Americana Leadership College v Coll [2003] NSWSC 59

New South Wales Supreme Court

CITATION : Americana Leadership College v Coll [2003] NSWSC 59 HEARING DATE(S) : 13/02/03, 14/02/03 JUDGMENT DATE : 13 February 2003 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Tender of affidavit permitted; previous representations admitted

CATCHWORDS : EVIDENCE - use of affidavit sworn in earlier proceedings by person now dead - whether rules concerning use of affidavits apply - status as previous representations of person not available - whether "Elias principle" operates to exclude Evidence Act 1995 LEGISLATION CITED : Family Court Act 1975 (Cth) Supreme Court Rules In the marriage of Elias (1977) 29 FLR 393 CASES CITED : In the marriage of Jordan (1997) 21 Fam LR 382 Somerville v Somerville (1999) 27 Fam LR 233 PARTIES : Americana Leadership College Pty Ltd - Plaintiff Mary Annette Coll - Defendant FILE NUMBER(S) : SC 5217/01 COUNSEL : Mr M.J. Neil QC/Mr M.R.J. Ellicott - Plaintiff Mr S.Y. Reuben - Defendant SOLICITORS : John R. Quinn & Co - Plaintiff Gary Cassim & Associates - Defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

THURSDAY 13 FEBRUARY 2003

005217/01 - AMERICANA LEADERSHIP COLLEGE PTY LTD v MARY ANNETTE COLL

JUDGMENT- on introduction of affidavit of Dr Coll deceased. (see page 25 of transcript) - Revised

1 The plaintiff wishes to introduce into evidence the content of an affidavit sworn and filed in other proceedings commenced in this Division in 1996. The affidavit was sworn in that year by Dr Coll, the former husband of the present defendant. Dr Coll was one of three plaintiffs in the 1996 proceedings. He and the present defendant (who was also the defendant in the 1996 proceedings) were at all relevant times registered as the proprietors of the property at issue in both these proceedings and the 1996 proceedings. Dr Coll died in 1999. 2 The affidavit was sworn by Dr Coll in support of claims made by him and two corporate plaintiffs in the 1996 proceedings, one of which one is the present plaintiff, to have one or other of those corporate plaintiffs declared the beneficial owner of the subject property. Those 1996 proceedings were discontinued when Dr Coll received advice that, if he continued them, he would or might be in contempt of a Florida court exercising matrimonial jurisdiction. 3 Mr Reuben, who appears for the defendant, objects to the admissibility and use of the material in Dr Coll's affidavit. His first ground of objection is based on Part 38 rule 9 of the Supreme Court Rules. He submits on the basis of that rule that, because the deponent will not be available for cross-examination (for the most obvious of reasons), the affidavit can only be used if the court expressly allows. I do not regard this as the effect of Part 38 rule 9. That rule says that where a deponent has been required for cross-examination and does not attend, the affidavit may not be used unless either the deponent is dead or the court otherwise allows. The court thus has no role to play under the rule in the case of a deponent in respect of whom notice requiring attendance has been given but who is dead. All this is, I think, academic in the present case. The reality is that there was never any requirement by the defendant that the already dead person attend for cross-examination, so that there is simply no foundation for the operation of Part 38 rule 9. 4 There is a more basic reason why Part 38 rule 9 is irrelevant. The plaintiff does not, as I see it, put forward the affidavit sworn by Dr Coll for the purposes of the earlier proceedings as an affidavit recording evidence to be given by a witness in the present proceedings. The deceased obviously cannot be a witness here and cannot give evidence in these proceedings on affidavit or otherwise. It was never intended that he should. Rather, the affidavit is put forward by the plaintiff as a document containing a series of previous representations made by its signatory, now dead. The fact that the maker of the previous representations is dead means that, under s.63 of the Evidence Act 1995 and subject to the notice requirements in s.67, the hearsay rule does not make those representations inadmissible. 5 There has not been strict compliance by the plaintiff with s.67 as to notice. It is nevertheless clear that the defendant has had full and fair warning of the plaintiff's intention to seek to introduce the material. She was also the defendant in the 1996 proceedings. The present plaintiff's intention of relying on the 1996 affidavit was made clear at an appropriately early point. That being so, it will be appropriate to make a direction pursuant to s.67(4) that s.63(2) is nevertheless to apply. 6 Further submissions were made on behalf of the defendant in support of the proposition that the content of the 1996 affidavit should be rejected. Each such submission should, in my view, be considered in the light of the general exclusionary power of the court under s.135 of the Evidence Act, which turns upon the question whether the probative value of the evidence is substantially outweighed by the danger that one of three factors will come into play: first, unfair prejudice to a party; second, some misleading or confusing quality of the evidence; or, third, undue waste of time. 7 The probative value of the material is clear. I accept that the defendant will be occasioned prejudice by the inability to test the content of Dr Coll's document by cross-examination, but I do not regard that alone as sufficient to warrant exclusion under s.135, given the reference in that section to "unfair prejudice" and the requirement that the "unfair prejudice" or danger of it would substantially outweigh the probative value of the evidence. The reality that should be clearly recorded here and of which the court must in any such case be particularly conscious is that untested statements of a person who is not available must be treated with considerable care. The weight to be given to them will have to be determined in due course, but two factors will be of particular significance: first the unavailability of the maker to be tested; and, second, the reality that the statements were made in the 1996 proceedings for the purpose of promoting the plaintiffs' case there which appears to have been substantially the same as the present plaintiff's case here. The previous representations of Dr Coll are clearly distinguishable in quality and as to weight from statements of a disinterested bystander. 8 Mr Reuben further urged upon me a need to adopt what is known in the Family Court as the "Elias principle", derived from In the marriage of Elias (1977) 29 FLR 393. That principle was summarised by Chisholm J in In the marriage of Jordan (1997) 21 Fam LR 382 as follows: "When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s.79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations."