New South Wales Supreme Court CITATION : Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 HEARING DATE(S) : 22 August 2007 JUDGMENT DATE : 22 August 2007 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : All reasonable steps had been taken to secure attendance of witness. CATCHWORDS : EVIDENCE [53] – Admissibility and relevancy – Hearsay – Particular cases – Exclusion of hearsay rule – Evidence Act 1995 s 63 – Civil proceedings – Person who made previous representation not available to give evidence – Meaning of not available – Whether all reasonable steps have been taken to secure his attendance but without success. LEGISLATION CITED : Evidence Act 1995 ss 63, 65 & Dictionary Part 2 cl 4 AJW v New South Wales [2003] NSWSC 803 Caterpillar Inc v John Deere Limited (No 2) (2001) 81 ALR 108 Longhurst v Hunt [2004] 42 MVR 267 R v Alchin (2006) 200 FLR 204 CASES CITED : R v Kazzi [2003] NSWCCA 138 R v Suteski (2002) 56 NSWLR 182 Sneza Suteski (2002) 128 A Crim R 275 Wilinksi v Federal Express Pty Ltd (1997) 14 NSWCCR 546 WorkCover Authority of New South Wales v Walter Construction Group Pty Ltd [2002] NSWIRComm 165 Mindshare Communications Limited, Taiwan Branch (P) PARTIES : Orleans Investments Pty Limited t/as The Orleans Media Consultancy (D1) Wayne Eckett (D2) FILE NUMBER(S) : SC 1157/05 COUNSEL : N C Hutley SC and J K Kirk (P) K G Odgers (Ds) SOLICITORS : Allens Arthur Robinson (P) Breene & Breen Solicitors (Ds) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 22 AUGUST 2007 1157/05 MINDSHARE COMMUNICATIONS LIMITED TAIWAN BRANCH v ORLEANS INVESTMENTS PTY LIMITED t/as THE ORLEANS MEDIA CONSULTANCY & ANOR JUDGMENT 1 HIS HONOUR: The subject matter of this judgment is that part of the evidence that the defendants seek to tender contains hearsay material. The evidence is the evidence of Wayne Eckett, one of the defendants, of what he was told by a Michael Cooper was said to Mr Cooper by Mr John Steedman of the plaintiff company. The relevant evidence is in par 66 of Mr Eckett's affidavit of 6 September 2005. It should be said that the evidence is of some considerable importance in the proceedings. It is undoubtedly hearsay evidence and therefore prima facie inadmissible. 2 The defendants seek to tender it through the gateway provided by s 63 of the Evidence Act 1995 ("the EA"). Section 63 provides as follows: " Exception: civil proceedings if maker not available (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) 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." It should be said for the purposes of the survey of authority which I make later in these reasons for judgment that there is a generally similar provision contained in s 65 of the EA, although subject to more restrictions, in relation to criminal proceedings. 3 The matter of contest, which these reasons for judgment are delivered to resolve, is the question of whether it is established that Mr Cooper is not available to give the relevant evidence. The notion of the unavailability of a witness is dealt with in cl 4 of Part 2 in the Dictionary of the EA. Clause 4 is as follows: " Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact." 4 The facts presented on the voir dire hearing as to the admissibility of this evidence are as follows. It should be said as a background that there have already been at least two other sets of proceedings between these parties, one in the Federal Court of Australia and one in a Court in Taiwan. Both sets of proceedings were settled and it is out of the deed of settlement of those proceedings that the present proceedings arise. 5 The contested material in par 66 of the affidavit is a conversation which Mr Eckett says he had face to face with Mr Cooper in Hong Kong in September 2001. Mr Eckett says that in that conversation Mr Cooper conveyed to him the contents of a conversation which Mr Cooper had earlier had with Mr Steedman. 6 The defendants rely on an affidavit of Mr Eckett sworn 21 August 2007. Mr Eckett deposes that in March 2003 he sent an email to Mr Cooper asking him to provide an affidavit for use in possible proceedings under contemplation at that time. He sent a draft affidavit which he asked that Mr Cooper swear. The affidavit was based upon Mr Cooper's account to Mr Eckett of that conversation which is recorded in the contested par 66 of the affidavit. 7 On 3 April 2003 Mr Cooper replied by email to Mr Eckett as follows: "I have read your email of 28th March 2003, but regret that I am unable to assist you with any affidavits. If you have a tape recording (which I note in passing would have been made without my knowledge or consent) no doubt you may make your own affidavit using that as an exhibit, particularly as I have no precise recollection of what was said so many years ago. I maintain that there was no defamation by me and am not prepared to correspond further with you on this subject." He then named solicitors with whom further correspondence could be had. 8 The second affidavit on which the defendants rely is that of Timothy Joseph Breene, the defendants' solicitor. He deposes that from 25 May 2007 he attempted by letter, email and telephone to contact Mr Cooper in Hong Kong. Mr Cooper simply did not respond to any of these attempts at communication, although there is reason to infer and I do infer from the evidence that they would have come to his attention. 