District Court New South Wales Medium Neutral Citation: Kumar v Sydney Western Realty Pty Ltd & Anor [2021] NSWDC 430 Hearing dates: 2 – 5 August 2021 Date of orders: 05 August 2021 Decision date: 05 August 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 48 Catchwords: EVIDENCE – credibility evidence – whether exception to credibility rule established – challenge by a party to an opposing party's note on basis of suggested fabrication – tender of document by opposing party as prior consistent statement – whether leave to adduce evidence should be granted – appropriate term for grant of leave Legislation Cited: Evidence Act 1995 (NSW) ss 55, 101A, 102, 108, 135, 136, 192 Cases Cited: Leung v The Queen (2003) 144 A Crim R 441 R v Attallah [2005] NSWCCA 277 Stanoevski v The Queen (2001) 202 CLR 115 Texts Cited: Nil Category: Procedural rulings Parties: Ms D Kumar (plaintiff) Sydney Western Realty Pty Ltd (first defendant) Mr A Singh (second defendant) Representation: Counsel: Mr R O'Neill for the plaintiff Mr M Klooster for the first defendant Mr M Hutchings for the second defendant Solicitors: Keen Lawyers for the plaintiff Clyde & Co for the first defendant Gilchrist Connell for the second defendant File Number(s): 2020/00062493 Publication restriction: Nil Judgment Background 1. During the trial of this matter, I ruled on an evidentiary dispute as to the admissibility of a document and informed the parties that I would publish my reasons for admitting the tender of a document relied upon by the Second Defendant, subject to terms, at the same time I published my substantive reasons. In this short judgment, I separately publish my reasons for admitting the document. They should be read with reference to the more substantive reasons which will separately be published on Caselaw. 2. This proceeding features a claim of professional negligence by a solicitor (the second defendant) in acting for a purchaser (the plaintiff) on a conveyance of property in Toongabbie in the middle of 2019. That property comprised a main house and a granny flat. 3. The dispute between the purchaser and her solicitor emerged when it became apparent, subsequent to the completion of the sale, that the granny flat had been illegally converted from a garage. There had been a prohibition from the local Council on the use of the garage for habitable purposes. Not long after the sale was completed, the local council ordered that the garage be reinstated. The plaintiff claims different heads of financial loss. 4. The plaintiff complains, amongst other things, that she had not been advised by her solicitor of the fact that what she understood was the granny flat was not habitable or to advise her to make the necessary searches which would have enabled this state of affairs to be ascertained. Part of the solicitor's defence is that he did inform the plaintiff of the opportunity for her to make the searches or inquiries which may have revealed the true position – namely, obtaining a building certificate and survey report from Blacktown City Council – but, when given that opportunity, the plaintiff provided him with instructions not to make the inquiry. 5. Mr Singh, principal of the law firm, deposed in his affidavit (affirmed on 24 May 2021) which had been prepared in this proceeding, to a conversation he had with the plaintiff on 31 May 2019. In cross-examination of Mr Singh, Counsel for the plaintiff put to him that the entirety of Mr Singh's account of the conversation did not occur. Mr Singh adhered to his position. 6. In his affidavit, Mr Singh annexed a file note (p 84 of the affidavit). It was a typed note. It stated: "File Note – 31/5/2019 Spoke to client – she does not want to order Building certificate and Survey report. Advised her that this is the only way to find out if the Garage was approved to be converted to a granny flat. It is okay it doesn't matter. She wants extension of cooling off period so she can speak to Tariq regarding Building and Pest inspection." 1. For the hearing that commenced on 2 August 2021, the Court was supplied with three volumes of Court Book; some of which contained the pleadings and the affidavits, but most of which comprised documents. An index to the Court Book, which the Court was informed had been compiled by the plaintiff's solicitor, identified, as 'item 9' of Court Book, "Complete file of Redline Legal Services listed as follows …". Thereafter the index of the Court Book described every document identified as having its provenance in the solicitor's file, comprising pages 496 – 859 (inclusive), which constituted the entirety of Volume 2 of the Court Book. Not all of the Court Book was ultimately tendered. To the contrary, only a small portion of the documents which comprised Volumes 2 & 3 of the Court Book was ultimately tendered. 2. But one of the documents (Exhibit 2D2) tendered by the solicitor in his case was a document titled 'File Note/Progress', which identified the plaintiff's name, her address and the subject matter of the file. Materially, the file note contained entries of a range of conversations between the solicitor and the plaintiff for the duration of the matter, from 27 May 2019 to 1 July 2019. The title to the second column was "Description". In his evidence, the second defendant said that he would record "very important" things in this entry. 