Gattellaro v Westpac Banking Corporation

[2004] HCA6

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(Judgment by: Kirby J)

Gattellaro
vWestpac Banking Corporation

Court:

Judges: Gleeson CJ
Mchugh J
Hayne J
Heydon J

Kirby J

Subject References:
Evidence
Judicial notice
Whether judicial notice can be taken that institutions such as the respondent use a standard form of guarantee.
Guarantee
Consequence of person named as co-surety not being shown to have executed guarantee.
Practice and procedure
High Court
Determination of appeal
Appellants' ground of appeal succeeds
Notice of Contention
Whether respondent should have leave to amend contentions sought in motion filed immediately before appeal hearing
Whether outstanding issues should be determined in intermediate appellate court.

Legislative References:
Contracts Review Act 1980 (NSW) - The Act
Evidence Act 1995 (NSW) - s 144
Supreme Court Rules 1970 (NSW) - Pt 15 r 13(2)

Hearing date:
Judgment date: 11 February 2004

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Judgment by:
Kirby J

60. This appeal[ ^[7] ] began as one concerned with the law of judicial notice. It was for that purpose that special leave to appeal was granted to the appellants. However, whilst it was before this Court, the case took a different turning. It has ended, essentially, as a trial before this Court of an issue relating to the liability of co-sureties under an alleged guarantee. As I shall show, that issue arose at a very late stage in the contest between the parties. Indeed, it could hardly have arisen later.

The facts and issues

61. To discover how this Court became involved in such a trial (effectively deciding the point in issue for the first time), it is necessary to read the reasons of Gleeson CJ, McHugh, Hayne and Heydon JJ ("the joint reasons"). Because the facts and course of the litigation are described there, those reasons relieve me of the obligation to repeat most of the material.

62. As shown[ ^[8] ], Westpac Banking Corporation ("Westpac") instituted proceedings as long ago as 1990 against the appellants, Mr and Mrs Gattellaro ("the Gattellaros"). The proceedings were based on Westpac's rights under a mortgage which the Gattellaros had executed over their home. The mortgage secured an advance from Westpac to re-finance the debts of a company in which the Gattellaros were interested, Falgat Constructions Pty Ltd ("Falgat"). There was no dispute that the Gattellaros executed that mortgage in 1986. Relevantly, the way they sought to escape their liability as mortgagors was to invoke relief under the Contracts Review Act 1980 (NSW). Their complaint was that they had been unfairly led by Westpac into personal liability for the debts of Falgat. Proof of that complaint depended upon the Gattellaros being able to establish that, by entering the 1986 mortgage, they had materially changed their personal positions, to their joint and several disadvantage. They asserted that they had. They claimed that the 1986 mortgage extended liability to them personally for Falgat's debts and did so for the first time.

63. For its part, Westpac argued that the Gattellaros had not changed their position to their disadvantage. If Westpac could make good that assertion, it would knock away any hope that the Gattellaros could obtain relief under a defence based on the Contracts Review Act . So much was accepted by the Gattellaros. Westpac submitted that, in November 1985, Mr Gattellaro had already executed an unlimited personal guarantee in favour of Westpac for the debts of Falgat. Westpac's evidentiary problem in making this submission good was that it could not produce the contract of guarantee. This was so although reference was made in Westpac's contemporary records to the fact that the guarantee had been given by Mr Gattellaro and that it was also to be executed by Mrs Gattellaro .

Identifying the burden of proof

64. Forensically, where there was a dispute over such a matter, and where the fact contested was legally relevant to the Contracts Review Act issue, one would normally have expected Westpac to bear the burden of proving, by the best evidence available to it, the giving of the guarantee by Mr Gattellaro and the terms of the guarantee. Normally, it would be inferred that security documents of such a kind would not be mislaid; that they would typically be kept by a bank in a safe place, available for proof when needed; and that Westpac would have forms and systems to govern such cases.

65. No procedure of human records is perfect. Documents and files get lost. In earlier times of paper records the larger the organisation, in a sense, the greater the risk of loss. Now, with electronic records, the risks are different but no less. The law, recognising these realities, will ordinarily allow for proof to be given by secondary means of the contents of documents and records alleged to have been lost.

