Black v Walker [2007] NSWSC 543

New South Wales Supreme Court

CITATION : Black v Walker [2007] NSWSC 543

HEARING DATE(S) : 28/05/2007

JUDGMENT DATE : 31 May 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : Refer to Paragraph 23

CATCHWORDS : Judgment procured by perjury in Local Court - proceedings to have it set aside in this Court - fresh probative evidence likely to produce a different result - proceedings remitted back for retrial

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED : Wentworth v Rodgers (No. 5) (1986) 6 NSWLR 534

PARTIES : Richard Black Sandi Pau Yin Walker

FILE NUMBER(S) : SC 15994/06

COUNSEL : Mr P. E. King (Pl) No Appearance (Def)

SOLICITORS : Forshaws Neill (Pl)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 558/96

LOWER COURT JUDICIAL OFFICER : Coon LCM

LOWER COURT DATE OF DECISION : 5/2/1997

LOWER COURT MEDIUM NEUTRAL CITATION : Richard Black v Sandi Pau Yin Walker

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

31 May 2007

15994/06 Richard Black v Sandi Pau Yin Walker

JUDGMENT 1 HIS HONOUR: The plaintiff is a solicitor. In November 1993, he became engaged to the defendant. The relationship failed. 2 Mr Black retained a solicitor (Mr Carr) and he sent two letters of demand for the return of the engagement ring. The ring was not returned. 3 There is evidence that the defendant had two telephone conversations concerning the ring. One was had with Mr Carr. She made an admission that she still had the ring and further said that she felt she should be able to keep it. The other was had with the plaintiff's mother. In that conversation, the defendant made a further admission that she still had the ring. 4 On 1 April 1996, the plaintiff brought proceedings 558 of 1996 in the Local Court to recover the ring (the detinue proceedings). He relied on a count in detinue. 5 In May 1996, AVO proceedings were commenced involving the defendant and the plaintiff (the AVO proceedings). On 26 July 1996, a hearing of the AVO proceedings took place. The defendant gave oral evidence. The proceedings were dismissed. 6 On 22 August 1996, the hearing of the detinue proceedings commenced before Coon LCM. Judgment was delivered on 5 February 1997. 7 The plaintiff gave evidence. His oral evidence was supported by oral evidence from Mr Carr and his late mother. The defendant gave competing oral evidence and relied on a diary entry. The effect of that oral evidence was that she did not have the ring because on 31 May 1994 the plaintiff had removed the ring from her premises. 8 The Magistrate accepted the evidence of the defendant. He proceeded to enter a verdict for her. He has since retired. 9 In the AVO proceedings, the defendant had some weeks earlier given evidence, which was in conflict with the evidence given by her in the detinue proceedings. For reasons that have been largely left unexplained, this conflicting evidence seems to have had little use in the detinue proceedings. 10 The plaintiff brought an appeal against the decision in this Court, The appeal was unsuccessful. A holding appeal was also filed in the Court of Appeal. 11 The plaintiff alleges that on or about 1 July 1999, the defendant telephoned him. On 14 October 2002, the plaintiff swore an affidavit containing evidence concerning that conversation. The evidence is as follows:- "On or about 1 July 1999 the Respondent telephoned me at my home. She Said 'It's Sandi ringing from my sister's house in Singapore. My solicitor, Garry Foster, will not return my calls. Will you take less for your legal costs?" I said "You've got a hide calling me after the lies you told at Kogarah Local Court in 1996. You knew I never took that engagement ring yet you subjected both my mother and me to cross examination." She said "I think a cleaning lady took the ring." I said "That was not your evidence at the Court. You told the Court that I took the ring and boasted that no Magistrate would believe a solicitor would commit perjury. You know that conversation never happened and your diary entry was a forgery. How dare you phone me!" She said "I wish I hadn't said that. I wish I'd never caused those proceedings." I said "It's too late now. You obtained a verdict by deceit. I expect the decision will be overturned by the appeal." She said "Will you think about accepting less for your legal work?" I said "No"." 12 On 20 April 2004, the plaintiff successfully brought an application for leave to institute private proceedings against the defendant for perjury. A judgment was delivered by Syme LCM (coincidently she had also heard the earlier AVO proceedings). There appears to have been difficulties in effecting service (the Magistrate observed that the proceedings had been served on her at the courts direction). She did not appear and the matter was dealt with ex parte. The Magistrate appeared to be of the view that she had chosen not to defend the proceedings.