GRGIC v ANZ BANKING GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 10 August 1992, 10 August 1992 [1992] NSWCA 98 PRACTICE and PROCEDURE — Court of Appeal — fresh evidence on appeal — alleged confession that documents giving rise to debt forged — motion to enlarge evidence in appeal — whether should be allowed — limits on access to affidavits and exhibits — possible criminal proceedings — (1) Motion adjourned to be heard with appeal. Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 (CA); Nicholls vy Carpenter [1974] 1 NSWLR 369 (CA) referred to; (2) Access to documents limited for a time. Kirby P This is a very unusual case. Lusher AJ on 20 February 1990 decided proceedings between the Australia and New Zealand Banking Group Ltd (the bank) and Fralo Grgic (the appellant). The appellant has appealed to this Court from his Honour's judgment. Involved in the resolution of the matter before Lusher AJ was a question as to whether certain instruments, apparently signed by the appellant, were in fact signed by him or by some other person. Lusher AJ determined, on the balance of probabilities, that the instruments were signed by the appellant. Having regard to the way in which his Honour expressed that decision, by reference amongst other things to the impression which witnesses had made upon him, Mr Grgic would have difficulty in disturbing that decision in this Court consistent with the authority of the High Court and of this Court relating to the comparative advantage of a trial judge in judging truth from the appearance of witnesses giving their evidence. The appeal has been set down for hearing before the Court on 11 September 1992. Meanwhile, a motion has now been filed for the purpose of enlarging the record to permit certain fresh evidence to be placed before the Court. In very brief form, the solicitor for the appellant has sworn an affidavit in which he indicates that since the judgment of Lusher AJ the son of the appellant, Mr Anthony Grgic, attended the Revesby Police Station, made a record of interview with police and confessed to having forged his father's signature on bank letters extending the mortgage loan on the security of his father's house. He also indicated the name of another person who, he alleged, impersonated his father at the ANZ Bank without his father's knowledge or consent. At the trial before Lusher AJ, the son declined to give evidence on the grounds that he might be incriminated by his answers. Lusher AJ therefore had to determine the matter, as best he could, on the basis of the evidence which was available to him, excluding that of the son. The difficulties which stand in the way of the appellant in the enlargement of the record in the appeal are acknowledged. They are made plain by such decisions as that of this Court in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 (CA). Nonetheless, a crucial matter at trial was whether the relevant instruments, giving rise to the obligations sued upon by the bank, were in fact signed by the appellant or by some other person. 2 UNREPORTED JUDGMENTS The resolution of that issue may be affected by the additional material which is now said to be available. It may, if highly persuasive, provide at least an arguable basis upon which the Court might permit an enlargement of the evidence in order to prevent a serious injustice. Cf Nicholls v Carpenter [1974] 1 NSWLR 369 (CA) at 373. The motion before the Court seeking enlargement of the record would normally be returned by me before the Court as it will be constituted to hear the appeal. The matter is complicated by the fact that it is not only the evidence of the son which is involved. Two other affidavits, placed in a sealed envelope, have been read by me, although not at this stage by the representatives of the bank. These affidavits suggest that there would be a considerable contest as to the precise facts. That contest might take more than the one day to resolve. The Court has presently assigned only one day for the hearing of the appeal. The affidavit of the solicitor for the appellant has indicated that the police wish further time within which to complete their investigations of the suggested forgery which occurred in this case. The amount of time that was necessary for this purpose was not certain. But it is said that a minimum of two weeks would be required. A combination of these circumstances, therefore, suggests that greater convenience to the parties and to the Court will be secured if the hearing date is vacated. Another date should be fixed, although the hearing should not be long postponed. Taking this course will (a) permit the police to complete their investigations, as they request; (b) permit the appellant then to complete his investigations without contaminating those of the police; (c) permit the preparation of all affidavits on which the appellant will seek to rely on the application for enlargement of the record in this Court; (d) allow proper notice to be given to the bank of the additional evidence; (e) permit the possible further witnesses the opportunity