New South Wales Supreme Court CITATION : Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 HEARING DATE(S) : Written Submissions: 23/04/09, 30/04/09, 14/07/09 JUDGMENT DATE : 6 August 2009 JURISDICTION : Equity Division JUDGMENT OF : Barrett J DECISION : See paragraph 56. CATCHWORDS : EVIDENCE - admissibility and relevancy - exceptions to the hearsay rule - s 63 exception where maker of representation in a document is "not available to give evidence" - meaning of "available" - meaning of "attendance" - where person resident in a foreign country - whether availability of procedures under the Evidence on Commission Act is relevant to these questions - EVIDENCE - admissibility and relevancy - exceptions to the hearsay rule - s 81 exception for previous representation reasonably necessary to an understanding of an admission where the representation made "at the time the admission was made, or shortly before or after that time" - meaning of "shortly after" - WORDS AND PHRASES - "attendance" - "shortly after" Evidence Act 1995, Part 2 clause 4(1) of the dictionary, ss 36(1), 59, 63, 64(1), 67, 68, 81(1), 81(2), 135(a) Evidence (Audio and Audio Visual Links) Act 1998, ss 5B, 5C LEGISLATION CITED : Evidence on Commission Act 1995, ss 4, 6(1), 5, 8 Foreign Evidence Act 1994 (Cth), s 7 Interpretation Act 1987, s 12(1)(b) CATEGORY : Procedural and other rulings Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (unreported, NSWSC, Giles J, 29 April 1993) Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578 Bakerland Pty Ltd v Coleridge [2002] NSWCA 30; (2002) 12 ANZ Ins Cas 61-521 British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483 Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903; (2000) 181 ALR 108 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV [2007] FCAFC 43; (2007) 157 FCR 558 Fisher v CHT Ltd [1965] 1 WLR 1093 Magnusson v ACT Health Community Care Service [2001] ACTSC 3 CASES CITED : Middleton v The Queen (1998) 19 WAR 179 Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 Ordukaya v Hicks [2000] NSWCA 180 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 R v Williamson (1972) 2 NSWLR 281 Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435 Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49 "Archbold's Criminal Pleading, Evidence and Practice", 36th edition (1966) TEXTS CITED : Australian Law Reform Commission Interim Report No 26, "Evidence" (1985) S Odgers, "Uniform Evidence Law" 8th edition (2009) Tim Barr Pty Limited - First Plaintiff PARTIES : Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant FILE NUMBER(S) : SC 2762/02 COUNSEL : Mr R G McHughSC/Mr J E Lazarus - Plaintiffs Mr I M Neil SC/Mr A C Harding - Defendant SOLICITORS : Tzovaras Legal - Plaintiffs Verekers - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J THURSDAY 6 AUGUST 2009 2762/02 TIM BARR PTY LIMITED & ANOR v NARUI GOLD COAST PTY LIMITED JUDGMENT 1 In a judgment of 16 April 2009, I referred to a notice given by the defendant to the plaintiffs under s 67 of the Evidence Act 1995. The notice was given on 22 October 2008. By notice given under s 68 on 12 November 2008, the plaintiffs objected to the proposed documentary tender by the defendant. Resort was had to these sections because the principal contention of the defendant is that the documents in question are admissible by virtue of s 63. 2 The defendant's position, as it then existed, was summarised at the start of the judgment of 16 April 2009 as follows: "1. The defendant has given notice to the plaintiffs under s 67 of the Evidence Act 1995 of its intention to adduce evidence of certain previous representations on the ground that the hearsay rule does not apply to that evidence by reason of s 63(2) or s 64(2). The basis on which the defendant will seek to introduce the previous representations into evidence is that the persons who made them are not available to give evidence (s 63(1)) or that it would cause undue expense or undue delay, or would not be reasonably practicable to call the persons to give evidence (s 64). 2. The notice under s 67 refers to several items as follows: 1. Questions and answers 30, 31, 32, 33, 34, 35, 36, 91 and 92 of the statement made by Hiroyuki Narui to the police which has been the subject of a number of earlier rulings (27 June 2008, 13 October 2008 and 24 November 2008). 2. A letter dated 31 October 2003 from Shuhei Takahashi on behalf of Hiroyuki Narui to David Monaghan and Reg van Rij. 3. A letter dated 20 January 2004 from Shuhei Takahashi to David Monaghan and Reg van Rij. 4. Paragraphs 35 and 36 of an affidavit made by Hiroyuki Narui in these proceedings on 6 April 2005. 5. The statement made by Hiroyuki Narui in respect of these proceedings on 19 December 2002. 6. Paragraph 11 of Hiroyuki Narui's statement of 19 December 2002 in the House proceedings. 7. Paragraphs 4, 9, 10 and 11 of Hiroyuki Narui's affidavit of 24 December 2002 in these proceedings. 8. Questions and answers 42, 43, 44, 51, 52, 53, 54, 55, 56, 57, 59, 60, 66, 67, 73, 74, 77, 78, 86, 87 and 93 in the statement of Hiroyuki Narui referred to at 1 above. 9. Paragraphs 5, 10, 11, 14, 16, 27, 28, 29 and 31 of Hiroyuki Narui's affidavit of 12 July 2004 in the House proceedings. 10. Paragraphs 8, 18, 19, 33, 34, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 and 53 of Hiroyuki Narui's affidavit of 6 April 2005 in these proceedings. 