Marshall v Prescott (No 1) [2013] NSWSC 1108

Supreme Court New South Wales

Medium Neutral Citation: Marshall v Prescott (No 1) [2013] NSWSC 1108 Hearing dates: 12 August 2013 Decision date: 12 August 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tender rejected. Catchwords: EVIDENCE - tender of affidavit sworn in different proceedings - hearsay - no question of principle. Legislation Cited: - Evidence Act 1995 Cases Cited: - Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188 Category: Interlocutory applications Parties: Margaret Lesley Marshall (First Plaintiff) Kim Neil Marshall (Second Plaintiff) Michael Prescott (Defendant) Representation: Counsel: C.J. Bevan, E.W. Young (Plaintiffs) J.C. Kelly SC, B. McManus (Defendant) Solicitors: Turner Freeman (Plaintiffs) Colin Biggers & Paisley (Defendant) File Number(s): 2009/297404

EX TEMPORE Judgment 1Application is made to read part of an affidavit of Terence Goldberg sworn 26 July 2011 which, in turn, exhibits an affidavit sworn in different proceedings by an attorney based in New York, Justin Green. That affidavit was sworn 23 April 2004. It is apparent from the date of Mr Goldberg's affidavit that that exhibit to his affidavit was served on the defendant some time after Mr Goldberg swore his affidavit. 2The plaintiffs have sought to tender Mr Green's affidavit in circumstances where Mr Green is not to be called as a witness. The defendant has taken objection on the basis that the document is hearsay, which it plainly is. In response to the objection, as I understand it, two related matters are raised on behalf of the plaintiffs. 3The first is a matter of history concerning these proceedings. These proceedings were commenced in 2009 by Mrs Marshall against her former solicitor, Mr Prescott. They concern the events surrounding the distribution of the proceeds of the settlement of some litigation involving her late husband, which was conducted in the United States (the "US proceedings"). Although the boundaries of his retainer are very much in dispute, Mr Prescott acted for her in those proceedings but was also acting for the de facto wife of her deceased husband. 4At the time these proceedings were commenced, another set of proceedings were commenced against a firm of United States attorneys of which Mr Green is a member (the "US Attorneys"), concerning their role in the distribution of the proceeds of the settlement of the US proceedings. 5In February 2012 Schmidt J heard a motion brought by the plaintiff to have the two proceedings heard by the one judge, one immediately after the other. The motion was opposed by the defendant to these proceedings and the US attorneys, being the defendant in the other proceedings. 6Her Honour's judgment records that the principal basis of opposition to that motion by the defendant to these proceedings was that the conduct of the plaintiff in initially electing to bring two sets of proceedings and then by later attempting a form of consolidation would occasion undue delay to the defendant in obtaining a trial date. Her Honour dismissed the plaintiffs' motion (see Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188). 7Counsel for the plaintiffs submits that, having opposed the motion for the form of consolidation that his client sought, there was some form of election or a waiver on the part of the defendant preventing them from objecting to Mr Green's affidavit being tendered in the absence of him being called. The premise of this contention appears to be that had the proposed form of consolidation been allowed, then the plaintiffs would in those circumstances have had the ability to adduce evidence from Mr Green in their case against the defendant, but that opportunity was lost by reason of the opposition of the defendant and ultimately the decision of her Honour. 8I do not accept this contention for a number of reasons. First, it must be remembered that the fact that there are now two sets of proceedings, concerning the same or similar subject matter running on two different paths, is a consequence of the decision of the plaintiffs to commence two separate cases rather than one. 9Second, in any event I do not accept that, if either the form of consolidation that was sought by the plaintiffs or any other form of consolidation such as having both matters heard together had occurred, then the plaintiffs would have thereby obtained some forensic advantage that was lost to them by reason of the defendant's opposition. To the contrary, in those circumstances the plaintiffs would not have had the ability to compel Mr Green to give evidence. In those circumstances, the plaintiffs' ability to adduce evidence from him to use against the defendant in the proceedings would have depended upon a series of decisions being made at the trial which might have ultimately presented them with Mr Green in the witness box at the time their trial was being conducted against the defendant and them having the opportunity to elicit evidence by way of cross examination from him for use against the defendant. 10In my view, properly analysed, the opposition by the defendant to the form of consolidation previously sought by the plaintiffs is irrelevant to the question of whether they are now at some form of disadvantage in adducing evidence from Mr Green. 11The position vis-à-vis the tender of Mr Green's affidavit is not particularly difficult. There is an underlying question which no one at present has been able to answer as to whether Mr Green is compellable to give evidence. If he is not, then the ability to adduce evidence as an exception to the hearsay rule is governed by s 63 of the Evidence Act 1995. Even if he is compellable then, given where he is located and, more significantly, his status as a defendant to proceedings brought by the plaintiffs arising out of the same subject matter, that may be a matter that could inform a conclusion that it would not be "reasonably practical" for him to give evidence, as referred to in s 64(2). 12However, to invoke these provisions proper notice was required under s 67. Thus, the second matter raised by counsel for the plaintiffs was that, by providing Mr Green's affidavit as an exhibit to Mr Goldberg's affidavit, that was substantial compliance with s 67 so as to warrant the admission of Mr Green's affidavit either under ss 63 or 64. I do not agree. 13If the matter had been the subject of a proper notice, then it seems to me that an informed and considered debate as to the relative pros and cons, as well as the costs and expense, of calling Mr Green could have been undertaken (assuming he is compellable). Instead, by simply annexing his affidavit as an exhibit to another affidavit, the defendant was simply not apprised of the material it needs to make any proper submissions about the operation of s 63 and s 64 in these circumstances. The only thing that the defendant would be apprised of by annexing his affidavit to someone else's affidavit is that on some basis or other an attempt will be made to tender the affidavit. 14In the absence of proper notice being given, the affidavit is, strictly speaking, hearsay. No proper reason has been shown for dispensing with the need for notice and I reject its tender. 15Accordingly, I reject the tender of pp 408 to 410 of what is currently volume 3 of the proposed tender bundle.