A Matter of Opinion

The brief respecting the action of Maurice Vollar against the M. Bank landed on my desk just a few weeks before my wife and I migrated back to Singapore. It was the first interesting case referred for my opinion during my nine years in Australia. I was also pleased that it had been sent to me at the advice of Jack Wilson, a former student of my days in Wellington, who was to be the lead Counsel in the case. ...

My first advice to Jack Wilson, the bank’s lead Counsel, was to investigate the hidden facts. I further suggested that he get an opinion about the Belgian law in point. It turned out that, just as in Australia, a Belgian bank reference was not considered a business advice based on detailed research. This was particularly so if the reference was given without responsibility. Under Belgian law, such a disclaimer was effective. Another point emphasised in our Belgian legal opinion was that, as a matter of fact, the person who received the reference was entitled to bring an action to recover his losses only if he was able to establish that he had relied on the reference. ...

An attempt to mediate appeared futile. Accordingly, the trial commenced at the prescribed date. As anticipated, Vollar took the stand as soon as his Counsel completed his opening address. Under the rules of procedure then applicable in Western Australia, his Counsel took him through the facts of the case. It became clear that the business had failed and that Vollar had lost his investment and had made no earnings for months. In that regard, I felt considerable sympathy for him. Still, as the facts unfolded, I kept wondering why he had not taken professional advice before his injected his funds into the business. It was clear from the reference that, on occasions, the business exceeded the limits of its overdraft. ...

I had lunch with Jack Wilson in the court’s cafeteria. The sandwiches were fresh but, all in all, the establishment was ramshackle and the tables, which could have done with mats or table clothes, looked egalitarian rather than inviting. In comparison with it, the restaurant of Singapore’s High Court was elegant. Throughout the break I watched Jack Wilson. From a starry eyed student, he had developed in to a fine courtroom advocate. Still, it was only natural that he wanted his old teacher’s post mortem on his performance. It gave me pleasure to assure him that that in my eyes he had carried the day. A lot, though, would depend on his own witnesses: Bruce Smith and the clerk who had read out the reference. ...

A few hours later, Bruce Smith asked me out for dinner. Over an excellent meal in an elegant sea food restaurant by the Swan River, he told me what had taken place in court during the afternoon. Bruce had been subjected to a searching cross examination. Vollar’s Counsel tried to establish that, when Bruce composed he reference, he had hidden facts known to him, such as the Katz’ bankruptcy in South Australia. Bruce insisted that the reference revealed all material facts known to him and that he followed the Bank’s standard practice when he composed it. He had not written out the disclaimer because it would be read out to an enquirer such as Vollar as a matter of practice. ...

Next morning It was my turn to step into the witness box. As was to be expected, witnesses of facts (and potential witnesses like Yuri) were no longer in attendance or in the ante-room. Further, Vollar’s expert-witness had withdrawn in the last minute. My duty of objectivity imposed on me as an expert of banking practice was, accordingly, undisputable. Jack Wilson started his examination-in-chief by presenting my report and by asking if I felt the need to change it in any regards. I responded that I felt no reason to do so. Jack concluded that I was aware that my principal duty was to assist the court. Stepping in, the Judge emphasised the special duty of objectivity imposed on me as the single expert called as a witness. ...

Next morning I returned to Singapore. Some six weeks later, Jack sent me a copy of the judgment in favour of the Bank. To my knowledge, Vollar did not appeal. After a few years, I took a break, traveling to Perth with my wife. We took a pleasant trip up the Swan River. When we embarked at the end station, we decided to have a light lunch. To my utter surprise, the cafeteria was run by the Katzs. ...