11. Hiroyuki Narui's statement of 19 December 2002 in respect of the Harrison proceedings. 12. Hiroyuki Narui's affidavit of 24 December 2002 in the Harrison proceedings." 3 The defendant has now modified its stance by omitting item 6 in the above list, by omitting the references to paragraphs 77, 78, 86, 87 and 93 from item 8 and by omitting the references to paragraphs 14 and 16 from item 9. The amended s 67 notice is annexed to the written submissions of 23 April 2009 forwarded by Mr Neil SC and Mr Harding on behalf of the defendant. The plaintiffs' s 68 notice must be taken to continue to apply to so much of the proposed tender as is pressed by the defendant. The question of the admissibility of the several documents has been addressed by reference to the submissions of 23 April 2009 just mentioned, written submissions of Mr McHugh SC and Mr Lazarus of counsel on behalf of the plaintiffs dated 30 April 2009 and the written submissions in reply of Mr Neil SC and Mr Harding dated 14 July 2009. 4 The defendant seeks to tender each of the documents in question for the purpose of proving the existence of facts that it can reasonably be supposed that either Hiroyuki Narui or Shuhei Takahashi intended to assert by previous representations contained in the documents. The defendant accepts that evidence of the previous representations is inadmissible by reason of s 59 of the Evidence Act (the "hearsay rule"), unless some other provision removes the barrier. 5 It is necessary to deal separately with the previous representations made by Hiroyuki Narui and those made by Shuhei Takahashi. I consider first the matter concerning Hiroyuki Narui. 6 The defendant's principal contention in relation to the documents recording statements made by Hiroyuki Narui is that the barrier created by s 59 of the Evidence Act is removed by s 63(2)(b). The parts of s 63 relevant for present purposes are as follows: "(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) . . . , 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." 7 Section 63(2)(b) will avail the defendant only if, as referred to in s 63(1), Hiroyuki Narui "is not available to give evidence about" the asserted facts to which the previous representations in the documents sought to be tendered relate. 8 The facts relevant to the question whether Hiroyuki Narui is relevantly "available" are simple and uncontroversial. Hiroyuki Narui is a Japanese citizen and is resident in Japan. So far as is known, he is at any given time in Japan. The defendant's solicitors wrote to Hiroyuki Narui on 18 February 2008 and 14 October 2008 asking whether he would be prepared to travel to Sydney to give evidence in these proceedings. They made it clear that the defendant would pay his travel and accommodation expenses. Hiroyuki Narui replied to the second request that he attend, saying that he had "no intention of doing so in the future, either in person or by video link". 9 The defendant submits that, on these facts, Hiroyuki Narui is not "available to give evidence" in the sense in which those words are used in s 63(1). The plaintiffs contend to the contrary. 10 The matter must be approached in the light of clause 4(1) in Part 2 of the dictionary in the Evidence Act which, so far as relevant, provides: "For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: … (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." 11 I should, I think, proceed on the basis, first, that paragraph (e) (leaving aside as irrelevant the part concerning finding a person) is concerned with the matter of securing the relevant person's attendance and, second, that paragraph (f) is concerned with the separate matter of compelling a person whose attendance has been secured. This approach to the relationship between paragraphs (e) and (f) was taken by Hamilton J in Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 at [17] and expressly approved by Ryan J in Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435 at [13]. To the extent that there is a contrary indication in Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903; (2000) 181 ALR 108, I am of the opinion that it should not be accepted. The words of the legislation clearly warrant the conclusions stated by Hamilton J and Ryan J. 12 It follows from what has just been said that the provision of relevance to the present circumstances is clause 4(1)(e) and that it is necessary to decide whether the defendant (being "the person seeking to prove the person is not available") has taken "all reasonable steps" to "secure" the "attendance" of Hiroyuki Narui (it may be accepted that, whether or not the steps actually taken constitute "all reasonable steps", they have been "without success"). 13 There is immediately a question as to the meaning of "attendance". In a context such as the present where clause 4(1)(e) is applied in answering the question posed by s 63(1), it is, to my mind, clear that the relevant form of "attendance" is that which puts the person into position to give evidence to the court. The words "secure his or her attendance" in clause 4(1)(e) must, in the context, refer to such form of attendance as will allow the person in question to do that with which s 63(1) is concerned, that is, "to give evidence". In the ordinary course, this will involve the person's physical presence in the courtroom in which the relevant proceeding is being conducted (or, as it is put by s 36(1) of the Evidence Act, presence "at the hearing of" the proceeding). 