PPK Willoughby Pty Ltd v Baird [2019] NSWSC 704

Supreme Court New South Wales

Medium Neutral Citation: PPK Willoughby Pty Ltd v Baird [2019] NSWSC 704 Hearing dates: 11 June 2019 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Common Law Before: Harrison J Decision: Paragraph 50 of the witness' affidavit rejected. Catchwords: EVIDENCE – affidavit evidence – where plaintiff sues defendants for negligence – where plaintiff is a corporation – where one of the plaintiff's directors seeks to give evidence about what he would have done if the defendants had not been negligent – whether witness' statement offends s 5D(3) of the Civil Liability Act – whether s 5D(3) should be limited to the evidence of natural persons – whether witness' evidence is relevant Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Category: Procedural and other rulings Parties: PPK Willoughby Pty Ltd (Plaintiff) David Baird and others (2nd to 106th Defendants) Representation: Counsel: M Green SC with A D Crossland and M Cobb-Clark (Plaintiff) T Faulkner SC with J Williams (2nd to 106th Defendants)

Solicitors: Coleman Greig Lawyers (Plaintiff) Gilchrist Connell (2nd to 106th Defendants) File Number(s): 2012/163736 Publication restriction: Nil

Judgment 1. HIS HONOUR: The plaintiff sues the defendants, a firm of solicitors, alleging that it suffered loss as the result of negligent advice concerning the status of land it was proposing to purchase. The plaintiff maintains that the land was adversely affected by flood development control restrictions that made the land worth less than the price for which it was ultimately acquired. 2. Graeme Webb is a director of the plaintiff. His affidavit affirmed on 25 June 2016 says this at paragraph 50: "50. Had I known that the Willoughby Market Gardens site may be subject to flood development controls this would have had a major effect on my recommendation to the PPK Willoughby Board." 1. That evidence is objected to by the defendants. 2. Section 5D(3) of the Civil Liability Act 2002 provides as follows: "5D(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest." 1. The defendants contend that this evidence offends the subsection and is accordingly inadmissible. The defendants observe that the evidence is irrelevant, inasmuch as the views of Mr Webb are not germane to the issues to which the evidence is notionally directed: what is important is the subjective assessment of what the plaintiff would have done, not what one of its directors would have done. The plaintiff maintains that the prohibition upon receipt of the evidence is limited to evidence given by the "person…suffering harm", which in the present case is the plaintiff and not Mr Webb. Accordingly, there can be no restriction upon the receipt of Mr Webb's evidence as he is not such a person. 2. I think that the issue can be sensibly determined having regard to the following realities. A company cannot give evidence other than through natural persons either as oral testimony or by the tender of documents created by them. If Mr Webb's evidence in paragraph 50 of his affidavit is to achieve or to be given any relevance in the proceedings, given that he is not personally interested in the outcome, it can only be if it is given for or on behalf of the plaintiff. If the rhetorical inquiry at the end of the case is, "What does the evidence given by Mr Webb in paragraph 50 go to?", the answer can only be that it is evidence upon which the plaintiff wishes to rely to advance its case. If the plaintiff therefore approbates the relevance of this evidence as material supporting the plaintiff's case, it can hardly reprobate the applicability of s 5D(3) as applying to evidence given by or on its behalf by natural persons such as Mr Webb as the plaintiff's agent for that purpose. 3. I note in passing that some authorities have appeared to place emphasis upon the use of the personal pronouns in paragraphs (a) and (b) of the provision, so as to suggest that the section could not have been intended to apply to a corporate plaintiff. However, the reference in the opening sentence of s 5D(3) to "the negligent person" must necessarily have been intended to extend to a corporate defendant. There is accordingly little to be said, as a matter of statutory construction, for limiting the exclusion for which the sub-section provides to plaintiffs who are also natural persons or, put another way, for not applying the exclusion to evidence given by natural persons on behalf of a corporate plaintiff. 4. It seems to me that the evidence is in these circumstances either inadmissible because it is irrelevant or, if relevant, inadmissible because it offends the sub-section. 5. In my opinion, paragraph 50 of Mr Webb's affidavit should be rejected.