DAVRIDGE PTY LTD v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL COLE JA 31 May 1996 [1996] NSWCA 144 Cole JA. This matter has been placed in the list for directions at 3 pm on Friday, preceding the Tuesday in which the matter is listed for hearing. The matter has been given expedition and, as I understand it, the appellants presently have the benefit of a stay of various orders made by Giles J. The matter has been before this court on at least two recent occasions and a number of matters have emerged. The first is that there was filed an application to admit new evidence. Submissions, which have been filed on behalf of the appellants, recognise that the new evidence may be required if it is decided to proceed with the contention that the judgment given by Giles J may have been obtained by fraud, in the sense that it was dependent upon acceptance of evidence given by a witness which is said to be in some form tainted. To establish that taint, this new evidence is said to be required. When the matter was before the court previously, the question of whether that was the appropriate course or whether a more appropriate course was to commence new proceedings in the Commercial Division seeking to have the judgment set aside, as was the course determined by this court as being appropriate in Spies v Commonwealth Bank of Australia'. Counsel for the appellants has indicated to the court this afternoon that the application to admit new evidence in the current appeal will not be pressed. The appellants propose to commence new proceedings in the Commercial Division today to seek to have the judgment previously entered set aside in accordance with concepts referred to in Spies. The second matter that emerged before the court when previously mentioned, was that subpoenas had been issued by the appellant directed to a witness in the prior proceedings and, indeed, the opponent, requiring the production of various documents. These documents are said to assist the appellants in relation to the allegation of fraud, concerning the judgment, which they wish to bring. A Notice of Motion has been filed on behalf of the recipients of the subpoenas, or at least on behalf of the opponent in this appeal, contending that access to the documents produced, or to be produced, on subpoena should not be given to the appellants. That issue would need to be determined only if it was sought to press ahead with the application to admit new evidence in this appeal. As that application will not be progressed, counsel for the appellants has indicated that no application will be made for access to the documents produced on subpoena in this appeal. That will be a matter to be attended to in the hearing of the proposed new proceedings. 1. (1991) 24 NSWLR 691. 2 UNREPORTED JUDGMENTS Once those two matters have been cleared away, as they now have, there remains two matters. The first is whether it was intended to amend the Notice of Appeal. Counsel for the appellants has indicated that it is not intended to seek to amend the Notice of Appeal. That position has been adopted, as I understand it, on the basis that an amendment would have been sought only to seek to disturb the judgment on the basis that had new evidence been admitted, it would have assisted the appellant in its various grounds of appeal, which were, as was frankly conceded by counsel for the appellant, faced with an extremely difficult hurdle in the form of Abalos v Australian Postal Commission2; Devries v Australian National Railways Commission. That brings me to the fourth matter, namely, the hearing of the appeal which will, unless the matter is adjourned, occur on Tuesday next. No submissions in support of any of the 80-odd grounds of appeal have been filed, as they should have been filed in accordance with the rules. I suspect, and it is implicit in what counsel for the appellants has put to the court, that that is because there is a recognition that based on the existing grounds of appeal, and the difficulties confronted by Abalos, a view may be taken that there would be little point in progressing with the appeal on the proposed grounds without new evidence. Be that as it may, that is a matter which has been suggested by counsel for the appellant in his submissions, but has not been made explicit. Counsel for the appellant has indicated that on Tuesday an application will be made to adjourn the hearing, apparently until some time after the conclusion of the hearing of the new proceedings which it is intended to start in the Commercial Division today. Whether that application will succeed, will be a matter for the court hearing the matter on Tuesday. If it does not, in the normal event the hearing would proceed. Counsel for the appellant has indicated that it is intended to confer with senior counsel today to determine what course should be taken in relation to this appeal. In those circumstances it is appropriate that I list the matter for further directions at 9.30 am on Monday next, 3 June 1996. On that occasion the court will expect to be told whether the appellant intends to proceed with this appeal and, if so, whether all or any of the grounds in the Notice of Appeal will be pressed and, if so, which ones. If it is intended to proceed with the appeal on Tuesday, then I direct that written submissions in support of the grounds of appeal be delivered to counsel for the respondent and, further, that two copies be faxed to this court at the number which my Associate will give to counsel for the appellants. The matter will stand over until 9.30 am on Monday next and I will reserve all questions of costs. Any written submissions in support of the grounds of appeal which it is intended to be argued, are to be exchanged and faxed to the court by noon, Sunday 2 June. Orders accordingly. 2. (1990) 171 CLR 167. 3. (1993) 177 CLR 472.