appear as advocate. (D)
LEGISLATION CITED:	Supreme Court Act 1970, s 75A
CASES CITED:	Akins v Abigroup Ltd (1998) 43 NSWLR 539 Blackwood Foodland Pty Ltd v Milne [1971] SASR 403 Briginshaw v Briginshaw (1938) 60 CLR 336 Damjanovic v Maley (2002) 55 NSWLR 149 Hubbard Association of Sociologists International v Anderson and Just (No 2) [1972] VR 577 Longworth v Yelverton (1867) 1 LR Sc & Div 218 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85, 166 ALR 129 Moscati v Lawson (1835) 7 Car & P 32; 173 ER 14 Newton v Ricketts (1848) 2 Ph 624; 41 ER 1084 Parkinson v Hanbury (1867) 2 LRHL 1 Queensland v J L Holdings (1997) 189 CLR 146 R v Maybury (1865) LT 566 Shuttleworth v Nicholson (1883) 1 Moo & Rob 254; 174 ER 87 State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 Warwick George Malouf v John George Malouf & Anor [2005] NSWSC 9 Watson v Foxman (1995) 49 NSWLR 315
PARTIES:	Warwick George MALOUF v John George MALOUF
FILE NUMBER(S):	CA 40102/2005
COUNSEL:	Appellant: P Bates/ Appellant Respondent: R Newlinds SC/ J Stephenson
SOLICITORS:	Appellant: None Respondent: Phillips Fox Lawyers
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 1477/2001
LOWER COURT JUDICIAL OFFICER:	Nicholas J