3. The description of the entry alongside 31 May 2019 in this particular file note (Exhibit 2D2) stated "Spoke to client. She wants extension-cooling off period'. As is evident, this particular note contained no reference, on its face, to any discussion about the granny flat. 4. There was no other document within Volume 2 of the Court Book that contained a stand-alone file note, for all of the conversations identified in Exhibit 2D2, of the kind apparent in the 'stand-alone' file note for 31 May 2019. 5. At the conclusion of his cross-examination of Mr Singh, Counsel for the plaintiff put to Mr Singh that the file note of his conversation with the plaintiff, which appeared at p 84 of his affidavit, was not created on 31 May 2021, but at a later time. Mr Singh denied the proposition. Mr Singh's tender 1. In the above context, after Mr Singh had completed his evidence, and virtually at the end of the evidence in the trial, Counsel for Mr Singh sought to tender 3 pieces of inter partes correspondence subsequent to the commencement of this proceeding. These were: (a) a letter from the plaintiff's solicitor, Keen Lawyers (Wayne Keen) to Mr Singh's solicitor, Gilchrist Connell, dated 10 July 2020; (b) an email from Alex Haslam, the principal of Gilchrist Connell, to Mr Keen, dated 15 September 2020, purportedly referring to correspondence including, but apparently not limited to Mr Keen's letter of 10 July 2020; and (c) Mr Keen's email of 21 September 2020 in reply to Mr Haslam's email. 2. Counsel for the plaintiff objects to the tender of Mr Haslam's email and, as I understood him, also the other emails from his instructing solicitor. 3. In addition to the general context that I have described above, to determine the admissibility of Mr Haslam's email of 15 September 2020, it is necessary to consider Mr Keen's letter of 10 July 2020 and the context in which that letter was written. 4. To begin with, there is a difficulty for the Court in that Mr Keen's letter of 10 July 2020 started with a cross-reference to an email, apparently from Gilchrist Connell, of 8 July 2020, which was not before the Court on this application for tender. At any rate, it is pertinent to note that, by 10 July 2020, Mr Singh had not yet filed his Defence. Naturally, he had also not yet prepared his affidavit, which was eventually affirmed on 24 May 2021. 5. I consider that I can infer from Mr Keen's letter of 10 July 2020 that he was complaining about not having supplied to him documents referred to by Gilchrist Connell in its letter of 8 July 2020. One of those documents apparently referred to (in Gilchrist Connell's letter of 8 July 2020), but which was not attached, was "the alleged File Note dated 31 May 2019." 6. Mr Keen then stated the inference, or more accurately, the 'assumption', that he drew from that omission; being that since that file note had not been supplied in "the file" (which I take to be a reference to Mr Singh's file), and had not been provided in Gilchrist Connell's letter of 8 July 2020, then the note must be a "recent invention". 7. This expression of Mr Keen's assumption drew a furious response from Mr Haslam, which is the subject of his email of 15 September 2020. 8. Mr Haslam's email falls into different parts. 9. First, under the heading '31 May 2019 file note', the email refers to an attachment of a PDF version of the 31 May 2019 file note and information as to when it was created; with 5 enumerated points. 10. Secondly, underneath those 5 points is an opinion derived from the preceding 5 points, coupled by a demand that Mr Keen's expressed assumption of 'recent invention' be retracted. What follows thereafter is an assertion that Mr Keen's expression of his assumption was defamatory in various ways and had caused hurt to Mr Singh. 11. Thirdly, Mr Haslam sets out purports to "repeat" Gilchrist Connell's previously stated 'facts' which it relied upon in its case. 12. Fourthly, Mr Haslam then supplied commentary upon a report from Mr Roger Harkin, an expert solicitor engaged by the plaintiff. 13. Fifthly, and finally, the letter contained an opinion from Mr Haslam about the plaintiff's prospects of success and "suggested" that she withdraw her claim; and that otherwise, Gilchrist Connell threatened to refer to Mr Haslam's email in support of a claim for indemnity costs at the conclusion of the proceeding. 14. In response to Mr Haslam's email, Mr Keen expressly withdrew the earlier expression of his 'assumption' about the note's recent invention. The argument 1. Counsel for the plaintiff objects that the correspondence is not relevant, could not be admissible as credibility evidence (being an exception to the general prohibition against credibility evidence under s 102); and finally, if it be admitted, that it should be subject to a limitation order under s 136 that the evidence be admitted only to the credit of Mr Singh and not for the truth of the contents. 