66. At the trial of the present case, it was open to Westpac to call evidence as to what its standard forms of personal guarantee were in November 1985 and what those forms contained. However, in the trial, no such evidence was led by Westpac. In these circumstances, as between the parties, the proper inference would be that relevant witnesses could not have proved the facts asserted by Westpac by direct evidence. Otherwise, surely, the witnesses would have been asked the relevant questions[ ^[9] ]. Especially is this so because the manager of the Goulburn Street branch and the assistant manager of the Westpac Plaza branch were called in Westpac's case to give oral evidence. Neither was asked the relevant questions concerning Westpac's practice at the time. Nor was either asked to give evidence about the existence of standard guarantee forms or to produce such forms from the bank's records.

67. It is not possible for a party, who denies the execution of such documents, to prove the negative except by assertion. Nor is it reasonable to expect a party, denying such execution, to prove the existence and contents of documents which it contests. Still less, would it be reasonable to expect a customer to know bank practice or to have a collection of bank forms and documents. On the face of things, therefore, in the light of the factual disagreement that arose at the trial, it was for Westpac, forensically, to prove from its records or practice, the existence and contents of the instrument of guarantee which it claimed was executed by Mr Gattellaro in November 1985 and upon which it relied to resist the Contracts Review Act defence. This was so although the issue to which that evidence related, being a matter of defence by the Gattellaros, was otherwise one upon which the Gattellaros bore the burden of proof. In the event, Westpac set about trying to prove the existence and content of the guarantee of November 1985 from contemporary records. However, it did so imperfectly. It also relied upon various legal arguments.

The reliance on judicial notice was erroneous

68. One legal argument, accepted by the majority of the Court of Appeal, depended upon the doctrine of judicial notice. According to this argument, judicial notice could be taken by the court of the fact that institutions, such as Westpac, "used a standard form guarantee"[ ^[10] ]. This was the approach that the majority in the Court of Appeal embraced to derive the conclusion that the guarantee executed by Mr Gattellaro contained a clause rendering him liable in the absence of a signature of Mrs Gattellaro as co-surety.

69. I agree with the joint reasons that this conclusion was erroneous[ ^[11] ]. Whether approached by reference to the applicable language of the Evidence Act 1995 (NSW), s 144 [ ^[12] ] or by reference to the former principles of the common law, the dissenting view of Priestley JA in the Court of Appeal is to be preferred[ ^[13] ].

70. On the face of things, this conclusion vindicates the Gattellaros' appeal to this Court. It would normally require that the appeal be allowed. That order would usually be accompanied by orders that the matter be remitted to the Court of Appeal to hear and determine any remaining issues in the appeal to it consistently with the reasons of this Court. Similarly, it would involve an order that Westpac pay the Gattellaros' costs of the appeal. These were the orders that the Gattellaros sought in their notice of appeal and in their submissions to this Court.

71. In favour of making such orders are two significant considerations. First, this Court is the final appellate and constitutional court of the nation. It does not ordinarily involve itself in performing, effectively for the first time, the trial of contested new issues. This is especially so where those issues have not previously been advanced on the pleadings; where they raise questions addressed to the detailed evidence and record of the case (comprising in this appeal three appeal books); and where, ultimately, their resolution is said to depend upon the manner in which the case was fought below; the way it was pleaded; and the location of the legal and forensic burden of proof of establishing disputed facts.

72. The second consideration favouring making the usual orders is that, where this Court, effectively for the first time, decides a contested issue, it deprives a party discontented with its resolution of that issue of the opportunity of further appellate consideration of its determination. Sometimes, even a Court such as this, can err in deciding a matter on a new ground[ ^[14] ]. Where that happens elsewhere in the Australian judicature, the decision, if wrong, is susceptible to correction, ultimately by this Court. Where it happens in this Court, it is not capable of being corrected, unless it falls within the truly exceptional class of case where this Court will reopen its consideration of a matter that it has decided[ ^[15] ].

73. Further considerations that are relevant to the course to be adopted include the rather narrow points of pleading and proof that were argued for Westpac and the consequence that the course urged by Westpac has for depriving the Gattellaros of the costs order that their initiative of appeal would normally merit. This consideration has persuaded the majority of this Court to withhold a costs order in this Court in favour of Westpac although they eventually dismiss the appeal and such a costs order would usually follow such dismissal[ ^[16] ]. This is small consolation for the Gattellaros who were otherwise justified, by the Court of Appeal's error about judicial notice, in bringing their appeal to this Court. It suggests a departure from normal practice both in the disposal of the appeal and in the provision for its costs. It indicates a measure of ambivalence about the outcome - a feeling that I share but, respectfully, follow to its logical, and usual, conclusion.

An extremely belated reliance on a new contention

74. The majority decided to permit new arguments to be advanced by Westpac, based on its notice of contention. Indeed, the majority has gone further. It has permitted Westpac, in this Court and for the first time, to add a second contention although it was not pleaded in the Court of Appeal in resistance to the Gattellaros' unsuccessful appeal to that Court[ ^[17] ].

75. By its notice of motion the respondent sought this Court's leave to rely on an amended ground in its notice of contention. But it was not filed until 18 June 2003. That was one day before the hearing of this appeal. To say the least, this was a last minute attempt by Westpac to rescue the appeal from the looming jaws of defeat. Prior to the amendment, the notice of contention raised only one relevant issue. This was the issue of evidentiary inference. The joint reasons explain why the argument concerning that inference must be rejected[ ^[18] ]. The motion to amend was opposed by the Gattellaros. For reasons that I will explain, the motion should be dismissed. In this Court, Westpac should be confined to the substantive issues fought and argued at trial and in the Court of Appeal.

76. As the joint reasons correctly state[ ^[19] ], it is doubtful that, on remitter to the Court of Appeal, that Court would permit Westpac to raise the new ground upon which it now succeeds in this Court. If this is so, then, by taking the course that the majority favour, this Court effectively alters the character and course of the case. It does so at the last conceivable moment. It does so in a way that would probably not have occurred below. In doing so it adds a third novelty to the two other departures from the usual practice of this Court. With all respect, I disagree with such a turn of events.

The proper course is remitter

77. Given the antiquity of the circumstances out of which this litigation arose, the delay in Westpac's prosecution of its claim in the Supreme Court and the consequence of such tardiness for the availability of evidence, written and oral, and the memory of counsel concerning what exactly transpired in earlier proceedings, there are strong reasons for adhering to the usual rules. In the present case, this would require remitter. I do not need to elaborate the consideration of the seemliness of this Court's busying itself, at the death-knock, by trying to identify from the pleadings the location of the relevant burden of proof and to resolve subjects never tried below, so as to determine on the record the residual question presented by Westpac's new contention.

78. Issues may be raised in an ultimate court for the first time[ ^[20] ]. Under the rules of court, this may be done by a respondent to an appeal relying on a notice of contention[ ^[21] ]. However, normally, at least in civil appeals[ ^[22] ], contentions will be confined to questions where the law is clear and is applied to facts that are found, admitted or proved and addressed to an issue raised in the court below[ ^[23] ]. Rare indeed is the case, at least in a civil appeal, where this Court will embark upon examination of the detailed evidence, and the course of the trial, effectively for the first time[ ^[24] ]. I remain of the view that I expressed in Dovuro Pty Ltd v Wilkins [ ^[25] ], also a case involving civil liability:

"As a court of law, this Court should adhere to common law principle. Above all, we should be cautious in assuming the function of a jury, redetermining factual conclusions in a complex case with a lot of evidence, where it is difficult, or impossible, to recapture all of the advantages of the trial."

79. In countless proceedings, this Court has declined the invitations of the parties, in effect, to try residual factual and evidentiary questions although to do so would bring to an end a protracted saga of litigation[ ^[26] ]. Why should this Court accept such an invitation in this case, where, with all of the resources available to Westpac, a substantial banking corporation with access to the best legal advice, it only discovered the key to its success on the very eve of the hearing in this Court[ ^[27] ]?

80. The cobwebs that have grown over the facts and memories relevant to the just disposition of the residual question propel judges, concerned with substance, to attempt to bring a case such as the present to a speedy and lawful conclusion. These considerations have persuaded the majority to permit the new contention to be added and to decide the appeal upon that basis. Whilst I understand that decision, and the motivation that has led to it, I disagree. Where a case has gone so far, it is desirable, in my view, that it should proceed to judicial orders in the orthodox way. This means remitter to the Court of Appeal[ ^[28] ].

