Miller v Bonyhady

[1999] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S71 of 1998

B e t w e e n -

CHARLES HAROLD MILLER

Applicant

and

ERIC BONYHADY and VERA BONYHADY

Respondents

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 1999, AT 3.23 PM

Copyright in the High Court of Australia

MR D. MILLER:   Your Honours, may it please the Court, my name is Damon Miller.

GUMMOW J:   You seek leave to appear on behalf of your father, is that the position?

MR MILLER:   Yes I do, your Honour.  I made that known previously to Registrar Carlsund that I would be asking your leave to appear on his behalf.

KIRBY J:   Well, there should be no problem about that.

GUMMOW J:   No problem about that.  You have that leave.

MR MILLER:   Yes, thank you, your Honour.

MR P. HALLEN, SC:   May it please your Honour, I appear for the respondent. (instructed by Michell Sillar)

GUMMOW J:   Yes, thank you, Mr Hallen.  Yes, Mr Miller.

MR MILLER:   Yes, your Honour, might I have just a moment to assemble some papers?

GUMMOW J:   You understand how things work here?  You have, at the maximum, 20 minutes to ‑ ‑ ‑

MR MILLER:   Yes, thank you, your Honour.

KIRBY J:   Your father is sitting beside you and he can give you some information or advice if he wants to.

MR MILLER:   That is correct, your Honour.  Yes, thank you, your Honour; anything that I say is, of course, on prior instructions from him.  If I could just have a moment.  Yes, thank you, your Honours.  The question that we say is of prime importance to the community is one that essentially revolves around the interests of justice.  Your Honours may have had a preliminary opportunity to look at the papers.  The case is essentially one that had its origin in the Supreme Court where Master Macready exercised the authority of the Supreme Court to determine a matter that arose in the Common Law Division.

GUMMOW J:   Yes.  We have read his Honour’s detailed reasons.

MR MILLER:   Yes, thank you, your Honour.  The Master made various findings, which we have submitted all along are merely Sophoclean arguments that do not have any proper rational basis by which he could draw the conclusions that he does.  Subsequently an appeal was raised to the Court of Appeal.  The twist in the matter, your Honour, is that - you may see from the papers - that trial at first instance spawned a criminal proceeding in the Downing Centre Local Court, which is at the moment part heard and subject to an interim stay because of the loss or the theft of critical exhibits in relation to the case.

Now, what we argue, your Honour, and why we say that this case should be completely reopened and that the interest of the Court should be incited into the matter, is that fresh evidence, which has come to our attention, arising from inquiries from the criminal proceeding, in our submission, causes the respondents’ case to totally collapse.  The basis of that evidence is essentially forensic evidence and evidence that we say has issued from the mouths of our opponents in litigation.

KIRBY J:   Are you seeking to tender that evidence for the first time in this Court?

MR MILLER:   Your Honour, part of that fresh evidence forms part of the supplementary book.

GUMMOW J:   No, no, the question is, you cannot bring, at the moment, fresh material here, that you did not seek to put in the Court of Appeal record.

MR MILLER:   It was certainly sought to be put in the Court of Appeal, your Honour, yes.  It was sought in the proper way by notice of motion.

GUMMOW J:   All right.

MR MILLER:   A notice of motion was tendered.  It was heard on a preliminary basis by her Honour Justice Beazley.  She saw great merit in the case before subsequently forming a different view on the day.

GUMMOW J:   Well, that can happen.

MR MILLER:   Yes, I have seen it happen, yes.

GUMMOW J:   That is why we pay attention.

KIRBY J:   It has happened today.

MR MILLER:   Yes, your Honour.  If I can canvass very briefly the details of the trial at first instance and then make a reference to the fresh evidence and then perhaps draw some conclusions as to why we submit that that evidence should, without any doubt, have been accepted in the appeal; it was certainly not available at the trial at first instance.  It is so critical that it compels ‑ ‑ ‑

KIRBY J:   Well stop telling us about how critical it is and tell us what it is, because your 20 minutes is running.

