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Connex Group Australia Pty Ltd v Butt

Connex Group Australia Pty Ltd v Butt

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CITATION: Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 revised - 16/03/2006

HEARING DATE(S): 03/05/04, 04/05/04, 05/05/04, 06/05/04, 07/05/04

JUDGMENT DATE:
7 May 2004

JUDGMENT OF: White J

DECISION: See Judgment

CATCHWORDS: Evidence - Fact and Opinion - Opinion Rule - Lay opinions - Evidence Act 1995 ss 76(1) and 78.

LEGISLATION CITED: Evidence Act 1995 (NSW)

CASES CITED: Hadid v Australis Media Ltd (28/10/1996, Sperling J, unreported)
Ringrow Pty Ltd v Ultimate Fuel Pty Ltd [2003] FCA 933
Phipson on Evidence (14 Ed 1990)
R v Wright (1986) 19 A Crim R 17
Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No. 5) (1996) 64 FCR 73
Hughes Aircraft Systems International v Air Services Australia (1997) 80 FCR 276
Guide Dog Owners' Friends Association Inc v Guide Dog Association of NSW (1998) 154 ALR 527
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 529
Wigmore on Evidence (3 Ed para 1917)
Wills on the Law of Evidence (3 Ed, 1938 page 150)
R v Noble (2000) 117 A Crim R 541
Eaton v Rice 8N.H. 378, 380 (1836)
Bathrick v Detroit Post and Telegraph Co. 50 Mich 529
16 NW 172, 175 (1883)
R v Panetta (CCANSW) 2/10/97 Unreported
Daniel v Western Australia (2000) 178 ALR 542
Australian Commission v Vines [2003] NSWSC 1237
R v Leung and Wong (1999) 47 NSWLR 405
R v Van Dyk [2000] NSWCCA 67
LMI Australia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31

PARTIES :
Connex Group Australia Pty Ltd (FKA CGEA Transport Asia Pacific Holdings Pty Ltd)
v
Kenneth Alfred Butt

FILE NUMBER(S): SC 002872/02

COUNSEL: Plaintiff: C Harris
Defendant: N Manousaridis

SOLICITORS: Plaintiff: Piper Alderman
Defendant: Middletons

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 7 May 2004

002872/02 CONNEX GROUP AUSTRALIA PTY LTD v KENNETH ALFRED BUTT

JUDGMENT – On Admissibility of Exhibits RP32 and RP33

1 HIS HONOUR: The plaintiff tendered as Exhibits RP32 and RP33 to the affidavit of Robert Christiaan Postema sworn 16 April, 2003 two file notes of Mr Postema prepared on 7 and 8 December 1999 of telephone conversations said to have been held on 19 November 1999. Objection was taken to the part of each of the file notes following word “Note”. The admissibility of the notes raised the same issue. On 3 May 2004 I admitted the parts of the file notes that were objected to and gave brief reasons. (Transcript pages 9-10).

2 What follows is a full statement of those reasons. To explain these reasons it is sufficient to deal with the file note which is exhibit RP33 being a record of a telephone conversation held on 19 November 1999 between Mr Warrell of the plaintiff and Mr Butt, who is the defendant. The conversation was on speakerphone. Mr Parker of the Connex Group of companies, and Mr Postema, a solicitor engaged by the plaintiff, were present. The file note sets out what on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 379
Decision Date: 7 May 2004

CaseChat Overview and Summary

Connex Group Australia Pty Ltd v Butt was a case heard by the Supreme Court of New South Wales. The dispute centred on a personal injury claim brought by the respondent, Mr. Butt, against the appellant, Connex Group Australia Pty Ltd, a railway operator. Mr. Butt alleged that he sustained injuries from an incident involving a train. The primary issue in the case was whether the trial judge erred in admitting certain lay opinions of Mr. Butt and his wife regarding the cause and extent of his injuries, which Connex argued were inadmissible under the opinion rule.

The legal issues before the court included the interpretation and application of sections 76(1) and 78 of the Evidence Act 1995. Specifically, the court had to determine whether the lay opinions were properly excluded and if their admission affected the outcome of the trial. The appellant argued that the trial judge should not have admitted the lay opinions because they constituted impermissible opinion evidence. In contrast, the respondent maintained that the opinions were admissible under the hearsay exception for statements of fact underlying an opinion.

The court found that the trial judge did not err in admitting the lay opinions. The judges held that the statements were not purely opinion evidence but rather included underlying factual assertions that were relevant to the issues in the case. The court reasoned that under section 76(1) of the Evidence Act 1995, an opinion was admissible if it was based on underlying facts perceived by the witness and those facts were not excluded by any other provision of the Act. The court concluded that the lay opinions were not inadmissible hearsay and that their admission did not affect the outcome of the trial. The appeal was thus dismissed.

Orders