Supreme Court New South Wales Medium Neutral Citation: Australian and New Zealand Banking Group Limited v Adventure Quest Paintball-Skirmish Pty Limited & Ors [2015] NSWSC 438 Hearing dates: 14 April 2015 Date of orders: 14 April 2015 Decision date: 14 April 2015 Jurisdiction: Common Law Before: Bellew J Decision: The notice of motion filed on 31 March 2015 is dismissed. The hearing date of 20 and 21 April 2015 is confirmed. I order that the third defendant pay the costs of the plaintiff and the second defendant of the notice of motion as agreed or assessed. Catchwords: PRACTICE AND PROCEDURE – Application to vacate hearing date based upon asserted need for expert report – Where orders previously made for the filing of evidence – Where such orders extended – Where no indication given that any further expert report was being contemplated – Application to vacate the hearing date refused Legislation Cited: Civil Procedure Act 2005 Cases Cited: ANZ v Mio Amico Pty Limited [2013] NSWSC 716 HP Mercantile Pty Limited v Clements [2013] NSWSC 1974 Category: Procedural and other rulings Parties: Australian and New Zealand Banking Group Limited - Plaintiff Adventure Quest Paintball-Skirmish Pty Limited - First defendant Representation: Counsel: Mr C Bannan - Plaintiff Mr T Bors – Second defendant Mr T Holmes – Third defendant/applicant Solicitors: Kemp Strang Lawyers - Plaintiff Bricknell Legal - Second defendant Herbert Weller Solicitor - Third defendant File Number(s): 2014/65969 Publication restriction: Nil Judgment –ex tempore (revised) 1. In these proceedings the plaintiff seeks the recovery of moneys advanced to the first defendant, the repayment of which is said to have been guaranteed by the second and third defendants. The second and third defendants have issued cross-claims against each other. The matter is listed for hearing before this Court on 20 and 21 April next, having been set down for hearing in October of 2014. The first defendant, who is the corporate entity, has had a judgment entered against it and apparently is playing no active part in the proceedings. 2. Before the Court today is a notice of motion brought by the third defendant seeking an order vacating the hearing date. The notice of motion was supported by an affidavit of Herbert Weller, solicitor, of 13 March 2015 which was read without objection. 3. In addition, two further affidavits were read and relied upon. The first was an affidavit of Danny Wayne Bricknell, solicitor, which was read by the second defendant. The second was an affidavit of Adam Benjamin Israel affirmed on 13 April 2015, who has the carriage of the matter on behalf of the plaintiff. 4. From reading the material it appears to be an issue in the proceedings, at least from the perspective of the third defendant, as to whether or not his signature appears on a letter of offer issued by the plaintiff, such offer being the catalyst for the moneys advanced to the first defendant. It is the plaintiff's position that even if it were the case that it was not the third defendant's signature on that document it can nevertheless recover the monies owing to it. What the third defendant's fundamental position is that he did not sign that document, the affidavit of Mr Weller which was read in support of the motion, appears to advance that proposition somewhat. In paragraph 2 of the affidavit Mr Weller deposes to the fact that "one of the issues in these proceedings is whether the second defendant, Mr Hodgson, signed my client's signature on the documents sent to the plaintiff bank". 5. It is, of course, one thing to deny that a particular signature is that of the person to whom it is attributed. It is quite another to assert that the signature is a forgery perpetrated by some named person. The latter proposition now appears to encompass at least part of the third defendant's case. It is significant in those circumstances that such an allegation has not been pleaded. Necessarily, that is an allegation which amounts to an allegation of fraud and were it to be pursued, it would be required to be pleaded in clear and unequivocal terms. 6. The affidavit of Mr Weller makes reference to the fact that on 27 May 2014 he served a subpoena upon the New South Wales Police for production of documents. The documents sought under that subpoena related to an investigation which apparently arose out of a complaint by the third defendant that the second defendant had forged his signature. It seems that because of the fact that the complaint led to a criminal investigation, the New South Wales Police found themselves unable to respond to the subpoena. On 6 March 2015 documents were finally produced by the police to the Court. Access was granted to those documents on 9 March 2015. 7. In the intervening period, and in particular on 26 November 2014, Mr Weller engaged a handwriting expert, a Mr Dubedat, to provide an opinion concerning signatures on documents. Although it is not expressly stated in the affidavit, I infer that the purpose of retaining Mr Dubedat was to give weight to the third defendant's case that, firstly, the signature was not his and, secondly, that it was in fact that of the second defendant. 