Corkhill v Commonwealth of Australia
[2016] ACTSC 100
•21 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Corkhill v Commonwealth of Australia |
Citation: | [2016] ACTSC 100 |
Hearing Dates: | 18, 19 and 20 April 2016 |
DecisionDate: | 21 April 2016 |
Before: | Refshauge J |
Decision: | The ‘Statement in Relation to Possible Superannuation Claim’ tendered by the plaintiff is admitted into evidence. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – negligent misstatement – superannuation EVIDENCE – Admissibility – hearsay – exception to hearsay rule – maker not available – maker deceased – statement about state of mind – statement signed – significant probative value – delay – reliability does not affect probative value – inability to cross-examine not unfair prejudice – co-creator of document available for cross-examination – facts can be corroborated – business record – no express exclusion |
Legislation Cited: | Evidence Act 2011 (ACT), ss 63, 63(2), 66(4), 66A, 67, 69, 135, 147, 165; Dictionary s 4, 4(1)(a), Pt 2 |
Cases Cited: | Ainsworth v Burden [2005] NSWCA 174 Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 |
Texts Cited: | J D Heydon QC, “Is The Weight of Evidence Material to its Admissibility” (2014) 26(2) Current Issues in Criminal Justice, 219 |
Parties: | Hazel Joan Corkhill (Plaintiff) Commonwealth of Australia (Defendant) |
Representation: | Counsel Mr R Douglas QC (Plaintiff) Mr R Davis (Plaintiff) Dr A Bell SC (Defendant) Mr J Duncan (Defendant) |
| Solicitors Snedden Hall and Gallop (Plaintiff) Commonwealth Director of Public Prosecutions (Defendant) | |
File Number: | SC 247 of 2009 |
REFSHAUGE J:
John Corkhill was employed between 1957 and 1990 as a temporary employee in the Commonwealth of Australia in various positions.
He was not, during that time, admitted to membership of a Commonwealth superannuation scheme, although there is some evidence that he wished to join such a scheme. There is also some evidence that suggests Mr Corkhill was given incorrect information as to his eligibility to join such a scheme. It appears that he did not pursue the issue.
Mr Corkhill died in 2003. His widow, Hazel Joan Corkhill, has now commenced proceedings claiming that the incorrect information given to Mr Corkhill amounted to a negligent misstatement on which she can rely, and did rely, such that the negligence entitles her to recovery of damages. The background of these proceedings has been set out in Corkhill v The Commonwealth (2015) 11 ACTLR 23 at 26-7; [1]-[2].
There have already been a number of decisions in this Court (see, for example, Meredith v The Commonwealth (No 2) (2013) 280 FLR 385) that have resulted in judgments in favour of Commonwealth employees in similar situations to that of the late Mr Corkhill for damages arising out of negligent misstatements made about the eligibility of such employees to join Commonwealth superannuation funds.
In about 1997, a number of such employees decided to explore the possibility of redress for what they saw as the failure of the Commonwealth to facilitate or provide correct information about their availability as to their membership of Commonwealth superannuation funds.
It appears that forms were distributed seeking information from potential claimants for redress through the courts consequent upon those failures.
The late Mr Corkhill completed such a form. Mrs Corkhill sought to tender the form in these proceedings. The Commonwealth opposed its tender. I admitted the document. The Commonwealth sought reasons for my decision. These are my reasons.
The Claim
It is appropriate to set out, in short form, Mrs Corkhill's claim.
Mrs Corkhill sues the Commonwealth seeking damages for loss suffered by her as a result of the claimed negligence and of negligent misstatement said to have been made to Mr Corkhill in 1957 and in 1963. Mrs Corkhill says that the Commonwealth employees who made the statements were senior members of the Commonwealth staff in a position of authority in the workplace where Mr Corkhill was employed.
As to the negligence, Mrs Corkhill says that the Commonwealth owed her a duty of care because of the following matters. It controlled the procedures and policies implemented to inform Mr Corkhill of his eligibility to join a Commonwealth superannuation fund and to facilitate his doing so. In the circumstances, it knew or ought to have known through its servants that Mr Corkhill was eligible to join such a fund for the benefit of himself, for Mrs Corkhill and for his dependent children, but still be aware of the relevant criteria for his eligibility and, at the relevant time, did not through its servants, accurately inform Mr Corkhill of his eligibility. It knew that Mr Corkhill depended, with Mrs Corkhill, on the Commonwealth for accurate information about his eligibility to join such a fund; it was aware or ought to have been aware that Mrs Corkhill was vulnerable to harm from her husband's reliance on the Commonwealth employees supplying Mr Corkhill with accurate information.
Factual Background
The document headed "Statement in Relation to Possible Superannuation Claim" was annexed to an affidavit of the plaintiff, Mrs Corkhill, and to the affidavit of her son, Matthew Wallis Corkhill. It was dated 23 September 1997 and signed by Mr Corkhill.
