Tabtill Pty Ltd as Trustee for the John Creswick Family Trust & Ors v Creswick

[2012] HCATrans 62

[2012] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B3 of 2012

B e t w e e n -

TABTILL PTY LTD AS TRUSTEE FOR THE JOHN CRESWICK FAMILY TRUST

First Applicant

JOHN FRANCIS CRESWICK

Second Applicant

WILLIAM GERARD CRESWICK

Third Applicant

SHAYNE MARISE CRESWICK

Fourth Applicant

JANE VERONICA CRESWICK

Fifth Applicant

TABTILL PTY LTD ACN 010 408 545

Sixth Applicant

TABTILL NO 2 PTY LTD ACN 098 424 741

Seventh Applicant

TABTILL NO 3 PTY LTD ACN 106 070 848

Eighth Applicant

TABTILL NO 4 PTY LTD ACN 106 071 096

Ninth Applicant

T2 PROJECTS PTY LTD ACN 109 792 707

Tenth Applicant

and

FELIX ANTONIO CRESWICK

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MARCH 2012, AT 3.09 PM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR A.L. TOKLEY and MS C.C. HEYWORTH-SMITH, for the applicants.  (instructed by Thomsons Lawyers)

MR W. SOFRONOFF, QC:   May it please the Court, I appear for the respondent.  (instructed by Hopgood Ganim Lawyers)

GUMMOW J:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, this is, however one might describe it, ultimately a visitation case.  We put it in different ways at the conclusion of our written submissions but the reality of it is that it is a case where we submit that the way in which the Court of Appeal went about dealing with the findings of the primary judge both as to credibility and as to fact was something that is not permitted to an immediate appellate court.  Your Honours, the case involves two principal aspects, the forgery case and the setting aside of the May 2007 settlement agreement.  May I deal with them in that order. 

The respondent contended that a signature purporting to be his had been forged on a number of documents over a period of 16 years.  You will see that referred to by the primary judge at page 53, paragraphs [112] to [113].  A difficulty in that regard, your Honours, was that his evidence to that effect was not believed nor, I would say immediately, was our evidence believed.  Both principal parties, father and son, their evidence was not relevantly believed.  But in the circumstances, the evidence on the issue of forgery, as one might expect, came from a number of sources. 

First, there was evidence from two handwriting experts.  It is referred to at page 54.  May I take your Honours to that, paragraphs [118] to [121].  What your Honours will see is that each side called a document examiner and the result of the contentions was that they, in the end, differed on whether one could draw the inference that the disputed signatures were written by the son, my client.  The judge was unable to decide between them on that issue.  You will see that, your Honours, at page 84, paragraph [248].  Your Honours will see in that paragraph that the judge recited what the evidence was, the areas of agreement and then he went on to say in the last sentence that:

Mr Marheine, an equally eminent expert, declined to subscribe to Mr Heath’s opinion in this regard –

that opinion being that we have forged it –

and gave cogent reasons for so doing.

That was criticised a little by the Court of Appeal.  I will come back to that in a moment, if I may.  That was one class of evidence, your Honours, and the judge had not made a finding on that issue.  The second type, as one might expect, was the evidence of persons who had been witnesses to the disputed signatures.  Your Honours, the trial judge went through their evidence in considerable detail and perhaps, hardly surprisingly, he accepted, as your Honours will see at page 85, paragraph [251], that he accepted the evidence of a number of bank officers and other independent witnesses to the effect that they had required the person whose signature they were witnessing to sign in front of them.  Your Honours, if one looks at the last sentence of paragraph [251], it says:

My assessment of the evidence of these witnesses does not allow me to reach that conclusion.

The relevant conclusion being one halfway through the paragraph that they were either tricked or so lax, et cetera.  Your Honours, that is expressed in the negative but, we would submit, what else does it mean but that the judge was accepting their evidence.  Your Honours, could I just say this.  If one goes to the evidence of four of those people, and may I take your Honours very briefly to them, the judge made fairly clear what he was saying.  You will see first of all Mr Porteous, page 58 in paragraphs [123] through to [127], and the judge’s conclusion was expressed at paragraph [127] where he said:

My assessment is that Mr Porteous was a credible witness who withstood significant challenge under cross‑examination.

The challenge was all to his evidence that he had observed this.

BELL J:   Was not the difficulty, though, that of the large number of witnesses giving evidence about the circumstances in which these various documents were executed, his Honour accepted all save one as credit worthy witnesses?  Plainly they could not all be accurate and reliable if one accepted, as both sides did, that one person had executed all the documents?

MR JACKSON:   There are two things I would say in relation to that, your Honour, if I may.  Could I just deal with the second first.  That is, it was clear that one person executed the documents.  We said he had a number of different signatures, this was one of them.  So far as the first of those is concerned, it is not really correct that the judge said the same thing about every one.  He spoke about the honesty of many of them, but could I say two things about it.  The first is that in respect of the people falling within paragraph [251], he went a little further, which is what I want to come to now.  He said they were truthful witnesses.  In respect of others, what he said was that they were honest but if one looks – and we have dealt with this in our written submissions – if one looks at the evidence of the witnesses upon whom the Court of Appeal relied, one sees that the judge did not have an especially benign view of the actual evidence that they gave as distinct from the fact that he thought they were giving it honestly. 

