Donald v Rail Corporation of New South Wales (No 5)

[2015] NSWSC 1750

Supreme Court

New South Wales

Medium Neutral Citation:	Donald v Rail Corporation of New South Wales (No 5) [2015] NSWSC 1750
Hearing dates:	20 – 23 June 2015; 2 – 5 November 2015
Date of orders:	05 November 2015
Decision date:	05 November 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I reject the tender of Exhibit VD4
Catchwords:	EVIDENCE –hearsay – admissibility of statement of witness who is currently overseas – application of s 64 Evidence Act 1995
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Alan Donald (Plaintiff) Rail Corporation of New South Wales (First Defendant) Workers Compensation Nominal Insurer (Second Defendant)
Representation:	Counsel: DR Campbell SC with S Longhurst (Plaintiff); RJ Burbidge QC with A Casselden (First Defendant); M Windsor SC with R Perla (Second Defendant) Solicitors: Acorn Lawyers (Plaintiff); Hicksons Lawyers (First Defendant); Moray & Agnew Lawyers (Second Defendant)
File Number(s):	2010/349997

ex tempore judgment (revised)

1. I am determining under s 189 of the Evidence Act1995 (NSW) the question of whether a witness statement of Gustavo Rogelio Gonzales dated 28 September 2015, may be admitted into evidence by dint of the exception to the hearsay rule expressed in s 64(2) of the Evidence Act.

2. Mr Gonzales is a person who is employed by the first defendant and was so employed when the events with which this trial is concerned occurred in 2007 and 2008.  Indeed, on all of the evidence I have heard in the case, Mr Gonzales is a person who was commonly paired to work with the plaintiff on the various tasks involved in the process of refurbishing sleepers in the railway line in the City Circle that was undertaken over some years, including those years of 2007 and 2008.  The evidence is that Mr Gonzales had qualifications as a carpenter and in addition to the work he did as the plaintiff's mate, he also had other tasks to perform.

3. It is fair to say that the plaintiff makes significant complaints about Mr Gonzales and, on his understanding of his case, relates some of the difficulties he experienced at work to Mr Gonzales' performance or, as Mr Donald would have it, lack thereof.

4. I should also say that, as things develop in trials, it has come out from other witnesses, and this is my provisional impression, that some of the things the plaintiff said about Mr Gonzales, whether his criticisms are justified or not, has been borne out by the testimony of other witnesses, including the fact that Mr Gonzales, because of his age, preferred not to jackhammer.  Indeed, it was not simply a matter of preference.  He did not jackhammer and I note from [13] of the statement sought to be tendered, that he says, at least as of September 2015:

I don't do jackhammering at work because I'm now 60 years old.  I prefer to clean up and have done so for many years.  I have operated a jackhammer probably five times in the entire time I've been with Rail Corp.

He started with Rail Corp in 1994. 

5. He described his form-work duties and his cleaning duties as his “job”. In any event, I have been informed by Mr Burbidge of Her Majesty's Counsel, and Mr Campbell of Senior Counsel does not take issue with this means of receiving information, that Mr Gonzales is currently, I interpolate as the s 67 notice states, in Uruguay. Mr Burbidge informs me that he is not expected to return to this country until 27 November next.

6. The situation seems to be that Mr Cowdery, the first defendant's solicitor, interviewed Mr Gonzales on 28 September 2015 for the purpose of obtaining his signature on the witness statement that had been previously prepared. I infer on that occasion Mr Cowdery was informed by Mr Gonzales that he would not be here when the trial was on, but would be in Uruguay. With admirable promptitude, on 29 September 2015 Mr Cowdery gave a notice to each of the solicitors for the other parties, purportedly under s 67 of the Evidence Act. 

7. The notice is a little ambiguous because its title refers to the maker of a representation not being available. The provision relied upon in the notice is s 64(2), which only applies when the person who made a previous representation is taken to be available. In any event, nothing much probably turned upon that infelicity.

8. Mr Campbell takes exception to the substance of the notice. He points out that it does not state anything other than: the fact that Mr Gonzales is not available to give evidence at the hearing from 2 November to 6 November 2015; invokes s 64(2); and concludes:

It would cause undue expense or undue delay, or would not be reasonably practicable, to call Gustavo Gonzales, who made the representation, to give evidence because he will be in Uruguay.

