Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122

Supreme Court New South Wales

Medium Neutral Citation: Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122 Hearing dates: 10 August 2016 Date of orders: 10 August 2016 Decision date: 19 August 2016 Jurisdiction: Common Law Before: Garling J Decision: Application to adduce the hearsay evidence is rejected Catchwords: EVIDENCE – admissibility – hearsay evidence – exceptions – civil proceedings if maker not available – Evidence Act 1995, s 63 – whether the plaintiff is mentally or physically unable to give the evidence Legislation Cited: Evidence Act 1995 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Carolin Alzawy (P) Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (D) Representation: Counsel: A Black SC / P N Khandhar (P) R Cheney SC / S Sykes (D)

Solicitors: Sharpe Lawyers (P) Sparke Helmore Lawyers (D) File Number(s): 2013/145428 Publication restriction: Not Applicable

Judgment 1. The plaintiff, Carolin Alzawy, has commenced proceedings in this Court claiming damages for personal injuries which she sustained on 3 January 2013, when she fell whilst descending an internal staircase at the premises of the defendant. 2. The Court is presently hearing two questions separately and in advance of all other issues in the proceedings. These two questions relate to the liability of the defendant for the plaintiff's fall. 3. It is the plaintiff's case that she fell down the stairs because she stepped on a broken nose tile and lost her balance. The defendant admits that the presence of the broken nose tile constituted a breach of its duty of care, but contends that the plaintiff's fall was not caused by that broken tile because her fall started elsewhere on the staircase. It denies liability for the plaintiff's fall. 4. As part of her case, the plaintiff seeks to lead hearsay evidence which consists of previous representations made by her in a number of paragraphs of statements made by her on 15 October 2014 and 6 May 2016. The plaintiff, who has a tutor appointed to conduct the litigation, submits that she is entitled to lead the hearsay evidence because, within the meaning of s 63 of the Evidence Act 1995, she "… is not available to give evidence…". 5. Clause 4 of the Dictionary in the Evidence Act, which is given force by s 3, relevantly provides: "4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: … (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability..." 1. The defendant objects to the hearsay evidence being led, and submits that the Court should not be satisfied that the plaintiff is unavailable to give evidence. 2. The Court heard the submissions of the parties on the first day of hearing. At the conclusion of the argument, I declined to allow the hearsay evidence to be led because I was not satisfied that the plaintiff was "unavailable" to give evidence as that term is defined in the Evidence Act. I indicated that I would give reasons in due course. 3. These are my reasons for refusing to admit the evidence.