Statements about Mr Corkhill's work history and any information he received about his eligibility to join a superannuation fund were contained in it. In particular, it included statements about incorrect information said to have been supplied to Mr Corkhill and the effect that this had on him. That information was said to have been given in "1957, 1963, 1969, retired 1992, senior paymaster said details would be posted in regard to super". The claim of Mrs Corkhill only relies, in the pleadings, upon the first two occasions in 1957 and 1963, for reasons set out in Corkhill v Commonwealth at 53-6; [147]-[172]. The affidavits included evidence about how the documentation came into existence.
It is deposed, in Mrs Corkhill's affidavit, that Mr Corkhill belonged to a group known as the Retired Transport Workers’ Association, which had advised retiring workers that "there was a super claim going if he wanted to apply”. It was in this context, it is said, that he obtained the questionnaire.
I interpolate that the claim referred to in the affidavit seems to have been a claim of the kind made in Meredith v The Commonwealth (No 2).
Mrs Corkhill deposed that her husband said he would get his son, Matthew Corkhill, to help him fill in the questionnaire.
She further deposed that Mr Matthew Corkhill came to their house on the day in question and assisted Mr Corkhill to complete the form. She was present but did not participate in the process though, in answer to an interrogatory, she said that she had "assisted [Mr Corkhill] to complete the questionnaire”, though the precise assistance she provided is not clear.
Mr Matthew Corkhill deposed to the fact that it was his writing that was on the form. He explained that he had sat with his father at the kitchen table in the family home and helped Mr Corkhill complete the form. He and his father discussed the form and Mr Matthew Corkhill then made some notes. He later wrote the answers onto the form from his notes and his father then signed it in his presence.
The Grounds for Admission
Mr R Douglas QC, who appeared with Mr R Davis for Mrs Corkhill, submitted that the document was admissible under ss 63 and 66A of the Evidence Act 2011 (ACT). These are in the following terms:
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.
66A Exception—contemporaneous statements about a person’s health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.
Section 4 of Pt 2 of the Dictionary of the Evidence Act explains what is meant by a person being unavailable and, unsurprisingly, s 4(1)(a) provides that if the person is dead, the person is unavailable. Accordingly, Mr Corkhill is unavailable within the meaning of s 63 of the Act.
Section 67 of the Evidence Act requires notice to be given of evidence sought to be admitted under s 63(2). Such notice was given and is not in issue in the proceedings.
There is no doubt that the document, so far as it contains what Mr Corkhill told Mr Matthew Corkhill, is admissible under s 63. In any event, Mr Corkhill's signature is strong evidence that it is his document. See Urbaniak‑Bak v Prail [2015] ACTCA 39 at [35].
In addition, of course, Mr Matthew Corkhill heard the representations that his father then made, thus the document is admissible under s 63(2).
Further, the document, it was submitted, shows the knowledge of Mr Corkhill as to Commonwealth superannuation and his state of mind about that and his interest in superannuation as at 1997. Certain parts of the document do come within the provisions of s 66A of the Evidence Act, but many parts do not; they are a simple recounting of facts which are said to have occurred many years before.
The Challenge
Dr A S Bell SC, who appeared with Mr J Duncan for the Commonwealth, opposed the tender of the document. He submitted that I should exercise my power under s 135 of the Evidence Act to exclude it. That section is in the following terms:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Probative value is defined in the Dictionary of the Evidence Act as follows:
Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
There were three bases on which it was submitted that I should exercise the power to refuse to admit the document. First, it was said that the unavailability of Mr Corkhill meant that there could be no cross-examination of him and that, in the circumstances, that was a matter of unfair prejudice.
While it is clear that any material admitted under s 63 of the Evidence Act will be immune from cross-examination of its maker and, therefore, to exclude it on this ground would eviscerate the section, it was submitted that there were cases where the inability to cross-examine would, in the particular circumstances, render the admission of the evidence unfairly prejudicial.
Reliance was placed on Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [54]-[55] as a case where the inability to cross-examine the maker of a document where the maker was unavailable was held to constitute unfair prejudice which, in the circumstances of that case, substantially outweighed the probative value of the evidence.
Further, it was said that, as the evidence related to events that occurred 40 years ago, in one case, from the date of the document, and over 30 years in the other, the accepted risk of memory difficulties over such a long period of time rendered the probative value slight.
Finally, it was submitted that I should have regard to the well-known exclusion as to the admissibility of business records under s 69 of the Evidence Act, where the otherwise admissibility of such documents did not apply to a document which
was prepared or obtained for the purpose of conducting or in contemplation or connection with an Australian or overseas proceeding.
There was no doubt that the document appeared to be for that purpose and, although not so used, was prepared for that purpose.
Consideration
In my view, the document has significant probative value. It is a statement of Mr Corkhill which was adduced after discussion with his son as to central elements of the case to be made by Mr Corkhill. It is not of a generality which might render its probative value slight: cf Re Gordon; Ex Parte Official Trustee in Bankruptcy v Pike (Federal Court of Australia, Beaumont J, NB502 of 1993, 1 September 1995, unreported).
