Lansom v Lansom [2018] NSWSC 763

Supreme Court New South Wales

Medium Neutral Citation: Lansom v Lansom [2018] NSWSC 763 Hearing dates: 22 May 2018 and 23 May 2018 Date of orders: 23 May 2018 Decision date: 28 May 2018 Jurisdiction: Common Law Before: Schmidt J Decision: Objection under s 138 of the Evidence Act rejected. Catchwords: EVIDENCE – affidavit evidence – objection under s 138 of the Evidence Act 1995 (NSW) – exclusion of improperly obtained evidence – objection rejected – reasons Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Gedeon v R [2013] NSWCCA 257; 237 A Crim R 326 Parker v Comptroller-General of Customs [2009] HCA 7; 252 ALR 619 Category: Procedural and other rulings Parties: Warren Richard Lansom (Plaintiff/Cross-Defendant) Wayne Eric Lansom (First Defendant/Cross-Claimant) Nancy Ward (Second Defendant) Kyle Lansom (Third Defendant) Representation: Counsel: Dr S Blount (Plaintiff/Cross-Defendant) Mr H Jewell (First Defendant/Cross-Claimant)

Solicitors: Kenny Spring Solicitors (Plaintiff/Cross-Defendant) McIntosh McPhillamy & Co (First Defendant/Cross-Claimant) Ms N Ward, unrepresented (Second Defendant) Mr K Lansom, unrepresented (Third Defendant) File Number(s): 2017/224886 Publication restriction: Nil

Judgment 1. By his amended statement of claim Mr Warren Lansom sought possession of land situated at Bathurst of which he was the registered proprietor, as well as damages for lost rent and costs from his son, Mr Wayne Lansom, his son's ex-wife Ms Nancy Ward and his grandson, Mr Kyle Lansom. By their defences and Mr Warren Lansom's cross-claim, the defendants resisted these claims and Mr Wayne Lansom claimed that he was entitled to a 50% share of the property. 2. What was in issue at trial depended on a contest over whether the evidence of Mr Warren Lansom about conversations which he had with his son about the property when it was purchased and when later improvements to it were made, could be preferred over the evidence of Mr Wayne Lansom. On his evidence those conversations had resulted in an agreement with his father, that in return for his payment for the improvements, he would receive a 50% share of the property. 3. Resolution of the claims which were advanced thus turned on the evidence which each of the parties would give, the evidence of Ms Ward and Mr Kyle Lansom supporting the case advanced by Mr Wayne Lansom, rather than that of Mr Warren Lansom, considered in light of other evidence, including as to various objective facts. They included the amount of the payments which Mr Wayne Lansom had made for improvements to the property and the use which Mr Warren Lansom had made of the receipts for those payments, which Mr Wayne Lansom had provided him. 4. During the course of the cross-examination of Mr Warren Lansom, I ruled on his objections to parts of a late served affidavit sworn by Mr Tony Davis, his former accountant. That arose when his grandson sought to cross-examine him about the matters to which Mr Davis had deposed, Mr Davis' affidavit having been served upon him as a party to the proceedings. 5. One of the objections taken was advanced under s 138 of the Evidence Act 1995 (NSW). I rejected that objection, indicating that I would later give reasons for that ruling. 6. Section 138 provides: "138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 1. The balancing exercise provided by s 138(1) arose to be undertaken in respect of Mr Davis' affidavit, in circumstances where it was contended that what had been disclosed in his affidavit concerned matters about which he owed obligations of confidentiality to Mr Warren Lansom. That was because at the relevant time Mr Davis was not only Mr Warren Lansom's accountant, but he had also advised Mr Wayne Lansom's about the tax treatment of the expenses dealt with in the affidavit. 2. The word "improperly" used in s 138 is not defined, but was considered in Parker v Comptroller-General of Customs [2009] HCA 7; 252 ALR 619 at [29], where it was observed that its relevant ordinary meanings include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong". Further, that the word "contravention" there used refers to "[t]he action of contravening or going counter to; violation, infringement, transgression". At [30], it was observed: "Without essaying an exhaustive definition, the core meaning of "contravention" involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as "impropriety" although that word does cover a wider range of conduct than the word "contravention". 1. In the circumstances, Mr Davis' disclosure in his affidavit, of the advice which he had earlier given Mr Warren Lansom, while acting for him as his accountant, about his affairs and those of his company, including as to how various expenditure on the property which Wayne Lansom had paid for, should be treated for tax purposes, appeared on its face to involve a contravention of the confidentiality which Mr Davis continued to owe Mr Warren Lansom in relation to the expenses he had advised him about, while as his accountant. 2. I took the view that even if it were accepted the evidence had been obtained improperly, that the balancing act required by s 138, involving as that can considerations of "high public policy", as Bathurst CJ discussed in Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 326, had to result in the rejection of the objection which was maintained for Mr Warren Lansom, to the receipt of Mr Davis' evidence. 3. That was because Mr Wayne Lansom's affidavit, to which Mr Warren Lansom had responded in an affidavit which was already in evidence, had revealed Mr Wayne Lansom's knowledge of what his father done with the receipts which he had provided him, in accordance with the agreement he claimed they had earlier made about ownership of the land. 4. Further, in cross examination, after having received the benefit of a certificate under s 128 of the Evidence Act, Mr Warren Lansom had already given evidence that his son had provided him with the receipts dealt with in Mr Davis' affidavit and that he had used them to claim tax deductions for his company. Mr Warren Lansom had also then volunteered that he had done so on advice which Mr Davis, then his accountant, had given him. 5. In those circumstances, it followed firstly, that by his evidence Mr Warren Lansom had clearly waived any right to confidentiality in the matters disclosed in Mr Davis' affidavit as to the use he had made of the receipts he had received from his son and in the advice Mr Davis had been given him about them. Secondly, that Mr Davis' evidence about those matters would corroborate some aspects of the evidence Mr Warren Lansom had already given, as well as aspects of evidence it was then expected would be given by Mr Wayne Lansom. 6. It was in those circumstances that I was satisfied that while any impropriety involved in the provision of Mr Davis' affidavit to Mr Wayne Lansom, even if significant as was contended for Mr Wayne Lansom, the disputed evidence was of such importance to the resolution of what was in issue in the proceedings, which turned particularly on questions of credibility and reliability of the evidence of Mr Warren Lansom and Mr Wayne Lansom, that it had to be received. 7. That was because Mr Davis' evidence had the capacity not only to establish relevant objective facts, but also the circumstances in which they came into existence. His evidence was thus important to the resolution of what had actually been agreed between Mr Wayne Lansom and Mr Warren Lansom and whether their agreement had been given effect, by the steps which they had then respectively taken.