New South Wales District Court CITATION: Makeig v Tucun [2009] NSWDC 42 HEARING DATE(S): 13/10/08, 14/10/08, 15/10/08, 16/2/09, 17/2/09, 9/3/09, 10/3/09, 12/3/09, 13/3/09 JUDGMENT DATE: 13 March 2009 JURISDICTION: Civil JUDGMENT OF: Cogswell SC DCJ DECISION: Tender of evidence rejected. CATCHWORDS: EVIDENCE-Documentary evidence-Tendency-Was notice reasonable in circumstances?-Credibility only-Significant probative value-Discretion to reject-Hearsay LEGISLATION CITED: Evidence Act 1995 s59, s62. s64, s94, s97, s106, s135 CASES CITED: Jacara Pty Ltd v The Perpetual Trustees WA Ltd (2000) 106 FCR 51 Peter Makeig PARTIES: Tugomir Tucun Stephanie Maureen Tucun FILE NUMBER(S): 5357/07 COUNSEL: Mr T Somerville Mr F Kalyk JUDGMENT 1 Mr Kalyk, who appears for the defendants in this case, tendered two documents. Both were objected to by Mr Somerville, who appears for the plaintiff. This is a ruling on the admissibility of the documents tendered by Mr Kalyk. 2 The first document I marked MFI 12. That document comprises a number of pages of transcript. The transcript, it is agreed, is of proceedings in the Supreme Court. Those proceedings were conducted last month and earlier this month. The plaintiff in those proceedings was the plaintiff in these proceedings, Mr Peter Makeig. Another part of MFI 12 was a document conveniently setting out the page numbers of the pages which Mr Kalyk was tendering and the basis upon which he tendered those respective pages. 3 The second document I marked MFI 15. That also comprises two documents. One is a tax invoice dated 25 July 2005 from Mr Makeig to a person named Mr Van de Scheur. That concerns work by Mr Makeig concerning a matter unrelated to this case apart from the way in Mr Kalyk argued that it is connected. A second component of MFI 12 is a document called an amended statement of claim issued out of the Local Court by the current plaintiff against Mr Van de Scheur, claiming an amount of money said to be $65,000 in respect of the work which as the subject of the invoice which I referred to. It will be convenient to deal with the admissibility of MFI 15 when I am dealing with a particular aspect of the admissibility of the documents contained in MFI 12. 4 A large number of the pages of transcript tendered by Mr Kalyk as part of MFI 12 were tendered to prove that the plaintiff had a tendency to act in a particular way. Such evidence was said to be evidence of conduct by Mr Makeig which proves that he had a tendency to act in particular ways listed by Mr Kalyk. Such evidence is not admissible by virtue of the tendency rule set out in s 97 of the Evidence Act 1995. There is an exception provided by s 97(1). The exception has two components, both of which must be fulfilled. One is a notice component and another is a component regarding the probative value of the evidence. 5 It is important to turn first to the notice component because I drew Mr Somerville's attention to the notice component and invited him to argue whether it should prevent the tender or not. The notice component of the exception provides that the party seeking to adduce the evidence must give reasonable notice in writing of the party's intention to adduce the evidence. 6 It is important to understand the sequence of some events in examining this notice component. Mr Somerville called his client, Mr Makeig. Mr Makeig commenced his evidence when these proceedings commenced last year. He resumed his evidence in January this year and his evidence concluded on 28 January this year. As I have already mentioned, other proceedings in which he was a plaintiff, those in the Supreme Court, were conducted in February and March this year. The pages of transcript in MFI 12 tendered by Mr Kalyk are from those proceedings. 7 Next it is relevant to make some observations about the notice that was given by the defendants in this case. Correspondence about that notice became exhibit E1 before me in the proceedings concerning the admissibility of the evidence which is the subject of this judgment. Although I have not checked this with the parties it seems to me that the latest pages of transcript being tendered which are the subject of MFI 12 are dated 2 March 2009. On that day the solicitors for the defendants gave to the solicitors for the plaintiff notice under s 97 that they intended to seek the court's leave to re-open their case to permit the tender of "the transcripts of the oral evidence of your client and his wife" in those Supreme Court proceedings. The notice, in addition, made reference to s 98 of the Evidence Act but that section is not relied upon by Mr Kalyk. 