14 It may be, however, that a wider concept of "attendance" is at work. In Mindshare (above), it was assumed by Hamilton J that "attendance", as contemplated by item 4(1)(e), includes attendance for examination pursuant to the Evidence on Commission Act 1995. In Caterpillar (above) at [20], Heerey J proceeded on the same basis, holding that all reasonable steps to secure "attendance" had not been taken, since "[n]o attempt has been made to take advantage of s 7 of the Foreign Evidence Act 1994 (Cth)". The Evidence on Commission Act of New South Wales and the Foreign Evidence Act of the Commonwealth contain substantially similar provisions directed towards the examination of persons in foreign places. In this court, the Commonwealth Act is relevant to proceedings in which the court is exercising federal jurisdiction and the State Act is relevant to other proceedings. It is sufficient to consider the matter by reference to the State Act, although it should be noted that the two statutes are relevantly identical. The observations I am about to make about the State Act apply also to the Commonwealth Act. 15 Are the processes made available by the Evidence on Commission Act relevant to the matter of "attendance" with which clause 4(1)(e) is concerned and therefore to the question whether a person is "available to give evidence" as referred to in s 63(1)? The plaintiffs say that they are. The defendant contends to the contrary and points to s 12(1)(b) of the Interpretation Act 1987: "a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales." 16 On this basis, the defendant argues, item 4(1)(e) must be taken to be concerned with attendance in New South Wales. The plaintiffs disagree. They say that the Evidence on Commission Act creates means of obtaining a person's "attendance" and that the defendant's failure to pursue those means in relation to Hiroyuki Narui is fatal to its contention that the defendant has taken "all reasonable steps" as referred to in clause 4(1)(e). 17 I very much doubt that s 12(1)(b) of the Interpretation Act is of any real relevance to the resolution of the matter before me. But other statutory provisions are instructive. I am dealing with provisions of the Evidence Act of New South Wales. By s 4(1), that Act as a whole applies to "all proceedings in a NSW court". This court is a "NSW court". Another Act relating to a "NSW court" within the meaning of the Evidence Act is the Evidence (Audio and Audio Visual Links) Act 1998. Section 5B of that Act allows a "NSW court" to direct, in a proceeding, that a person "give evidence" (or make submissions) to the court by audio link or audio visual link from a place "other than the courtroom or other place at which the court is sitting". Section 5C is in these terms: "(1) Any place within or outside New South Wales at which audio link or audio visual link facilities are being used for the purpose of a person giving evidence or making a submission in any proceeding under Part 1A or 1B is taken to be part of the NSW court that is sitting at a courtroom or other place for the purpose of conducting the proceeding. (2) Subsection (1) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury. (3) Subsection (1) also has the effect that any offence committed at the place where the person giving the evidence or making the submission is located is to be taken to have been committed at the courtroom or other place where the court is sitting for the purposes of the laws in force in New South Wales." 18 These provisions proceed on the clear basis that a "proceeding" in a "NSW court" is conducted "at" a "courtroom or other place" where the court is "sitting". They complement the provisions of the Evidence Act (which, as I have said, are concerned with "all proceedings in a NSW court") and, in particular, effectively deem the remote location occupied by a person giving evidence by audio or audio visual link established in accordance with the Act to be part of the courtroom or other place at which the court is sitting. 19 The Evidence on Commission Act takes a quite different approach. This court (except when exercising federal jurisdiction) is, for the purposes of that Act, a "superior court" (s 4). Section 6(1) provides: "In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order relating to a person outside Australia: (a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint, or (b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or (c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken." 20 Section 8 then provides: "(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding: (a) a person's evidence taken in an examination held as a result of an order made under section 6, or (b) a record of that evidence. (2) Evidence of a person so tendered is not admissible if: (a) it appears to the court's satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or (b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding." 21 The process of examination under the Evidence on Commission Act is distinct from the process of giving evidence in the proceeding in which the order for examination is made under s 6(1). It is true that s 8 refers to "a person's evidence taken in an examination" ("evidence" there including a document produced at the examination and answers made to any written interrogatories presented at the examination: see s 5). But, as s 8 itself makes clear, such "evidence" will not be "evidence in the proceeding" in which the order for examination was made unless a party to the proceeding tenders it in the proceeding. Furthermore, the person's "evidence taken in an examination", if tendered by a party, is "not admissible" in the circumstances referred to in s 8(2). 