FEDERAL COURT OF AUSTRALIA

Davidson v Suncorp-Metway Limited (No 2) [2020] FCA 879

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 1, 2 and 3 of the first prospective applicant's interlocutory application filed on 11 June 2020 are dismissed.

2.    The hearing of the first prospective applicant's interlocutory application for the order set out at paragraph 4 of the application is listed to be heard on 2 July 2020 at 10.15 am AWST.

3.    The costs of the interlocutory application insofar as it has been determined to date are to be the prospective respondent's in any event.

4.    For the purposes of the hearing on 2 July 2020, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), the court directs that the parties and/or their legal representatives will appear before the court by audio link for the purposes of making submissions.

5.    Paragraphs 4 and 5 of the orders made on 26 May 2020 are vacated.

6.    By 4.00 pm AWST on Friday 26 June 2020, the prospective applicants must file and serve written submissions in relation to the orders sought by paragraph 1 of the originating application.

7.    By 4.00 pm AWST on Tuesday 30 June 2020, the prospective respondent must file and serve written submissions in relation to the orders sought by paragraph 1 of the originating application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal court Rules 2011.

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    The first named prospective applicant, Mr Davidson, has brought an interlocutory application for this proceeding to be removed from Perth to Brisbane and for it to be heard in person. He also seeks an order that leave be granted for the opinion of a person said to be a handwriting expert to go into evidence, and an order for the determination of the enforceability of certain mortgages.

2    The prospective respondent, Suncorp-Metway Limited, does not consent to or oppose the application to transfer the matter to Brisbane or to have an in-person hearing, provided the date on which the final hearing in this matter has been listed, 2 July 2020, is not lost. However inquiries made of the Queensland registry indicate that the availability of a judge to hear the matter on such relatively short notice is limited. It is therefore inevitable that if the matter is transferred to Brisbane, that date of 2 July 2020 would need to be vacated. The other orders are opposed.

3    The issues in the proceeding as a whole have been summarised by Derrington J in Davidson v Suncorp-Metway Limited [2020] FCA 795, so there is no need to repeat them here. The proceeding was commenced on 21 January 2020 by the filing of an originating application in the Queensland registry of the Court. The judgment to which I have just referred stated the reasons of Derrington J for dismissing part of the originating application, which sought an injunction restraining Suncorp-Metway from enforcing certain securities.

4    That left paragraph 1 of the originating application to be resolved, by which Mr Davidson and his wife, Ms Nagatsuma (from whom he has separated), seek orders for preliminary discovery of various documents. After dismissing the application for an injunction, Derrington J set the hearing of the discovery matter down to be heard on 12 June 2020. Subsequently, his Honour ordered that the listing be changed to 2 July 2020.

The application to transfer the matter to the Brisbane registry

5    On 6 May 2020 the matter was transferred to the Western Australian registry and allocated to me for hearing. This occurred because at that time, due to the SARS-CoV-2 (coronavirus) pandemic, the court was only conducting in-person hearings in exceptional circumstances: see the court's Special Measures Information Note, Special Measures In Response to COVID-19 (SMIN-1). So any hearing out of either the Queensland or the Western Australian registry would inevitably have been held via video or audio link technology. That being the case, there would have been no difference to the parties if the matter was heard by a judge based in Queensland or a judge based in Western Australia. Either way, the hearing would not be in person. The court is a national court and the efficient allocation of resources was thought at the time to warrant the proceeding being transferred to the Western Australian registry.

6    Shortly after that occurred, Mr Davidson became represented by a solicitor, but that solicitor has since filed a notice of ceasing to act, so Mr Davidson represents himself. Mr Davidson's basis for the application for an in-person hearing is that he would be better able to see what the judge and counsel for Suncorp-Metway are saying and doing, and so will not make what he described as the mistake of interfering with what people are saying, which is easier to do when the matter is heard by audio link.

7    Mr Davidson also submitted that there is a lot to be said in relation to this matter, which he said has destroyed his life and that of his wife and children. Mr Davidson had also indicated in email correspondence with the court that he does not have a laptop computer to enable a video link and he would have difficulty maintaining an audio link by telephone because he lives in the Tablelands in a mountainous area high above sea level with only intermittent phone connections. Mr Davidson also indicated that he had been ill and has put a medical certificate into evidence, which indicates that he possibly has a viral illness, although he has subsequently confirmed that he has received a negative test for the coronavirus, indicating that he does not have that particular illness.

8    Other than the medical certificate, however, Mr Davidson has not put any materials into evidence as to audio-visual link difficulties or anything else relevant to his illness. My chambers made it clear to him in email correspondence that he would need to do so if he wished to rely on those matters for the purpose of this interlocutory application. Mr Davidson seeks an opportunity to do so after today's hearing, but the matter has been listed for today, so that the question of where the matter will be heard can be determined in time for the final hearing to proceed next Thursday if the court determines that is appropriate to occur. I will not give Mr Davidson leave to put on further evidence relevant to the interlocutory application after today's date.

