Ghosn v Principle Focus Pty Ltd & Ors - [2008] VSC 454

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

No. 8070 of 2008

JEAN MICHEL ABI GHOSN	Plaintiff
v
PRINCIPLE FOCUS PTY LTD & ORS	Defendant

---

JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23, 27, 30, 31 October and 3 November 2008
DATE OF RULING:	23 October 2008
CASE MAY BE CITED AS:	Ghosn v Principle Focus Pty Ltd & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2008] VSC 454

---

EVIDENCE – Application to admit affidavit and two medical reports - Section 55(5)(b) Evidence Act (Vic) 1958 –Evidence by video link - Evidence not provided in affidavit form – Discretion to admit under general law and s 55) – No evidence attendance by video link not practicable – No opportunity to cross-examine – Held: s 55(5)(b) not satisfied – Affidavit not admissible under general law.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Panna SC	Starnet Legal Pty Ltd
For the First and Second Defendants	Mr S. McNab	Coulter Roache
For the Third Defendant	Mr W. Houghton QC with Mr S. Anger	Alfred P Mayuka
For the Fourth Defendant	Mrs S. Marks	Lander & Rogers

HIS HONOUR:

Mr Houghton, on behalf of Mr Moussi, has made two separate applications to admit certain documents into evidence without calling the maker of the documents and, as it must necessarily follow, without the maker of the documents being the subject of cross-examination.

In this proceeding the plaintiff, Mr Abi Ghosn, seeks amongst other things, a declaration as to the validity of two powers of attorney executed in his favour in Lebanon by Mr Antoine Moussi on 7 August 2008. Mr Antoine Moussi, who is represented by Mr Houghton, supports the application, which is opposed by Mr Moussi's daughter Sophie, his former solicitor Mr Roache, and his former accountant and agent by power of attorney, Mr Nott.

The documents sought to be tendered by Mr Houghton fell into two categories. Firstly two medical reports, exhibited to an affidavit of Mr Steven Anger sworn 14 October 2008, a member of the Victorian Bar who appears with Mr Houghton in this proceeding. Secondly an affidavit of Mr Antoine Moussi, sworn 6 October 2008 in Beirut at the Australian Embassy.

Medical reports

The first of the medical reports is that of Dr Sarkis Abi Akl, who was said to be a legal medical examiner and expert in general medicine.[1] The second is one of Dr Wahid Saliba who also appears to be a medical practitioner.[2]
[1]Exhibit SA1 dated 2 October 2008.
[2]Exhibit SA2 dated 7 August 2008.

Both have examined Mr Moussi, it appears, and their reports deal with his physical and mental condition and their opinion thereto. It is not contested that both reports are relevant to the determination of issues before me, particularly that of Dr Saliba who, on the face of the exhibit, examined Mr Moussi on 7 August, the day upon which the powers of attorney were signed.

The argument before…

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.

Keep reading for free

Create a free CaseChat account to read Ghosn v Principle Focus Pty Ltd & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] VSC 454
Decision Date: 23 October 2008

CaseChat Overview and Summary

The case of Ghosn v Principle Focus Pty Ltd & Ors was heard in the County Court of Victoria. The dispute involved the admissibility of evidence, specifically an affidavit and two medical reports, in proceedings against Principle Focus Pty Ltd and others. The applicant, Ghosn, sought to introduce this evidence to support their case, which was contested by the respondents who argued that the evidence was not properly admissible under the Evidence Act 1958 (Vic) and the common law.

The central legal issue was whether the affidavit and the medical reports could be admitted as evidence, particularly in light of the procedural requirements outlined in section 55(5)(b) of the Evidence Act 1958 (Vic). The respondents contended that Ghosn had not followed the necessary procedures for admissibility, including the requirement that evidence be in affidavit form. Furthermore, the court considered the circumstances under which evidence could be admitted via video link, and the practicalities of such a process, particularly the lack of opportunity for cross-examination.

The court examined the provisions of the Evidence Act and the general principles of evidence law, concluding that the affidavit and medical reports did not comply with the statutory requirements. Specifically, the court found that Ghosn had not demonstrated that it was not practicable to have the evidence given in person, a necessary condition for admitting evidence via video link under section 55(5)(b). Additionally, the court noted the absence of an opportunity for cross-examination, which further undermined the admissibility of the evidence. Given these findings, the court ruled that the affidavit and medical reports were not admissible under either the statute or the general law.

The court's decision effectively barred Ghosn from relying on the affidavit and medical reports in their case, leaving them to pursue other avenues of evidence. The final orders of the court reflected this ruling, prohibiting the introduction of the contested evidence in the proceedings against Principle Focus Pty Ltd and the other respondents.

Orders