22 The provisions of the Evidence on Commission Act emphasise the separateness of the examination from the proceeding in the court in which it is ordered that the examination occur. An examination of the kind the Act contemplates is a "private proceeding" which is not accessible to the public (Magnusson v ACT Health Community Care Service [2001] ACTSC 3 at [9]) so that one of the fundamental features of the proceedings of a court is absent. The provisions of the Evidence on Commission Act also emphasise the separateness of the product of the examination from the body of evidence in that proceeding. That product "does not per se become evidence in the case": Fisher v CHT Ltd [1965] 1 WLR 1093 at 1095 per Edmund Davies J. In Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578, Austin J referred (at [15]) to the need for "a separate tender" of the product of an examination, having regard to s 8. The question of the admissibility of that product will fall to be considered at that point, the expectation being that the person conducting the examination may not be closely concerned with that question: British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483 per Spigelman CJ at [71] to [75]. 23 These concepts of separateness stand in stark contrast to the approach taken in the Evidence (Audio and Audio Visual Links) Act and its recognition that a proceeding is conducted by the court in a courtroom or other place of which the remote location of the person giving evidence in a way the Act allows is deemed to be part. 24 In a case such as the present arising under s 63 of the Evidence Act, the "attendance" referred to in clause 4(1)(e) of the dictionary (being, of its very nature, attendance "to give evidence") is attendance by way of physical presence in the courtroom or other place in which the relevant proceeding is being conducted, with that courtroom or other place understood as encompassing any remote location deemed by the Evidence (Audio and Audio Visual Links) Act to be included in it. A person for the time being in a foreign country, although not physically present in the place where the court is sitting, may be relevantly in "attendance" by means of a link of the kind with which the Evidence (Audio and Audio Visual Links) Act is concerned. A person examined pursuant to the Evidence on Commission Act, on the other hand, is never in "attendance" to give evidence in a New South Wales court. The product of the person's examination may (or, indeed, may not) be tendered by a party as evidence in the relevant proceeding in the New South Wales court. But it is the party's tender of the product, not the examination that brings the product into existence, that causes evidence to be before the court. 25 It follows that when the extent of the "steps" taken by a party to "secure" a person's "attendance" is under consideration for the purposes of clause 4(1)(e), attention will be directed only to steps which, if taken, will or might cause the person to be physically present in the courtroom or other place in which the court is sitting or to attend at a location from which an audio or audio visual link can be established. Steps that will or might cause the person to be in a place for the purpose of being examined pursuant to the Evidence on Commission Act are not relevant to the inquiry; nor are steps that will or might cause a record of such an examination to be available for tender by a party to the proceedings. The inquiry is concerned with steps to secure a person's physical presence, not steps to secure statements from the person with a view to tendering them. 26 Against this background, I return to the steps actually taken by the defendant to secure Hiroyuki Narui's attendance (see paragraph [8] above). The steps are, in essence, requests made on two occasions that Hiroyuki Narui attend to give evidence, to which he replied (on the second occasion only) that he has "no intention of doing so in the future, either in person or by video link". 27 The plaintiffs say that the steps thus taken by the defendant do not constitute "all reasonable" steps. They point, in particular, to the fact that the defendant has not sought to take advantage of the Evidence on Commission Act; however, for the reasons discussed, I do not consider that to be relevant to the inquiry. The plaintiffs also point out that the request, in each letter, was that Hiroyuki Narui travel to Australia to give evidence at the trial and that nothing was said about his participating by video link from Japan. In that respect, it is submitted, the "steps" taken failed to extend to an important method of attendance distinct from physical presence in the courtroom. 