8. Included in the documentation produced by the New South Wales Police were apparently documents containing what Mr Weller describes in his affidavit as "specimen signatures". That material was provided to Mr Dubedat, who indicated that he was in a position to provide an expert report but that his office was closed for a period of two weeks from 27 March 2015. Preliminary discussions with Mr Dubedat and Mr Weller, to which Mr Weller deposes in paragraph 11 of his affidavit, were to the effect that according to Mr Dubedat the signatures appearing on the documents produced were made by the same person. 9. It is in these circumstances, and principally to allow the expert report to be obtained, that the hearing date is sought to be vacated. 10. The orders sought in the notice of motion are opposed both by the plaintiff and by the second defendant. In opposing the orders, and in helpful and comprehensive written submissions, counsel for the plaintiff pointed, amongst other things, to the following. Firstly, he submitted that there had been no, or at least no adequate, explanation for the delays in pursuing the production of documentation from the police. Secondly, he pointed to the fact that the purpose of the vacation of the hearing date was to obtain evidence which would be of assistance to the third defendant's case. Thirdly, he pointed to the general lack of expedition in pursuing the issue of the expert report. Fourthly, he submitted that there were opportunities which were available to the third defendant to procure the required evidence by other means. He submitted that in all of the circumstances, where it must have been apparent to the solicitor for the third defendant that documents were not being produced by the police, it was significant that none of those alternative means were relied upon. Finally, he submitted that from the plaintiff's position the matter was otherwise ready to proceed. 11. Counsel for the second defendant largely adopted the submissions of the plaintiff, but relied on three additional matters. Firstly, he pointed out that the assertion that the third defendant's signature was forged by the second defendant had never been pleaded. Secondly, he submitted that there had been no need to wait for production of documentation by the police. Thirdly, he pointed out that by reference to the relevant chronology, Mr Dubedat, the proposed expert retained by the solicitor for the third defendant, had been retained after a timetable had expired which required the third defendant to file the entirety of his evidence. 12. The essence of the submission on behalf of the third defendant in support of the motion was that the vacation of the hearing date was required so as to provide the third defendant with an opportunity to properly pursue the issue of forgery and obtain evidence which was material to his case. 13. The written submissions of the plaintiff set out, in some detail, the relevant principles to be applied in an application of this nature. Those principles are largely derived from two sources. Firstly, they are to be found in one or more of the practice notes issued in the Common Law Division of this Court. Secondly, they are to be found in judgments of this Court. 14. As to the first source of those principles, paragraph 34 of Practice Note SC CL 1 makes reference to the necessity for an application such as this to be made immediately upon the moving party becoming aware of the existence of the grounds that will be relied upon. In short, it is the plaintiff's position that the third defendant must have been aware of the grounds giving rise to this application long before now. 15. Secondly, paragraph 42 of Practice Note SC CL 6 makes reference to the fact that to ensure the efficient use of court time, proceedings which are fixed for trial will not normally be adjourned unless special circumstances have arisen which could not have been foreseen. Again, the submission is put on behalf of the plaintiff that the circumstances giving rise to this application could, and should, have been foreseen a long time ago. 16. There are a number of judgments of judges of this Court which enunciate the principles to be applied in determining an application of this nature. In HP Mercantile Pty Limited v Clements [2013] NSWSC 1974 Black J, commencing at [26], comprehensively summarised those principles. Significantly, in the context of the present application, his Honour at [27] cited, as relevant consideration, to the degree of expedition with which the respective parties have approached the proceedings, the degree to which they have been timely in their interlocutory activities, the use which they have made or could have made of any opportunity available to them in the courts in the course of the proceedings and the degree of injustice that will be suffered by the respective parties as a consequence of any order or direction which might be made. All of these matters are relevant to a determination of the present application. 