8 The defendants in these proceedings were not parties to the Supreme Court proceedings. I am told that one of the defendants in these proceedings sat in on those proceedings. I am also told that at least one of the legal representatives of the defendants in these proceedings had access to the transcript but I am also told that copyright law prevented them being provided with copies for themselves. That explains a letter two days later on 4 March 2009 from the defendants' solicitors to the plaintiff's solicitors enclosing a notice to produce the transcript of those proceedings. I should add that the proceedings in this case before me were adjourned from 17 February 2009 until 9 March 2009. The notice to produce asked for the production of the transcript on 9 March 2009. 9 The plaintiff's solicitors responded the next day asking the defendants' solicitors to nominate the parts of the transcript to which they were referring. The defendants' solicitors responded the following day telling the plaintiff's solicitors they were unable to give such advice because they needed to be able to review the transcript after it was produced. It is agreed between the parties that the transcript, comprising some 600 pages, was produced to this court on 9 March 2009. Two days later, on 11 March 2009, the defendants' solicitors provided the plaintiff's solicitors with a more specific notice, partly purporting to be under s 97 of the Evidence Act specifying, in detail, the pages of transcript which were proposed to be tendered on the part of the defendants. 10 It is in light of that sequence of events that the question whether the defendants have complied with the first component of the exception to the tendency rule must be assessed. That component required them to give reasonable notice of their intention to produce tendency evidence. 11 A notice is required, by reg 5 of the Evidence Regulation 2005, to state the substance of the evidence intended to be adduced and particulars regarding the person's conduct said to amount to a tendency. Those particulars were not contained in the notice but the notice did specify the details of the transcript references. 12 A court may dispense with a notice requirement under s 97. Such a dispensation is provided for by s 100 of the Evidence Act. A party would apply for a dispensation which would be in the form of a direction that the tendency rule is not to apply to particular tendency evidence, despite the failure to give notice under s 97. Various considerations are said to be relevant to such an application and are referred to by the authorities. Mr Somerville drew my attention to R v Harker [2004] NSWCCA 427 at [35] as examples of two of those considerations. At my invitation, he outlined the prejudice occasioned to him by what he regarded as the late notice given to him. 13 During the course of the argument, I was of the view that this was a case where the notice was not reasonable in the sense that it was given in broad terms as long ago as 2 March 2009 and did not become specific until 11 March 2009. However, on further consideration, I have changed that preliminary view. A review of exhibit E1 and the sequence of events which I have outlined, lead me to the conclusion that the notice given by the defendants in this case was reasonable in the circumstances. It seems to me that they gave notice at the earliest available opportunity which they had. As it happens, the transcript, which is the subject of MFI 12, did not become available until after the plaintiff concluded his evidence in these proceedings. The defendants gave notice on the very day that those proceedings concluded. They did not have personal access to copies of the transcript. They therefore took the appropriate step of seeking that transcript from the plaintiff. That was forthcoming, in accordance with the notice which they issued, on 9 March 2009. As I said, it comprised some 600 pages of transcript and it was reasonable in the circumstances for a more specific notice to issue 48 hours later, particularly given that counsel for the defendants was involved in these proceedings on 9 and 10 March 2009. 14 It seems to me that the notice was given, as I said, at the earliest opportunity reasonably available to the defendants. Accordingly, I regard the first component of the exception to the tendency rule as being met by the defendants. 15 That brings me to a review of the six enumerated categories of transcript which are contained in the summary document which is part of MFI 12. I propose to give my rulings in respect of each of those categories now. I do not propose to follow the sequence, commencing with category 1. I will cover each of the categories; but it is more convenient to in fact approach them in reverse order. 