81. Remitter should especially be ordered where, as here, serious legal issues arise concerning a very late amendment to the notice of contention upon which Westpac now succeeds. The assessment of the trial on a completely new footing is a course that should be performed, if at all, by the intermediate court. New issues of law are raised, that have not previously been passed upon either by the trial judge or by the Court of Appeal. In my view, they should not be decided by this Court without the benefit of the opinion and analysis of the appellate court of the State in which the trial took place.

Liabilities of co-sureties who do not execute a guarantee

82. Much weight is given in the joint reasons to the question of whether the Gattellaros satisfied an evidentiary burden borne by them, in the circumstances of the original pleadings, by making good a contention that they were entitled to the benefit of the law of guarantees expressed in the decision of a single judge of the Supreme Court of New South Wales (Powell J) in Marston v Charles H Griffith & Co Pty Ltd [ ^[29] ].

83. The joint reasons adopt a view of the principles of law stated in that decision that leads to the search for the location of the relevant onus of proof, and hence to the record at trial. However, with respect, these are not matters that have ever been explored by the court below. Nor does this Court have the benefit of the opinion of the Court of Appeal on the correctness, scope and application of the Marston principle to guide it to the proper resolution of the dispute between Westpac and the Gattellaros. The reasons in Marston conclude with a series of propositions, two of which have been extracted in the joint reasons[ ^[30] ]. However, in his consideration of the state of legal authority leading to those propositions, Powell J expressed himself as differing from the views stated in the respected text, Rowlatt on Principal and Surety [ ^[31] ]. Powell J said that "[d]espite the respect which is customarily accorded to Rowlatt", he adhered to an opinion that "the statement of principle contained in the passages [from Rowlatt ... was] rather less than clear"[ ^[32] ].

84. The issue in Marston is therefore one of legal principle upon which the opinions of a judge and respected text-writers have diverged. Nor is the point of divergence an insignificant one for this case. Neither is it unimportant for the law of guarantees, with respect to the obligations owed to a principal where a co-surety "does not join or after joining is released" from the guarantee obligations in question[ ^[33] ].

85. Basic legal principle would therefore appear to support the proposition that where an instrument of guarantee intended to be signed by two sureties, is signed only by one and not by the other, the signatory is entitled to have the instrument "given up to be cancelled, and not merely to have relief to the extent of the contribution which the other surety might have been compelled to pay in his relief"[ ^[34] ].

86. If this proposition could be made good, upon full argument, it is one of law. It is not one, as such, that depends upon the proof by the sole signatory of that person's intention or state of mind. In the present case, the legal character of the contest between the Gattellaros and Westpac is accepted in the joint reasons[ ^[35] ]. At one stage, Westpac's case at trial was that the instrument of guarantee of November 1985 had been signed both by Mr Gattellaro and Mrs Gattellaro . Westpac's claim in written submissions to this Court was that it had never been their argument that both of the Gattellaros had signed the guarantee. However, Westpac's Notice of Contention in the Court of Appeal, in par 1(b) claimed that "the [a]ppellants, or alternatively ... the First Appellant" executed the guarantee. It therefore appears that Westpac was still trying to establish this fact in the appeal, but abandoned its attempt in this Court. Having regard to the fact that the trial judge concluded that Mrs Gattellaro had not signed the guarantee and that the Court of Appeal was satisfied that only Mr Gattellaro had signed the guarantee, this was a prudent if belated course to adopt. Because Mrs Gattellaro , in her oral evidence, had resisted the attempt of Westpac to suggest that she also had signed it, the primary judge's conclusion about her conduct must have depended, to some extent, upon his Honour's assessment of her veracity as a witness. Indeed, that conclusion is the more significant because of reservations which the primary judge expressed about the general acceptability of the Gattellaros' evidence[ ^[36] ]. The finding in relation to Mrs Gattellaro's actions therefore appeared impregnable against appellate disturbance[ ^[37] ]. It provided the factual foundation upon which the application of the law of guarantees has now to be applied to the case.

