New South Wales Court of Appeal CITATION : Touma v Saparas [2000] NSWCA 11 FILE NUMBER(S) : CA 40283/99 HEARING DATE(S) : 17 February 2000 JUDGMENT DATE : 17 February 2000 PARTIES : Daniel Touma v Carmen Regina Saparas JUDGMENT OF : Powell JA at 30; Stein JA at 1; Hodgson CJinEq at 31 LOWER COURT JURISDICTION : District Court LOWER COURT DC 5935/98 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : COUNSEL : P Cook (Appellant) J Berwick (Respondent) SOLICITORS : D Riggio & Associates (Appellant) Jeffrey Hinde & Associates (Respondent) CATCHWORDS : Denial of Procedural fairness - no issue as to principle LEGISLATION CITED : n/a CASES CITED: House v The King (1936) 55 CLR 499 DECISION : Appeal dismissed with costs; The Mareva injunction granted in the District Court will continue until satisfaction of the Judgment IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40283/99 DC 5935/98 POWELL JA STEIN JA HODGSON CJ in EQ Thursday, 17 February 2000 Daniel TOUMA v Carmen Regina SAPARAS JUDGMENT 1 STEIN JA: The sole ground of appeal relied on is a denial of procedural fairness in Delaney DCJ refusing to adjourn the hearing on 12 March 1999 at the request of the appellant/defendant, Daniel Touma. All other grounds of appeal are abandoned. During the hearing the appellant twice unsuccessfully sought an adjournment of the trial. His Honour delivered judgment on 29 March 1999 in favour of the respondent/plaintiff in the sum of $148,500, which included $13,500 interest. 2 In order to understand the appeal it is necessary to briefly trace the history of the litigation. 3 On 18 August 1998 the plaintiff (in person) issued a Statement of Liquidated Claim for $135,000 plus interest. The claim alleged a loan by the plaintiff to the defendant of $138,000, and that the defendant had signed a written acknowledgment of the loan and made payments totalling $3,000. 4 On 14 October 1998 solicitors acting for the defendant sent to the plaintiff a standard request for further particulars. By way of purported reply on 21 October 1998 the plaintiff gave brief particulars and provided a copy of the written acknowledgment of debt allegedly signed by the defendant. 5 It appears that Default Judgment was signed on 4 November 1998. A Defence was attempted to be filed on 19 November 1998 but was not accepted because of the Default Judgment. The defence, which was verified by the appellant, denied any indebtedness and denied any agreement with the plaintiff. 6 The plaintiff swore an affidavit on 3 December 1998 which disclosed that she suffered from progressive Multiple Sclerosis. She deposed as to the facts and annexed a number of documents. Besides the acknowledgment of debt dated 21 June 1996, the affidavit annexed a letter or statement from Mr Caruso, a Commonwealth Bank Manager dated 13 December 1995, which recorded a payment from the plaintiff's account of $30,000 to the defendant. Also annexed was a copy of a cheque for $27,500 dated 15 January 1996 from the defendant, which the plaintiff said he had given to her but asked her not to cash. 7 On 4 December 1998 it appears that the judgment was set aside and, I assume, the defence permitted to be filed. On 17 February 1999 Cooper DCJ having recommended an expedited hearing in view of the plaintiff's medical condition, Garling DCJ listed the matter for hearing on 12 March 1999. On that day it does not appear that the appellant's legal representative opposed the fixing of the hearing date. Indeed, she indicated that the defendant was ready for a hearing. 8 However, the defendant later moved by Notice of Motion to vacate the hearing date. This motion came on for hearing before Garling DCJ on 9 March 1999 and the basis of the application was that the plaintiff had provided inadequate further particulars. Also mentioned was the need to call a bank manager over 'part of the loan agreement'. His Honour invited the parties to attempt to sort out between themselves what particulars were still required. 9 The legal representatives later returned to the Court and the plaintiff's counsel informed his Honour that further particulars and a copy of the plaintiff's witness statement would be provided by 4 pm that afternoon. He preferred that the hearing proceed on 12 March. The defendant's representative protested and his Honour decided to stand the application to vacate the hearing over until the next day, 10 March 1999 at 9.30 am. 10 On 10 March 1999 the defendant's representative pressed for a vacation of the hearing date on the basis of the particulars which had been provided late on 9 March 1999. I interpose that along with the further particulars, a witness statement of the plaintiff was provided which recounted a series of loans to the defendant starting from November 1995 through to June 1996. Mr Casselden, then appearing for the defendant, told the Court that time was needed to investigate the claim as particularised. 11 Counsel appearing for the plaintiff opposed the application indicating that, in substance, the claim had not changed. His Honour refused the application but said that the application could be renewed on 12 March 1999 and the judge hearing the matter could either hear or adjourn it or part hear it, as the case may be. 12 This brings me to 12 March 1999 and the hearing before Delaney DCJ. Mr Graham then appeared for the defendant and, at the outset, sought an adjournment. The basis of the application was the late service of the particulars which he claimed changed the 'complexion' of the case and severely embarrassed the defendant. Plaintiff's counsel indicated that the plaintiff's case had, in substance, not altered. 13 His Honour looked at the particulars and the statement of claim and asked Mr Graham what in the particulars prevented him from proceeding on that day. 14 Counsel indicated, so it seems, that there was a need to make inquiries of third parties and issue subpoenae. Further, he was not in a position to cross-examine the plaintiff without having proper instructions to question the alleged transactions. 15 Counsel for the plaintiff indicated to the Court some of the history of the litigation, much of which I have recounted. He again denied that the substance of the plaintiff's case had altered. He indicated to his Honour that the plaintiff had provided to the defendant all of the documents sought to be tendered by her. 16 His Honour stood the matter down to review the Court file and to ensure that the defendant's counsel had all of the plaintiff's documents. Another matter was interposed. The case then resumed. Mr Graham complained about the documents and pressed for an adjournment. His Honour refused the adjournment application. His Honour said that the basic claim had not changed and no amendment of the Statement of Claim was sought. Notwithstanding the particulars, the main issue remained the same whether there was a loan and its terms and conditions. 