There are no facts provided, or any grounds stated to make good the assertion of undue expense, undue delay or a lack of reasonable practicability. There remains a tension about whether s 64(2) applies at all, given the statement that he is not available.

9. Unavailability of persons is dealt with in Cl 4 of Pt 2 of the Dictionary to the Act, and subclause (1) sets out the circumstances in which a person is taken not to be available to give evidence.  In all other cases, a person is taken to be available to give evidence about the fact.  Unlike former legislation, merely being “beyond the seas” is not a circumstance where a person is taken not to be unavailable.  Although the notice says Mr Gonzales is not available, with great respect, Mr Burbidge has probably taken the correct approach. Legally, he is available because none of the circumstances set out in subclause (1) have been established on any evidence led before me.

10. There is no evidence of what steps were taken to secure Mr Gonzales' attendance, for instance, and there is certainly no evidence that reasonable steps to secure his attendance were taken without success. Mr Burbidge relies upon s 68, which applies in circumstances where s 64(2) is properly engaged. The intention of s 68, clearly in those cases, as it were, is to reverse the onus, to some extent, by requiring the party who receives the notice, within 21 days, to notify the party serving the notice of any objection taken to the tender under s 64(2).

11. The purpose of this, undoubtedly, is so that the matter may be brought before the Court before the trial commences, to enable the Court to make a decision about whether calling the witness would cause undue expense or undue delay or would not be reasonably practicable.

12. Mr Campbell makes substantial complaints about the substance of the notice by reference to the requirements of Cl 4 Evidence Regulation 2015 (NSW). I will leave that to one side because the primary question is whether it has been shown that s 64(2) is properly engaged. In my opinion, s 64(2) has not been properly engaged. I accept that the witness statement, is a document which contains previous representations made by Mr Gonzales; so much is obvious, but there is simply no evidence before me that it would cause undue expense or undue delay or it is not reasonably practicable to call the witness.

13. In making that observation I, of course, accept that he is away and will remain away overseas until 27 November, by which time this case will be well and truly over.  On the other hand, absent evidence about attempts to secure his evidence by other means and circumstances where it could be tested by cross‑examination, I cannot say that the expense or delay involved in, say, adjourning the matter until he returns is undue.

14. In the absence of evidence about consideration of taking his evidence on commission before he left, bearing in mind the matter was part heard and the plaintiff had finished his evidence, or inquiries about the possibility of taking his evidence by audio visual link while he was away, I cannot be satisfied that it would not be reasonably practicable to call him to give evidence, and in those circumstances I am not satisfied that the exception to the hearsay rule in this instance has been made good.

15. Mr Burbidge reminded me of my powers under s 190 of the Act to waive compliance with the rules of evidence.  Section 190(3) empowers me to waive provisions, including the hearsay rule, under Pts 3.2 ‑ 3.8 if:

190 Waiver of rules of evidence

(3) …

(a)  the matter to which the evidence relates is not genuinely in dispute, or

(b)  the application of those provisions would cause or involve unnecessary expense or delay.

16. I think it can be said in this case that much of what Mr Gonzales says is genuinely in dispute, and the same considerations, I think, that inform the question of unnecessary expense or delay as informed that question under s 64(20, and for the same reasons, I am not satisfied that the statutory condition, of the power to waive, has been established.

17. I mentioned some infelicities in the s 67 notice. I would not have rejected the tender on that basis alone; however, I think there is a substantial matter, raised by Mr Campbell, concerning the failure of the notice to either state that there are no other relevant representations made by Mr Gonzales known to the first defendant, or to disclose the substance of all other relevant representations. I think the failure of the notice to comply with that provision in particular is of some significance, given that in this type of litigation it is well‑known that frequently private investigators are engaged at an early time to secure an account from witnesses in the case. That requirement should have been addressed in my view.

18. Mr Burbidge fairly points out that there was a previous representation in as much as a narrative of what Mr Cowdery believed Mr Gonzales would say if called to give evidence was provided to the plaintiff's solicitors back in 2013 in compliance with the court's case management procedures; however, in the absence of an affirmative statement, that there are no other representations known to the first defendant, or, on the other hand, a disclosure of previous representations, I am of the view that the s 67 notice is defective if it were necessary to go to that issue to decide the point.

19. The statement was marked VD4.  I reject the tender of Exhibit VD4 and it may be returned to the first defendant.  The notices will be retained.

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Decision last updated: 23 November 2015