87. In the Court of Appeal, Giles JA took judicial notice of the terms of cl 20 of a contemporaneous but different contract of guarantee[ ^[38] ]. Such evidentiary matters would have been superfluous if issue had been joined at trial only on whether Mr Gattellaro , alone, had signed the guarantee. It was clear from the diary entries produced by Westpac that the bank always envisaged that both Mr and Mrs Gattellaro were to give the 1985 guarantees[ ^[39] ]. If the Marston principle accurately states the common law, it enlivens a question of whether the signature of each of the sureties was required as a condition to the effectiveness of the promise of the other in the joint contract of guarantee that Westpac propounded. That is a question of law upon which views have differed.

The operation of a principle of law

88. If a true understanding of the law considered in Marston is that joint signatures to the guarantee, in the case of Mr and Mrs Gattellaro was necessary for the legal validity of the 1985 guarantee, the absence of Mrs Gattellaro 's signature was fatal to Westpac's strategy in the trial. Moreover, if, upon a full examination of the applicable law there is an evidentiary presumption that, in the absence of acceptable evidence to the contrary, the execution by both sureties to a joint guarantee constitutes a condition precedent to its validity, Mr Gattellaro was released by the failure of Westpac to establish that it had secured the signature of Mrs Gattellaro . Upon this footing both Mr and Mrs Gattellaro would have had an arguable defence at law to Westpac's action on the 1985 guarantee. It would follow that, by assuming personal liability to Westpac in the 1986 mortgage for Falgat's debts, the Gattellaros had indeed altered their position to their disadvantage. And this was the evidentiary element they needed to establish their defence under the Contracts Review Act .

89. If the foregoing analysis accurately describes this case, then the respective positions of the Gattellaros and Westpac are not decided by the state of the pleadings or the burden of proof which the respective parties bore to establish their competing claims. It was determined by the application of the law of guarantees to the evidence as found by the primary judge. Given the way the issue has arisen, this Court does not have the advantage either of an analysis of the applicable principles of law nor an examination of the application of that law to the facts of this case as found at trial. Nor do the parties, Westpac as well as the Gattellaros, have the opportunity to challenge any determination on either of these points by a further appeal. Instead, in the manner of a trial court, this Court proceeds on the assumption of the correctness of the principles stated by Powell J and upon views concerning the respective obligations of the parties based on those principles and on the state of pleadings which may, or may not, accurately reflect the ultimate way in which the trial was conducted.

90. Because I accept the importance of the issues raised in Marston for the law to be applied to the rights of Westpac and obligations of the Gattellaros (and because those principles are on any view significant for legal doctrine concerning the rights and obligations of parties to joint guarantees) I am confirmed in my opinion that the correct course is to remit the matter to the Court of Appeal.

91. Adopting this course has three clear advantages. First, by order of this Court it corrects the error of the Court of Appeal on the issue of judicial notice. It also holds that the same outcome cannot be reached, in the evidence, on the basis of an available inference. Secondly, it withholds any alteration to the position of the parties which flows from the belated attempt of Westpac, in this Court, to add a new contention for the first time with significant consequences both for the costs and the outcome. Thirdly, it adheres to the normal rule that this Court does not accept the obligation of conducting a trial upon points such as now determine this appeal[ ^[40] ]. Moreover, before it accepts and applies important principles of law, giving them the cachet of the endorsement of this Court, this Court ordinarily requires the opinion of an intermediate appellate court addressed to the subject. This is a particularly wise course where the point of law is not without commercial importance, is the subject of conflicting legal opinions and has not previously been passed upon either by the primary judge or by the Court of Appeal[ ^[41] ].

92. In correcting the error of the Court of Appeal when it sought to resolve the case by reference to an inapplicable principle of judicial notice, this Court should not itself proceed in an unconventional way. Least of all should it do so when the decision and the principles that it then endorses have significant consequences for the parties and for the exposition of the relevant law, hereafter binding throughout Australia. There must indeed be an end to litigation. But it is important that such end should be attained by procedures that avoid injustice to the parties and do not derogate from the larger obligations of this Court to the orderly development of legal doctrine.

