Venn v Bendigo Bank Limited (No 3)
[2007] QDC 325
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- Unreported Judgment
- Venn v Bendigo Bank Limited (No 3)[2007] QDC 325
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Venn v Bendigo Bank Limited (No 3)[2007] QDC 325
Venn v Bendigo Bank Limited (No 3)[2007] QDC 325
DISTRICT COURT OF QUEENSLAND
CITATION: | Venn & Anor v Bendigo Bank Limited (No 3) [2007] QDC 325 |
PARTIES: | STUART VENN and JUDITH VENN (TRUSTEES FOR THE S & J VENN FAMILY TRUST) Plaintiffs/Applicants V BENDIGO BANK LIMITED ABN 1106804918 Defendant/Respondent |
FILE NO/S: | D387/2004 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland at Maroochydore |
DELIVERED ON: | 6 December 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 November 2007 at Brisbane |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: | Dismiss the plaintiffs’ further application filed 26 November 2007 |
CATCHWORDS: | PRACTICE AND PROCEDURE – DISCLOSURE – DISCLOSURE AFTER END OF TRIAL – DISCRETION – where applicant plaintiffs seeking further disclosure after close of trial – where seeking further relief sought in previous application which had been the subject of a judgment Uniform Civil Procedure Rules, rr, 150, 211, 213, and 223 Cases considered: Venn v Bendigo Bank [2006] QDC 319 Venn & Anor v Bendigo Bank Limited (No 2) [2007] QDC 266 |
COUNSEL: | T Macklin for Plaintiffs/Applicants D P de Jersey for Defendant/Respondent |
SOLICITORS: | Plaintiffs/Applicants self-represented Middletons Solicitors for Defendant/Respondent |
- [1]This the second application brought by the plaintiffs after the conclusion of the trial of the action which took place at Maroochydore over four days on 22 – 25 October 2007. On 5 November they applied to make major amendments to their Statement of Claim, recall and re-cross examine some of the defendant’s trial witnesses, and do various other things of a kind not generally expected after a trial finishes. The application was supported by lengthy submissions from Counsel in four ring-bound volumes. It was refused, with Reasons for Judgment published on 9 November. The current, further application was filed on 26 November 2007. It was accompanied by three new affidavits from Mr Venn, one from Mrs Venn, and 28 pages of additional submissions from their Counsel, Mr Macklin[1]. It seeks, on its face, over twenty new orders or types of relief.
- [2]The action is not as inherently complicated as these occurrences might suggest, although it might fairly be described as adventurous – something acknowledged in earlier judicial pronouncements upon it: Venn v Bendigo Bank [2006] QDC 319 (per Dodds, DCJ). It has its genesis in the Bank’s loan of $2.6m to a development company with which the plaintiffs had some association and the use of those funds to construct apartments at Bowen. The plaintiffs claimed just over $100,000 from the Bank for damages for negligence, and interest. Other material elements of the transaction and each party’s position at trial were canvassed in my judgment of 9 November, Venn & Anor v Bendigo Bank Limited (No 2) [2007] QDC 266.
- [3]The post-trial applications and the submissions made in support of them do, however, have a degree of complexity. Save for fact that the plaintiffs seek further disclosure, I had some difficulty understanding what is sought in this second application or the basis for it. That uncertainty was compounded by a suspicion that the new proceeding is simply a reiteration of the previous application – a view not diminished by some of the submissions advanced for the plaintiffs, which seemed to frankly concede that much the same relief was sought. Statements like the following, taken from the written submissions provided by Counsel for the plaintiffs, exemplify the grounds for the suspicion – and, the difficulties of comprehension:
74… It is sought in the application, to look again, by way of further review, more closely at the justice issues in this case, in light of new facts, circumstances and materials, in an attempt to persuade this honourable Court that there is, despite this late stage of the proceedings and the unusual nature of this (and the previous application) that there is a just and reasonable basis for the plaintiff’s claims now advanced. (emphasis as per original)
And this, from an earlier part of the document:
7 Again, with great respect, the Plaintiffs now seek to approach their Submissions in relation to the issues of continuing and further disclosure and their Application in relation to claims of privilege made by the Defendant on a different basis which abandons, for the moment and for the purposes of the Application before this Honourable Court today, any reliance in this Application in respect of paragraphs 1 to 7 thereof based upon any sinister, or passionate construction or presentation of their case for the purposes of this Application… (emphasis as per original)
- [4]There is one matter raised in the new application which, happily, can be quickly resolved. Evidence in chief at the trial was, by earlier order, presented in affidavit form. The defendant had a number of objections to parts of the plaintiffs’ affidavits, some of which were ruled upon at the commencement of the hearing. Other remaining objections, were adjourned for further discussion between the parties on the assumption Counsel could resolve differences about them. Counsel for the defendant has now signified that it withdraws all further objections to the plaintiffs’ material, and that appears to extinguish the relief sought in clause 3.6 of their present application.