28 Having regard to what the defendant actually asked (that being the "step" that it took), there is literal force in this submission. But it is clear that the request – confined, as it was, to physical presence at court in Sydney - produced a clear reply that there would be neither physical attendance nor participation by video link. Once Hiroyuki Narui had thus made known his response to the unasked question whether he would give evidence by video link, the actual making of a request for that form of participation ceased to be a step that the defendant might reasonably be required or expected to take. The unsolicited statement of attitude to video link participation caused an explicit request for that form of participation no longer to be included among "all reasonable steps". There was no point in asking Hiroyuki Narui to do that which he had already said he would not do. 29 The plaintiffs then say that, given the importance of the evidence in question, greater effort should have been expended than the mere making of two written requests. Apart from steps centred on the Evidence on Commission Act (which, for the reasons already discussed, are irrelevant), however, they do not suggest the form that the greater effort could or should have taken. It is not suggested on either side that a Japanese citizen, resident in Japan and for the time being in Japan is compellable by subpoena: see, for example, Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (unreported, NSWSC, Giles J, 29 April 1993), Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 and Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV [2007] FCAFC 43; (2007) 157 FCR 558. It is also relevant to note that Japan is not a signatory to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. 30 Given the extremely limited avenues available to a litigant in this court who seeks to secure the attendance, as a witness, of a citizen of Japan who is resident in Japan and for the time being physically in Japan, my conclusion is that the defendant must be regarded as having taken, in relation to Hiroyuki Narui, "all reasonable steps . . . to secure his . . . attendance, but without success". Clause 4(1)(e) of the dictionary therefore produces the result that Hiroyuki Narui is, in terms of s 63(1), "not available to give evidence about" the existence of any of the facts that it can reasonably be supposed that he intended to assert by his previous representations recorded in documents to which the defendant's s 67 notice relates. Section 63(2)(b) accordingly negates the operation of the hearsay rule in relation to the several documents identified in the s 67 notice that contain those previous representations. That being so, the hearsay rule does not operate to preclude the adducing of evidence of those previous representations by tender of the several documents. This result is dictated by the statute. It does not proceed from the exercise of any discretion or value judgment by the court. 31 I would add, by way of postscript in relation to this aspect, that the availability under Japanese law of a letter of request process outlined in an affidavit and report of Mr Muto, a Japanese lawyer, filed by the defendant does not change the conclusion stated. The process is highly discretionary. The most that can be obtained is a set of answers to a set of questions submitted in advance. The answers would be obtained through the asking of the pre-ordained questions in court by a Japanese judge, with no real scope to ask additional questions and with the examinee entitled to refuse to answer questions that might tend to incriminate him or damage his reputation or that of a family member (such refusal must be considered a real possibility in this case where, it appears, Hiroyuki Narui has, at different times, made inconsistent statements). Of particular significance, however, is the fact that the culmination of the process is a document setting out oral representations of the person which, in our context, are themselves of a hearsay quality and therefore not admissible without resort yet again to some exception to the hearsay rule. Importantly, the product of the process is not itself evidence, so that physical participation by the person in the process is not "attendance" which puts the person into a position to give evidence to this court. 32 The conclusion reached in relation to s 63 and clause 4(1)(e) makes it unnecessary to consider the defendant's alternative submission based on s 64 of the Evidence Act and the proposition that Hiroyuki Narui is "available to give evidence about [the] asserted fact". 33 It is, however, necessary to address the plaintiffs' submission that the probative value of the evidence in question – that is, evidence of the previous representations made by Hiroyuki Narui - is, in terms of s 135(a), "substantially outweighed by the danger that the evidence might . . . be unfairly prejudicial to" the plaintiffs, so that the court has a discretion to exclude under that section. The plaintiffs say that that discretion is available and should be exercised so as to exclude the evidence. 