9 Mr Breene's letter of 24 May 2007 contained a request to provide a statement relating to the relevant subject matter and, in particular, detailing the conversation Mr Cooper had with Mr John Steedman about Mr Eckett. It also asked whether Mr Cooper would be willing and able to come to Sydney during the week of the trial, the defendants being prepared to pay reasonable travel and accommodation expenses for that attendance. Alternatively, the defendants were prepared to make an application to this Court for cross examination by way of video link. As I have said, despite persistent attempts by Mr Breene to communicate with Mr Cooper this year, no response was received. 10 The defendants submit on this material that they have taken all reasonable steps to secure Mr Cooper's attendance but without success and that Mr Cooper is therefore not available. 11 The plaintiff put into evidence the Hong Kong Evidence Ordinance, which by s 76 provides that the Hong Kong Court of First Instance has power by order to make such provision for obtaining evidence in Hong Kong as may appear to the Court to be appropriate for the purpose of giving effect to a request to obtain evidence for a foreign court and that any such order may require a person specified therein to take such steps as the Court considers appropriate for that purpose. 12 The plaintiff submits that, bearing in mind the evidence including the availability of this mechanism, the defendants should not be taken to have discharged the onus that is undoubtedly on them of establishing that all reasonable steps have been taken to secure attendance within par (e) of cl 4, bearing in mind that it is common ground that no such application was made to the Hong Kong Court. 13 Although the EA has been in force for 12 years, there is no great body of authority available on the incidence of these provisions. In particular, there is no clear authority as to the relationship between paragraphs (e) and (f) in the definition. However, I do not think there is any great difference between the approach to these provisions of the respective parties in this case. 14 The plaintiff submits that, despite the fact that what it complains of is the lack of compulsive steps, the relevant provision is cl (e) as to securing the attendance, rather than cl (f) as to compelling the giving of the evidence. Mr Hutley, of Senior Counsel for the plaintiff, points to the fact that the operative words in (e) are "securing attendance", which may be done by compulsive process, the simplest example being a subpoena. On the other hand, the operative words in (f) are "to compel the person to give the evidence". Mr Hutley submits that the purpose of (f) is to deal with the situation where the attendance of the witness has been secured, but it is impossible to obtain the evidence, because, for instance, the witness declines to give it on the ground of privilege or simply refuses to give it, whatever threats are made concerning the consequences arising out of a contempt of court. 15 A deal of authority has been cited, but not much of it is material. A number of the cases concern the first leg of cl (e), that is, the question of whether reasonable efforts have been made to locate a person, but without success. Those cases include the decisions of O'Meally CCJ in Wilinksi v Federal Express Pty Ltd (1997) 14 NSWCCR 546 and of Bell J in AJW v New South Wales [2003] NSWSC 803, where the efforts were held unreasonable, and of the Court of Criminal Appeal in R v Kazzi [2003] NSWCCA 138, where they were held reasonable in the circumstances. 16 There are other cases undoubtedly under cl (f) which tend to suggest the correctness of Mr Hutley's analysis of the relationship of clauses (e) and (f) and the real function of clause (f). These include Sneza Suteski (2002) 128 A Crim R 275 in this Court at first instance before Kirby J and the same case, reported as R v Suteski (2002) 56 NSWLR 182, in the Court of Criminal Appeal. Those cases make plain that, if a witness simply refuses to answer, then the witness is taken not to be available to give evidence within clause (f). The decisions have been followed in the Australian Capital Territory by Connolly J in R v Alchin (2006) 200 FLR 204. 17 One of the few cases that deal in any way with the relationship of cl (e) and cl (f) is the decision of Heerey J in Caterpillar Inc v John Deere Limited (No 2) (2001) 81 ALR 108. At [19] his Honour ruled, entirely reasonably, that reasonable steps had not been taken on the facts stated in that paragraph to secure the attendance of a person in the United States. In [20] his Honour considered the situation under cl 4(1)(f), but, with all respect due to Heerey J, what his Honour said was marred by the fact that his Honour spoke of compelling attendance within the meaning of cl 4(1)(f) whereas, as already noted, cl 4(1)(f) speaks of compelling a person not to attend but to give evidence. There is a similar problem in the decision of Marks J in the Industrial Relations Commission in WorkCover Authority of New South Wales v Walter Construction Group Pty Ltd [2002] NSWIRComm 165. The consideration given by the Court of Appeal in Longhurst v Hunt [2004] 42 MVR 267 is inconclusive. 