H and Ors and Y - [2003] FMCAfam 306

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & ORS & Y

[2003] FMCAfam 306

PRACTICE & PROCEDURE – Evidence – admissibility – application to rely on affidavits of applicant now deceased – reasonableness of notice.

Evidence Act 1995 (Cth), ss.63; 67; 135
Evidence Regulations (Cth), s.5

First Applicant:

KEH

Second Applicant:

SEY

Third Applicant:

Respondent:

SEY

File No:

PAM 2640 of 2002

Delivered on:

2 July 2003

Delivered at:

Parramatta

Hearing date:

2 July 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Heazlewood

Solicitors for the Applicant:

Shephard & Shephard

Solicitors for the Respondent:

McPhee Kelshaw

ORDERS

The Applicants are given leave to rely on the affidavit of AJE sworn on 4 July 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2640 of 2002

KEH

First Applicant

And

SEY

Second Applicant

And

Third Applicant

And

SEY

Respondent

REASONS FOR JUDGMENT

Application

The matter that is before me is an application by the applicants to rely on an affidavit sworn by AJE on 4 July 2002.
The history of the matter is that the deponent to the affidavit was one of the original applicants in these proceedings, which were commenced by the filing of an application on 15 July 2002. The application was returnable on 19 August.
Sadly, the deponent died on the night of the 2nd and 3rd of May 2003. His mother, KEH, has now joined with the other applicants as an applicant herself.
What the present applicants seek to do was to rely on this affidavit of the late Mr H as a part of this case. That application is opposed by the respondent.
The basis of the application to rely on the affidavit by the deceased comes from section 63 of the Evidence Act1995. That section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. Sub-section 2(b) says that the hearsay rule does not apply to a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
I am satisfied that the affidavit is a document that would come within the meaning of a document as set out in sub-section 63(2)(b). I am also satisfied that there is evidence that the deponent is not available to give that evidence. A copy of his death certificate has been annexed to the affidavit of KJH, and it is before the Court.
The matter does not end there, however. A person wishing to rely on such a representation - in this case a document - must give notice pursuant to section 67 of the Evidence Act. Subsection 1 of that section refers to, inter alia, sub-section 63(2), saying that it does not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.
Subsection 2 of section 67 goes on to say that notices given under

sub-section 1 are to be given in accordance with any regulations or rules of Court made for the purposes of this section. The appropriate regulation is regulation 5 of the Evidence Regulations. That regulation is specifically made for the purpose of section 67 of the Act. It provides, in sub-section 2, that:
A notice of previous representation must state, inter alia, the substance of evidence of a previous representation that the notifying party intends to produce; and
(b) The substance of all other relevant representations; and
(c)The particulars of the date, time, place and circumstances at or in which each of the representations mentioned was made, and the names and addresses of the persons by whom and the persons to whom each of those representations were made so far as they are known to the notifying party.
Sub-section 6, does not to my mind apply.
In this case the nature of the document sought to be relied on is already known to the respondent. It was an affidavit in these proceedings, and was served upon the respondent in the course of these proceedings. The respondent has indeed had a sealed copy of that document in her possession, or now perhaps in the possession of her solicitor, for a number of months. The contents, therefore, of the document would come as no surprise to the respondent, nor would they have come as any surprise when the notice was given on 30 June.
Is the notice given on 30 June, some two days before the hearing, reasonable notice for the purpose of section 67? As I said, the contents of the document were known. The circumstances of the deceased's untimely death were known to the respondent from a short period of time after the deponent had died.
It would hardly have come as a surprise that reliance was sought to be made on that affidavit for the purpose of these proceedings, as they now stand.
Reasonableness is, of course, relevant, and reasonableness is a matter that varies on the circumstances. In the circumstances of this case I am satisfied that the notice given is reasonable.
The respondent also seeks to rely on the provisions of section 135 of the Evidence Act, which is a general discretion to exclude evidence. That section says that:
The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
The proceedings are being heard in a civil Court before a Federal Magistrate sitting alone. I contrast that with proceedings being heard before a jury. The evidence, therefore, contained in the affidavit is subject to submission by the legal representative's of the parties, as to the weight that should be applied to it. I am of a view that any prejudice to the respondent, that would be unfair can be adequately met by submissions by her solicitor.
Similarly, the fact that the parties are legally represented would mean that I have assistance from the Bar table should I require it, to avoid being misled or confused by the evidence.
As to whether the admission of the document would cause or result in undue waste of time, I would comment that the responsibility probably lies with the Court to ensure that the time is not wasted, and I certainly propose to keep a tight control on these proceedings to make sure that the time of the Court is not unduly wasted as a result of the admission of this evidence.
I therefore decline to exercise a discretion to exclude the document pursuant to section 135.
Now, the admission of this affidavit does not mean that the affidavit will necessarily be admitted in its entirety. There may well be passages within the affidavit that would otherwise be inadmissible whether or not the maker of the affidavit were available to give oral evidence. The admission of a document in this way does not exclude objection being taken to any part of it for the usual reasons in the Evidence Act such as relevance or hearsay in so far as hearsay would have applied had the maker of the affidavit been available, or for any other proper ground for objection.
I am of a view, therefore, that this affidavit should be treated in the same way as other affidavits to be admitted, subject to any objection as to any part, and subject to any submission at the conclusion of the evidence as to the weight that should be applied to the evidence contained in the document, bearing in mind the circumstances that has led to its admission.
So as to a general rejection of the document, my ruling is that the document may be admitted. I am of a view that it does comply, and I will deal with any objections to any paragraphs within that affidavit when I deal with objections to any paragraphs or parts of any other affidavit which I think now we might do at 2.00pm.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 28 July 2003