34 The plaintiffs characterise the evidence in question as "hotly contested" and "of great significance to the case (subject to weight)". So much may be accepted. Apart from a possible need they may have to seek to tender further documents, the plaintiffs put forward only one matter as a basis for a finding that the s 135(a) condition precedent is satisfied. They refer to the fact that they will be unable to cross-examine Hiroyuki Narui. A long list of matters on which they would wish to cross-examine him is set out in their submissions. The plaintiffs say that it is "one of the fundamental precepts of adversarial litigation that a party is entitled to test in cross-examination factual assertions made in testimonial evidence, whether its form be oral or by way of affidavit". 35 Inability to cross-examine, as relevant to the s 135(a) discretion (or the like s 136(a) discretion), is something that it has been necessary to consider in earlier rulings on evidence in these proceedings: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654; Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49. Inability to cross-examine on representations of a person contained in a document does not of itself make the evidence in the document unfairly prejudicial, although the matter can be relevant to a decision on the question whether the s 135(a) "danger" exists: see, for example, Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Ltd v Coleridge [2002] NSWCA 30; (2002) 12 ANZ Ins Cas 61-521 at [55]. 36 The general message from the decided cases – particularly from the judgment of McHugh J in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [97] - is that the natural and ordinary operation of provisions of the Evidence Act cannot, without more, provide a basis for exercise of the s 135(a) discretion. As McHugh J said, the discretion is to be exercised "on a case by case basis because of considerations peculiar to the evidence in the particular case". 37 The hearsay statements of Hiroyuki Narui go mainly to the question of when he first learned that no development approval had been issued for the Kings Forest Stage 1 land, although they are concerned also with some other matters, including the state of his knowledge of what could lawfully be done on the land. A valid pretext for the tender of the hearsay statements is provided by the fact that the plaintiffs have already been successful in their attempts to introduce into evidence the document dated 19 December 2002 embodying a statement of Hiroyuki Narui prepared by Hickey Lawyers, the then solicitors for the present defendant, for use in proceedings in this court between the defendant and one Harrison: see Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070. A significant element of the content of that statement goes to the time at which Hiroyuki Narui became aware that no development approval had been issued. Tender by the defendant of the previous representations with which I am presently concerned will thus potentially throw further light on a matter emerging from a document already put into evidence by the plaintiffs. 38 The defendant submits and I accept that, in the context just described, the tender of the particular previous representations by the defendant will not occasion prejudice to the plaintiffs of such a quality or magnitude as to make the s 135(a) discretion exercisable. Rather, a form of balance will have been achieved by the presence in the evidence of apparently different and inconsistent statements made by the particular person about a particular matter. Neither side will be able to cross-examine that person. That inability will not rebound to the detriment or prejudice of one party to the exclusion of the other. Each party has had success in introducing into evidence previous representations of Hiroyuki Narui. It follows, particularly in the light of his absence, that he is not cast in any partisan role. Each party will be in a position where it cannot challenge or test the maker of the apparently inconsistent statements with a view to having him disown the version less favourable to that party's case and reaffirm the more favourable version. Neither will suffer any prejudice in that respect that is not also suffered by the other. Any prejudice to the plaintiffs because of inability to cross-examine is neutralised by the like prejudice suffered by the defendant. 39 In that context, it is, to my mind, insufficient for s 135(a) purposes for the plaintiffs to point to a long list of matters on which they would wish to cross-examine when the existence within the body of evidence of Hiroyuki Narui's statement in the Harrison proceedings may well be regarded as productive of a similar desire on the part of the defendant. 40 I am not satisfied that any good reason has been shown for thinking that the s 135(a) discretion is exercisable or ought to be exercised. 41 It remains to deal with the intention of the defendant to adduce evidence of previous representations of Shuhei Takahashi. These are contained in letters of 31 October 2003 and 20 January 2004 from Shuhei Takahashi to David Monaghan of Hickeys and Reg van Rij of Leda: see items 2 and 3 in the list quoted at paragraph [2] above. It appears (and I assume, for present purposes) that Shuhei Takahashi was, at material times, a Japanese lawyer in private practice in Japan who represented Hiroyuki Narui and other Narui interests. 