LINDSAY-OWEN V. LAKE & ORS. [2000] NSWSC 1046

New South Wales Supreme Court

CITATION : LINDSAY-OWEN V. LAKE & ORS. [2000] NSWSC 1046 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1913/00 HEARING DATE(S) : 9 November 2000 JUDGMENT DATE : 9 November 2000

Gregory Hamilton Willoughby Lindsay-Owen - plaintiff PARTIES : Tracey John Lake - 1st defendant Alyson Rosemary Lake - 2nd defendant Stephen Thomas Frere Noss - 3rd defendant JUDGMENT OF : Hodgson CJinEq at 1

Mr. V. Gray for plaintiff COUNSEL : Mr. G. Burton for 1st & 2nd defendants Mr. J. Gleeson SC/Mr. A. McInerney for 3rd defendant P.A. Somerset & Co. for plaintiff SOLICITORS : Abbott Tout for 1st and 2nd defendants Phillips Fox for 3rd defendant CATCHWORDS : EVIDENCE - Affidavit - Applicability of Evidence Act - Evidence about advice from solicitor given by annexing solicitor's file note and commenting on it - Whether admissible. LEGISLATION CITED : Evidence Act 1995 ss.9, 11, 32, 34, 52 CASES CITED : Lowe v. Lang (2000) NSWSC 309 DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Thursday 9th November 2000

NO. 1913 OF 2000 LINDSAY-OWEN V. LAKE & ORS.

JUDGMENT(Objection to Mrs Lake's affidavit 3 August 2000, see page 49 of transcript)

1 HIS HONOUR: Mr Gleeson has taken objection to the whole of Mrs Lake's affidavit sworn 3 August 2000, on the basis that it is sworn with reference to a file note made by the solicitor Mr Noss, and consists essentially of her comments about matters raised in that file note. Mr Gleeson pointed out that in previous evidence, Mrs Lake had said she had no recollection of receiving any advice in relation to the relevant transactions. This further affidavit indicates that apparently she now has some recollection on that topic, but it indicates this only with reference to this file note of Mr Noss. Mr Gleeson formulated his objection by referring to s.32 of the Evidence Act, which is as follows: 32(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document, and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or (ii) was, at such a time, found by the witness to be accurate. (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.