Brierley v The Proprietors of Strata Plan No 38936
[2001] NSWSC 17
•31 January 2001
CITATION: Brierley v The Proprietors of Strata Plan No 38936 [2001] NSWSC 17 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20745 of 1995 HEARING DATE(S): 23-26 August 1999 JUDGMENT DATE:
31 January 2001PARTIES :
SIMON STUART BRIERLEY
(Plaintiff)v
THE PROPRIETORS OF STRATA PLAN NO 38936
(Defendant)THE PROPRIETORS OF STRATA PLAN NO 38936
(First Cross-Claimant)v
BRIGHT & DUGGAN PTY LIMITED
(First Cross-Defendant)THE PROPRIETORS OF STRATA PLAN NO 38936
(Second Cross-Claimant)v
MERITON APARTMENTS LIMITED
(Second Cross-Defendant)MERITON APARTMENTS LIMITED
(Third Cross-Claimant)v
PREMIER POOLS PTY LTD
(Third Cross-Defendant)BRIGHT & DUGGAN PTY LIMITED
(Fourth Cross-Claimant)v
THE PROPRIETORS OF STRATA PLAN NO 38936
(Fourth Cross-Defendant)BRIGHT & DUGGAN PTY LIMITED
(Fifth Cross-Claimant)v
MERITON APARTMENTS LIMITED
(Fifth Cross-Defendant)THE PROPRIETORS OF STRATA PLAN NO 38936
(Sixth Cross-Claimant)v
PREMIER POOLS PTY LTD
(Sixth Cross-Defendant)THE PROPRIETORS OF STRATA PLAN NO 38936
(Seventh Cross-Claimant)v
PMA ELECTRICAL PTY LIMITED t/as ACCURATE POOLS PTY LIMITED
(Seventh Cross-Defendant)PMA ELECTRICAL PTY LIMITED t/as ACCURATE POOLS PTY LIMITED
(Eighth Cross-Claimant)v
MERITON APARTMENTS PTY LTD
(Eighth Cross-Defendant)PMA ELECTRICAL PTY LIMITED t/as ACCURATE POOLS PTY LIMITED
(Ninth Cross-Claimant)v
BRIGHT & DUGGAN
(Ninth Cross-Defendant)PMA ELECTRICAL PTY LIMITED t/as ACCURATE POOLS PTY LIMITED
(Tenth Cross-Claimant)v
JOE PESTANA & LUCY PESTANA
(Tenth Cross-Defendant)
JUDGMENT OF: Levine J
COUNSEL : J Gleeson Q.C.
A D M Hewitt
(Defendant)J Maconachie Q.C.
M T McCulloch
(First Cross-Defendant)B Smith
(Fifth Cross-Defenant)P Deakin Q.C.
J Hislop Q.C.
S Stanton
(Seventh Cross-Defendant)
P Beazley
(Tenth Cross-Defendant)SOLICITORS: PriceWaterhouseCoopers Legal
(Defendant)Murray Stewart & Fogarty
(First Cross-Defendant)Stewart Cuddy & Mockler
Curwood & Partners
(Fifth Cross-Defendant)
(Seventh Cross-Defendant)
CATCHWORDS: Admissibility of record of evidence taken under SCR Pt 27 DECISION: See paragraph 45
DLJ: 7
[2001] NSWSC 17
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
No. 20745 of 1995
JUSTICE DAVID LEVINE
WEDNESDAY 31 JANUARY 2001
SIMON STUART BRIERLEY
(Plaintiff)
v
THE PROPRIETORS OF STRATA PLAN NO 38936
(Defendant)
BRIGHT & DUGGAN PTY LIMITED
(First Cross Defendant)
- JUDGMENT (Admissibility of record of evidence taken under SCR Pt 27)
1 Pursuant to Orders made on 25 August 1997 this action was listed for the taking of evidence in London.
2 On 21 October 1997, it was announced in London, and prior to the commencement of evidence, that settlement had been reached as between the plaintiff and the defendant.