- [5]The primary question to be determined on the present application is, I was told by Mr Macklin, whether the defendant ought be ordered to give further disclosure. His written submissions contend (as I understand them) that the defendant’s previous disclosure is so defective as to be misleading and to thereby signify, in his phrase, ‘gross negligence bespeaking dishonesty in the Bank’ (my emphasis). In his oral submissions, Mr Macklin said disclosure was the ‘most significant part’ of the application[2] and other elements of it should be addressed later – ie, as I understood him, after the further disclosure his clients sought had been undertaken, and on some later occasion at another hearing.
- [6]These other parts of the application seek orders that the plaintiffs have leave to amend their pleadings; reopen their case; recall and further cross-examine two of the witnesses the Bank called at trial, and call another bank officer who did not give evidence; and, that I ‘vacate’ the costs orders made against them on 9 November 2007.
- [7]The attack upon the defendant’s disclosure focuses, firstly, upon some alleged discrepancies between the bundle of documents which came to form Exhibit 11, tendered on the last day of trial, and a copy of the bundle apparently provided to the plaintiffs. There appears to be an emphasis, in the submissions, upon particular documents described as version 1, version 2, and version 3. These documents were discussed at length in my earlier decision of 9 November 2007. I found them of no great moment – or, at least, to lack the significance and, in particular, the sinister features which the plaintiffs sought to place upon them. It is not necessary to revive that debate.
- [8]In any event, much is then made in the supporting affidavits and Mr Macklin’s submissions about alleged differences between the documents which presently comprise Exhibit 11 and those, related to and said to have been represented as a copy of it, held by the plaintiffs. The alleged differences are said to give rise to an inference that the defendant’s disclosure is faulty, or misleading.
- [9]Discussion about these assertions must commence with the proposition that Exhibit 11 is, of course, what it is: the plaintiffs and their Counsel were present in court when the bundle was tendered and it is, ultimately, the only document which matters. The next major hurdle for the plaintiffs is that the evidence fails to prove the alleged discrepancies. A lengthy affidavit from the female plaintiff about her custody of the papers said to comprise the copy of Exhibit 11 given to the plaintiffs during the trial contains gaps in what is sometimes called the ‘chain of custody’. It falls short, for that reason, of establishing that the bundle of documents handed to the plaintiffs on the final day of trial has always remained intact and, on its face, contained different documents from those actually comprising Exhibit 11. An affidavit from the defendant’s solicitor Ms Lloyd sworn 30 November 2007 asserts that, in fact, the working copy of Exhibit 11 provided to the plaintiffs’ Counsel at the hearing was identical to the tendered bundle. The evidence from the plaintiffs does not establish anything to the contrary.
- [10]The documents were, moreover, produced by a liquidator who was not a bank employee or officer. It seems they were brought into existence for use by the solicitors for the defendant in pending litigation and attracted, then, the protection of privilege and were not amenable to disclosure.
- [11]The next difficulty the plaintiffs confront is the absence of evidence, or any persuasive basis for submitting, that any of the documents alleged to be missing from their copy of Exhibit 11 were novel or surprising, or have any significance in respect of the action proper (in the sense they might have affected the outcome of the trial or been used by the plaintiffs in their case). Indeed, several of the documents must have already been in the plaintiffs’ possession (some of them are letters from the defendant to the male plaintiff). There is nothing, moreover, to suggest anything in the nature of either innocent or dishonest suppression of any documents, or misconduct, or inadequate disclosure by the defendant or its advisers. In concert, these matters dissolve the attempted attack on this aspect of the documentary evidence.
- [12]The second series of complaints involves attacks upon documents numbered 472 and 593 in the defendant’s list of documents. Mr de Jersey of Counsel, for the Bank, purported to attach copies of these to his submissions. It was that exercise, and an exchange between Counsel during the hearing which revealed differences between versions of the list in the possession of the parties, and the list filed in the Court. What also became clear, however, was that the differences are actually nothing more than a matter of numbering. Document 472 is on any view an entirely innocuous document.
