Custom Coaches (Sales) Pty Ltd v Frankish
[2002] NSWSC 781
•30 August 2002
CITATION: Custom Coaches (Sales) Pty Ltd v Frankish [2002] NSWSC 781 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 2530/02 HEARING DATE(S): 30 August 2002 JUDGMENT DATE: 30 August 2002 PARTIES :
Custom Coaches (Sales) Pty Limited (P)
Peter Alan Frankish (D1)
Susan Jennifer Robinson (D2)
Catherine Frances Frankish (D3)JUDGMENT OF: Hamilton J
COUNSEL : T J Hancock (P)
No appearance (D1 & 3)
C J Hockey, Solicitor (D2)SOLICITORS: Wotton & Kearney Lawyers (P)
Charles Hockey (D2)
Watts McCray (D3)CATCHWORDS: EVIDENCE [52] - Admissibility and relevancy - Hearsay - Statements - Other statements - Admission in respect of the case of a third party - Consent of third party - What constitutes consent. LEGISLATION CITED: Evidence Act 1995 s 83 DECISION: Tender of affidavit containing admissions rejected.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
FRIDAY, 30 AUGUST 2002
2530/02 CUSTOM COACHES (SALES) PTY LTD v PETER ALAN FRANKISH & ORS
JUDGMENT
1 HIS HONOUR: This is an application to set aside a default judgment against the second defendant as a result of an ex parte hearing of the proceedings which took place before me. On the application the plaintiff seeks to tender a photocopy of an affidavit of the first defendant. That affidavit was obviously prepared as a result of an order of the Court as part of Mareva relief granted to the plaintiff. The first defendant in it sets out certain matters relating to his property and certain matters relating to a joint bank account he had with the second defendant. The use of moneys in that joint bank account is at the heart of the plaintiff's case against the second defendant.
2 It is not clear at the moment whether the affidavit was filed. Mr T Hancock, of counsel for the plaintiff, assumed that it had been, by reason of the fact that the photocopy that I have mentioned was served by fax on the plaintiff. He seeks to circumvent what would otherwise be the application of the hearsay rule to any statements in the affidavit which would be material to the plaintiff's case against the second defendant by reliance upon s 83(1) of the Evidence Act 1995. Section 83 provides, so far as material, as follows:
(2) The evidence may be used in respect of the case of a third party if that party consents.”“(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.
3 The evidence Mr Hancock relies on as constituting the consent of the second defendant to the use of the first defendant's statements against her is contained in affidavits of the second defendant which have been read on this application. Those affidavits are to the effect that the second defendant left the control of and drawing of moneys from the joint bank account entirely to the first defendant; "he would tell me what cheques were to be drawn and the payees"; he opened and alone had access as they arrived to the bank statements in relation to that account. It is said to be implicit in the degree of control and agency on her own evidence afforded by the second defendant to the first defendant in relation to the account and the use of the moneys in it that she has consented to the use of statements by him as to what happened to those moneys into evidence against her in these proceedings.
4 I do not accept the submission that any consent for the purposes of s 83(2) can be inferred or derived from the material referred to. Section 83(2) is quite explicit that the consent is consent to the use of certain evidence in respect of the case of a third party if that third party consents. In my view, it cannot be inferred, however wide the authorisation given by the second defendant to the first defendant to act as her agent, that it goes to the extent of consent to the use of evidence in litigation, which there is no evidence was under contemplation at the time when the agency was granted or when the actions under it now sought to be put into evidence occurred.
5 There are further difficulties with the tender of this evidence which I need not resolve at this stage. However, I am gravely doubtful whether the effect of ss 82 and 83 is simply to permit the tender rather than the reading of an affidavit by the other party. The significance of the difference is, of course, that to permit the tender of the affidavit, as containing admissions, rather than requiring the calling of the deponent, would deprive the third party affected by its use of the right to cross examine the witness.
6 The tender of the copy affidavit is rejected. The copy affidavit will be marked 1 for identification.
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