3 A report of Dr Neil Adams was “tendered” by the plaintiff and without objection became “Exhibit A”.
4 The plaintiff was then called by his counsel Mr Murray Q.C. and was cross-examined by counsel for the defendant/cross-claimant (Strata) Mr Gleeson Q.C. during the course of which two photographs bearing the numbers 5 and 6 were “tendered” and became “Exhibit 1”.
5 Mr McCulloch for the first cross-defendant (Bright & Duggan) cross-examined the plaintiff and there was one objection taken by Mr Murray (T22.4).
6 Mr Deakin Q.C. on behalf of the seventh cross-defendant (PMA) cross-examined the plaintiff during the course of which a sketch plan was marked (T29) and retained by Mr Deakin. A further objection was taken during re-examination at T30-34.
7 The objections in effect were noted and the evidence given.
8 On the second day of the proceedings in London Mr Gleeson for the defendant/cross-claimant called Ms Adelsee. A statement made by this witness on 12 December 1994 was “tendered” and without objection became “Exhibit 2”.
9 At T39 Mr Deakin took objection to certain evidence from Ms Adelsee, the objection was noted and the evidence permitted to be given. Ms Adelsee was cross-examined by Mr McCulloch and Mr Deakin.
10 Mr McCulloch indicated that he had proposed to call a Mr Robinson, he was not available and nothing further happened in that regard.
11 Mr Gleeson “tendered” a statement dated 14 December 1994 of a Ms Bowhay. This became “Exhibit 3”.
12 Upon the matter being re-listed (after the London hearing), one year later, on 30 October 1998, various interlocutory steps were indicated and indeed have been taken; orders and directions have been made.
13 On 1 April 1999 (NSWSC 278) I granted leave to the defendant/cross-claimant then to amend its cross-claim as against the first cross-defendant Bright & Duggan and the seventh cross-defendant PMA.
14 On 23 August 1999 I refused leave to the defendant/cross-claimant further to amend the cross-claim against the seventh cross-defendant but allowed further amendment of its cross-claim against the first cross-defendant.
15 It was on 23 August 1999 that Mr Gleeson Q.C. opened the case for the defendant/cross-claimant. The hearing thus stands part-heard before me. Save for the tender of a great deal of documentary material and the interposition of the witness Mr Antonio Abbate on 25 August 1999, the point has been reached where Mr Gleeson’s opening has not concluded but consideration has to be given to the tender of the transcript from the London proceedings and the documents “tendered” therein and the several objections taken during the course of the giving of oral testimony by the witnesses referred to.
16 Leaving to one side the amendments to the cross-claims to which I have referred, a substantial change in the structure of the action is constituted by the joinder on 21 December 1998 (after the London hearing) of Joe Pestana and Lucy Pestana trading as Gaspar Cleaning Services (Gaspar) as the cross-defendant to the tenth and eleventh cross-claims brought respectively by PMA and the defendant. Mr Hislop Q.C. and Mr Beazley appeared for this party.
17 Another observation to be made is this: at T22.45 (23 August 1999) my position as the “trial” judge was indicated to the parties in circumstances that, if I may say so, have become notorious. I was able to list the further hearing, or more accurately, the commencement of the hearing of this action, during an hiatus in another major piece of litigation which had engaged my attention from the beginning of 1999 (Marsden v Amalgamated Television Services Pty Limited). Certainly at the conclusion of the proceedings before me on 26 August 1999 I did not anticipate that the whole of 2000, in effect, would be devoted to the other case. The forbearance of the parties is appreciated and any inconvenience is certainly regretted.
18 The defendant/cross-claimant (Strata) tenders the transcript and deployed documents (the London material) in its case against its cross-defendants except Gaspar. As between Strata and Gaspar the cross-claim was settled; in any event, Gaspar was joined only on 21 December 1998.