2. Counsel for Mr Singh contends that the correspondence is relevant, that it falls under s 108 of the Evidence Act and, if it is to be limited on the basis of unfair prejudice, such limitation be restricted only to a small part of the email. Consideration 1. I commence my consideration by indicating that most of Mr Haslam's email is not relevant. With reference to the parts in the email that I have identified, as to the second part, it is not relevant to the issues for my determination whether or not Mr Keen defamed Mr Singh, and whether or not Mr Singh suffered damage as a result of his being defamed. Further, Mr Haslam's opinion as to whether Mr Singh was defamed is also irrelevant. 2. As to the third, fourth and fifth parts of Mr Haslam's email I have described, none of that is relevant either. It is opinion evidence from a solicitor about the prospects of success of an opposing party in contested litigation. Mr Haslam's opinion is irrelevant to the issues for my present determination (although it may or may not be relevant to costs). Even if it was relevant, I consider that I can, acting in a trial by judge alone, withstand any 'prejudice' to the plaintiff from its reception. But if there was any residual relevance in them, they should be excluded on the basis that their probative value is substantially outweighed by the danger that it would cause or result in an undue waste of time. 3. The second, third, fourth and fifth parts of Mr Haslam's email are rejected. 4. This leaves the first part of Mr Haslam's email. 5. The threshold for relevance in s 55 of the Evidence Act is low. The circumstance that, as at 15 September 2020, Mr Haslam was purporting to support what appears to have been, to that point, instructions which had been supplied to him out of court by Mr Singh by a document amounts, in my view, only to credibility evidence. That is permitted under s 55(1) and (2)(a) of the Evidence Act. That is only the starting point, however. 6. Counsel for Mr Singh did not, in his application for tender, suggest that the first part of the evidence could be admissible as an exception to the hearsay rule. Plainly, the document could not be a business record. 7. Section 101A of the Evidence Act defines 'credibility evidence' as being evidence in relation to a witness, or other person, that is: (a) relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant: i. because it affects the assessment of the credibility of the witness or person; and ii. for some other purpose for which is it not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6 (including the provisions prohibiting hearsay). 1. I do not accept that the first part of Mr Haslam's email contains representations which would fall within s 101A(b)(ii). The evidence is relevant only because it could affect the assessment of Mr Singh's credibility. 2. As noted, s 102 generally prohibits credibility evidence (the 'credibility rule'). As his Counsel recognised in his submissions, Mr Singh needs to establish that a specific exception to the 'credibility rule' is engaged. 3. Mr Hutchings, Counsel for Mr Singh, submits that s 108(3) is engaged. He submits, in particular, that in putting to him that the file note (p 84) in his affidavit was not created on 31 May 2019, Counsel for the plaintiff, either expressly or by implication, suggested that Mr Singh had fabricated the note, so that the condition in s 108(3)(b) was satisfied. 4. Section 108(3) provides that the credibility rule does not apply to evidence of a prior consistent statement. "Prior consistent statement" is defined (in the Dictionary) to mean a previous representation that is consistent with the evidence given by the witness. 5. I accept that the first part of Mr Haslam's evidence constitutes a prior consistent statement. There is no necessity for the prior consistent statement to have been made by the witness himself or herself and I do not see why the statement could not be made by an agent for the witness, here Mr Haslam. 6. Nevertheless, the Court's leave must be sought to have the evidence of the prior consistent statement admitted under s 192. Neither Counsel addressed the Court about s 192. 7. As to whether leave should be granted, the Court must not only take into account the matters in s 192(2) of the Evidence Act, but also other relevant matters, including, without limitation, the discretions in ss 135 and 136 (Stanoevski v The Queen (2001) 202 CLR 115 at [44]; R v Attallah [2005] NSWCCA 277 at [61]-[62]). 8. Section 192(1) permits leave to be granted on terms. Addressing the non-exhaustive considerations in s 192(2), in my view, the admission of the email would not materially add unduly to the length of the hearing (s 192(a)). This is a civil proceeding, which is less serious than a criminal proceeding (s 192(2(d): it is not the case, for example, that an accused's liberty may turn upon the admissibility of the prior consistent statement. This consideration is neutral. 9. The matters in s 192(2)(b) and (c) merit closer scrutiny. 