I was going to say, your Honours, I just referred to one passage, at paragraph [127] and Mr Porteous.  There is a second passage, your Honours, which is at page 80 in paragraphs [230] and [231].  This relates to a document of 24 July 2007.  You will see here, your Honours, at the opening part of that paragraph there is an attack on the signature on that document, but that happened to be one of the ones that Mr Porteous, whom the judge regarded as a very sound witness, had himself witnessed.  You will see then, if one goes to paragraph [231], he says:

I am not prepared to reject Mr Porteous’ evidence in the way submitted by Felix’s counsel.

Your Honours, one does have to read that, with respect, with paragraph [230] and it is plain that he is accepting his evidence and he saw him sign – that he was present when he signed it.  Mr Zeller at page 63, paragraph [145], he said:

Mr Zeller was a completely independent person who withstood serious challenges to his professional integrity.  My assessment is that he gave truthful evidence.

Then, your Honours, if one goes to Mr Kurbatoff, page 64, paragraph [153]:

My assessment of Mr Kurbatoff is that he gave truthful evidence.

Finally, your Honours, Mr McGee, page 67, paragraph [169]:

Mr McGee was, in my assessment, a truthful witness. 

The judge is speaking there about witnesses being truthful, not just saying that they are honest or believable.  What he is saying is that, in his opinion, they gave truthful evidence.  Your Honours, I have selected only those four, but it seems, we would submit, with respect, perfectly apparent from what the judge said at the conclusion of his review of the evidence and also what he said in this summary at paragraph [251] that he was accepting their evidence, their evidence being to the effect that they would not witness documents unless the person signed them.

BELL J:   Were there not some witnesses who said, of documents purportedly signed by Felix, that that witness had never seen Felix and yet the document had been signed in front of him or her?  I think that was in broad terms the effect of the evidence of at least one or more witnesses.

MR JACKSON:   Your Honour, I would accept that.

BELL J:   So the difficulty that the Court of Appeal did embark upon dealing with was, if one accepts that a witness is truthful who says, “I witnessed” or “I was a witness to this document.  I have never met Felix”, that has a different quality to it to evidence of a person who says, “I do not believe I would have witnessed a document without Felix being present”.  That, as I broadly understand it, was reasoning influential in the approach that the Court of Appeal took.

MR JACKSON:   Yes, your Honour.  Without going to them one by one, we would say, if your Honour were to look at page 254 and 255 in paragraph 22, we have set out very shortly comment about the evidence of the witnesses, those witnesses, as far as it goes.  But could I seek to make this point, your Honour, that the question of what weight should be given to them and how their evidence should be accepted, not accepted, was quintessentially, of course, a matter for the primary judge.  This is where one sees him dealing at paragraphs [248] through to [253] with the question of what result should be arrived at. 

GUMMOW J:   Where did the trial judge deal with the Stephens witness point?  It is dealt with in the Court of Appeal at paragraph [40] on 191.

MR JACKSON:   Page 69, your Honour?

GUMMOW J:   Stephens gave evidence she never witnessed a signature, she never met him, et cetera.  Where did the primary judge deal with that problem, as it were?

MR JACKSON:   Your Honour, her evidence is dealt with in a passage that commenced at paragraph [175] on page 68.  What your Honours will see is that in [175]:

She said that she did not know Felix; she had seen him but never met him.

Then, your Honour, you will see that in the paragraph at the top of page 69:

She said in evidence in chief that she and John met on the Sovereign Waters development –

and so on.  She “identified John’s signature” in paragraph [176], but then paragraph [177] your Honours:

Under cross-examination by John’s counsel, however, Mrs Stephens retreated from her degree of certainty as to which contract it was that had been signed when she met John at the Sovereign Waters estate.

Your Honours will see that goes on through the remainder of that paragraph, including, particularly, the last sentence.  Then, your Honours, paragraph [178]:

Otherwise, Mrs Stephens really had no great recollection ‑ ‑ ‑

BELL J:   I thought the Court of Appeal dealt in terms with the retreat from 100 per cent confidence about the particular contract to explain that that did not undercut the significance of her evidence.

MR JACKSON:   Well, your Honour, what ‑ ‑ ‑

GUMMOW J:   Paragraph [42].

MR JACKSON:   Yes, your Honour.  But could I just say, however, that if one goes back to paragraph [178] of the primary judge’s reasons at page 69, that does appear to be the judge expressing a view about the impression he gained of her and of the reliability of her evidence.  Your Honours will see in paragraph [180] the way in which he expressed his view.  He said she:

Was a credible witness who sought to tell the truth.