42 No evidence has been given that could lead to the conclusion that Shiuhei Takahashi is not "available to give evidence" as referred to in s 63(1). I say this because there is nothing whatsoever before the court to show that the defendant has made of Shuhei Takahashi even a simple request that he attend to give evidence. In addition, there is no evidence going to the question of "undue expense or undue delay" raised by s 64(1) of the Evidence Act. It follows that there is no basis on which the court could conclude that either s 63 or s 64 operates to make admissible the letters containing the previous representations of Shuhei Takahashi. Nor can the findings about the unavailability of Hiroyuki Narui be of assistance to the defendant in relation to the letters written by Shuhei Takahashi. It is true that those letters contain statements by Shuhei Takahashi about things that, according to him, were said by Hiroyuki Narui, but s 63(2)(b) extends only to first-hand hearsay in a document: S Odgers, "Uniform Evidence Law" 8th edition (2009), p 233 fn 139. 43 The defendant contends, however, that the content of the Shuhei Takahashi letters is saved from the exclusionary operation of the hearsay rule by s 81(2) of the Evidence Act: "The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission." 44 The relevant admission is an admission against the defendant and is contained in Hiroyuki Narui's statement of 19 December 2002 in the Harrison proceedings already tendered by the plaintiffs and admitted into evidence: see paragraph [37] above. The admission is that Hiroyuki Narui first learned in January 2001 that there was no valid development approval for the Stage 1 land. 45 The relevant content of Shuhei Takahashi's letters of 31 October 2003 and 20 January 2004 consists of a suggestion or request as to the wording of a written statement to be made by Hiroyuki Narui. Under a heading "No 28 – Change the statement for the whole paragraph to be replaced with the following", each letter sets out a passage couched in the first person. It thus apparently quotes words that Hiroyuki Narui wished to see adopted, by way of substitution, in a first hand account of relevant events to be made by him. 46 The defendant contends that the statements in the passage thus set out in the Shuhei Takahashi letters of 31 October 2003 and 20 January 2004 were, in terms of s 81(2)(a), made "in relation to" the admission contained in Hiroyuki Narui's statement of 19 December 2002 and that, while obviously not made "at the time the admission was made", they were made "shortly . . . after that time". The defendant further contends that it is, in terms of s 81(2)(b), "reasonably necessary" to refer to the statements in the letters of 31 October 2003 and 20 January 2004 "in order to understand the admission" in the statement of 19 December 2002. 47 I deal first with the question of timing posed by s 81(2)(a). It is, as I have said, obvious that statements made in 31 October 2003 and 20 January 2004 were not made at the time a statement of 19 December 2002 was made. The question is therefore whether they were made "shortly . . . after" that time. The defendant submits that the question (particularly as to the import of "shortly") is to be addressed in context and that it is relevant to have regard to the fact that Hiroyuki Narui was located in another country, that he travelled only rarely to Australia, that he spoke only Japanese, that he had to communicate through an interpreter and that his communications were relayed through intermediaries such as lawyers. 48 The meaning of "shortly . . . after" is to be understood in the light of the purpose s 81(2) is intended to serve. It is an adjunct to s 81(1) which puts evidence of an admission beyond the operation of the hearsay rule. Section 81(2) recognises that some other hearsay statement may serve to give essential added content to an admission, in that the other statement is necessary to a proper understanding of the admission. But s 81(2) also recognises that the other statement will be of explanatory or clarifying value only if intimately associated with the admission. The need to exclude the intervention of self-serving after-thought, re-construction or alteration is recognised by the words "made . . . at the time the admission was made, or shortly before or after that time". 49 The plaintiffs refer in their submissions to the explanation of s 81(2) given by the Australian Law Reform Commission in its Interim Report No 26, "Evidence" (1985) and reproduced at page 348 of Odgers, "Uniform Evidence Law" (above): "A party may make a series of assertions of fact, some against interest at trial, some in his interest, some neutral. Only the former assertions would fall into the proposed definition of 'admission'. Existing law, nevertheless, permits the self-serving portions of a statement to be admitted as evidence. It is not proposed to recommend any changes to the law. An assertion against interest should be considered in context – to assess its probative value it is necessary to consider assertions which qualify or modify it. Fairness to the party requires that his statements not be taken out of context." 