19 Generally speaking the material is relevant. Its admissibility rests upon SCR Pt 36 r 6 and s 63 of the Evidence Act 1995, subject to discretionary considerations. This is a case where the failure to give notice under s 67 (if there was in reality any such failure) of the Evidence Act 1995 could not, in the circumstances, preclude admission and s 67(4) will operate; this much was really conceded by all concerned.
20 The emphasis in the opposition to admission rests on the discretions provided by ss 135 and 136 (and a cognate discretion under SCR Pt 36 r 6).
21 It is desirable however, at this point, to deal with the objections taken during the course of the London evidence, on the assumption that otherwise the London material is admissible.
22 The evidence at T21.19 to T22.25 (objected to by plaintiff’s counsel rather late) is relevant and admissible and I admit it. The same observation applies to the material at T34.2 to T34.19. I cannot see any basis for excluding the material at T39.20 to T39.26. I take the same view in relation to the objection recorded at T40.8. What weight will be given to such matters can be argued later in the scheme of things (if ever the scheme of things is ultimately exposed).
23 What was described as “Exhibit A,” the report of Dr Adams was deployed without objection in the London proceedings; Dr Adams is presumably available for cross-examination (he is Sydney based) and that material will be admitted.
24 The document in effect “MFI 1” a hand-drawn map of the pool is in the hands of the seventh cross-defendant and no doubts its admissibility will have to be determined at the time it is in fact deployed in the current hearing.
25 The material marked in London as “Exhibit 1” being two photographs of the pool will also be admitted.
26 Ms Adelsee gave evidence in London and was available to be cross-examined on any aspect to which her evidence was relevant. Her statement was deployed at T39 and without any objection then being taken. Objection is now taken to paragraphs 11, 17 and part of paragraph 19. Why no objection was at least flagged or otherwise indicated in London escapes me.
27 Ms Adelsee was, in effect, examined in chief by Mr Gleeson by reference to her statement which was in her hand and as I have said “no objection” was taken upon its tender (T38.23). Ms Adelsee was not cross-examined (after the tender and as a “protective measure” by either Mr McCulloch or Mr Deakin) as to the contents of the objected to paragraphs. I propose to admit Ms Adelsee’s statement on the tender of the defendant/cross-claimant; whether the rule in Brown v Dunne will operate remains to be seen but there is sufficient relevance, in my mind, to permit this course.
28 The final document was the statement of Ms Bowhay. This was “tendered” by Mr Maconachie Q.C. and admitted without objection. Mr Maconachie now seeks to re-tender the document but omitting paragraph 13. This is a very curious situation: the tendering party now seeks to re-tender something different to that deployed in London on the one hand, and upon its deployment in London, no objection was taken at the least by the defendant/cross-claimant, or no objection was indicated, in relation to paragraph 13. The statement will be admitted.
29 During the course of the extraordinary three days of hearing in August 1999 which were concerned principally with the admissibility question, a voir dire was conducted presumably, as I understand it, to determine the existence of a fact which if established would be relevant to the exercise of my discretion under s 135.
30 Evidence on the voir dire was constituted by Exhibit A, a statement of one Lazar Milovanovic dated 15 December 1994, a letter dated 12 August 1997 from Messrs Dunhill Madden & Butler to Messrs Curwood & Partners and a statement of Antonio Abbate dated 11 January 1995 and a further statement dated 24 August 1999. Mr Abbate in fact gave evidence in the trial. Exhibit 1 tendered by the seventh cross-defendant is a further statement of Mr Lazar Milovanovic, unsigned and dated 19 August 1999. This exhibit is comprised also of a statement of Paul Sinclair (undated) and Nicole Maslin (dated 16 August 1999). Neither of the last two are signed. Exhibit 2 is a sketch plan.
31 The statements of Dr Sinclair and Ms Maslin and Exhibit 2 are of not immediate relevance.
32 It is the two statements of Mr Milovanovic that gave rise to universal concern. I will return to them shortly.
33 I am not persuaded and I make this finding forthwith that a reason for the excluding of the London material is that no opportunity was provided to the relevant cross-defendants to test two fundamental issues namely, the clarity of the water and the absence of signage. Nor am I persuaded that any question that has arisen in relation to the status of Ms White as a result of the amendments to the defendant/cross-claimant’s cross-claim have been prejudiced in their resolution by anything that did or did not occur in the London hearing.
