BROOKES v ANZ BANKING GROUP LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL COLE JA 11 March 1996 [1996] NSWCA 69 Cole JA. Before me is an application by way of notice of motion brought by Mr and Mrs Brookes. The application is an unusual one. It seeks that certain documents being diary notes of the ANZ Banking Group be retained in the registry until further order, subject to leave being granted to Mr McCormack and Detective McCann of the New South Wales Police to uplift exhibit No.AA for the purpose of submitting those documents to forensic examination. The document in question is a bank diary note. Exhibit No.AA comprises some almost 70 pages of such records. The page in question which the claimant seeks to have examined is page 5, it being the only photocopy page among these documents. The matter arises in this way, and I shall state the facts briefly: there were four persons having an interest in a company, Mr and Mrs Brookes and Mr and Mrs Marshall. For finance purposes arrangements were made with the ANZ Banking Group. In the resultguarantees were given by those four persons, and the guarantee was supported by a mortgage over the home of Mr and Mrs Brookes. The contention, as I understand it, of Mr and Mrs Brookes was — and I am told they gave evidence to this effect — that the bank manager represented to them that all four persons were equally liable on those guarantees and an explanation to that effect was given to them. They contend that such an explanation was diaried. They contend that at about the same time Mr and Mrs Marshall attended upon the bank. Mr and Mrs Marshall contended in evidence that they were told they would be called upon under the guarantees only after the Brookes" house had been sold. The question arises as to whether there was a diary entry which might support that account of Mr and Mrs Marshall. There is a diary entry of 9 August, 1988 which touches on the matter. Mr Brookes has told me from the Bar Table that at no time prior to the hearing was the diary entry or indeed diary notes made available to him although they were sought on discovery. They were ultimately produced, but all documents produced were photocopies. It is apparent even to the naked eye that an alteration has been made in relation to five lines in the entry that is said to be critical. I say that for two reasons: the first is that all 70 odd pages of diary entries are on similar paper which has dotted lines running across it, above which the typescript was placed. In the relevant five lines the dotted lines go to the margin but then cease, and there are no dotted lines in the relevant lines. The second thing is that one can see marks around what obviously are corners for top and bottom of what would seem to be some piece of paper which has been photocopied. 2 UNREPORTED JUDGMENTS The fact that there may have been an alteration to this particular diary note does not necessarily mean that the alteration carries with it any consequence of a deleterious type in the sense that it may be entirely innocent or it may not. I make no comment on that. Nor, indeed, if it be established, as Mr Brookes seeks, that the document has been falsified does it follow that that will have a consequence as far as his claim is concerned. I also make no comment about that. However, Mr Brookes does complain that at the initial hearing it was held that partially in consequence of the diary notes, supporting the evidence given by Mr and Mrs Marshall, and contrary to the evidence given by Mr and Mrs Brookes, and coupled with the support of the manager, whose evidence apparently favoured the version given by Mr and Mrs Marshall based on the diary note which Mr Brookes now says was altered, there was a finding made by the trial judge that the liability of Mr and Mrs Marshall was in a sense secondary in that it arises only after the residence of Mr and Mrs Brookes had been sold and the proceeds used to reduce the debt. Had that not occurred the question of contribution may or may not have arisen. I mention that I have been informed from the Bar Table that upon the appeal to the Court of Appeal the claim as between the bank and Mr and Mrs Brookes is settled. Mr Brookes has said that he would never have settled that case if he had known of the document in its present form which he asserts to be false or at least altered. It seems to me that as the documents are presently in the custody of the court no question of jurisdiction truly arises. The court has the documents and may make such orders as are appropriate for their return to the body who tendered them or otherwise. The reason that there has been a delay of approximately 12 months in the bringing of this application since the litigation between the bank and Mr and Mrs Brookes wasresolved is that the matter went on appeal, and judgment was given only on 1 February, 1996, the matter having been heard in mid-October, 1995. It is apparent from the judgment of Priestley JA that the question of the bank manager's diary was not irrelevant to his Honour's decision on appeal (see in particular judgment page 11 and page 5.) Where, as here, there is a complaint of injustice which it is said flows from there not being made available to a party a document which it is alleged is false in the sense it has been altered, it seems to me that the court should permit a forensic examination to occur, subject to appropriate safeguards, so that the party making that complaint can, if they are able, establish the falsity they allege. What consequence that will have, if any, is a matter I do not consider. If there is to be any examination of this document then it will need to be upon strict terms, and I would require an affidavit from the person proposing to carry out the forensic examination as to the nature of the testing proposed; the fact that it is non-destructive; that the document will remain in his custody and in some safe place when not being subjected to testing; the period of time required for examination of the document and similar matters. I will adjourn the matter until 19 April, 1996 to enable an affidavit to that effect to be filed. Such affidavit should be filed not later than 12 April, 1996. I grant leave to the bank, if so advised, to place before the court on affidavit filed not later than 12 April, 1996 any other material it regards as relevant to this application. I reserve the question of costs. The matter will stand over until 19 April. In the meantime the exhibits in this matter are to remain in the custody of the court until further order. URJ BROOKES v ANZ BANKING GROUP LIMITED (Cole JA) Orders accordingly.