17 The hearing then proceeded. The plaintiff was called and examined in chief. Mr Graham objected to the admission of certain paragraphs of the plaintiff's witness statement. His Honour ruled on those objections. Other documents were tendered without objection, including the purported acknowledgment of the debt by the defendant of 21 June 1996 and the statement of Mr Caruso, the bank manager, dated 13 December 1995. 18 At the end of the plaintiff's evidence in chief, Mr Graham informed the Court that he would not be asking any questions, nor calling any evidence. Accordingly, there was no cross-examination of the plaintiff and she closed her case. 19 Mr Graham then renewed his application for an adjournment. He said that he could not conduct any meaningful cross-examination of the plaintiff. His Honour asked him why he could not ask questions about Ex F, the acknowledgment of debt purportedly signed by the defendant on 21 June 1996 and admitted into evidence without objection. I should interpolate that this document was referred to in the Statement of Claim of 18 August 1998 and a copy supplied by the plaintiff to the defendant's solicitors on 21 October 1998. The response of counsel to his Honour was that he did not have any instructions as to the source documents. 20 In the course of the adjournment application Mr Graham said that an adjournment would necessitate subpoenas to the Commonwealth Bank, a Credit Union and the plaintiff's financial records 'to get to the bottom of these new allegations …' The following exchange then took place: HIS HONOUR: Of which your client has absolutely no knowledge of course. GRAHAM: Well I don't know. HIS HONOUR: You don't know. Have you had a conference with him? GRAHAM: I had a brief conference this morning … 21 In his opposition to the application, plaintiff's counsel noted that the defendant had had two clear days to make inquiries and obtain instructions. He also noted that the defendant was outside the Court. 22 His Honour ruled against refusing the adjournment. He saw no merit in the application, especially in light of the evidence which had been lead. After refusing the application, the judge again asked Mr Graham if he wished to cross-examine the plaintiff, which invitation was declined. The defendant called no evidence. Judgment was reserved. 23 On 29 March 1999 his Honour delivered judgment finding for the plaintiff. In his reasons, his Honour noted that the signature of the defendant on the affidavit verifying the defence was similar to that appearing on the document acknowledging the debt. Indeed, it is remarkably similar. 24 In the submissions made on behalf of the appellant a number of assertions are made. Firstly, that the late particulars altered the plaintiff's claim. In my view, the trial judge was correct: the plaintiff's case did not change in its substance. The particulars certainly provided plenty of detail although it may be noted that the plaintiff herself provided brief particulars on 21 October 1998 and a copy of the acknowledgment of 21 June 1996. Later, on 3 March 1999, she provided a detailed affidavit annexing relevant documents. The further particulars of 9 March 1999 served merely to expand and elucidate the detail of the plaintiff's claim. 25 The defence, first filed in November 1998, denied the loan and any indebtedness to the plaintiff. 26 No adequate explanation was given to the District Court as to why a brief conference only had occurred with the defendant. No suggestion was made to his Honour as to what attempts had been made to make inquiries of the defendant, the Bank or the Credit Union prior to the hearing on 12 March 1999. Why the defendant could not satisfactorily give instructions to his counsel on the acknowledgment document was never explained, nor why the defendant could not be called on that issue, at the very least. 27 The grant of an adjournment is discretionary and the well-trodden principles in House v The King (1936) 55 CLR 499 apply. Certainly, the rules of natural justice require that a party have a proper opportunity of formulating and presenting his defence. In the interests of justice a Court should be slow to refuse an adjournment where it is likely to deny a party the opportunity of properly putting his case. But here, the effect of the refusal was not that the defendant was deprived of the opportunity of presenting his defence. Far from it. The defendant made a forensic decision not to seek to cross-examine the plaintiff or to call evidence. 28 Even as ill-prepared as the defendant was, I am certain that a cross-examination of the plaintiff could have been mounted and the defendant could have been called to give evidence if he chose to do so. In any event, any prejudice to the defendant was, to a very great extent, of his own making. He could have done a great deal more to prepare for the hearing on 12 March 1999. So far as I can glean from the appeal papers, he did next to nothing. In my view, there was no denial of procedural fairness to the defendant and no injustice was occasioned. Indeed, the conduct of the defendant was, more likely than not, no more than a delaying tactic. 29 In my opinion, the appeal should be dismissed with costs and the Mareva injunction continued. 30 POWELL JA: I agree. 31 HODGSON CJ in EQ: I also agree. The position might have been different if the application for adjournment before the trial judge had been supported by an account of what the defendant's substantive defence was, especially if supported by some evidence from the defendant himself. Not only was no evidence called from the defendant but not the slightest indication was given of what the defendant's substantive defence was. Even today, before us, the only indication that has been given is a suggestion from the bar table that the IOU document, relied on by the plaintiff, is a compilation. Even that is not supported by any evidence and there is no other indication of the substantive nature of the defendant's defence. So for those reasons, in addition those given by Justice Stein, I agree with the Order proposed. 32 POWELL JA: The orders of the Court thus are the appeal is dismissed with costs and the Mareva injunction granted in the District Court will continue until satisfaction of the judgment. OoO DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.