She sought to tell the truth, but it did not follow that her evidence had to be accepted.  Your Honours, that is clear enough if one is looking at paragraph [178].  Your Honours, the Court of Appeal at page 191, paragraph [35] took the view that the judge had to give – and this is the third line on the page:

That required specific findings as to which evidence was accepted, and the reasons why, not general findings –

et cetera.  Your Honours, could we just say this, the first is this, that your Honours will see that paragraph preceded by a reference to Neat Holdings.  The inference which one sees in the opening words of paragraph [35] at page 191 is not, in our submission, justified by the passages quoted from Neat Holdings.  What Neat Holdings says, and your Honours will see this from the last sentence of the passage quoted, is that:

Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.

Of course, one would say, but does not necessarily follow, what is said in paragraph [35].  What is said in paragraph [35] does not necessarily follow.  Your Honours, this was a case where, simply, you had an allegation by a person that the person’s signature had been forged.  The Court of Appeal’s approach appears very heavily based on what is in paragraphs [32] and [33] at page 190 where the Court of Appeal seems to be saying that you had cross‑allegations of fraud and forgery, but the reality of the case was that you had allegations by Felix that his signature had been forged and to deny that claim is not itself to allege fraudulent conduct so that every case of forgery would become one in which there was an equal burden on either side.  It was not the case, your Honours, of a choice between competing and mutually inconsistent allegations of fraudulent conduct. 

Your Honours, the second point we would make about paragraph [35] is that the findings in relation to some of the witnesses went beyond saying they had given their evidence honestly.  I have been to some passages where they have dealt with giving truthful evidence, but the second point, your Honours, is this.  I mention the evidence of Mr McGee and two other witnesses, in particular, none of those people was referred to by the Court of Appeal.  They were obviously people whose evidence the judge appeared to have accepted.  Why was not their evidence referred to by the Court of Appeal?  It is just not there.

You can see in paragraph [39] at page 191 that there are references to other people whose evidence supported our case relevantly, but there is no reference set out there to the evidence of Mr McGee or Mr Kurbatoff or to the evidence of the other one, whose name eludes me for just a moment, Mr Zeller.  The three of them, who were quite independent people, are not referred to at all.  So, your Honours, if one is saying the Court of Appeal did a good job in looking at all the evidence on this issue, the answer is, with great respect, they did not, because these were important witnesses whose evidence was just put to one side.  

Your Honours, if I could go then to dealing with the experts.  Your Honours, the Court of Appeal then said that the judge was required to decide as between the experts, required to decide.  You will see that paragraph [49] on page 193.  Your Honours, what the court there said in relation to those two witnesses was that the – they went on to say that Heath’s evidence was clear and compelling, it ought to have been preferred.  It supported the conclusion that John forged the disputed signatures.  They did not see these witnesses.  The only basis upon which there is any suggestion that there was some difference between them, a difference the judge did not find, was that – it appears in the third line on page 194:

Whilst Marheine was asked to put those instructions to one side, his initial reliance on those instructions could not but subconsciously affect his conclusion.

Your Honours, if one goes back to what was said by the primary judge at page 55 in paragraphs [120] and [121], what you will see, particularly in

paragraph [121], is that the question of reliance on instructions is referred to at paragraph [120].  Then Marheine accepted that that had been a mistake.  Then one goes on through paragraph [121], the mistake having been rectified, and you see a long discussion of the oral evidence that was given by both.  For the Court of Appeal to say his evidence, in effect, looks better, or whatever precisely they said about it, just is something, in our submission – and the conclusion was one they could not – were entitled to ‑ ‑ ‑

GUMMOW J:   What do you say, Mr Jackson, with respect to the witnesses, Zeller, Kurbatoff and McGee?  What do you say about the point made by Mr Sofronoff in paragraph 14?

MR JACKSON:   Your Honour, I think it is right to say what is in the first sentence there, that they did not have a memory of – one should read that as being particular occasions, but if you were to go to the summary of the evidence of Mr Porteous, he knew him well and had had many documents that were signed before him.  Your Honours will see that at page 58, paragraph [123].  He had known them, he had met them both in the late 1990s and that prior to 2005 he had dealings with them and so on.  He knew them perfectly well.  Similarly, your Honours, with the other witnesses, the other three witnesses to whom I refer.  Your Honour, I see the time that has elapsed and I have not done the second part of it, but, your Honours, we would have to rely on our written submissions in that regard.

GUMMOW J:   We do not need to call on you, Mr Sofronoff.

The applicant seeks to bring this matter before the High Court as a visitation case with respect to both the forgery issue and the May 2007 agreement issue.  However, we are not satisfied the applicant has sufficient prospects of success in demonstrating that the Queensland Court of Appeal misapplied principle in its treatment of the fact finding by the trial judge to warrant a grant of special.  Special leave is refused with costs.

The Court will adjourn to 10.15 am on Tuesday, 27 March 2012 in Canberra.

AT 3.32 PM THE MATTER WAS CONCLUDED