MR MILLER:   Yes.  Very briefly, exhibits were tendered in the trial at first instance, most of which, we say, has absolutely no probative value at all; no proper or probative inferences can be drawn from it.  There were two forensic document reports relating to a receipt evidencing the payment of $92,216.25.  Additionally, there was a photograph of money which we alleged was taken at the home of the person who was to properly receive that money, to discharge a mortgage that my father had entered into.

GUMMOW J:   Now, one of the points that was taken against you was that this material could have been obtained at the time of the trial.

MR MILLER:   Yes, your Honour, as I have already submitted, in our submission, the contrary applies, that we could not possibly have obtained the fresh material which we say, by reference to the original material, totally destroys the case of our opponents.  It is something that arose in the course of criminal proceedings for which we had absolutely no knowledge, from a trial at first instance, civil proceedings there would be spawned, a criminal trial that would be subsequently heard in the Downing Centre Local Curt some two years later, in which subpoenae would be issued against the respondents.  They would, in turn, produce information that we could not possibly have had any knowledge, would be in their possession.  Further, under cross-examination, they identified documents.  Those documents were then again forensically tested and, it is our submission, from that, that inescapable conclusions can be drawn to the effect that, in fact, the Master could never have made the decision that he did, if he had been in possession of that evidence.

GUMMOW J:   Now, was your father represented by counsel in the Court of Appeal?

MR MILLER:   Yes, he was at that time, your Honour, yes.

GUMMOW J:   And the Court of Appeal took the view, and said that counsel accepted it, that Mr Westwood’s affidavit would go no further than saying, in his opinion – that is Mr Westwood’s opinion – the material was possibly produced in original form using the same type or elements used to produce the letter of 10 January 1994.  It did not go any higher than that.

MR MILLER:   It is our submission, your Honour, that that could be shown by demonstration to be an erroneous conclusion, for very good reasons.  That in a preliminary report tendered by Mr Westwood, he finds that the type-faces used on the receipt that we allege to be a genuine receipt for the payment of the money, a letter identified by Mr Bonyhady, dated 10 January 1994, and material that was seized by private investigators, undertaking an investigation on our behalf, show that the type-faces were indistinguishable.  What he goes on to say, that is what we say is an erroneous conclusion, that it could have been typed on the same typewriter but, in our view, the only proper inference that can be drawn is that they were, in fact, typed on the same typewriter, because you would not get the same spacing and you would not get the same letters.

GUMMOW J:   Now, you say Mr Westwood does not come up to the mark?

MR MILLER:   No, he does not.  No, his inference is erroneous.  But, in addition to that, we rely on the words that flow from our opponent’s mouth, in respect of the identification of that document, in the Downing Centre Local Court.

GUMMOW J:   But Mr Westwood was the expert you were putting forward, was he not?

MR MILLER:   Yes, that is so, your Honour.

GUMMOW J:   It was his affidavit which leave was sought to ‑ ‑ ‑

MR MILLER:   Yes, that is so, amongst other things, your Honour, but the case does not turn entirely upon the expert evidence of Mr Westwood, but what we say, in any event, when you collate all of that evidence together, we would then put to the Court, what is the probability that where you take all of the events in their totality, you subpoena someone’s typewriters and they do not produce a particular typewriter, they identify a document, which is the same type-face as the receipt they say they did not issue, then you get the same material seized from the person to whom the receipt was alleged to have been issued by, from his home, you get a forensic document expert out of all of the thousands of typewriters that must exist in the world identifying it as the same type-face.  Am I going to be told that they were not typed on the same typewriter?  Not a doubt they were, not a doubt.  In addition to that, that document there was identified by Mr Bonyhady.  It was put to him that that was a photograph of money taken in his home.

GUMMOW J:   What is the evidence other than the expert affidavit and certain documents which, you say, should have been admitted by the New South Wales Court of Appeal, because if your affidavit by the expert is not enough, you are inviting the Court of Appeal to draw some conclusions itself, from other materials?

