Ghosn v Principle Focus Pty Ltd & Ors
[2008] VSC 454
•23 October 2008
| 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 |
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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 | |
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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.
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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 me is narrow in compass. Mr Houghton contends that the two reports may be tendered pursuant to s 55(5)(b) of the Evidence Act (Vic) 1958. This provides that notwithstanding that the maker of the document is not called, such documents (in this case the medical reports) may be tendered into evidence pursuant to s 55(1) provided the witness is out of Victoria, and “it is not reasonably practicable to secure his attendance”. It is the last condition that is the cause of dispute between the parties; it being accepted that both witnesses are out of Victoria.
The use of s.55(5)(b) was considered in a Court of Appeal in Gray v Robbins[3]. The principles relating to the use of s 55 were considered by the President with whom Calloway and Phillips JJA agreed. From my reading of that decision, the following principles emerge.
[3][1999] VSCA 30
(a) Firstly, for evidence sought to be adduced by means of s 55, it must be admissible and must be made from the personal knowledge of the maker of the statement. This is not an issue on this application.
(b) Secondly, the onus rests on the applicant to establish that it is not reasonably practicable to secure the attendance of the witness at court.
(c) Thirdly, the question of attendance at court and the reasonable practicability of securing such attendance is to be determined in light of available technology, and not solely by the physical presence of the witness in court.
Applying these principles to this application I have reached the following conclusions.
I reject the proposition advanced by Mrs Marks on behalf of Sophie Moussi that the makers of the statement, the two doctors in Lebanon, presumably with busy practices and infirm patients, should give evidence in person in this court. Victorian based doctors are regularly permitted to give evidence in Victorian courts by video link, obviating the need for a significant disruption to their practice. The principle underlying this practice must surely apply with greater force to practitioners overseas. In my view, the suggestion that the practitioners should be available to give evidence in this court can be put to one side.
However, it is the very availability of the technology that I have identified that is relevant to the disposition of this application. Apart from exhibiting the two reports to Mr Anger's affidavit, nothing appears to have been done to secure the attendance of either of the makers of the reports by video link. Mr Anger, as appears from his affidavit, travelled to Lebanon and conferred with Dr Saliba. Not only was Dr Saliba’s evidence not placed in affidavit form (and I contrast this to Mr Moussi who, whilst in an infirm state, nevertheless went to the Australian Embassy and swore an affidavit), no steps were taken pursuant to s 42(e) of the Evidence Act to have either Dr Saliba or Dr Abi Akl give evidence via video link or to be available for cross-examination by video link.
This case was fixed for trial on 19 September 2008. The medical opinions as to Mr Moussi's mental condition were clearly in issue. Despite Mr Anger travelling to Lebanon and conferring with Dr Saliba, his report remained merely an exhibit, with the attendant risk that it may not be admitted at trial.
Mr Moussi carries the burden of persuading me that the report should be admitted under s 55. For reasons I have adverted to, I am not satisfied that it was not reasonably practicable to secure the attendance at trial of the two doctors by the use of video link. It follows that on that basis, I reject the tender pursuant to s 55.
Moreover, and particularly in relation to Dr Saliba's evidence, even if I was satisfied that the provisions of s 55(5)(b) had been made out, I would have exercised my discretion pursuant to s 55(9) to exclude their statements. To admit their reports, absent cross-examination, would in my view constitute an injustice to those contesting this application. The medical evidence is clearly germane to any conclusion as to the validity of the powers of attorney and those contesting them should not be deprived of the opportunity to test that evidence.
In summary I reject the application to tender the two medical reports contained in Exhibits.
The affidavit of Mr Moussi
I now turn to the question of the admissibility of Mr Moussi's affidavit, without Mr Moussi being the subject of cross-examination. Mr Houghton relied upon two principles to support his application. Firstly, the common law power to admit such an affidavit. In support of that proposition he relied upon a decision of this court in Re O'Neill (Deceased).[4] Secondly, he relied on s 55(1)(b) of the Evidence Act.
[4][1972] VR 327.
Before I turn to the application of the principles that I have already adverted to, as well as any power that I may have at common law, I should make one finding of fact. Yesterday I indicated that I would admit into evidence the report of Dr Chami, which solely goes to Mr Moussi's capacity to travel. I propose to admit that report pursuant to s 55(7)[5] of the Evidence Act. It is, in my view, admissible as it goes to a short and relevant matter confined to that of Mr Moussi's ability to travel to Australia.
[5]I originally deferred ruling on its admissibility under s 55(9)
Based on that report, and the frequent recent hospital admissions of Mr Moussi,[6] I am satisfied, notwithstanding Mrs Marks's submissions, that Mr Moussi is not capable of travelling to Australia. Even if he had a capacity to make the trip, at the present time it would seem to me that there is a real risk to his health and that he should not be subjected to any such risk.
[6]Identified in Exhibit P2.
However, this conclusion does not resolve the fate of the application applying either principle.
Mr Moussi's evidence is highly germane as to his appointment of Mr Ghosn as his attorney on 7 August 2008. If I was to admit the affidavit into evidence without it being tested in cross-examination, it would result, in my view, in unfairness to those contesting the validity of the power.
For present purposes I assume that there is still a discretion to admit the affidavit under the general law.[7] It is not necessary to canvas the facts in Re O'Neill, which differ markedly to this case. Indeed, Mr Houghton relied upon it solely to establish the general principle that in certain circumstances an affidavit may be introduced into evidence without the maker being cross-examined and the only issue that may then remain is a question of the weight to be attached to that evidence.
[7]The decision in Re O'Neill was delivered on 15 October 1971; Section 55 of the Evidence Act came into force in December 1971.
In the circumstances, however, I am not satisfied that I should exercise any common law power to admit it into evidence. There is no evidence that Mr Moussi could not give evidence and be cross-examined by video link. Whilst there is evidence that his health is frail, he was capable of attending the Australian Embassy and swearing the affidavit. Notwithstanding notice having been given for him to attend for cross-examination, there is no evidence of Mr Moussi's solicitors taking any steps to secure the giving of evidence by video link or adducing evidence that Mr Moussi would be unable to give such evidence by reason of his physical or mental condition.
I repeat what I have already said about technology and the use of video link facilities in court proceedings. As I have said, nothing has been advanced to suggest that such a video link is impracticable or that Mr Moussi is incapable of giving such evidence provided he remains in Lebanon.
For similar reasons I reject the tender of the affidavit under s 55(5)(b). I am not satisfied that it was not reasonably practicable to secure his attendance to give evidence by video link. As I have said, he was able to swear an affidavit on 6 October at the Australian Embassy. Mr Anger conferred with him on a number of occasions in Lebanon. Nothing has been adduced in evidence to support the proposition that either he is incapable of giving evidence by video link, or alternatively, that the technology cannot be used. In my view, the conditions of s 55(5)(b) have not been made out.
If I am wrong in this conclusion, I would in any event exclude the affidavit in the exercise of my discretion under s 55(9). Mr Moussi's evidence as to his intentions and capacity on 7 August is highly relevant to my determination of this proceeding. The inability of those contesting this application to cross-examine him is, in my view, contrary to the interests of justice. I would, had I been required to, have rejected the tender on that basis as well.
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