Rossi v Living Choice Australia Limited [2012] NSWLEC 281

Land and Environment Court New South Wales

Medium Neutral Citation: Rossi v Living Choice Australia Limited [2012] NSWLEC 281 Hearing dates: 20 September 2012 Decision date: 20 September 2012 Jurisdiction: Class 4 Before: Pain J Decision: See paragraph 2 Catchwords: EVIDENCE – admissibility of business records in light of hearsay rule Legislation Cited: Evidence Act 1995 s 69 Cases Cited: Australian Securities and Investment Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 Category: Procedural and other rulings Parties: Anthony Rossi (Applicant) Living Choice Australia Ltd (First Respondent) The Hills Shire Council (Second Respondent) Joint Regional Planning Panel - Sydney West Region (Third Respondent) Representation: Counsel: Mr P Tomasetti SC with Ms V McWilliam (Applicant) Ms H Irish (First Respondent) Mr J Lazarus (Second Respondent) Submitting appearance (Third Respondent)

Solicitors: DG Briggs and Associates (Applicant) Pikes and Verekers Lawyers (First Respondent) Maddocks Lawyers (Second Respondent) Department of Planning and Infrastructure, Legal Services (Third Respondent) File Number(s): 40018 of 2012

EX TEMPORE JUDGMENT

Application by senior counsel for the applicant that the affidavit of Ms McCulloch of 3 July 2012 be read; see transcript p 353. 1. The Applicant proposes to read the affidavit of Ms McCulloch, solicitor, of 3 July 2012. This is opposed on the basis that the hearsay rule will apply to the contents of the material attached to Ms McCulloch's affidavit. I have reviewed the decision in Australian Securities and Investment Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 (ASIC) in relation to that issue. It seems to me that the hearsay exception to the business records provision in s 69 of the Evidence Act 1995 (NSW) applies to this material. I am fortified in that view by the reasoning of Austin J in ASIC at [166] and [199] in particular. 2. I note for completeness that another basis of opposition was relevance. Clearly the material is relevant to the First Respondent's case to the extent there is going to be a debate about the application of the principles in Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321. I have yet to rule on that legal issue. This evidence can be read in the form in which it is provided in Ms McCulloch's affidavit.