JONSON v WESTPAC BANKING CORPORATION [1995] NSWCA 223

JONSON v WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

SHELLER JA 18 May 1995

[1995] NSWCA 223

Sheller JA. Westpac Banking Corporation applied by Notice of Motion dated 5 April 1995 for leave to uplift Exhibits 19, 20, 22, 23 and P for the purpose of examination by a handwriting expert. The documents are exhibits in matter, CommD No 50552/91, CA No 40364/93, proceedings by Westpac Savings Bank Limited and Westpac Banking Corporation against the opponent to the application, Keith Michael Jonson. Dr Jonson appeals from the determination made in that matter by Giles J.

The application is supported by two affidavits of Jacqueline Marie Deane, one of 4 April and the other of 28 April 1995.

These prove that Westpac Banking Corporation is presently engaged in proceedings in the Common Law Division (CL 10766/94) against Gregory Raymond Peters. Mr Peters was alleged to be a co-surety of the opponent. The proceedings against Mr Peters are to recover the amount supported byguarantee given by Mr Peters and Dr Jonson in respect of the obligations of a company called Vapozi Pty Ltd In those proceedings, Mr Peters has filed a defence alleging he did not sign the guarantee and the signature on it is not his.

Westpac Banking Corporation wishes to submit the guarantee to examination by Mr Christopher Anderson, a forensic document examiner, for handwriting analysis. The examination proposed would be a physical examination using a stereo microscope. Mr Anderson would make drawings of the documents and the examination would not alter, damage or destroy the documents in any way. The documents are Exhibit 22, the guarantee, and Exhibit 23, a Queensland Bill of Mortgage, Exhibits 19 and 20, two loan agreements and Exhibit P, a letter.

The second affidavit of Miss Deane proves that on 12 September 1994 Dr Jonson made an application which was opposed by Westpac Banking Corporation to uplift the same or some of the same documents for forensic examination. Cole JA refused that application on the basis that it was an attempt by Dr Jonson to create fresh evidence for the purpose of the appeal.