of taking their own advice on the course which they will seek to follow when their affidavits are read in this Court; and (f) avoid a last minute cancellation of the hearing date, with the burden on the public purse occasioned by the fact (as the Court has been informed) that the appellant is in receipt of legal aid. On the other hand, the bank is understandably concerned at the depletion of its security with the passage of time. It is properly concerned that the hearing date should not be unduly delayed. I am minded to protect that concern by ensuring that the matter is returned before the Court on two days assigned for a hearing some time in November 1992. A question arises as to whether a special order should be made in relation to access of the bank to the affidavits contained in the sealed envelope. The motion before the Court asks that, until further order of the Court, disclosure of the exhibits, being the affidavits in that envelope, and of information therein be limited to "the legal advisers of the parties and, in the case of samples of handwriting, to expert witnesses of the parties as named and approved by the Court". For the moment, I would be prepared to make that order, varied slightly. However it may be appropriate, at some later time, to vary or even vacate the order in the light of further developments. It is obvious that the bank has its own witnesses who gave evidence before Lusher AJ. It will need to give instructions to its legal advisers. At some time, well in advance of the hearing date of the URJ GRGIC v ANZ BANKING GROUP LTD (Kirby P) 3 appeal, it would seem appropriate and just that officers of the bank should have access to the exhibits in order to provide proofs upon the basis of which affidavits may be prepared. I would remark that the exhibits in the sealed envelope are the affidavits of potential witnesses. They do not represent affidavits by the appellant himself. It is natural, I suppose, that the appellant should want to protect, so far as he can, the position of his son. However, it is imperative that the bank should have the opportunity of giving full instructions to its advisers so that the bank's position may be properly advanced and protected in the appeal. This can only be done if the bank is given access to the evidence upon which the claimant will seek to challenge Lusher AJ's judgment. For these reasons, the orders which I make are: (1) Vacate the hearing date for the appeal of 11 September 1992; (2) Order that the appeal be listed with expedition, category C, to the intent that it will be heard before the end of Term and, if possible, in November 1992 on a date to be assigned by the Registrar in consultation with the parties; (3) Order that, subject to order (4) and until any further order of the Court, the exhibits to the affidavit of Gary Penwell, solicitor, sworn in support of this motion be placed in a sealed envelope to be retained in safe keeping by the Registrar of the Court; (4) Order that, until further order of the Court, disclosure of the said exhibits and of the information therein, be limited to the legal advisers of the parties. In the case of samples of handwriting, access to such exhibits and information be limited to expert witnesses of the parties agreed upon between the solicitors for the parties or, in default of agreement, to be approved by a Judge of Appeal; (5) Order that the proceedings be relisted before the Court upon two days' notice given by either party to the other; and (6) Order that the costs of the motion today be costs in the appeal. The notice of motion asks for an order that until further order of the Court the opponent, its servants and agents be restrained from directly or indirectly communicating with Mrs Ardel Grgic and Francesco Sierra. I am not inclined to make such orders. Mrs Grgic can quite easily refuse to have any communication with the bank, if she is approached by it. Sierra can make his own decisions. I do not believe that it is appropriate that the Court should make orders restraining him without, at the least, his having an opportunity to be heard in respect of such orders. He is after all simply a witness in the proceedings. In the event that the bank should endeavour, in any way, to interfere with witnesses in what may now be proceedings both civil and criminal in character, the law will provide in that regard. The orders are therefore as I have indicated. In the event that it appears that some application may be made further to delay the hearing of this appeal until any criminal proceedings which may arise out of the events that I have described are heard, it would clearly be desirable that such application be listed well in advance of the hearing date of the appeal and of the motion for enlargement of the record. Cf Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 (CA). Only if this is done will the time of the Court and the costs of the parties be conserved. Counsel: 4 UNREPORTED JUDGMENTS Claimant: J R McKenzie Opponent: J B Simpkins Solicitors: Claimant: Garry Penhall Opponent: W A Dowe Xenos and Vardas