16 Category 6 briefly concerns evidence of the plaintiff's financial circumstances. It is claimed by the defendants that those circumstances are relevant to an issue in this case about the plaintiff's capacity to follow through on a development consent which is the subject of these proceedings. Mr Somerville, however, argues that the evidence contained in category 6 cannot be relevant to that issue. He says that is for a very simple reason. The relationship between the parties in these proceedings deteriorated in late 2005. By that stage any relationship which may or may not have existed concerning work being done had effectively finished. I use that expression without making any judgment on the circumstances in which it was finished. The parties were exchanging acrimonious correspondence. Mr Somerville's point is that the evidence which is the subject of category 6 is concerning the plaintiff's financial circumstances in January 2007, over a year after the relationship between the parries in this case had finished. I think he is right in that submission. I do not regard evidence of the plaintiff's financial circumstances in January 2007 as relevant to any issue in this case. 17 I turn now to category 5. Category 5 contains transcript on two issues. One is the relationship between the plaintiff and another former client, Mr Van de Scheur. That is the same person that I referred to earlier in this judgment, who is the subject of the documents contained in MFI 15. The other component of the transcript in category 5, concerns evidence given by Mr Makeig - in the Supreme Court proceedings - concerning proceedings in which he had been a party in the Land and Environment Court. 18 Mr Somerville argues that the evidence concerning the plaintiff's relationship with Mr Van de Scheur does not meet the second component of the exception to the tendency rule, namely that it would be evidence that "either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value." The transcript relied upon appears at T 224 of proceedings in the Supreme Court on 26 February 2009. It refers to a tax invoice sent and for a success fee which is claimed. It also refers to the settlement of proceedings in the Local Court regarding those proceedings. In respect of that evidence, I do not regard it as having significant probative value. I accept Mr Somerville's argument that there may be many reasons why a person settles a claim. Those reasons may be relevant to the merit of the claim or they may not be. Without any evidence of factors relevant to the settlement of the claim, I do not regard the evidence as having significant probative value. 19 Turning to MFI 15, I again regard that evidence as lacking significant probative value. The circumstances of the agreement between the plaintiff in both proceedings - in both cases they were Mr Makeig - and the defendants in both proceedings are not sufficiently elaborated to contain the degree of cogency which I would require for the evidence to amount to significant probative value. 20 Turning to the other component of category 5, as I said it comprises a series of pages of transcript, in which the plaintiff is cross-examined by senior counsel for the defendants in those proceedings concerning his participation in various proceedings in the Land and Environment Court. That evidence in the Supreme Court is relevant, Mr Kalyk argues, because part of the evidence in this case comprises a claimed assertion by the plaintiff that he had taken the Ku-ring-gai Council and other councils to the Land and Environment Court on more than fourteen occasions. The assertion includes that that court had approved the appeals in all cases. 21 The cross-examination of the plaintiff concerned a number of cases where, as a party, he was said to be unsuccessful in the Land and Environment Court. When cross-examined he pointed out that technically that may have been the case in the instances which were drawn to his attention, but the ultimate outcome, so far as the development was concerned, was successful in each instance, so that the client achieved the result that they wanted. 22 Mr Somerville's point here is that this evidence could only be relevant to his client's credit. They are not tendered as tendency evidence. I think Mr Somerville is right that the only relevance of this evidence is to Mr Makeig's creditworthiness. They purport to represent a challenge to his assertion that he was successful in all his cases in the Land and Environment Court. I would anticipate a submission by Mr Kalyk that I should regard that assertion as unreliable or untrue and therefore regard the plaintiff as an unreliable or untruthful witness. It seems to me to have no other relevance than that credibility point. 