18 In short, in my view the relevant clause is cl (e), as both the defendants and the plaintiff have submitted. The question therefore becomes whether the defendants have taken all reasonable steps within the meaning of that clause and whether their submission that they have is defeated by the fact that they did not make the available application to the Hong Kong Court to secure Mr Cooper's attendance in some fashion. 19 There is one basis on which the defendants submit that it was not reasonable for them to take that step that I do not think is made out. Mr K Odgers, of counsel for the defendants, submitted, in very general terms, that the Hong Kong process is an expensive process and that the defendants do not have resources as great as the plaintiff has, so that it was not reasonable for them to make such an application. 20 However, any submission based on actual or relative impecuniosity fails, first, because of the complete vagueness of the material on which it is founded and also on the fact that, in the letter which Mr Breene wrote in May this year, there appeared to be no problem in the defendants meeting the expense either of bringing Mr Cooper to Australia or arranging a video link in Hong Kong through which he might give evidence. 21 Nonetheless, there is no doubt that there would be a deal of trouble and expense involved in making an application to the Hong Kong Court for an order under the Evidence Ordinance and more expense if the order that the Hong Kong Court made was for the taking of evidence on commission in Hong Kong. This would require the representation of the defendants in Hong Kong on that occasion, as well as their being represented to apply to the Hong Kong Court for the order. 22 It may be that if it were clear that Mr Cooper would attend and would give the evidence sought if such a procedure were engaged in, making such an application to the Hong Kong Court would be encompassed in the concept of reasonable efforts. However, the evidence shows two things about Mr Cooper in relation to this evidence. The first is a rooted aversion to give it or to cooperate in any way with the defendants in making it available. The second is his statement concerning the quality of his recollection, made as long ago as 2003, another four years having passed since that time. This must cast doubt on whether any useful evidence would or could be given through securing Mr Cooper's attendance. 23 In those circumstances, it seems to me that it would not be reasonable for the defendants to be required, as the price of the pathway through s 63 afforded by the EA, to go to the trouble and expense of making the application in Hong Kong and perhaps attending to take the evidence in Hong Kong, when it must be doubtful whether the witness would give the evidence in any useful form if that procedure were pursued. 24 The plaintiff also submitted that the evidence given shows that the steps taken were insufficient, because attempted contacts have only been by phone, mail and email and no investigator or process server has been sent to pursue Mr Cooper and there is no proof that Mr Cooper has actually received the messages. Furthermore, no offer has been made to reimburse Mr Cooper for the loss of his time in making a statement or attending for cross examination. 25 In the circumstances of this case, I do not regard those matters as preventing a finding that there have been reasonable efforts. Whilst there has been no response from Mr Cooper, I have already stated that I have drawn the inference that the 2007 communications would, on the balance of probabilities, have reached his attention. I do not regard this as a case in which the problem is that Mr Cooper cannot be located. As I have already said, I have drawn the inference that Mr Cooper does not wish to give the evidence or to cooperate in any way. I draw this inference from his statements to that effect in 2003 and the fact that he does not now respond to communications which I infer have reached him. 26 In the light of these matters, I do not think that the fact that he has not been offered reimbursement for his loss of time as well as the meeting of his other expenses is a matter that is materially operative in the circumstances. 27 I have concluded that, without an application having been made to the Hong Kong Court and in the other circumstances of this case, all reasonable steps have been taken by the defendants to secure the witness's attendance but without success. That appears to me to open the path to the admission of the evidence through the provisions of s 63 of the EA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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