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." 9 This, it seems to me, is a principle applied by dint of experience in the Family Court. How it tallies with the Evidence Act 1995 (Cth) I do not know, and I note that the Jordan case was decided after the commencement of that Act. The answer, I suspect, is that the "Elias principle" is not, in reality, concerned with the admissibility of evidence but concentrates on the question of weight. The operative words in the description of the principle given by Chisholm J are, "it is open to the court" and I note that in Somerville v Somerville (1999) 27 Fam L R 233, Nicholson CJ described the "Elias principle" as being: "… to the effect that in some circumstances a party cannot be expected to be believed if he or she puts a proposition inconsistent with a representation made to revenue or other authorities." 10 The Family Court rule or practice appears to have developed to meet special needs in that jurisdiction. I do not think that it could safely be adopted here as anything more than a caution as to weight, with "decline to accept" in Chisholm J's formulation understood as "decline to believe" rather than "decline to receive". 11 Mr Reuben also made the point that the present proceedings, to the extent to which they raise questions of the respective rights and entitlements of the late Dr Coll and his former wife to the property in question, are proceedings that ought to be dealt with by a court exercising jurisdiction under the Family Law Act 1975 (Cth) and that this may have a bearing on the admission into evidence of the statements of the defendant's deceased former husband. I do not consider it necessary to pursue that point. Dr Coll is dead and there is no subsisting marriage; nor was there when his previous representations were made, the marriage having been dissolved by the Florida court in 1986 and the parties to it being apparently domiciled there. In addition, Mr Neil QC, senior counsel for the plaintiff, has drawn my attention to s.39(4) of the Family Law Act which would seem to place the matter outside the exclusive province of courts exercising jurisdiction under that Act. 12 My ruling in relation to the 1996 affidavit of Dr Coll is that the previous representations it contains and which would otherwise be excluded by the hearsay rule are admissible under s.63 of the Evidence Act and, to the extent that it is necessary for admissibility to be secured by a direction under s.67(4) that s.63(2) is to apply to those previous representations, I now so direct. The affidavit may be tendered by the plaintiff. The weight to be afforded to Dr Coll's previous representations is something that I shall have to consider at the appropriate time. *************** Last Modified: 02/19/2003 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.