23 Mr Somerville then points out that the evidence therefore falls foul of the credibility rule. The credibility rule is set out in s 102 of the Evidence Act and provides that credibility evidence about a witness is not admissible. I am satisfied that this is credibility evidence. There are exceptions to the credibility rule. The only relevant exception seems to be the one provided for by s 106 of the Evidence Act. But I did not understand that Mr Kalyk made any application under that Act for leave to adduce credibility evidence under s106(1), nor did I hear him put an argument under s106(2) that the evidence fell into one of the categories referred to in that subsection not requiring leave. I am more confident in that because Mr Kalyk did not direct my attention to the passages of transcript where the substance of that evidence was put to Mr Makeig. I am not being critical of Mr Kalyk in making that observation, I am simply observing the manner in which he presented the argument in this case. It does not appear to me that I am in a position to make any determination under s 106. 24 I should add that even if I were to view the evidence as otherwise admissible, Mr Somerville draws my attention to s 135 of the Evidence Act. This evidence of Mr Makeig's involvement in other proceedings may be unfairly prejudicial to him or misleading or confusing because of the number of those proceedings and also because of the qualifications which Mr Makeig made in answering the questions put to him by senior counsel in the Supreme Court. Clearly he had a view that the assertions, said to be made by him in this case about success in the Land and Environment Court, were not inaccurate because he had been ultimately successful for other clients. I regard that evidence as reducing its probative value so that such value is substantially outweighed by the potential of the evidence to be unfairly prejudicial or misleading or confusing, and I would therefore reject it under s 135. 25 Turning to category 4 in MFI 12, that category concerns what Mr Kalyk describes as a tendency for the plaintiff to embark on a project, taking the risk that conditions fixed by local councils to the project would be able to be fulfilled by him. The evidence which is tendered concerns a project in the Supreme Court proceedings which involved rezoning land. The passage concludes with a question by senior counsel putting to the plaintiff that he knew that he was committing himself relevantly to " paying the costs of consultants to have one of the defendant's in those proceedings land rezoned from rural to residential, which would involve, as a condition precedent, having the whole Kitchener precinct rezoned." The plaintiff's answer is transcribed as: "A. Yes, that's correct." He agreed that he went ahead on that basis. 26 There is an issue in these proceedings about a drainage easement, which was a condition to one of the development consents and an issue about the fulfilment of the condition concerning that drainage easement. Hence that evidence is tendered, as I said, as tendency evidence by Mr Kalyk. 27 In Jacara Pty Ltd v The Perpetual Trustees WA Ltd (2000) 106 FCR 51 the Full Court of the Federal Court determined a number of issues on an appeal regarding the admissibility of evidence under s 97 of the Evidence Act 1995 of the Commonwealth. That provision is relevantly no different to the provision which I am applying in this case. Sackville J, with whom Whitlam and Mansfield JJ agreed, made reference at [76] to the question of significant probative value referred to in the second component of the exception to the tendency rule in s 97. His Honour said: "The probative value of the evidence as tendency evidence must depend on the circumstances of the case. The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred." I have omitted references to authority. 28 I know very little about the rezoning proposal which was the subject of the proceedings in the Supreme Court. I understand from other passages of transcript that the relationship between the plaintiff and the defendants in those proceedings was the subject of a written agreement. Because of that lack of knowledge regarding the circumstances and because the terms of the agreement in the Supreme Court proceedings are not before me, I regard the strength of the inference that can be drawn from the evidence as weak and the extent to which any tendency increases the likelihood that the plaintiff in this case acted in a similar way as limited. For those reasons I do not regard that evidence as having significant probative value and I would reject the tender of the evidence in category 4. 29 Category 3 is tendered, according to the summary which is part of MFI 12, as "admissions as to experience of Makeig as developer." Mr Kalyk refined that position in oral argument. He adapted his submission to the proposition that the evidence, which is the subject of category 3, demonstrates a tendency to tell untruths in terms of his experience to win the work. That appears at T 804 of the transcript. He agreed with me that the evidence contained in category 3 amounts to "concessions made" showing "tendency to tell untruths in order to win the job, win the work." That appears at T 805. 