DOVADE PTY LTD v WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P 26 November 1998 [1998] NSWCA 71 Mason P On 14 October 1998 I refused the appellants leave to issue a subpoena. This is a fresh application to issue an amended form of subpoena that is narrower in some respects than its predecessor. The application was heard on 11 November 1998 and it was opposed by the respondents. In the course of that hearing yet further amendments were foreshadowed to the draft Amended Notice of Appeal for which leave to amend will be sought at the hearing presently fixed for 8 December 1998. A further version of this document was (with leave) delivered to my chambers on 11 November 1998. It is highly unsatisfactory that yet further amendments to the Court record are being foreshadowed at this very late stage in the proceedings. I have been pressing the appellants since 30 April 1998 to specify with particularity the grounds upon which they contend that a reasonable apprehension of bias arose from any non-disclosure on Rolfe J's part. It is proper that the appellants should be required to specify with particularity the grounds upon which this appeal is sought to be pressed. I shall therefore address this latest document (referring to it as the Notice of Appeal), noting that leave has yet to be given for its filing. Grounds 23-32 detail alternatively and cumulatively the bases upon which it will be contended that Rolfe J created a situation of "apprehended bias" by non-disclosure of various relationships with Westpac Banking Corporation. Before addressing the application for leave to issue a further subpoena, I shall refer to the various relationships and summarise my understanding of the evidence presently established by affidavits filed in the appeal and read before me. Reference to "the relevant time" is to 26 September 1995, the day in which the trial commenced before Rolfe J. This is the date identified in the subpoena sought to be issued. To assist with the due despatch of the hearing of the appeal I will direct the parties to indicate prior to the hearing the extent to which this summary is disputed as between the parties. ALLEGED GROUNDS OF NON-DISCLOSED RELATIONSHIPS I. PERSONAL INTEREST OF ROLFE J IN THE BANK (GROUNDS 23 & 24) There is no evidence that Rolfe J held shares in the Bank at the relevant time. 2. RELATIONSHIP OF ROLFE J AS MORTGAGOR OR CUSTOMER OF THE BANK (GROUNDS 25, 31 AND 32) Newspaper reports published in Sydney in September-October 1997 made reference to the sentencing proceedings concerning a former tipstaff of Rolfe J who had pleaded guilty to stealing money from the judge by altering cheques totalling $6,300 drawn upon the judge's personal account at Westpac Bank between November 1993 and February 1997. These articles came to the attention of the appellants' solicitor in April 1998. According to the solicitor's affidavit 2 UNREPORTED JUDGMENTS sworn on 17 April 1998, at no time during the hearing of the proceedings did Rolfe J disclose any bank account held with, mortgage given to, or any interest in Westpac Banking Corporation. I am prepared to infer from these newspaper articles that the judge had a cheque account at the Westpac Bank between 1993 and 1997. But there is no evidence as to the state of that account and, as will be indicated below, the appellants contend that such evidence is irrelevant. There is also in evidence a title search disclosing that certain land in the Sydney area belonging to the judge was mortgaged by him to the Bank in 1983. The Mortgage is a registered first mortgage and it has remained outstanding since that date. It does not secure any particular advance, but covers any and all forms of accommodation present and future. Incorporated in the Mortgage are the terms of a detailed Memorandum filed at the Registrar General's office. It is the type of "all moneys" security frequently encountered in litigation involving financial institutions, in which every conceivable type of liability or contingent liability, direct or indirect is secured. Nothing on the face of the instrument records whether any moneys were ever secured by the mortgage, either at its inception or at any later time. Whether or not the subjective attitude of a particular litigant is relevant in these matters is a question for debate in the appeal. It is however relevant to note that the appellants' solicitor Mr Noss has sworn an affidavit (on 27 April 1998) deposing his instructions by his clients that, had Rolfe J disclosed any of the matters pertaining to a dealing with or interest in the Bank at or before embarking upon the hearing of the proceedings, the appellants would have instructed their then legal representatives to ask his Honour to disqualify himself (para14). It is also pertinent to record that counsel for the Bank stated on 21 May 1998 (Tr pS) that this evidence is in dispute and that it will be objected to as to form. 3. CUSTOMER RELATIONSHIP OF LOCHIELY PTY LTD WITH THE BANK (GROUND 26) Lochiely Pty Ltd is a trustee company. The judge is shown as a shareholder in 1998. There is evidence that he holds the share as trustee and that the company is a trustee company for a family trust relating to persons outside the judge's family. The company held no shares in the Bank at the relevant date. There is no evidence of any customer relationship with the Bank. 4. CUSTOMER RELATIONSHIP OF NEVILLE PASTORAL CO PTY LTD WITH THE BANK (GROUND 27) Neville Pastoral Co Pty Ltd is a rural property owner. The judge is shown as a director and minority shareholder in 1998. The company held no shares in the Bank at the relevant date. There is no evidence of any customer relationship with the Bank. 5. CUSTOMER RELATIONSHIP OF SANDAKAN PTY LTD WITH THE BANK (GROUND 28) Sandakan Pty Ltd is a trustee company. The judge is shown as a director and shareholder in 1998. The company held no shares in the Bank at the relevant date. There is no evidence of