50 It is thus made clear that s 81(2) is not intended to modify the common law position. That being so, the plaintiffs say, the words "made . . . at the time the admission was made, or shortly before or shortly after it was made" are concerned to delineate what is, in common law terms, a single "occasion". They refer, in that connection, to observations on the common law position by Ipp J in Middleton v The Queen (1998) 19 WAR 179. In that case, there was admitted into evidence, upon tender by the prosecution, a video interview conducted at a police station almost six hours after the relevant event. The defence then sought to tender a statement made by the accused to police very soon after the event. The trial judge rejected that tender. On appeal, Ipp J said (at 189): "The main argument advanced on appeal in support of the proposition that the evidence of the first interview was admissible as to the truth of its contents was that it formed part of the video interview. If that were to be correct, once the prosecution had tendered the video interview (as it did), it would be open to the defence to adduce evidence of the first interview (ie on the basis that what was said in both interviews formed one whole statement). We were not referred to any authority which holds that the mixed statement exception applies to statements made on different occasions. As far back as The Queen's Case (1820) 2 Brod & B 284, 297-298; 129 ER 976, at 981, it was said by Abbott LCJ that if any portion of a conversation in which a party to the suit was admitted in evidence against that party, the party concerned must be given 'the benefit of the entire residue of what he said on the same occasion . ' (my emphasis). In Smith v Blandy (1825) Ry & Mood 257; 171 ER 1013 Lord Denman referred to the fact that '[t]he whole of what a party says at the same time, must be given in evidence.... ' (my emphasis). According to Wigmore on Evidence (Chadbourne ed), vol VII, para 2113: '[T]he simple rule, in the form today most commonly enforced, [is] that "the the whole of what was said at the same time on the same subject" may be put in.' At para 9119, the learned author states: 'It follows from the general principle (para 9113 supra), that a distinct or separate utterance is not receivable under this principle. The boundary here is usually defined by saving that all that was uttered at the same time on the same subject is receivable; yet it is difficult to test the line of admissibility by any formula, and none seems to have been sanctioned by general acceptance.' Wigmore concludes that the application of this principle 'depends almost entirely on the circumstances of each case; what is a separate utterance can ordinarily not be the subject of fixed definition'." 51 Ipp J then referred (at 190) to R v Williamson (1972) 2 NSWLR 281 where, at 295, Lee J quoted with approval the following passage in paragraph [1128] on page 423 of "Archbold's Criminal Pleading, Evidence and Practice", 36th edition (1966): "In all cases the whole of the confession should be given in evidence, for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge .... " 52 Ipp J concluded: "Thus, the rationale for admitting the exculpatory parts of one whole statement is that, having been uttered on the same occasion that the crime is admitted, their reliability is greater than otherwise would have been the case. Where exculpatory utterances are made as part of a separate statement, this consideration does not apply. I agree with Pidgeon J that the appellant's utterances in the first interview cannot be regarded as part of his statement recorded in the video interview. They were plainly separate occasions. They were separate in time by nearly six hours and they were made to different persons under different conditions. Accordingly, in my view, the exculpatory statements made in the first interview do not fall within the mixed statement exception. It follows that there is no basis on which the first interview can be admitted as to the truth of its contents." 53 It is in the context of these common law principles concerned with the "same occasion" that the learned author of Odgers "Uniform Evidence Law" (above) says of s 81(2)(a) (also at p 348): "However, the courts will inevitably struggle with cases where the time gap is in the order of hours or possibly days and the representations are made at different locations." 54 No struggle is needed in this case. The representations of 31 October 2003 and 20 January 2004 were made respectively ten months and thirteen months after the admission of 19 December 2002. On no conceivable meaning of the words "shortly after", as used in the particular context, were those representations made "shortly after" the making of the admission on 19 December 2002. A very long period intervened in which there was ample opportunity for self-serving after-thought, re-construction or alteration. 55 This is sufficient to dispose of the defendant's contention that the previous representations in the Shuhei Takahashi letters are admissible pursuant to s 81(2). The condition as to timing created by s 81(2)(a) is not satisfied. Section 81(2) therefore does not apply to those previous representations and there is no need to address the question posed by s 81(2)(b). I nevertheless record my view that Hiroyuki Narui's statement of 19 December 2002 is perfectly understandable as it is; and that there is no necessity to refer to the Shuhei Takahashi letters in order to understand it. 56 The overall result is accordingly that all of the documents encompassed by the defendant's amended notice under s 67 of the Evidence Act (see paragraph [3] above) will be admitted, with the exception of the Shuhei Takahashi letters of 31 October 2003 and 20 January 2004. ********** 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.