Delaney v Birchgrove Community [1999] NSWSC 66

New South Wales Supreme Court CITATION : Delaney v Birchgrove Community [1999] NSWSC 66 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 21017/96 HEARING DATE(S) : 11 February 1999 JUDGMENT DATE : 16 February 1999

Suzanne Lee Delaney PARTIES : v Birchgrove Community Association Limited JUDGMENT OF : Master Malpass

COUNSEL : P - Mr Semmler QC, Mr Fordham D - Mr Maconachie QC, Mr Henskens SOLICITORS : P - Stacks-The Law Firm D - Lynn Boyd CATCHWORDS : Admissibility of Statements Evidence Act 1995 (ss 64 ACTS CITED : 67 68) Supreme Court Rules (Pt 36) DECISION : Tender of Statements rejected

- 6 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

16 February 1999

21017/96 - Delaney v Birchgrove Community Association Limited

JUDGMENT - On Admissibility of Statements 1 The plaintiff has sought to tender three Statements. Each of the Statements has been made to the police by a parent in attendance at the school camp in 1991. The defendant objects to the tender. 2 The question in issue is whether or not the Statements are admissible by reason of provisions contained in the Evidence Act, 1995 (the Act). In the course of argument, reference has been made to provisions contained in Part 36 of the Supreme Court Rules and sections 64, 67 and 68 of the Act. 3 The only evidentiary material placed before the Court by the parties on this question is to be found in Exhibits C and 1. Each party was given the opportunity to consider their position and to tender any further evidence thought to be necessary to support their respective cases. Both parties took the stance that no further evidence was required. 4 Exhibit C is a letter dated 21 October 1998 from the plaintiff's solicitors to the insurer for the defendant. The material parts of the letter are as follows:- "We give you notice pursuant to Section 67 of the Evidence Act that we propose to tender at the hearing the enclosed: 1. Police statement of Jennifer Lee Hensby of 19 March 1991. 2. Police statement of Nola Elizabeth Payton dated 19 March 1991. 3. Police statement of Michael Charles Hawke of 19 March 1991. 4. Police statement of Emma Rasmussen dated 19 March 1991. We will rely upon Section 64(2)(b) of the Evidence Act because it would cause undue expense, undue delay and would not be reasonably practical to call the makers of these statements as the makers of the statements cannot be located." 5 Exhibit 1 is a letter dated 8 February 1999 from the solicitor for the defendant to the solicitors for the plaintiff. The material parts are in the following terms:- "I refer to your letter of 21 October 1998 purporting to give notice pursuant to Section 67 of the Evidence Act in relation to Jennifer Hensby, Nola Payton and Michael Hawke. As I understand it, you are now well aware of the fact that each of these three people is available and able to be called to give evidence. In the circumstances, I will oppose any attempt by you to rely on the provisions of the Evidence Act you refer to." 6 Sections 64, 67 and 68 are comprised in Part 3.2 (Hearsay) of Chapter 3 (Admissibility of Evidence). Section 59 legislates what is known as "the hearsay rule". Sections 60-66 make provision for exceptions to that rule. Section 64 is headed "Exception: civil proceedings if maker available". Section 67 imposes notice requirements relevant to, inter alia, the provisions of section 64(2). Section 67 is headed "Notice to be given". Section 68 contains provisions relating to the making of objections to tender of hearsay evidence. It is headed "Objections to tender of hearsay evidence in civil proceedings if maker available". 7 For present purposes, emphasis has been placed on the following statutory provisions:- 64 (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (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, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. 67 (1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64(2) is such a provision - the grounds, specified in that provision, on which the party intends to rely. 68 (1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it: (a) would cause undue expense or undue delay, or (b) would not be reasonably practicable, a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence. (2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made. (3) The court may, on the application of a party, determine the objection at or before the hearing. (4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs incurred by another party: (a) in relation to the objection, and (b) in calling the person who made the representation to give evidence. 8 The plaintiff seeks to rely on the exclusion provisions contained in section 64. She claims to have given notice pursuant to section 67 and asserts that no objection has been made by the defendant in accordance with section 68. 9 The defendant raises a number of matters. I shall mention some of them. It raises evidentiary problems in relation to the applicability of section 64. It says that the purported notice given by the plaintiff is not valid. Further, it says that section 68 does not preclude the making of an objection outside the 21 day period. In any event, it says that the Court has a discretion to reject the tender. 10 Counsel have not been able to refer me to any authority directly bearing upon the matters in issue. I therefore approach this problem without the assistance of authority. 11 It does seem to me that the plaintiff's tender is founded on misconception. There seems to have been a misunderstanding of the relevant statutory provisions. 12 Section 64 has application where the maker of the representation is available to give evidence about the asserted fact. Section 64(2) provides that the hearsay rule does not apply to a document containing the representation if it would cause undue expense or undue delay or would not be reasonably practicable to call the person who made the representation to give evidence. Section 67 is a notice provision applicable to sections 63(2), 64(2) and 65(2), (3) and (8). It provides that, inter alia, section 64(2) does not apply to the subject evidence unless notice has been given which satisfies the requirements of that section. Subject to the operation of subsection (4), the giving of such notice is a step that must be taken by a party seeking to take advantage of these exceptions to the hearsay rule. The provisions of section 68 are also directed to cases where the maker is available. It enables the making of an objection to the tender of the evidence. Any objection so made may be determined by the Court either at or before the hearing. 13 Such evidence as there is does not attract the application of section 64(2). This is a provision which provides an exception to the hearsay rule in cases where the maker is available but the calling of him to give evidence would cause undue expense or undue delay or would not be reasonably practicable. It is part of a statutory scheme which, if implemented by a party, may lead to the situation where that party can tender evidence of the representation without calling the maker of it. 14 I am not satisfied that any of the makers of the representations are available to give evidence. On this vital matter, the Court is merely left with competing assertions. Indeed, the only material placed before the Court by the plaintiff contains the assertion that each of the makers of the Statements cannot be located (the assertion can only give support to a finding that the maker is not available). Accordingly, I am not satisfied that the plaintiff can rely on section 64. Once this position is reached, it is unnecessary to proceed further with the other matters that were agitated by Counsel. However, it may be of assistance to add some further comment. 15 Rule 13D of Part 36 imposes time limitations for the giving of notice under section 67. Some reliance was placed on this rule, but the matter was not fully argued. The notice that was given suffers from the misconception and would not satisfy the statutory requirements in a case where the maker was unavailable (see subsection (3)). A person is taken not to be available to give evidence in the situations identified in clause 4 of Part 2 of the Dictionary. In the present circumstances, the failure to make an objection within the prescribed 21 days is of no relevance. The determination of an objection may see the ventilation of, inter alia, matters such as whether the calling of the maker would cause undue expense or delay or would not be reasonably practicable. 16 I reject the tender of each of the Statements.