Consideration of the new point in the proper place

93. Generally speaking, I am sympathetic, whilst proceedings remain alive in the judicature, to a relatively flexible approach to the raising of new issues where that is just, particularly when a point of law is discovered at a late stage[ ^[42] ]. By their conduct of proceedings, parties cannot oblige a court to mis-apply the law. However, by the way they have acted, parties can sometimes disentitle themselves from raising a new point, even if it is purely one of law[ ^[43] ]. Considerations of natural justice and procedural fairness govern the response of appellate courts to such issues rather than the rigid rules of pleading and practice applied in earlier times[ ^[44] ].

94. In the present case, I would certainly not exclude Westpac from its attempt to rely upon a completely new contention. However, considerations of procedural fairness suggest to me that that attempt should not enjoy larger prospects because raised for the first time in this Court. It should be left to Westpac to seek leave to rely on the new point in the court where it ought to have been raised in the first place: in the Court of Appeal of New South Wales. Not only is this fairer to the parties, avoiding a change in the character of the appeal at the last moment and alteration of the normal disposition of costs after so many years of litigation. It is also one more respectful of the constitutional role of the Supreme Court of the State and the functions of its appellate court in cases of such a kind.

Application of the strict law of guarantees

95. My strong preference would therefore be for this Court to determine the content of the governing rule for joint sureties after that question had been fully litigated at trial, or at least fully considered in a court of appeal. If forced without these normal advantages to decide the question in the peculiar circumstances of this case, I would express the following conclusion. If a contract of guarantee is to be signed by co-sureties, so that a principal debt will be secured in that way then, unless the intended surety who has executed the guarantee consents to the other co-surety who has not executed the guarantee not thereafter executing it, the intended surety never becomes liable under the guarantee. This is so despite the execution of it by one party alone.

96. If this is a rule of law, as I presently think it is, the failure of Westpac to obtain the signature to the personal guarantee of Mrs Gattellaro (as found by the primary judge) released Mr Gattellaro of any obligation assumed under the guarantee[ ^[45] ]. At least it did so in the absence of a clear term of the contract of guarantee (not proved by Westpac) rendering Mr Gattellaro separately and individually liable. On this footing, Westpac failed to prove that there was a personal guarantee binding Mr and Mrs Gattellaro in respect of Falgat's debts to the bank on the basis of the propounded guarantee of November 1985. It follows that, when in June 1986, Westpac refinanced the debt owed by the Gattellaros and Falgat and procured from the Gattellaros a mortgage over their home to secure the advance made by the bank for such refinancing, the Gattellaros were not at that time shown to have been personally liable for Falgat's debts. They therefore changed their financial obligations significantly to their disadvantage. They did so in circumstances giving rise to an arguable defence under the Contracts Review Act . At the very least, as Priestley JA pointed out in the Court of Appeal[ ^[46] ], Mrs Gattellaro suffered an arguable disadvantage. It would follow that the primary judge erred in rejecting the foundation for the argument based on the Contracts Review Act .

97. Upon this view, despite the great delay, it would be necessary, if the subject is to be addressed, for the issue to be retried. This is appropriate because an error of law has occurred based upon mistaken findings as to the relevant facts. That error was occasioned by the failure at trial to apply the strict law governing the liability of sureties under the law of guarantees in determining a question relevant to the defence of the Gattellaros[ ^[47] ]. In Australian law, the surety is a favoured debtor, viewed with solicitude both at law and in equity[ ^[48] ]. Many are the creditors that have failed to recover from a surety because of the doctrine of strictissimi juris [ ^[49] ]. The results may not always seem just or sensible. However, they represent settled law in this Court[ ^[50] ]. In this appeal, this Court should apply that law.

Orders

98. The motion of the respondent to amend its notice of contention should be dismissed. The appeal should be allowed. The judgment of the Court of Appeal of the Supreme Court of New South Wales should be set aside. In lieu thereof, the proceedings should be remitted to that Court to be determined conformably with the conclusions of this Court on the issues of judicial notice and inference. It should be for the Court of Appeal to decide whether Westpac should have leave to rely upon the amended ground of its notice of contention. Westpac should pay the appellants' costs in this Court. The costs of the proceedings in the Court of Appeal should be decided by that Court in the light of the ultimate outcome of those proceedings.