any customer relationship with the Bank. URJ DOVADE PTY LTD v WESTPAC BANKING CORPORATION (Mason P) 3 6. CUSTOMER RELATIONSHIP OF SANTICAN PTY LTD WITH THE BANK (GROUND 29) Santican Pty Ltd is a trustee company. The judge is shown as a director and shareholder in 1998 together with his wife. The company held no shares in Westpac at the relevant date. There is no evidence of any customer relationship with the Bank. 7. MRS ROLFE'S RELATIONSHIP AS SHAREHOLDER AND/OR CUSTOMER OF THE BANK (GROUND 30) Mrs Rolfe held 16,600 ordinary shares in the Bank at the relevant date. There is no evidence of any customer relationship with the Bank. THE NEW SUBPOENA The current Notice of Motion was filed on 28 October 1998. Application is made for an order that a subpoena issue requiring production of: All documents to open any banking account or banking facility which banking account or banking facility was current as at 26 September 1995 between the bank and the customer. For the purposes of that subpoena, "customer" is defined to mean one or more of the following: Rolfe J, Mrs Rolfe, Neville Pastoral Co Pty Ltd, Sandakan Pty Ltd, Sandican Pty Ltd, Lochiely Pty Ltd. I heard argument in relation to this matter on 11 November 1998. The appellants were represented by Mr Stevens QC and Mr McQuillen. The respondents were represented by Mr Marshall. The respondents opposed the issue of the subpoena on several grounds. In a directions hearing on 21 May 1998 I first raised with counsel for the appellants the question whether it mattered in his submission whether the non-disclosed banker customer relationship (then confined to Rolfe J) involved an account that was in credit or debit at the relevant time (Tr p11). I pointed out that being a customer in a bank does not give an interest in the bank. I also suggested that it is not unknown for people to have a mortgage in favour of a bank just lying there without any active or any current account dealings. Counsel for the appellants indicated that he fully understood that (Tr p13). On 11 June 1998 there was debate at a further directions hearing in relation to a subpoena then proposed to be issued on behalf of the appellants. I expressed concern about the processes of the Court being used to conduct a roving inquiry into the financial affairs of any person on the basis that the submissions would in effect keep expanding to embrace whatever emerged from the facts (Tr p4). The point about a mere banker customer relationship being an insufficient basis of any duty to disclose was strongly advanced by counsel for the Bank of 14 October 1998. Addressing those submissions in my judgment on 14 October 1998 I said: There have been discussions from time to time based upon the asserted fact that the judge himself was a customer of the bank at the relevant time. Alternatively, it has been suggested, latterly, that certain companies in which the judge had an interest were customers of the bank, perhaps at the relevant time. The subpoena for which leave to issue is presently sought addresses that customer relationship. That issue is not raised in the notice of appeal or the foreshadowed amended notice of appeal. As I read the document, it is confined to non-disclosure of an interest in Westpac. Nor is there any suggestion in the evidence that disclosure of this matter might have led to an application that the judge recuse himself. 4 UNREPORTED JUDGMENTS In my view it would not be proper to lend the aid of the Court to what would be a fishing expedition in aid of a matter that is not addressed in the written submissions or the foreshadowed amended notice of appeal. I am comforted in that view by a firm conviction that the mere fact that a judicial officer has a customer relationship with a litigant party could not in itself be a basis for any reasonable apprehension of bias. It was pointed out in argument that the proposition in its baldest form would extend to the judge who bought petrol at a particular place or goods at a particular shop. Based on these and other considerations I refused leave on that occasion to issue a particular subpoena. On 11 November I again pointed out to counsel for the appellants that the latest proposed subpoena sought no information that would show whether any bank account of a "customer" was in credit or debit. It was again made to me clear that the appellants' case in relation to banker customer relationship does not depend upon this aspect of the account (Tr p3-p4). My mind remains open on the point whether a judge should disclose a mere bank-customer relationship. But as presently advised, I do not think that it has sufficient prospect of success to merit the permitting the appellants at this stage of the proceedings, after failed or abandoned earlier attempts, to issue process invasive of the privacy of a banker customer relationship. I remain of the view expressed in my judgment on 14 October 1998, recognising that the matter is yet to be fully argued. It is true that the appellants seek merely to have the documents brought to court so that they may be inspected first by the Court. But that appears to put the cart before the horse. Noting however that the subpoena is narrow in its scope and that the Bank has been put on notice of it, I propose to stand the present application over to the hearing of the appeal on 8 December 1998. If the appellants press for its issue at that time, then the matter can be addressed by the whole Court in the course of hearing argument in an appeal in which judgment will almost certainly be reserved. Deferral will not impede the further prosecution of these protracted proceedings. I make the following orders: 1. Stand over the further hearing of the Notice of Motion until 8 December 1998. 2. Costs reserved. 3. Direct the parties to file and serve, no later than 4 December 1998, submissions indicating the extent if any that the summary of facts contained in this Judgement is in dispute.