I am conscious that the fact that the evidence is, to a certain extent, evidence of events a long time before it was actually made, makes it weaker. See, for example, the reference to identification evidence in J D Heydon QC in “Is The Weight of Evidence Material to its Admissibility” (2014) 26(2) Current Issues in Criminal Justice, 219 at 234.
Nevertheless, the fact that evidence relates to events that occurred a long time ago does not of itself render it inadmissible and, indeed, so far as I am aware, there is no rubric that requires it to be excluded, though there may be a requirement for a direction as to the unreliability under s 165 of the Evidence Act, if required. That, of course, relates to reliability, with which I deal below.
Indeed, while there are suggestions that such a direction should be given, it is generally, if not exclusively, around the evidence given by an adult of events that occurred while he or she was a child. See, for example, Longman v The Queen (1989) 168 CLR 79 at 101, 107-8. That, of course, is not this case.
Unfair prejudice is usually described as being the risk that the evidence will be misused by the trier of fact in some unfair or improper way, such as by using it emotionally or in other illogical ways. See R v BD (1997) 94 A Crim R 131 at 139, 151. Of course, where there is no jury this is less likely to occur, even though the prudent approach has been affirmed in civil proceedings, where there is, at least in this jurisdiction, no jury. See Ainsworth v Burden [2005] NSWCA 174 at [99].
Inability to cross-examine a witness is the inevitable consequence of the unavailability of the witness. Thus, this cannot, of itself, justify exclusion of such evidence, as s 63 of the Evidence Act would have no work to do and the outcome would be contrary to the legislation intention. See R v Clark (2001) 123 A Crim R 506 at 583; [164].
Nevertheless, the courts have accepted that, in appropriate cases, the inability to cross-examine the maker of a statement otherwise admissible in this way can amount to unfair prejudice. See, for example, R v Suteski (2002) 137 A Crim R 371 at 390; [126]-[127].
In this case, both Mr Matthew Corkhill and Mrs Corkhill, who were there when the document was created and, indeed, Mr Matthew Corkhill actually created the document, were available for cross-examination. There was also available the draft notes that Mr Matthew Corkhill made in preparation for completion of the form.
While that, of course, does not permit challenge to some of the material in the form, such as a suggestion that Mr Corkhill did not make the inquires that he asserts he made in the form, it seems to me that it meets a significant amount of the prejudice which the inability to cross-examine Mr Corkhill would otherwise create.
I also take into account that there is some corroboration of the broad facts represented by Mr Corkhill in the document, namely that employees at Mr Corkhill’s workplace had been told that, as temporary employees or industrials, they were not eligible to join a Commonwealth superannuation scheme, or that persons in a managerial position did not know that they were.
It is, therefore, not as if the evidence of what Mr Corkhill says is the only evidence about that fact.
In my view, the prejudice created by the inability to cross-examine, in this case, is substantially outweighed by the probative value of the evidence.
As to the fact that the reliability of the evidence may be adversely affected by the passage of time, it was submitted that it would reduce the probative value such that the prejudice would outweigh it. Recently, however, the High Court held that the reliability or credibility of evidence cannot affect the probative value of the evidence, which must be taken at its highest. See IMM v The Queen [2016] HCA 14 at [47].
Accordingly, this factor does not reduce the extent to which the probative value outweighs the prejudicial effect of the evidence.
Finally, it was submitted that I should reason by analogy, with the expressed restriction from admission of certain business records, that such reservation about such documents should be imported into the assessment of whether evidence under s 63 of the Evidence Act should be admitted. There is nothing in the text of the provision to suggest that that should be done and there was no reference to any of the extensive Australian Law Reform Commission reports that engendered that legislation that was suggested to support that contention.
It seems to me, however, that this fails to construe the Act as a whole. There are three provisions in the Evidence Act which expressly exclude representations prepared for the purpose of litigation: s 66(4) (criminal proceedings where the maker is available), s 69 (business records) and s 147 (documents produced by processes, machines, and other devices in the course of business).
These are all restrictions on the exemptions to the hearsay rule. In my view, the express reference to such restrictions in some provisions, exempting the operation of the hearsay rule, must lead to the conclusion that such restrictions were deliberately included in those provisions and deliberately omitted from others, such as s 63 of the Evidence Act. See, for example, Salemi v McKellar (No. 2) (1977) 137 CLR 396 at 421.
While I accept that such an approach should be one that a court adopts with some caution, where there is no apparent reason why the restriction should necessarily be imported, reliance on the maxim expressio unius est exclusio alterius is appropriate to strengthen the approach I have taken. See Riley v The Commonwealth (1985) 159 CLR 1 at 12.
As a result, I admitted the document for these reasons.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 13 May 2016 |
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