A Class Piling & Drilling Pty Limited v Seventy Eight Promotions Pty Limited (No 3)

[2024] NSWDC 310

District Court

New South Wales

Medium Neutral Citation:	A Class Piling & Drilling Pty Limited v Seventy Eight Promotions Pty Limited (No 3) [2024] NSWDC 310
Hearing dates:	22 February 2024
Date of orders:	22 February 2024
Decision date:	22 February 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	The whole of [34] of the affidavit is struck out.
Catchwords:	EVIDENCE – UNAVAILABLE TO GIVE EVIDENCE - Objection taken to statements made by persons unable to be identified – Whether to admit unsubstantiated evidence - Whether reasonable steps made to identify those who made the statements.
Legislation Cited:	Evidence Act1995
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Plaintiff – A Class Piling & Drilling Pty Limited Defendant – Seventy Eight Promotions Pty Limited
Representation:	Counsel: Plaintiff – Young, J. Defendant – Street, C. Solicitors: Plaintiff – Moray & Agnew Defendant – HWL Ebsworth Lawyers
File Number(s):	2023/00103136
Publication restriction:	Nil.

Judgment

Objection to Exhibit

1. HIS HONOUR: Objection is taken to [34] of exhibit D which is in the following terms:

"Although I cannot now recall with who[sic], in the few months following the Incident, I recall having at least half a dozen conversations with personnel from freight companies such as Troy's Heavy Haulage to the effect that A Class [the plaintiff] was thought to be:

(a) 'rough' because its equipment had 'come off the back of a truck';

(b) 'cheap';

(c) 'running a dodgy operation'; and

(d) 'using 'shit contractors'."

2. Those making those statements have not been identified. Counsel for the plaintiff submits that because they cannot be identified, they are unavailable to give evidence. The definition of “unavailable to give evidence” is contained in the Dictionary to the Evidence Act1995, Pt 2 cl 4. That definition is this:

“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—

(a)  the person is dead, or

(b)  the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or

(c)  the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

(d)  it would be unlawful for the person to give the evidence, or

(e)  a provision of this Act prohibits the evidence being given, or

(f)  all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

(g)  all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2)  In all other cases the person is taken to be available to give evidence about the fact.”

Counsel for the plaintiff merely states that because Mr Muadin, the deponent of Exhibit B, cannot now remember who those people are, they are unavailable. However, there is no direct evidence that any attempt has been made by anybody to try to ascertain who those people are.

3. I assume that Troy's Heavy Haulage is a haulage company known to the deponent. I assume that when he refers to "freight companies", he means hauliers, as freight is carried on ships and not on land. This opinion evidence, because that is what it is, is sought to be adduced because, according to counsel for the plaintiff, that is part of the case: that because an item of the plaintiff's was damaged in what could be described bluntly as a motor vehicle accident, that therefore the plaintiff company was somehow inferior in its work and that resulted in economic loss.

4. How the unidentified persons came to express that opinion is not at all explained. One does not know whether that is their own personal opinion or they were expressing an opinion that had been passed on to them by others, or, if it were the personal opinion of the issuer of the opinion to the deponent, what facts the maker of the statement to the deponent was relying upon to form the opinion which he did.

5. Often, and it is common human experience, tales are passed from one to another, they become exaggerated, changed, made more biting, more cutting, more defamatory, and that leads to mischief in ascertaining primary facts.

6. The other question which cannot be determined just by looking at [34] of exhibit B is whether the personnel who passed on those opinions to the deponent were expressing their own views or merely passing on views given to them by others.

7. In the circumstances, I am not persuaded that the plaintiff has established that all reasonable steps have been taken by the party seeking to prove that the person is not available, to find the person or secure his or her attendance, but without success, merely that the deponent can no longer remember who the person may have been, is in my view, insufficient. For example, [34] which I have quoted, it is clear that one person at least, was from Troy's Heavy Haulage, but counsel cannot point me to any inquiry made at that business or company as to who might know the deponent, and who may have passed on an opinion of the nature referred to in [34]. The whole of [34] of the affidavit is struck out.

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Decision last updated: 24 July 2024