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. No application has been made pursuant to s 46(4) of the Supreme Court Act to the Full Court of Appeal to discharge or vary the judgment or orders given or made by Cole JA. I should emphasise that this application is not and cannot in any way be treated as an appeal from or application to review the decision of Cole JA. Ihave had the benefit of reading written submissions prepared on behalf of the claimant and by Dr Jonson since the matter first came before me on 8 May 1995S. Today a further affidavit was filed in Court by Christopher Ian Anderson sworn on 12 May 1995. In that affidavit Mr Anderson deposed to the type oftests that he proposes to conduct and said that he would need the documents in his possession for no more than fourteen days. He indicated that the documents, while not being examined, would be kept locked in a safe at all times and that his office premises are secure. 2 UNREPORTED JUDGMENTS He gave an undertaking to the Court not to damage or alter the documents in any way and to exercise all care and skill in the preservation of the documents. He further undertook to return the documents to the Court as expeditiously as possible and, in any event, within fourteen days of having received them. Dr Jonson opposed the making of the orders sought on a number of grounds. He submitted that the Bank, before and during the trial, had the opportunity to conduct forensic testing in order to present material for consideration of the Court at first instance and to the Court on appeal. He referred to the fact that the Bank opposed his application to examine the documents. In summary, he said that the Bank should not now be given a second opportunity, particularly when it is borne in mind that his attempt to conduct a further examination of the documents was rejected by Cole JA. He also raised concerns about the fragility of the two loan agreements and asked me to look at the two exhibits, which I did. He also expressed concern about the consequences of the proposed testing by Mr Anderson on the chemical composition of the loan agreements and said that this may compromise the effectiveness of any testing that he may wish to conduct, if given the opportunity, on the documents. Dr Jonson pointed out that there are risks involved in the documents being uplifted. There is the obvious risk that one or more of them may be lost. It was with these matters in mind that I indicated to counsel on the previous occasion that I would require undertakings from Mr Anderson. What I regardas satisfactory undertakings have now been provided in his affidavit. It seems to me that the present application is different in nature from the application previously made by Dr Jonson. I do not regard the making of an order on this application as inconsistent with the reasoning which led Cole JA to refuse Dr Jonson's earlier application. In relation to the issue of potential damage, my order will be that the documents are not to be damaged in any way. Furthermore I have the undertaking of Mr Anderson that there will be no damage. Having given careful consideration to Dr Jonson's submissions, both written and oral, I am of opinion that this is an appropriate case to make an order allowing the uplifting of the documents referred to. I make the following orders: 1. Upon the undertakings to the Court given by Christopher Ian Anderson and set out in para 10 of his affidavit of 12 May 1995, I give leave to Westpac Banking Corporation to uplift Exhibits numbered 19, 20, 22, 23 and P in CommD No 50552/91 for the purpose of the conducting such examinations and tests by Mr Anderson of those documents as will not alter, damage or destroy them or any part of them. 2. I order that Westpac Banking Corporation return the documents to the Registrar on or before 1 June 1995. The Westpac Banking Corporation has asked for costs. However I regard this application in all the circumstances as a somewhat unusual one which understandably raised concerns in the mind of Dr Jonson, who represents himself, and was, I think, justified in having the matter resolved by the Court. Accordingly I make no order as to costs. Orders accordingly.