New South Wales Supreme Court CITATION : Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1209 HEARING DATE(S) : 23 September 2009 JURISDICTION : Equity Division Probate List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 23 September 2009 DECISION : Leave to read affidavit refused CATCHWORDS : EVIDENCE – affidavits and statutory declarations – affidavits – plaintiff seeks to read affidavit of conversation with person unable to be called as a witness – where plaintiff's solicitor sent letter to defendant's solicitors purporting to give notice under (NSW) Evidence Act 1995, s 67 of an intention to adduce evidence of previous representation in reliance on s 64(2) – where notice substantially complied in form with requirements of (NSW) Evidence Regulations 2005, reg 4 – where requisite 21 days prior service not complied with – where there would be potential prejudice from inability to investigate – leave to read affidavit refused (NSW) Evidence Act 1995, s 64(2), s 67, s 68 LEGISLATION CITED : (NSW) Evidence Regulation 2005, reg 4 (NSW) Uniform Civil Procedure Rules 2005, r 31.5 CATEGORY : Procedural and other rulings Evelyn Tobin (First Plaintiff) PARTIES : Clara Ezekiel (Second Plaintiff) Morris Ezekiel (First Defendant) Albert Ezekiel (Second Defendant) FILE NUMBER(S) : SC 106746/06 COUNSEL : Mr J Gormly SC (plaintiffs) Mr T Hale SC w Mr J Tobin (defendants) SOLICITORS : T.D. Kelly & Co (plaintiffs) McLachlan Chilton (defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST BRERETON J Wednesday 23 September 2009 106746/06 Evelyn Tobin &anor v Morris Ezekiel & anor; Estate of Lily Ezekiel JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff seeks leave to read an affidavit of Timothy Dennis Kelly sworn 17 September 2009, the significant feature of which is that it annexes a note made by Mr Kelly of a conversation with one Rachel Brook on 28 February 2007, which conversation had as its subject matter the circumstances in which Ms Brook provided the name of the solicitor Geoff Woolley, who drew the disputed 1997 wills. It appears that Mr Kelly spoke to Ms Brook on 28 February 2007, made a note of the evidence which she could give, and was informed by her that she did not wish to sign any statement or affidavit. 2 It does not appear that when the time came for service of the plaintiffs' affidavit evidence, any outline of the evidence which it was anticipated that Ms Brook would give was served or provided nor was any indication given that it was proposed to call her to give oral evidence, she having declined to provide an affidavit. 3 On 3 September 2009, the plaintiffs issued a subpoena to give evidence to Ms Brook. It did not prove possible to serve that subpoena, but ultimately it appears that Ms Brook, having undergone major surgery, is, for that reason, not readily available to give evidence. 4 Having ascertained that, on 17 September 2009 TD Kelly & Co sent to McLachlan Chilton a letter, purporting to be a notice under (NSW) Evidence Act 1995, s 67, of intention to adduce evidence of Ms Brook's previous representation in reliance on Evidence Act, s 64(2). That letter enclosed Mr Kelly's affidavit and in turn a copy of the handwritten note of the conversation with Ms Brook, and for present purposes I am content to assume that if in form it did not fully comply with the requirements of (NSW) Evidence Regulation 2005, reg 4, any departure from that form would not occasion prejudice. 5 However, Evidence Act, s 68, plainly contemplates that a s 67 notice would be served at least 21 days prior to the occasion upon which the evidence is to be used. Even if the section does not expressly say so, UCPR, r 31.5, provides: Unless the court orders otherwise, notice for the purposes of s 67 must be given: (a) in any case where the court by notice to the parties fixes a date for determining the date for hearing [that is to say, a callover], not later than 21 days before the [callover], … (c) in any other case, not later than 21 days before the date on which the court determines the date for hearing. The date for this hearing was determined many months ago. 6 It seems to me that there is simply no sufficient cause shown for leaving until 17 September 2009 service of a s 67 notice. If the evidence could be admitted without prejudice, I would always be inclined to do so. But the argument that to do so in this case would deny the defendants an opportunity to investigate what is attributed to Ms Brook – which opportunity was fundamental to the admission of firsthand hearsay under s 64(2) and s 67 in the first place – is a formidable one. 7 I am satisfied that there would be serious potential prejudice in extending time for service of a s 67 notice or dispensing with the requirement for such a notice in this particular case. I therefore refuse leave to rely on the affidavit of Timothy Dennis Kelly sworn 17 September 2009. ********** 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. 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