CONNELL v MIROCHNA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA and POWELL JA 15 December 1997 [1997] NSWCA 78 Priestley JA. The proceedings which are before the Court this morning were initiated by Mr Connell following the unsuccessful conclusion, from his point of view, of proceedings at first instance. The nature of the judgment against him was such that he required leave to appeal before he could proceed with an appeal. A summons for leave to appeal was filed and is presently supported or sought to be supported by two affidavits which Mr Connell wished to read. Also listed before the Court today were motions filed by the Minister who has been given leave to intervene as a party in these proceedings. The first affidavit which Mr Connell sought to read was that of himself which bears the Court received stamp of 11 November 1997; although I mention this just in case it is necessary to identify it at any stage, it appears to have been re-sworn on 17 November this year. Counsel for the Minister objected to paragraphs 3, 5, 8 and 9 of Mr Connell's affidavit. He also asked that an order be made pursuant to part 38 of the Supreme Court Rules that,what he submitted was scandalous, irrelevant or otherwise oppressive matter in those paragraphs be struck out. Paragraph 3 concerns a notebook which, according to what Mr Connell says in the paragraph, was in his hands on 13 April this year. The notebook has not been put before the Court. The evidence about it in paragraph 3 is in the nature of secondary evidence; the admission of which is now governed by the Evidence Act, 1995; a particularly relevant part of which, for present purposes, is the Dictionary, as it is called, at the end of the Act which contains a part 2 and within the part 2 a clause or section S which lays down the conditions which must be fulfilled before secondary evidence of the contents of a document which is not produced can be put before a court. We do not think that the conditions which must be fulfilled have been fulfilled in the present case. Therefore, the contents of paragraph 3, so far as they relate to what was said to have been in this notebook, are not admissible. On that ground alone, the parts of paragraph 3 referring to the notebook and its contents must be rejected. Probably more importantly, however, a further point taken by the Minister was that the sentences in paragraph 3 upon which Mr Connell relies as saying what was in the notebook do not, in the Court's opinion, supply any evidence at all relevant to the case that Mr Connell would seek to make in his application for leave to appeal. The contents as recorded in the paragraph simply afford no evidence in our opinion which could possibly be taken as relevant to the claim of bias, which is the substantial basis on which Mr Connell presses his application for leave. So those sentences are, therefore, rejected. Paragraph 5 stands in a somewhat different position in that what is put forward as being evidentiary is a question that Mr Connell says that he asked of Mr Mirochna and Mr Mirochna's reply. He submitted that when that question and 2 UNREPORTED JUDGMENTS answer were taken together with the material in paragraph 3, there was a basis for submitting reasonable apprehension of bias. As already indicated, we do not think that that is open to Mr Connell to seek to rely on what is in paragraph 3 and paragraph 5 needs to be looked at as it stands. As it stands, the question and answer are not, in our opinion, material upon which any reasonable bystander could form any apprehension of bias on the part of the Judge. We would be of the same opinion even if the document relied on in paragraph 3 were before the Court and said what paragraph 3 says it said. We are, therefore, of the view that paragraph 5, insofar as it records the question and answer that I have mentioned, should also be rejected. Paragraph 8 depended upon the admissibility of paragraphs 3 and 5 or 3 or S. Upon their being rejected, paragraph 8 must also be rejected. Paragraph 9 is not relevant to the claim of bias nor is there any ground shown in the affidavit for the belief that that paragraph expresses. That paragraph also is rejected. Before the Court adjourned to consider the paragraphs in Mr Connell's affidavit that I have dealt with, a question was raised about Mr McAllister, whose affidavit Mr Connell also was seeking to read. Mr McAllister is not available for cross-examination. It follows, therefore, that his affidavit cannot be read unless the Court grants leave for it to be read. I think the Court made it plain before the adjournment, but just in case it did not I will make it plain now: that in the light of evidence that was read in connection with the opposition of the Minister to Mr McAllister' saffidavit being read, which evidence showed that reasonable steps had been taken in accordance with the rules to notify both Mr Connell and Mr McAllister that he would be required for cross-examination, in the light of his non attendance and all the explanations that Mr Connell sought to give for that, he was not here and the Court does not think it should exercise its discretion to grant leave for the affidavit to be read. On earlier occasions when Mr Connell has sought adjournments of these proceedings the Court has indicated that the time when further requests for adjournments might be granted was coming to an end unless, of course, there was some particularly compelling reason for the granting of some further adjournment. On the last occasion when the matter was here the Minister sought an earlier date for the further hearing of the summons for leave to appeal than Mr Connell thought was convenient for himself and the date to which the matter was stood over, namely today, was a date which Mr Connell acquiesced in as one which was suitable for him to be here. The Court made observations on that occasion that the matter should be ready to proceed today. The result is that it is not open to Mr Connell to read Mr McAllister's affidavit in support of his summons today and the four paragraphs that I have mentioned in his own affidavit are rejected as inadmissible. As to the question of striking those paragraphs out pursuant to part 38 rule 8, the Court will defer making its decision on that application until later in the proceedings today after we see what happens next. Orders accordingly.