Collings v Australian Associated Motors Insurers Limited

[2016] NSWDC 97

District Court

New South Wales

Medium Neutral Citation:	Collings v Australian Associated Motors Insurers Limited [2016] NSWDC 97
Hearing dates:	27 May 2016
Date of orders:	27 May 2016
Decision date:	27 May 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	Transcript not admitted as evidence other than as evidence that the transcript was provided to the plaintiffs in 2014 containing assertions of Ms Toman.
Catchwords:	PROCEDURE – admissibility – transcript of interview – interview by telephone – first hand hearsay – whether maker of representation available – undue expense, undue delay or would not be reasonably practicable to call maker – no notice given
Legislation Cited:	Evidence Act 1995, s 63, s 64, s 67, Pt 2 cl 4 Insurance Contracts Act 1984, s 56
Category:	Procedural and other rulings
Parties:	Robert Collings (first plaintiff) Amanda Collings (second plaintiff) Australian Associated Motor Insurers Limited ACN 004 791 744 (defendant)
Representation:	Counsel: Mr P M Barham (plaintiffs) Mr B J Burke (defendant)   Solicitors: Prominent Lawyers (plaintiffs) Courtenay & Co Solicitors (defendant)
File Number(s):	2013/188356
Publication restriction:	None

Judgment

1. The defendant, Australian Associated Motors Insurers Limited (“AAMI”), seeks to tender the transcript of an interview between an insurance investigator, Craig Mason, and Tammy Toman, the sister of the second plaintiff, Amanda Collings. The interview is dated 18 September 2007, and the contents of the interview are not disputed by the plaintiffs, the defendant having issued a notice to admit the authenticity of the record.

2. On 28 November 2013 directions were made by the Court that: “The evidence [presumably intended to be evidence in chief] in the matter is to be provided by way of statement, report or affidavit”. On 29 May 2014 the Court noted that for the purposes of the order of 28 November 2013, “the [statement] of the evidence the defendant seeks to adduce from…Tammy Toman...[is] contained in the [transcript of interview]”.

3. Ms Toman’s interview was conducted on the telephone and the truthfulness of the factual matters stated by her in that telephone call was not verified by her in by any affidavit or by other means.

4. There is evidence before me that Ms Toman is not on good terms with Mrs Collings, and neither party proposes to call Ms Toman. The defendant relies on s 63 of the Evidence Act 1995 for the tender of the material. Section 63 provides:

“63 Exception: civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to:

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.”

5. The application raises a number of issues: first, whether Ms Toman is not available; secondly, if she is relevantly available, whether it would cause undue expense or undue delay, or would not be reasonably practicable to call her, under s 64 of the Evidence Act 1995; and thirdly, if either ss 63(1) and (2) or 64(1) and (2) are satisfied, whether relief should be granted under s 67(4) from the notice that would be required under 67(1), no notice having been given.

6. As to the first matter, whether Ms Toman is unavailable, the Dictionary at the end of the Act defines "Unavailability of persons" in cl 4 of Pt 2 as including a person who is "mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability". I have no direct evidence of the inability of Ms Toman to give evidence. However, a medical certificate has been tendered which refers to Ms Toman having suffered "multiple seizures and memory loss" from 2010, and says:

"At this stage she is totally dependent on her husband for care and is unable to cook, self care, attending to phones and even staying alone.

She is still having issues of her memory loss and seizures."

7. The question of whether that is sufficient to satisfy establishing an inability to give evidence might be debated. Whether that inability would be resolved by having her husband attend with her is also not a matter about which I have any evidence.

8. As to the second issue, if Ms Toman did not satisfy the unavailability requirement and is relevantly “available” within the meaning of the term in the Evidence Act, there is nevertheless no evidence before me to be satisfied that “it would cause undue expense or undue delay, or would not be reasonably practicable” to call her. Indeed, no submission has been put to me about why these elements have been satisfied.

9. I turn to the question of notice. If either ss 63(2) or 64(2) is satisfied, the party - in this case, the defendant - seeking to tender the representation is required to give notice under s 67. No notice was given, whether formal or informal notice, of Ms Toman not being called or an intention to tender the interview or part of it under s 63. No explanation has been proffered as to why no notice was given. The medical certificate tendered on the application was only provided to the plaintiffs within the last day or so.

10. The discretion under s 67(4) to relieve a party from the notice requirement is expressed in general terms. I consider that the probative value of the material may also be relevant to the exercise of the discretion.

11. There are two matters that are the subject of the transcript of interview sought to be tendered. The first concerns a representation by Ms Toman of the time estimated by a neighbour of Mrs Collings as to when Mrs Collings left her house on the afternoon of 22 June 2007.

12. The neighbour was not called. No evidence of the neighbour’s unavailability, the reasonable practicability of calling her or the expense or delay of calling her was before me. These matters are relevant to whether the representation of the neighbour would be admissible under s 63 or s 64 even if the need for notice was excused. Further, there is material in evidence that gives an account of the neighbour as to matters relevant to the proceedings. That account does not support the representation made by the neighbour which Ms Toman referred to in the transcript of her interview with Mr Mason.

13. The defendant ultimately abandoned pressing for the tender of this material.

14. The second issue in the transcript of interview concerns an amount of $10,000 cash set aside to pay for Mrs Collings’ mother’s funeral. Mr and Mrs Collings had given evidence that this amount was lost in the fire. There is evidence, both in Mrs Collings' affidavit and Mrs Collings’ interview, that some of this cash came from her sister, Ms Toman. The transcript sought to be tendered contains representations from Ms Toman that she provided no cash to Mrs Collings. If the transcript is admitted, it may be relevant to Mrs Collings' credit. It may also be relevant to the s 56 Insurance Contracts Act 1984 case of AAMI: AAMI alleges that Mrs Collings made a fraudulent claim in claiming that she had $10,000 cash in the house.

15. Whilst that material from Ms Toman could be important, it would not be tested if it was admitted without her being present. Because of the lack of notice under s 67, Mr and Mrs Collings have had no reasonable opportunity to cure the inability to cross-examine Ms Toman by gathering other evidence. Further, it is unclear on the existing evidence whether the references in the evidence to the $10,000 cash concern the physical provision of some money by Ms Toman to Mrs Collings or, as seems to be asserted in Mrs Collings’ affidavit, that Ms Toman's father provided cash to Mrs Collings and attributed its source to Ms Toman.

16. I should also mention that Mrs Collings was cross‑examined earlier in the proceedings and insofar as I could identify, no question was put to her to suggest that Ms Toman gave her none of the $10,000, although it was suggested to Mrs Collings that she did not have anything like the amount of $10,000 in the house.

17. In all the circumstances identified, I do not propose to relieve the defendant of the requirement of notice, and thus I do not propose to admit the transcript as evidence other than that the transcript was provided to the plaintiffs in 2014 containing those assertions of Ms Toman that she did not contribute any of the cash. The relevance and probative value of that can be the subject of debate in submissions.

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Decision last updated: 06 June 2016