PARTON AND ORS v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA 21 September 1992 [1992] NSWCA 182 Handley JA In the matter of Parton v Australian and New Zealand Banking Group Ltd Mr Einstein, with Miss Clark, has applied on notice of motion for some unusual orders. The appeal is an appeal by Neville William Parton, Carol Joan Parton and Parton Enterprises Pty Ltd from orders made by Giles J in the Commercial Division in December 1991. The proceedings before Giles J arose out of foreign loan transactions between the bank and the appellants. It appears that the bank is holding security against the obligations of the appellants over a total of six properties, two of which are said to be jointly owned by Mr and Mrs Parton and the other four are owned either by the company or by Mr Parton alone. Earlier this year an application was made to a single judge of this Court for a stay of execution or some other form of interim relief pending the hearing of the appeal in order to prevent the bank from enforcing its securities over the six properties. The motion came before the President, who ordered that the appeal be expedited and in this way was able to solve the difficult question then before the court of whether or not the bank should be prevented from enforcing its securities pending the hearing of the appeal. It appears that some accommodation was then reached under which, as a result of the appeal being expedited, orders or undertakings were made which had the effect of preserving the status quo in the meantime. At that stage apparently there was also some discussion about the possibility of further evidence in the nature of fresh evidence being filed in the appeal. I am informed from the Bar table that the President then gave directions relating to the filing of such further evidence, but it now appears that the time for doing so has lapsed without the further evidence having been put on in accordance with the directions. Mr Einstein has moved, on behalf of the appellant Carol Joan Parton, for a declaration that at the time of the hearing of the proceedings in the Commercial Division she was a disabled person and not able to manage her own affairs. If this were the case, it is possible that the retainer that she had given to Mr Spicer, then acting on behalf of all plaintiffs in the proceedings, had been revoked by operation of law with as yet unknown consequences on the validity of the orders made by the trial judge against her. Mrs Parton is said to have been a disabled person at the time not only because she was incapable of managing her own affairs, but also because she was an incommunicate person within the meaning of the Mental Health Act; this being a second or alternative basis for the conclusion that she was unable to manage her own affairs, even if she then had a mental capacity to do so. 2 UNREPORTED JUDGMENTS Until very recently the three appellants, Mr and Mrs Parton and Parton Enterprises Pty Ltd, had common representation in the appeal, which is fixed for hearing before a Full Court of this Court on 29 September with a one day estimate for the hearing. It is, I think, clear that appellants in the same interest must ordinarily have common representation on an appeal and they are not entitled to sever their representation. Mr and Mrs Parton and Parton Enterprises Pty Ltd were represented by the same solicitors and counsel during the hearing of the proceedings before the Commercial Division. If there was then a conflict of interest it did not presumably appear either to the court or to the legal representatives of the bank that this was the case. It appears that within the last few days the solicitor who acted for the plaintiffs at the trial and was acting for the appellants in the appeal has ceased to act for all three appellants and Mrs Parton has obtained separate representation. It is possible that Mrs Parton may be able to be separately represented in the pending appeal if a separate notice of appeal is filed on her behalf and if it appears that there is now some conflict of interest between herself and the other appellants. I express no final view on this matter. It is clear that at the time of the trial no application was made to the Protective Division for any order in respect of Mrs Parton on the basis that she was then incapable of managing her own affairs. I enquired from Mr Einstein QC whether the Protective Division was in a position to make an order at the present time that Mrs Parton was incapable of managing her own affairs and I was informed that on his instructions and on the expert medical evidence available to his solicitors Mrs Parton is currently capable of managing her own affairs and is doing so and no basis currently exists for making any order in respect of her affairs or her estate under the Mental Health Act. The only question then is whether at a past time, primarily in respect of the period of the trial, but secondly perhaps in respect of earlier times when significant events occurred in the course of the performance of the loan contracts the subject of these proceedings, Mrs Parton was incapable of managing her own affairs and that this fact was or should have been known to her husband, her solicitors and perhaps the bank. There seems to be some doubt whether the Protective Division has any jurisdiction under the Mental Health legislation to make a declaration in regard to the affairs of a person at a past point in time when there is no suggestion that that person is currently incapable of managing her own affairs. On the basis of the evidence filed in this notice of motion, which includes an affidavit by Dr Maguire, psychiatrist, Dr Klein, Mrs Parton's general medical practitioner, Mr Tapper, a speech therapist, and others Mrs Parton claims that at the time of the trial she was incapable of managing her own affairs and was not able to instruct solicitors to act on her behalf and was not able to give evidence. If this Court were to conclude after an appropriate hearing that this was the fact then on one possible view it might be necessary to order a new trial of the proceedings, at least in relation to such of the issues as affected Mrs Parton. I am informed that she was not a principal borrower in the transaction, but her role was that of guarantor for Parton Enterprises Pty Ltd. However, even if that state of affairs