30 Mr Somerville's argument is that the tendency rule cannot help Mr Kalyk so far as this evidence is concerned. Mr Somerville argues that the evidence is relevant only to Mr Makeig's credibility. I think that is right. Mr Somerville then points to s 94(1) of the Evidence Act which provides that the part which contains the tendency rule does not apply to evidence which relates only to the credibility of a witness. I think therefore that it cannot be tendered as tendency evidence in the first place in the sense of Mr Kalyk's tendering it and arguing that it is admissible by virtue of the exceptions contained in s 97 of the Evidence Act. That section simply does not apply because of the nature of the evidence being relevant only to the credibility of Mr Makeig. Once again, given that it is relevant only to credibility, Mr Kalyk's argument did not involve any application or submission that the evidence constituted an exception to the credibility rule under s 106 of the Evidence Act. I would, therefore, reject the evidence tendered in category 3. 31 The evidence contained in category 2 comprises a limited number of lines from one page of transcript in the Supreme Court proceedings. Those lines concern what appears to have been a conviction in the Local Court in Queensland of an unspecified offence under legislation in that State concerning architects. Mr Makeig in cross-examination in the Supreme Court said that when he was in Queensland he "described myself accurately and had a letterhead accordingly on which I described myself as an architectural and industrial designer. I was both those things. Those two terms were perfectly accurate because I was working in both those fields." He indicated that there was a complaint by the Board of Architects in Queensland and that the Board took him to the Local Court. Mr Makeig gave evidence in the Supreme Court that his argument in the Local Court was that the noun "architect" is different from the adjective "architectural." He went on to say that his argument was not accepted by the Local Court, which agreed with a barrister representing the architectural authority in Queensland. He himself disagreed with the court's decision because he had described himself as an architectural and industrial designer. He acknowledged that he was found guilty and given sixty hours of community service. Mr Kalyk tenders that evidence as conduct of Mr Makeig demonstrating a tendency on his part to tell people that he is, or was, an architect. 32 I note that in these proceedings there is a document completed by the plaintiff which appears on p 210 of exhibit PJM1, referred to in exhibit A, that is a development application made to Ku-ring-gai Council. The form provides for a section called "Your Architect or Consultant". The form requires the name of somebody falling into that category to be specified. In that category is written the words "Peter Makeig (Designer)". 33 Mr Somerville argues that this evidence falls foul of the tendency rule for the same reason based on s 94 of the Evidence Act. Mr Somerville's argument is that the evidence relates to credibility only. Mr Kalyk, on the other hand, argues that it is relevant to a fact in issue. He points to the pleadings. He points to the Defence to Further Amended Statement of Claim dated 12 March 2009, in particular to [7] and [17]. Paragraph [7] refers to an alleged false representation that the plaintiff was an architect and would provide architectural services. Paragraph [17] claims that the defendants say that the work was architects' work within the meaning of the Architects Act 2003. Both of those paragraphs are pleaded in response to particular paragraphs of the Further Amended Statement of Claim filed on 16 October 2008. 34 I am not of the view that the pleadings contained in the Defence to Further Amended Statement of Claim have the effect that the question of any claim of the plaintiff being an architect, or providing architectural services, is a fact in issue in these proceedings. For example, [1] of the Statement of Claim alleges that the plaintiff was a project development consultant. That allegation is not denied in [7] of the defence. Paragraph [3] of the Statement of Claim, which is also referred to in [7] of the defence, pleads an agreement and certain terms. That whole paragraph is denied by [3] of the Defence. I do not either way see the relevance of the pleading contained in [7] purportedly in response to [3] of the Statement of Claim, to the effect that the plaintiff falsely represented that he was an architect. Nor do I see the relevance of the pleading in [17] about the work being undertaken by the plaintiff being architectural work as relevant or raising any fact in issue in response to [11] of the Statement of Claim. 