34 As I have said, it is the status of the second statement of Mr Milovanovic that caused concern - indeed, such concern that it can fairly be remarked that nobody really quite knew “what” to do about it.
35 I am satisfied that the cross-claimant had the statement of Mr Milovanovic of 15 December 1994 at the time of the London proceedings. It is, on its face, virtually non-controversial.
36 The statement (if it can be characterised as such) dated 19 August 1999, on its face, is extremely controversial raising matters fundamental to the issue of liability in the defendant for what befell the plaintiff and thus liability in the cross-defendants to the defendant/cross-claimant and, to the reasonableness of the compromise reached between the plaintiff and the defendant. The material in that statement if established, and this much was conceded by Mr Gleeson, could, I stress the word “could,” have resulted in a verdict for the defendant.
37 I am satisfied on the affidavit of Philip Stuart Douglas Purcell sworn 26 November 1999 and read without objection that prior to 27 October 1997 (the date of the London hearing) otherwise than as disclosed in the affidavit, no steps were taken to interview Lazar Milovanovic or to further investigate the events and matters in the statement he made on 15 December 1994 as a result of what he said in that statement (see T111.35). As I have said, as at the time of the London hearing, on its face, the first statement of Mr Milovanovic can be reasonably understood as giving rise to nothing that warranted the raising of matters in evidence of the witnesses there called.
38 Whence the second statement? It was faxed by Gaspar’s solicitors on 20 August 1999. I gather from statements from the bar table by Mr Gleeson that as a result of a conference he had with Ms White, he became aware of a further statement by Ms White and of something that concerned Mr Milovanovic. These events occurred well after the London hearing.
39 The complaint is made that the material in the second statement, obviously, was not, as it could not have been, put to the plaintiff and the other witness in London. This is undoubtedly correct.
40 However the mere existence of this piece of paper said to constitute a second statement by this person I cannot find as a fact that would predispose me to exclude the London material on the basis of the prejudice asserted by the relevant cross-defendants. As Mr Gleeson Q.C. submitted the real issues is not prejudice to those cross-defendants but any prejudice to the cross-claimant upon the deployment of any testimony by Mr Milovanovic founded upon his second statement of August 1999. As Mr Gleeson put it “is this is a case that the cross-defendants should be allowed to now make?”
41 The time for determining the status of any evidence founded upon the second statement of this person will be the time at which it is sought to be led. That will be the time, if it is led, that an application can be made by any party in respect to the recalling (if s 46 of the Evidence Act 1995 applies) of any witness and arrangements if necessary can be made, then, if they can practicably be made, for the recalling of the London witnesses.
42 Thus I am not persuaded to exercise the discretion under ss 135 or 136 based upon an asserted prejudice presently existing in anyone as a result of the coming into existence in August 1999 of the second statement of Mr Milovanovic.
43 Thus the London material will be admitted into evidence in the trial.
44 The further conduct of this action is a matter of concern not only to me but no doubt to the parties. I propose to fix the resumption of the part-heard hearing for Monday 27 August 2001. The first date available according to my present judicial/leave commitments.
45 Accordingly, the formal orders are:
1. The transcript of the London proceedings will be admitted as Exhibit Y.
2. The report of Dr Neil Adams dated 24 January 1995 will be Exhibit Z.
3. The two photographs numbered 5 and 6 will be Exhibit AA.
4. The statement dated 12 December 1994 of Helen Michelle Adelsee will be Exhibit AB.
5. The statement of Claire Louise Bowhay will be Exhibit AC.
6. I fix Monday 27 August 2001 for the resumption of the part-heard hearing before me and grant liberty to apply in relation thereto on two days notice.
8. All questions of costs are reserved.7. The exhibits on the voir dire are to be returned.
0
0
0