9    Mr Davidson has also indicated that he considered that he has a right to an in-person hearing. That is, with respect, not correct. There is no unqualified and absolute right to an in-person hearing, because s 47A and s 47B of the Federal Court of Australia Act 1976 (Cth) permit the court to order that evidence and submissions be made over video or audio links, and the court has power to do that on the application of a party, or on its own initiative. Section 47C of the Act, however, sets out certain conditions that must be satisfied before an order under s 47A or s 47B are made. In broad terms, the conditions are that the court must be satisfied that if the matter proceeds by video link or audio link that all eligible people, both in the court room and at remote locations, are able to see and hear each other.

10    In my view, that condition is satisfied here, at least in relation to an audio link. There has been no difficulty in hearing Mr Davidson or being heard by him today. He has said that is because the weather in his current location is clear, enabling the mobile phone connection to work well, and has said that the connection would probably drop out if the weather became rainy, for example. Once again, there is no evidence of those matters; they come, notionally, 'from the bar table'. All the court can, therefore, go on is the fact that the connection today has been loud and clear. It is conceivable that if the matter does proceed next Thursday by audio link the connection may not be as good, but, in my view, that is a matter which the court can deal with on the day if it does, indeed, become an issue.

11    As for illness, Mr Davidson did not submit that it would interfere with his preparation for the hearing or that it was causing any other difficulties, other than that it might lead his voice to run out. Rather, it would be fair to summarise the basis of Mr Davidson's application for the matter to be transferred to Brisbane as being a level of discomfort with proceeding by audio link in view of the importance of the matter to him. The court is sympathetic to those concerns and does not discount them as trivial. However, the business of the court does need to proceed in the current public health emergency and it is my view that there is nothing in the nature of this proceeding which means that the matter cannot proceed satisfactorily by way of audio link. This court and other courts have been regularly hearing substantial matters in that way and, provided the court is satisfied that it can be done without practical injustice to all concerned, in my view it is appropriate that the court does proceed that way: see JKC Australia LNG Pty Ltd v CH2 Hill Companies Ltd [2020] WASCA 38 at [15]. Counsel for Suncorp-Metway has submitted that this proceeding is an application for preliminary discovery, which typically would be resolved quickly and can be determined on the basis of submissions of the parties and affidavits filed, without the need for oral evidence which might raise issues concerning credit and which in some circumstances may make it unsatisfactory to proceed, certainly by audio link. That submission is correct.

12    The matter has been on foot since the beginning of the year and, while part of the delay is, no doubt, attributable to the public health emergency, there have also been other reasons such as changes in solicitor by the prospective applicants, which have contributed to the delay. In my view, the matter should not be delayed any further without very good reason, and I am not satisfied that good reason has been shown in the present case. In particular, it appears to me that the hearing will be able to proceed fairly to all parties via audio link.

13    For those reasons, paragraphs 1 and 2 of the interlocutory application are dismissed. There will be an order directing the parties to appear at the hearing on 2 July 2020 by audio link for the purposes of making submissions.

Evidence of the handwriting expert

14    By paragraph 3 of the interlocutory application, Mr Davidson seeks an order that he have leave to put in the opinion of a handwriting expert, Mr John Heath, for the purposes of the hearing of the preliminary discovery application which is listed for 2 July 2020. Mr Davidson says that Mr Heath's opinion is necessary and relevant because it may go to establishing that certain documents which were purportedly signed by him were forged, in particular, certain authorisations which he says were used as the basis for fraudulent deduction of funds from his bank account. Mr Davidson points to what would be the serious implications of a finding to that effect, and the importance of establishing it in order for him to proceed with his various claims against the bank.

15    The answer to that contention is that the proceeding presently before the court is not an application to determine the merits of the claims that Mr Davidson wants to pursue against the bank. It is solely an application seeking preliminary discovery of a range of documents which Mr Davidson says would be relevant to those claims. In particular, it appears from the application that discovery is sought of original letters of authority, being the documents to which Mr Davidson has referred and which he claims are forged.

16    The court will not, on the application for preliminary discovery, determine the merits of the substantive claims that Mr Davidson may or may not have against the bank. If the application is successful, then, the result will be that documents will be discovered to Mr Davidson and, in his view, could then be usefully given to a handwriting expert. But unless and until that occurs, there is no call for further evidence from a handwriting expert and no apparent basis on which such further evidence could be relevant to the present application for preliminary discovery.

17    It is also necessary to note that Mr Davidson has had opportunity, including at times when he has been represented by solicitors, to gather and produce such evidence, and it would be contrary to the efficient disposition of the matter and unfair to Suncorp-Metway to produce such evidence at this late stage at such a relatively short time before the hearing of the application. For those reasons, paragraph 3 of the interlocutory application is dismissed.

The application for orders about the validity of securities

18    Paragraph 4 of the interlocutory application raises substantive questions about the validity of mortgages on which Suncorp-Metway relies. In written submissions Suncorp-Metway did not take any procedural objection to the court entertaining that aspect of the application at this late stage, and sought to meet the point on its merits. In my view there is no need to determine this part of the application at an interlocutory hearing which was brought on fairly urgently. It will be listed for hearing at the same time as paragraph 1 of the originating application, that is Thursday 2 July 2020 at 10.15 am AWST.

19    No reason having been shown as to why costs should not follow the event, I will order that Suncorp-Metway has the costs of today, including the costs of the three paragraphs of the interlocutory application that have been determined.

Associate:

Dated:    23 June 2020