Ana Hajdukovic; (As Legal Personal Representative; of the Estate of the Late Stanoje Hajdukovic); v; J Kruschich (Demolitions) Pty Ltd and Anor

[2000] NSWDDT 3

(2000) 19 NSWCCR 379

ANA HAJDUKOVIC
(AS LEGAL PERSONAL REPRESENTATIVE
 OF THE ESTATE OF THE LATE STANOJE HAJDUKOVIC)
v
J KRUSCHICH (DEMOLITIONS) PTY LTD & ANOTHER
[2000] NSWDDT 3

Dust Diseases Tribunal of New South Wales: Armitage J

8 March 2000

Dust Diseases Tribunal - Proceedings - Evidence - Hearsay - Discretion to admit without notice - Inappropriate to exercise when ample opportunity to give notice existed - Evidence Act 1995 (NSW) s 67, s 72

J.L. Sharpe, for the plaintiff
G.P.F. Rundle, for the first defendant
J.A. McIntyre SC, for the second defendant

Ex tempore

1. ARMITAGE J: At this point Mr Sharpe asks me to reconsider a ruling I made earlier in relation to a question designed to elicit an out-of-court statement by the deceased Stanoje Hajdukovic, the former plaintiff, in relation to his employment by a particular entity namely, presumably, the first defendant.

1. It was sought to adduce this evidence in a context where the first defendant, at the commencement of proceedings, indicated by its counsel, Mr Rundle, that whilst it had no evidence to call to suggest that the plaintiff was not employed by the first defendant, its records did not allow it to admit that fact. In that context Mr Sharpe relies in support of the question he now seeks again to ask, pursuant to his request that I reconsider my ruling, on s 67 and s 72 of the Evidence Act 1995 (the Act). He also relies on Walton v The Queen (1989) 166 CLR 283 and in particular, although he referred me to other passages, the statement that occurs in the joint judgment of Wilson, Dawson and Toohey JJ at 304 where their Honours said:

However, as we have said, not all conduct involving an assertion, expressed or implied, is treated as hearsay and held to be inadmissible in evidence. If it were, the available evidence in many cases would be seriously depleted. The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is treated as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.

1. Mr Sharpe relied also on a statement further down the same page where their Honours said:

But if sometimes there is an element of hearsay in evidence which is led or statements made by a person other than a witness for the purpose of founding an inference concerning that person’s state of mind, the justification for disregarding that element of hearsay may be thought to be of similar kind.  Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable.  On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.

1. I drew Mr Sharpe’s attention also in this context to what was said in Sydney Electricity v Giles (1993) 9 NSWCCR 700 where the Court of Appeal held that a statement by a deceased worker in a workers compensation context as to his bodily feelings at a particular time was not hearsay but rather evidence admissible as part of the res gestae as a complaint of a physical state at the time in question.

1. Before coming to the particular sections of the Evidence Act upon which Mr Sharpe relies, Walton’s case would seem to me to stand as authority for the proposition that not all out-of-court statements made in the presence of a witness are necessarily hearsay, and ought not necessarily to be excluded as such, because they may be statements not as to the truth of a fact but rather statements which prove something entirely different, namely the state of mind of the maker of the statement or of the person to whom it was made or some other fact concerning that person other than the matter asserted by them. For example, if somebody says in the witness box that he or she attended a doctor and was told at that time that there was no further treatment that could be offered for the condition from which they alleged they were then suffering, that evidence may be admissible out of that person’s mouth to show that that statement was made, not for the purpose of introducing by hearsay the opinion of the person who made the statement to the witness but rather to prove the state of mind brought about in the mind of the person to whom the statement was made, namely the witness.

1. Walton’s case does not, to  my mind, stand for a blanket exception to the hearsay rule along the lines asserted by Mr Sharpe, for the question sought to be asked by Mr Sharpe, which was the subject of the earlier ruling which Mr Sharpe would have me revisit, was asked for the purpose not of proving a state of mind or some other matter concerning the maker of the statement or the witness to whom the statement was made, but rather of proving the truth of the fact asserted by the maker of the statement.  To put it in a more unvarnished way, Mr Sharpe would have me rule that a statement made out of court by the deceased to another person that he was employed by or working for the first defendant or somebody connected with the first defendant, such as Mr Kruschich, is admissible as evidence of that fact.  Walton’s case does not, to my mind, stand as a authority for the proposition that such a statement is admissible. 

1. That is the state of the common law, to my mind, as it existed before the Evidence Act was enacted. Coming first to s 72 of the Act, which is convenient in the present circumstances, it reads:

   The hearsay rule does not apply to evidence of
   a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

1. In Odgers’ work on the Evidence Act to which I was helpfully referred by Mr McIntyre for the second defendant in the course of argument, it is stated that this section is likely to be interpreted narrowly by the courts. No authority was cited for that proposition. Be that as it may, it would seem to me unlikely that Parliament would have intended by the enactment of s 72 to bypass altogether the hearsay rule, which is after all the subject of careful restrictions in relation to first-hand hearsay in Pt 3.2, Div 2 of the Act, which includes s 62 to s 68.

