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. ********** 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. Decision last updated: 24 May 2016