MR MILLER:   Yes, your Honour, in the notice of motion that was tendered that sought to adduce fresh evidence, which we say was not obtainable at the time in which the trial at first instance was conducted, there are a number of items that were innumerated in that notice of motion and in the supporting affidavit, one of which was the expert report of Paul Westwood which, as I indicated, your Honour, goes to the issue of typewriter-type faces and type starts.  There were other documents that we sought to be adduced.  One was an affidavit that was compiled by a Mr John Mark McCullum, who was a private investigator, that obtained material on investigation; another was the photograph that I am now holding, your Honour, which is a photograph of money, which was identified by our opponents in litigation themselves, as having been taken in their home whilst they were absent and, we say, that that is sure proof that, in fact, as we have alleged, the money, as alleged was paid. 

When you take that in its totality, with all of the other evidence, we say that under Briginshaw v Briginshaw any court could not obtain any other conclusion, if it is objectively looking at the evidence, other than, as alleged, the account was paid.

Now why we say that this is a matter of importance to the general community is because it has spawned a criminal trial.  Now, the injustice that will flow from that, if, in fact, there is no proper reception and consideration of this evidence, what we say is that a monumental injustice will flow.

GUMMOW J:   The criminal trial will be determined in accordance with the evidence tendered at the criminal trial by the standards that apply to the evaluation of such evidence, surely, by the tribunal of fact.

MR MILLER:   Certainly, your Honour, that is so.

GUMMOW J:   Will this trial be before a jury?

MR MILLER:   No it will not be, your Honour, it is in the Local Court before a magistrate.  But what we say further is this, your Honour, that if a court, at first instance, is going to draw conclusions that are adverse to a litigant on a certain basis, and that that basis is totally undermined in subsequent proceedings by the evidence of those who were successful in the trial at first instance, then, in my view, that is absolute grounds for the

reopening of the transaction.  I mean, you cannot have your cake and eat it too, for running the risk of using the well-worn cliche. 

You cannot win a case on the basis of having proffered certain evidence, refute your own evidence in a later trial and say, “Well, look, you should be entitled to the result.”  In our view, we have an admission of the nub of the case, which we asserted in the trial at first instance, that a photograph of money in the home of the respondents was taken.  That was denied.  When the very person that owned the home was shown a copy of the photograph, he then admitted and said, “Yes, that is a photograph taken in my home, that is the money”, and that is to be found at page 39 of the court transcripts of the lower court proceedings taken on 30 July 1997.

GUMMOW J:   Yes.

MR MILLER:   So, in our respectful submission, they constitute absolute grounds why the Court should reopen the proceedings, that fresh evidence should have been adduced in the trial at first instance and properly considered.  If one considers the case authority referrable to the matter, and one looks at Radnedge’s Case, various principles are enunciated in that case.  Firstly, there must be satisfied the situation that the evidence could not have been properly obtained, with due diligence in the trial at first instance.  We say that this information has only come to light following the prosecution of a criminal trial in which more onerous standards of proof have been applied and in which further inquiries, leading from oral evidence given by our opponents, led to the issue of subpoenae and ultimately the production of this evidence.

Further, there is a second limb to Radnedge’s Case, if I understand it correctly, that the influence on the case must be very great.  Well, we say, that admissions by our opponents that an account was paid, and their identification of the photograph proving it, is certainly so probative and so important that that should have induced the lower court to reopen the case and accept that fresh evidence.  Those are the basis of the submissions, your Honour.

GUMMOW J:   Yes, thank you, Mr Miller.  We do not need to call on you, Mr Hallen.

In this application which now involves mainly factual issues, there is no reason to doubt the application by the New South Wales Court of Appeal of well-settled principles in dismissing the appeal from the judgment of Master Macready and in refusing an application to adduce further evidence.  Accordingly, special leave is refused.  Refused, I think, with costs, it has to be, Mr Miller.

AT 3.37 PM THE MATTER WAS CONCLUDED