35 For those reasons, I regard the evidence as relevant only to the credibility of the plaintiff and I therefore regard Mr Somerville's challenge to it being tendency evidence as made good because of s 94 of the Evidence Act. 36 If I am wrong I that regard and the evidence is relevant to a fact in issue, I would not regard the evidence contained in the passage referred to as having significant probative value. Rather than the evidence demonstrating that the plaintiff has a tendency to claim that he is an architect, the evidence is, in my view, more consistent with the plaintiff exercising some care as to how he describes himself or his services. In this case he has qualified the response contained in the form by adding the word "Designer" after his own name. In the Queensland case his evidence is that he genuinely regarded the description of himself as providing architectural services as not amounting to a claim that he was an architect. That position may or may not have merit, the point is it is available and arguable, and in my view reduces the probative value of the evidence from the level of being significant. 37 I too would regard its probative value as substantially outweighed by the danger that such evidence might be unfairly prejudicial to Mr Makeig and I would also reject it under s 135 of the Evidence Act. 38 Finally, I turn to category 1 of the evidence tendered in MFI 12. That is evidence which in the summary contained in MFI 12, Mr Kalyk describes as evidence of admissions of the plaintiff "being tendency evidence as to the way in which Makeig undertakes his business." Mr Kalyk, when I asked him to articulate the tendency, articulated it as a tendency to approach parties who own land and put to them proposals under which Mr Makeig would develop their land as project manager for a success fee. 39 It is relevant to observe before considering this argument further, that the pages tendered comprise partly the opening address by senior counsel for Mr Makeig in the Supreme Court. The balance of the pages comprise evidence given by Mr Makeig in cross-examination in the Supreme Court. 40 Mr Somerville's first point is that all of this evidence is hearsay. He is, of course, right. Section 59(1) of the Evidence Act provides that evidence of a "previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation." None of the representations contained in the material tendered appears to amount to an admission by, or on behalf of Mr Makeig. In order to be an admission the representation must be adverse to Mr Makeig's interest in the outcome of the proceeding. It seems to me that none of the representations falls into that category and, therefore, the admission exceptions to the hearsay rule do not apply. 41 The assertions made by counsel on behalf of Mr Makeig in his opening address can, it seems to me, go no further than falling foul of the hearsay rule. The exceptions to the hearsay rule which are contained in Part 3.2 of the Evidence Act do not apply to anything said by counsel on another person's behalf. They are not first hand hearsay, as the heading to s 62 says. 42 Insofar as the evidence amounts to assertions by Mr Makeig himself they are also hearsay but they may fall within an exception to the hearsay rule contained in s 64 of the Evidence Act. That section applies in civil proceedings if the person who made the previous representation is available to give evidence. Mr Makeig is relevantly available. The rule goes on to provide that the hearsay rule does not apply to a document so far as it contains the representation. The transcript is such a document. It would therefore seem that the tender of the transcript concerning Mr Makeig's evidence would not fall foul of the hearsay rule because at this stage of the proceedings, which are due for addresses on Monday, 16 March 2009, it would cause undue expense or undue delay to call Mr Makeig. 43 However, looking at the evidence in question, I do not regard it as having significant probative value. That is because, as pointed out by Mr Somerville, the tendency argued by Mr Kalyk is for the plaintiff to approach parties who owned land. The evidence which he proposes to tender by the plaintiff concerns the son of the owner of a land bringing his father to meet Mr Makeig in that case. It therefore does not seem to me to be relevant to the asserted tendency or, perhaps to put it in terms of the second component of the exception to the tendency rule, it has negligible significant probative value. I would therefore regard it as not being admissible because of the tendency rule. 44 For the above reasons, I reject all of the evidence contained in all of the categories of the summary document contained in MFI 12. If I have not said so already for the reasons given relating to category 5, I reject the tender of MFI 15. ********** 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.