17. His Honour also observed in the same paragraph that s 57 of the Civil Procedure Act 2005 requires the Court on an application of this nature to have regard to other matters, including the just determination of the proceedings, the efficient disposal of the Court's business, the efficient use of available judicial administrative resources, and the timely disposal of the proceedings and all other proceedings in the Court at a cost which is affordable by the respective parties. 18. In ANZ v Mio Amico Pty Limited [2013] NSWSC 716 Davies J summarised the applicable principles commencing at [58]. In particular, his Honour made reference (at [61]) to the fact that an adjournment for the purpose of obtaining additional evidence that should have been obtained earlier will not ordinarily be allowed, and that this will be all the more so when the nature of the further evidence is not disclosed. 19. Bearing in mind those principles and the evidence as I have outlined it, I have come to the view that the present application should be refused for a number of reasons. 20. Firstly, the issue to which the further evidence apparently goes has never been properly pleaded. As I have observed, there is a difference between an assertion by a person that a signature is not his, and an assertion that the signature has in fact been forged by another named person. Reading Mr Weller's affidavit, it now appears that the second proposition encapsulates at least part of the third defendant's case. 21. Secondly, it is apparent that the additional evidence is evidence which is sought for the purpose of improving the third defendant's case. As I have observed, the judgment of Davies J in ANZ makes it clear that an adjournment for that purpose will ordinarily not be allowed, and that this will be all the more so when the nature of the further evidence is not disclosed. On the evidence before me, the nature of the further evidence which is now sought to be obtained was not disclosed to any other party, or indeed to the Court, for a considerable period of time. 22. Thirdly, there is a complete lack of explanation in the affidavit material of what occurred between the date on which the subpoena was issued to the police and the date on which documents were ultimately produced to the Court. In particular, there is no indication of what, if any, steps were taken during that period to pursue production from the police. It may well be that documents were available to be produced far earlier than they were, but there is simply no evidence of what, if any, steps were taken to procure production during that ten month period. It is also significant that within that ten month period there were no alternative steps taken by those representing the third defendant to procure the documentation by some other means. 23. Fourthly, it must have been apparent to the solicitor for the third defendant that this hearing date was looming. Not only were no steps taken to procure production of material from the police, and not only were no steps taken to employ some alternative method of obtaining the evidence, the third defendant's solicitor consented, on more than one occasion, to the making of orders which required the third defendant to serve the evidence upon which he proposed to rely. Not only did he so consent, he did so without giving any indication to the Court that an expert report was even being contemplated. 24. What is even more significant is that on 2 October 2014 orders were made by this Court which extended the time in which the third defendant was permitted to file the evidence upon which he proposed to rely. That extension took the deadline up to 13 November 2014. No indication was given up until that time that an expert report of the nature of that referred to in Mr Weller's affidavit was being contemplated. Two weeks after that, on 26 November 2014, the expert to whom I have referred was retained. It must have been apparent to Mr Weller at that time that if an expert report was to be relied upon he would be in clear breach of the timetable that had been set by the Court requiring the service of evidence. Even in those circumstances no steps were taken by him to bring the matter back before the Court to seek a variation of the orders which had been previously made or indeed, to notify any of the other parties to the proceedings of what was being contemplated. 25. For all of those reasons, I have come to the view that it would be entirely inappropriate to accede to the order which is now sought to vacate the hearing date. 26. Accordingly, I make the following orders: 1. The notice of motion filed on 31 March 2015 is dismissed. 2. The hearing date of 20 and 21 April 2015 is confirmed. 3. I order that the third defendant pay the costs of the plaintiff and the second defendant of the notice of motion as agreed or assessed. ********** 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. Decision last updated: 17 April 2015