- [13]The apparent misnumbering of document 593 in different versions of the list has not had any disadvantageous consequences for the plaintiffs. It is not alleged, by them, that they did not receive a copy of document 593 in one or other of its forms – whether that document was a form of contract, as described in one version of the list of the defendant’s documents, or a bundle of correspondence and other papers, as appears in the other. These claims, then, are also without moment. Full disclosure occurred, albeit with some differences in numbering between the copy of the defendant’s list of documents sent to the plaintiffs and the copy filed in the court, and the discrepancies are explained - they involve no apparent misconduct on the part of the defendant or its advisors and have wrought no discernible disadvantage upon the plaintiffs.
- [14]Over and above the immediate practical hurdles the plaintiffs face in establishing some deficits in the defendant’s disclosure, the plaintiffs’ complaints are not placed in the context of the Uniform Civil Procedure Rules concerning disclosure, or canvassed in terms referrable to them. UCPR r 223 makes it plain that it is inappropriate (and insufficient) to simply apply for further and better disclosure generally, with nothing more. Rather, the rule places an onus upon the applicant for further disclosure to establish that there is an objective likelihood that the duty to disclose has not been complied with or that a specified document or class of documents exists or existed (and has passed out of possession or the control of a party): r 223(4). The first head of the test involves, of course, the question whether there has or has not been compliance with r 211, touching the general duty of disclosure.
- [15]The particular application for disclosure here fails, it seems to me, all of these tests. It has not been shown that the documents have not, in truth, actually been disclosed and it has not been established that there is any utility in any further orders for disclosure.
- [16]The submission made in support of this application that there are ‘… new facts, circumstances and materials’ warranting the wide-ranging relief the plaintiffs seek is simply not, then, established.
- [17]In what appears to be an attempt to deflate any suggestion these alleged problems with the defendant’s disclosure should have been discovered earlier, Mr Macklin’s written submissions contain a lengthy exposition of the difficulty he experienced as a result, it is said, of his late direct brief. As he frankly admits, however, he received that brief 10 days before the trial was due to commence. In any event it is unclear how these events have a legal, or even a practical, connection with the complaints which the plaintiffs now advance.
- [18]The plaintiffs go on to assert, as I understand their case, that the alleged deficits in the defendant’s disclosure, considered in concert with the plaintiffs’ pleaded claims, raise an inference and support a finding that the defendant has been grossly negligent. Such gross negligence is said to involve some dishonesty on the part of its employees and agents. This assertion is made in the course of some 19 pages of written submissions. On the last page it is said that the things alleged against the Bank may be capable of ‘innocent explanation’ but that cannot be discerned unless the defendant provides further and better disclosure. The absence of that disclosure founds the fair conclusion, it is said, that the Bank is in truth unable to advance an explanation consistent with innocence – described, in the submissions, as ‘… a negative way of saying the defendant is guilty of gross negligence bespeaking dishonesty’.
- [19]Although less than confident that I fully understand each of these further submissions, the passage set out earlier and the nature of the relief sought now does point persuasively to the conclusion that this second post-trial application largely involves a mere reformulation of the allegations, and claims, made by the plaintiffs in the previous application. On its face this appears to involve what Mr de Jersey of Counsel, for the defendant, not unfairly described as an ‘impermissible collateral attack’ upon the findings published on 9 November. Such an attack is made in circumstances where a final judgment had been entered which established that the fraud allegations sought to be raised were embarrassing and without foundation – and where the plaintiffs have not applied to set the judgment aside, and neither have they appealed it.
- [20]The previous application was described as misconceived, and without merit. It is inescapable that the present application is equally pointless and ill advised. It is very troubling that the plaintiffs persist in these futile attempts to prolong litigation which practically, and in my view fairly and justly, ended at the conclusion of the trial more than a month ago. While there were some minor residual evidentiary matters involving the plaintiffs’ witness statements left to be resolved after the trial ended, they have now been finalised. It is compelling that by now the plaintiffs have had more than ample opportunity to present their case. Nothing in their wide-ranging complaints and assertions in two applications since the conclusion of the trial affects or alters that perception.
- [21]The application is dismissed. I will hear further submissions about the costs associated with it.