10. Counsel for the plaintiff offered to accept the admissibility of Mr Haslam's email on condition that it be limited only to the plaintiff's credit. This did not go far enough for Counsel for Mr Singh's forensic purposes. The following considerations are pertinent. At least the predominant purpose of this part of Mr Haslam's email was to afford a platform for a contention that Mr Keen had defamed Mr Singh because of the latter's expressed assumption. It was not, in my view, intended to furnish proof for a judicial proceeding of that which was represented, namely that the 31 May 2019 file note was created when Mr Singh said that it was. Relevant, in this respect, is that the prior consistent statement was made by Mr Haslam. Although that did not disqualify it from being a prior consistent statement, the circumstance that it did not come from the witness whose credit was challenged has been regarded as a material factor on the grant of leave (Leung v The Queen (2003) 144 A Crim R 441). Further, the purpose for the tender is not only to establish that there is a prior consistent statement to support Mr Singh's evidence in his affidavit, but also to establish that such statement should be believed, by reason of information contained in some unspecified means of storage. 11. Notwithstanding that Mr Keen withdrew his earlier expressed 'assumption', in my view opinion, Mr Haslam, or Gilchrist Connell, could not reasonably have inferred from this, at the time of preparing Mr Singh's affidavit, that no challenge would be made, in any fashion, to the note at the hearing. In his email of 21 September 2020, Mr Keen only did what Mr Haslam demanded that he do: to retract his statement, in inter partes correspondence, that he "assumed" from the circumstances then known to him; apparently caused by Gilchrist Connell's own omission to supply it earlier, that the 21 May 2019 file note was a 'recent invention'. The demand did not seek to elicit that he do anything else at that time, or at any future stage of the litigation. By that stage, Mr Singh's affidavit (to be sworn or affirmed) had not been served. The content of Mr Keen's email of 21 September 2020 did not relieve Mr Singh of the requirement to prove his Defence, which amongst other things, asserted the creation of the note on 31 May 2019. It was therefore not the case that Mr Singh, or his lawyers, could reasonably have formed the view that he would not be challenged about the 31 May 2019 note. 12. But if I am wrong in this, in my view, as I have indicated, Counsel for Mr Singh wishes to exploit the first part of Mr Haslam's email not only to establish a prior consistent statement but the truth of that prior statement. This is in a context where it is now too late for the plaintiff to test the veracity of the statement; which it might have done if Mr Singh had inserted in his affidavit the information about the 'properties' or circumstances of the creation of the kind referred to in the email. In the circumstances, it would, in my view, be unfair to the plaintiff for the content to be admitted for this broader purpose desired by Mr Singh (s 192(2)(b)). 13. As to its importance, in my view the real significance of this part of the email is to bolster Mr Singh's credibility (s 192(2)(c)). The significance of the evidence can rise no higher than the document was created when he said it was created. It does not significantly elevate his credibility to prove that he was correct in his statement as to when it was created, so as to justify hearsay evidence from Mr Haslam. What ultimately will be significant is whether his evidence of what he actually said to plaintiff, which the plaintiff disputes, is accepted. The existence of a contemporary file note of such conversation is one, among many, circumstances for the Court to take into consideration when considering the veracity of what is contained in it, or the extent to which the note supports Mr Singh's affidavit and testimonial evidence of what he said to the plaintiff on 31 May 2019. 14. As indicated, s 192(1) permits the Court to grant leave on terms. In my opinion, that extends to the use or limitations upon the evidence. As I have also indicated, consideration of s 192(1) may be influenced by consideration of the discretionary exclusions or limitations under ss 135 and 136 of the Evidence Act. This obviates any requirement to additionally consider those grounds for exclusion or limitation of the email. 15. For the foregoing reasons, I granted leave for the second defendant, pursuant to s 108(3) of the Evidence Act to adduce evidence of the first part of Mr Haslam's email, as identified earlier in these reasons, be admitted subject to the limitation that the evidence is admissible only upon the credibility of Mr Singh and not otherwise as evidence of the truth of what is represented in that part of the email. 16. To reiterate, the balance of the email was ruled to be inadmissible. 17. The letter from Mr Keen of 10 July 2020, and his email of 21 September 2020 were relevant for the purpose of adjudicating upon the admissibility of Mr Haslam's email. With that adjudication having been made, in my view, the relevance of both of those communications has been spent, and they are not relevant for the issues for my determination in the substantive proceeding. I propose, however, to have them marked for identification. 18. As indicated during the hearing, I directed the Second Defendant to provide to the Court a redacted version of Mr Haslam's email of 15 September 2020, in accordance with these reasons and for that redacted version to be supplied to the other parties and to my Associate, forthwith. The redacted version of that email became Exhibit 2D9 in the proceeding. ********** 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: 31 August 2021