1. To my mind the intention of s 72, uninstructed as I am by authority from any counsel other than Walton’s case, to which Mr Sharpe referred me, is to allow the sort of statements referred to in the very passage from the judgments in Walton’s case to which Mr Sharpe referred me, namely out-of-court statements by another person to a witness about that person’s health, feelings, sensations, intention, knowledge or state of mind.  The words “knowledge or state of mind” seem to me to connote statements which go to prove not the truth of the fact asserted out of court by the statement in question, but rather statements intended to prove that the maker of the statement or perhaps the witness to whom it was made knew something or had a particular state of mind. The example I referred to earlier about a doctor saying to a witness that nothing further could be done for his or her condition comes to mind.

1. The sort of “knowledge” or “state of mind” adverted to does not seem to me to include a belief by the maker of the out-of-court statement in question that he or she had a legal relationship with someone else which was crucial to the litigation in question, as here, namely a relationship of employment by another person. I do not therefore think that s 72 has any application in the present case.

1. Mr Sharpe also relies, as I have said, on s 67 of the Evidence Act, and he relies in particular on s 67(4) which reads:

Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

1. Mr Sharpe urges that I ought therefore to allow him to ask the question presently under discussion, notwithstanding his client’s failure through her solicitors to give notice pursuant to Div 2 abovementioned because, he says, Mr Rundle for the first defendant at the commencement of proceedings did not say that he proposed to call positive evidence to suggest that the deceased was not employed by the first defendant and did not deny such employment, but rather put the plaintiff to proof of that matter. It seems to me that the discretion which is undoubtedly created by the use of the word “may” in s 67(4) ought be exercised only where grounds for its exercise are shown by the party seeking it. Irrelevant grounds of course ought be excluded pursuant to the general law in relation to discretions set out in House v The King (1936) 55 CLR 499. Mr Sharpe’s argument that I should exercise the discretion in his favour seems to me, as Mr Rundle argues, to rest on the bald proposition that because the first defendant did not deny employment of the deceased by it, but put the plaintiff to proof and does not propose to call evidence on the matter, I ought in some way to lessen the burden of proof on the plaintiff by allowing her to call hearsay evidence, despite the general common law rule still existing against the calling of such evidence, and despite the lack of notice being given in accordance with Div 2 of Pt 3.2 of the Act, because s 67(4) allowed me to exercise the discretion to permit him to do so. It undoubtedly does, but proper grounds have not to my mind been shown for the exercise of such a discretion.

1. It is not suggested that the witness presently in the witness box was not available to the plaintiff before today, nor that the issue of the employment of the deceased by the first defendant was not known to the plaintiff before the commencement of the trial so that it was not known by the plaintiff that it would be necessary to call witnesses to give evidence in proof of that issue.

1. In those circumstances I fail to see that proper grounds have been shown to exercise the discretion in s 67(4) in the plaintiff’s favour and I decline to do so. In those circumstances, the ruling which Mr Sharpe would have me reverse stands.

1. At this point Mr Sharpe asks that I deal with the issue of prejudice to the first defendant. I would have thought that the issue of prejudice had already been substantially dealt with in what I have already said in relation to the plaintiff’s knowledge of the existence of the issue of employment, Mr Sharpe not asserting at any stage that the issue of employment of the former plaintiff, the deceased, by the first defendant was not known to the plaintiff before the trial. In case what I have already said is ambiguous, I consider firstly that the plaintiff had ample opportunity to give notice of her intention to adduce hearsay evidence from the present witness on the issue of the employment of the deceased by the first defendant. Secondly, the mere fact that the first defendant does not intend to call evidence on the issue of employment of the former plaintiff by it and does not deny such employment, but simply puts the plaintiff to proof on that issue, does not to my mind create a situation where that defendant is not prejudiced by my abrogating altogether the ordinary rule of evidence and the notice requirements of Div 2 in relation to hearsay and exercising the s 67(4) discretion without proper grounds being shown. On the contrary, it is more prejudiced by such a course because, as Mr Sharpe accepts, its records do not tell it whether it ever employed the plaintiff, and in the nature of things it cannot call evidence to refute hearsay evidence as to that issue. It is entitled therefore to have the case against it on this issue properly proved by admissible evidence.

1. I make it clear that this ruling does not necessarily apply to any question asked of any other witness on the same subject. I shall of course rule on such questions on their merits at the time they are asked because different considerations may apply. In particular, as I told Mr Sharpe, s 87 of the Evidence Act may apply to them. It was not suggested by Mr Sharpe that it applies in the present case.

Ruling accordingly

Solicitors for the plaintiff: Turner Freeman
Solicitors for the first defendant: Connery & Partners
Solicitors for the second defendant: Hunt & Hunt