Lay (as the personal representative of the estate of the late Albert Lay) v Employers Mutual Limited and Anor (No.1) [2004] NSWDDT 25

Dust Diseases Tribunal of New South Wales

CITATION : Lay (as the personal representative of the estate of the late Albert Lay) v Employers Mutual Limited and Anor (No.1) [2004] NSWDDT 25 Audrey Lay PARTIES : Employers Mutual Amaca Pty Limited MATTER NUMBER(S) : 517 of 2002 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/03/04 DATE OF JUDGMENT: 03/15/2004

FOR PLAINTIFF: Mr M J Joseph, SC and Mr M Cahill instructed by Taylor and Scott. LEGAL REPRESENTATIVES: FOR FIRST DEFENDANT: Mr C R Hoeben, SC instructed by Leigh Virtue and Associates. FOR SECOND DEFENDANT: Mr G Watson, SC and Mr T Ower instucted by Phillips Fox

JUDGMENT:

1. The plaintiff seeks to tender the affidavit of the deceased, Albert Lay, sworn 12 November 2002. It is common ground that the deponent died in February 2004. Objection is taken to the tender firstly on the ground that the document is hearsay and is prima facie to be excluded, see section 59 of the Evidence Act. The plaintiff responds by pointing to s 63, an exception to the hearsay rule in civil proceedings. S 63(2) says: The hearsay rule does not apply to a - (b) a document so far as it contains the representation or another representation to which it is reasonably necessary to refer in order to understand the representation. 2. The affidavit contains the representation formerly made by the deceased when alive. The defendant then points to the requirements of s 67 of the Act which requires notice in writing in this case from the plaintiff to the defendant of the plaintiff's intention to adduce the evidence. Those notices are required pursuant to subsection (2) to be in accordance with regulations made pursuant to the Evidence Act. The notice must state the particular provisions of the division of the Evidence Act upon which the party intends to rely. Despite s 67 (1), if notice has not been given the Court may, pursuant to s 67(4) nonetheless admit the document. Terms can be attached. 3. Lastly the defendant submits that s 135 of the Act should require the Tribunal to refuse to admit the affidavit because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant. What gives rise to the prejudice are some obvious things and some less obvious ones. The obvious ones are that the events at work which are relied upon as founding the plaintiff's cause of action happened more than 40 years ago. The deponent having died he cannot be cross-examined and tested. There are apparently disputes about some of the things deposed to in the affidavit, particularly as to how he did his work when working for York and Kerr Pty Limited both at the wharves and at the second defendant's premises. 4. The less obvious areas of prejudice arise from the fact that by reason of the production of documents pursuant to notice to produce which production happened at a late stage yesterday, I think, or perhaps this morning. The defendant has obtained copies of earlier drafts of the affidavit. Two of them have been tendered on this application. The drafts were undertaken by counsel after conferring with the deceased. They contain differences as to detail of things that he did at work. But the broad thrust of the documents remains the same. 5. Importantly it is the affidavit itself which has been adopted by the deceased by his swearing of it. The differences are not so great as to cause the reader to speculate that there is something untoward going on in the preparation of the document. It is worth noting, I think, that the affidavit which is now sought to be tendered was filed about 12 months ago and has been in the defendant's custody since then. Apart from lawyers' letters starting with AX2 and responded to in AX3 there has been relative silence about the affidavit over the 12 month period. At some stage the defendant has had the deceased man medically examined by Dr Breslin. 6. The letters AX2 and AX3 appear to me to have been written in anticipation of the hearing, that is on the one hand the plaintiff's side seeking to comply with the Evidence Act and the regulations made pursuant to it, and the defendant's side wishing to deal with that by suggesting that whatever notice had been given was insufficient but not saying why. I do not know that in the circumstances they take the matter much further. The other matter which Mr Joseph mentioned in submission is that there have been other cases involving employees of York and Kerr. 7. In all of the circumstances I propose to admit the affidavit. I do not propose to exclude it pursuant to the general discretion given by s 135, nor to restrict its use pursuant to s 136. Contests of fact can be undertaken when other evidence is available. 8. I formally direct the return of the documents tendered for the purposes of the argument as to the admissibility of the affidavit. Mr M J Joseph SC and Mr M Cahill instructed by Taylor and Scott appeared for the plaintiff Mr C R Hoeben SC instructed by Leigh Virtue and Associates appeared for the first defendant Mr G Watson SC instructed by Phillips Fox appeared for the second defendant