De Francesch Builders Pty Ltd v Infusion Capital Pty Ltd - [2019] WADC 10

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA
LOCATION:   PERTH
CITATION:   DE FRANCESCH BUILDERS PTY LTD -v- INFUSION CAPITAL PTY LTD [2019] WADC 10
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   14 DECEMBER 2018
DELIVERED          :   23 JANUARY 2019
FILE NO/S:   CIVO 152 of 2018
BETWEEN:   ROBERT DE FRANCESCH
First Applicant

NATALIE DE FRANCESCH
Second Applicant

JOEGILDA PTY LTD
Third Applicant

DE FRANCESCH BUILDERS PTY LTD
Fourth Applicant

AND

INFUSION CAPITAL PTY LTD
First Respondent

ABBOTT CORPORATE PARTNERS PTY LTD
Second Respondent

SUSAN MARGARET ABBOTT
Third Respondent

GLEN JOHN WHEELER
Fourth Respondent

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court 1971 (WA) - Admissibility of evidence in proceedings in chambers

Legislation:

Nil

Result:

Parts of affidavit struck out

Representation:

Counsel:

First Applicant	:	Mr A Metaxas
Second Applicant	:	Mr A Metaxas
Third Applicant	:	Mr A Metaxas
Fourth Applicant	:	Mr A Metaxas
First Respondent	:	Mr R A S Rowick
Second Respondent	:	Mr R A S Rowick
Third Respondent	:	Mr R A S Rowick
Fourth Respondent	:	In Person

Solicitors:

First Applicant	:	Metaxas Legal
Second Applicant	:	Metaxas Legal
Third Applicant	:	Metaxas Legal
Fourth Applicant	:	Metaxas Legal
First Respondent	:	Richard Rowick Barrister and Solicitor
Second Respondent	:	Richard Rowick Barrister and Solicitor
Third Respondent	:	Richard Rowick Barrister and Solicitor
Fourth Respondent	:	Not applicable

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HARMAN:

The applicants seek an order for pre‑action discovery. The third respondent has filed an affidavit. The applicants object to parts of its content. These reasons deal only with the admissibility of those parts of the affidavit contested by the applicants.
The second sentence of par 3 of the affidavit is as follows:
Where matters deposed to are not within my personal knowledge the source of information and grounds of the belief are identified and I believe these matters to be true.
It is an example of a commonly used mechanism to facilitate admission of hearsay in accordance with the prescription set out in O 37 r 6(2)(a) of the Rules of the Supreme Court 1971 (WA).
The applicants submit that the sentence would not operate to render hearsay admissible because it would not provide the evidence of the grounds for the deponent's belief.
In my opinion the applicants are correct in their assessment. However they accept that there is no instance of the respondent seeking to utilise the sentence in order to render hearsay admissible. In the circumstances it is not only of no utility but is also benign.
Under the heading 'Background', at par 5 the deponent gives evidence in broad terms of her work experience and at par 6 in more specific terms of her academic qualifications.
The applicants contend that the only basis for considering the content of those paragraphs would be if the deponent were to give evidence that drew upon her experience or qualification.
In my opinion the applicants are probably correct in their assessment of the utility of the content of those paragraphs. Neither the question of the existence of documents the subject of the application nor their potential utility to the applicants would call for opinion evidence of an accountant.
In my opinion the balance of the content of the affidavit does not reveal any such opinion is provided. Accordingly pars 5 and 6 have no utility. That conclusion is insufficient to establish the inadmissibility of their content.
In broad terms at pars 8 to 11 inclusive, the deponent canvasses particular work she has undertaken since 2002 on behalf of a number of corporations. She goes on to say that the work has included making applications to government agencies. She specifies the extent of success in those applications.
The issue raised by the applicants is that the statements in those paragraphs amount to summaries drawn from unidentified applications and unverified results: ultimately that there is no support for what amounts to a series of statements.
In my opinion the statements disclose that the deponent has recourse to documentary evidence. She has chosen not to put that evidence before the court. No explanation is given for her decision. Accordingly there is no reason for the court to assist the respondent by drawing any inference. The statements stand as unsupported conclusions or summaries. Without support they are inadmissible as evidence of the content of the documents. The content of pars 8 to 11 inclusive is struck out.
At par 12 the deponent draws on par 11 and seeks to establish the proposition that a particular cohort of entities for which she has undertaken work is the subject of a particular concern. In the second sentence she states that in the event that the substantive order was made she would engage in a process of consultation to the end of redacting information in order to preserve the confidentiality of those clients.
The issue raised by the applicants is that the statement in the second sentence is not evidence and in any event what is proposed would not accord with the terms of the usual order.
In my opinion the content of the second sentence is unsupported submission. In any event par 12 falls to be considered as part of pars 8 to 11 and it is struck out.
The content of pars 13 and 14 is expressed by reference to a summary in the form of a document annexed to the affidavit. At par 13 the deponent states that it is a true copy of the document.
The objection of the applicants is that the document patently is a summary drawn from other documents not put before the court and that in any event there is no evidence that the content of the identified document is true.
Unless a deponent deposes to the truth of the facts contained in a document annexed to an affidavit its content is not evidence. There being no such evidence, the paragraph along with the annexure are inadmissible and are struck out.
At par 14 the deponent states that she handled all of the applications referred to in the document introduced at par 13 and states the extent of success of applications to which reference was made at par 13.
The applicants submit that to establish a fact drawn from a documentary source, it is necessary for the deponent to produce the document: in this instance, each application.
I take it that the evidence at par 14 would simply be drawn from the annexure. Be that as it may the support for the proposition has been ruled inadmissible and it follows that the content of par 14 is also struck out.
At par 17 the respondent deposes:
The 'application' includes numerous supporting documents that presently occupy 6 lever arch volumes. I challenge the relevance of the content of and supporting documents to the application.
The applicants challenge the admissibility of each of those statements.
The second is no more than a submission. It is struck out. I take it that the first was intended to convey the extent of a task proposed by the applicants. Unfortunately for the deponent the measure chosen is so imprecise as not to be a measure. As such it is of no utility. Nonetheless it is not inadmissible.
At par 18 the deponent states the number of hours it would take and the cost she would allocate to a process of review documents for the purpose of ascertaining the sensitivity of their content.
The objection taken by the applicants is that the statement is not established on the basis of any criterion that would provide confidence that the estimate of time and approximate cost had some validity.
In my opinion absent evidence of some useful datum the statements are not evidence of facts. The statements are of no utility however they are not inadmissible.
At each of pars 19 and 22 the deponent makes the submission that she challenges the relevance of particular documents.
The content of those paragraphs is struck out.
At par 21 the deponent states that she is unaware of the existence of documents revealing communications between parties relating to a particular application.
The issue raised by the applicants is that the deponent does not indicate the extent of her investigations as to the existence of such documents.
In my opinion the applicants do not thereby raise an issue as to admissibility.
At par 23 the respondent proposes the applicants' motivation.
In my opinion the deponent's assessment is an unfounded submission. Being a submission it is struck out.
At par 24 the respondent refers to a feature of the case she would present in the event that the applicants commenced substantive proceedings.
In my opinion the content of the paragraph is not relevant evidence, it has no utility but it is not inadmissible.
At par 25 the respondent states that the task proposed by the applicant would be oppressive.
The objection of the applicants is that the statement is a conclusion.
In my opinion it is permissible for a deponent to utilise the description, however it is of no utility as it is unfounded other than by reference to generalities. None of the content of the paragraph is inadmissible.
At par 26 the deponent provides a conclusion in the first sentence and in the second utilises the same measure as she did in par 17.
In my opinion neither sentence has any utility but it is not thereby inadmissible.
At pars 27 and 28 the respondent asserts that the content of documents is to some unspecified extent confidential and how she would propose to deal with that proposition.
The applicant objects to their content on the basis that there is no evidence to determine the significance of the contention.
In my opinion the content is so general that it is insufficient to sustain the conclusions that the applications contain either confidential or sensitive information. Accordingly it is of no utility but it is not inadmissible.
Under a heading which addresses the bona fides of the plaintiff's request for documents, at pars 30 to 34 the respondent deposes to a series of facts that have no bearing upon the question in issue in the application. None the less the content of those paragraphs it is not inadmissible.
Finally at par 35 the respondent deposes to the truth of the content of a letter she prepared. Some of the content of the letter is drawn from documents that are not produced.
In my opinion the statement would not be sufficient to bring the content of any hearsay into the realm of evidence as it does not specify the basis upon which the deponent gives evidence as to the truth of any particular information contained in the letter. As for the failure to introduce documentary evidence, I make the same assessment as I did in relation to pars 8 to 11.
The content of par 35 is struck out.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
22 JANUARY 2019