is established and a new trial does become necessary in relation to Mrs Parton, it by no means follows that Parton Enterprises Pty Ltd or her husband, Neville William Parton, would thereby secure any relief from this Court or be directly advantaged by the order for a new trial in relation to Mrs Parton herself. UAARTON AND ORS v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD (Handleg JA) As at this point in time there are less than six working days between today and the hearing of the appeal. It seems to me that it is very doubtful in the extreme that any useful or final result could be obtained by an attempt to hear the motion as a matter of urgency between now and the date fixed for the hearing of the appeal on 29 September. I also doubt whether it is appropriate for a single judge of this Court to embark on such a hearing because in many ways the evidence in question is further evidence falling within PtS1 R13A of the rules of this Court and hence the issues tendered by it are appropriate for decision by a Full Court, rather than by a single judge. It may be possible for the Full Court to hear and determine the original appeal, either as regards Parton Enterprises Pty Ltd and Neville William Parton, or perhaps so far as all three appellants are concerned and then to adjourn the issues raised by the fresh evidence to a later date for separate determination after appropriate directions have been given for that purpose. I express no final view on this question, which is obviously a matter for the Full Court. In these circumstances, it seems to me that the proper course for me to take today as a single judge is to adjourn this motion to 29 September when the appeal is fixed for hearing, and to give some interim directions in the meantime which would facilitate the Full Court giving further consideration to the motion at that time. Mr Einstein informed me that all the affidavit evidence on behalf of Mrs Parton that is to be filed has been filed. However, he has subpoenaed documents from Mr Spicer, the common solicitor at the trial, and I have ordered that access be given to those documents to counsel and solicitors for all parties in the appeal. Mr Nicholas has sought leave to issue a subpoena directed to Dr Maguire and the solicitor who was acting for Mrs Parton in proceedings in the Family Court of Australia between herself and her husband, Mr Neville William Parton, which were pending during 1991 while the proceedings in the Commercial Division were also pending. It seems to me that the file of that solicitor, subject to any questions of legal professional privilege, may be of material importance to the consideration of the motion. I grant leave to the opponent, Australian and New Zealand Banking Group Ltd, to issue subpoenas for the production of documents directed to Mr Brian Hayne of Tuncurry, solicitor, and to Dr James Patrick Maguire of 61A Macquarie Street, Sydney, consultant psychiatrist, returnable before the Registrar of this Court at 9.15 am Friday 25 September 1992. I direct that the subpoenas be filed and issued today, 21 September 1992 and be served on Tuesday, 22 September 1992 before Spm. I direct that the solicitor for the opponent, Australia and New Zealand Banking Group, give notice by telephone or facsimile of the orders of this Court authorising the issue of such subpoenas and their terms to Mr Hayne and Dr Maguire on or before 4pm today, 21 September. Mr Einstein has asked me for leave for the solicitor currently acting for Mrs Parton to serve a subpoena on the Australian and New Zealand Banking Group for the production of documents. He has outlined the documents sought which, as far as I could determine on the material available to me, were documents which should have been discovered and available at the trial. The documents in question were any diary notes relating to separate or independent meetings between Mrs Parton and the bank relating to the subject matter of the loan contract and her guarantee. 4 UNREPORTED JUDGMENTS Mr Einstein's solicitors are in a position without leave to serve a notice to produce on the Australian and New Zealand Banking Group, which is a party to the appeal, and in those circumstances I will make no order. In view of Dr Maguire's pending departure for overseas, which will render him unavailable for cross-examination on 29 September when the appeal comes on for hearing, Mr Einstein has asked me either to fix the motion for final hearing this week and prior to Dr Maguire's departure, or at least to allow Dr Maguire to be cross-examined on his affidavit, if that course was desired by counsel for the bank. In some circumstances where urgent interlocutory relief might be required, it may be necessary for some such course to be taken, but that is not this case. It seems to me that the issues raised by the motion could themselves occupy more than a day of the court's time. The solicitors for the bank would obviously be at some disadvantage in preparing the case at short notice; they may wish to arrange a medical examination of Mrs Parton by a psychiatrist of their own selection after proper material has been collected by the procedures of discovery and subpoena to place before him, and then they may wish to have the assistance of such a psychiatrist in the cross-examination of Dr Maguire. Issues of this kind indicate to me that no good purpose would be served by attempting to either hear the whole of the motion or to take Dr Maguire's cross-examination at some later day this week prior to his departure for overseas. Hopefully, unless some insuperable legal obstacle to this course appears, this Court will be able on 29 September next to hear and determine the appeal as originally filed from Giles J's orders, leaving the issues raised by the present motion to be disposed of either by a single judge or by a Full Court as appropriate at some later date, after the parties have had adequate time to prepare their cases on the motion. I therefore decline to direct that this motion be heard later this week or that Dr Maguire's evidence on the motion be taken later this week. I make the various orders foreshadowed in these rather lengthy reasons and adjourn the further hearing of this motion to the Full Court hearing the appeal on 29 September and order that the costs of today be costs in the motion. Orders accordingly.