Hejiz& Hejiz

[2018] FamCA 301

FAMILY COURT OF AUSTRALIA

HEJIZ& HEJIZ [2018] FamCA 301

FAMILY LAW – EVIDENCE – Where it was sought to rely on Notices under s 64 of the Evidence Act 1995 as an exception to the first hand hearsay rule – Where necessary to consider the evidence sought to be adduced – Where evidence did not come within the exception to the first hand hearsay rule – Where the Notices otherwise defective for non-compliance with Evidence Regulations 1995 (Cth) reg 5 – Where the evidence rejected.

Evidence Act 1995 (Cth) ss 59, 62, 64, 67, 68, 192, 192A
Evidence Regulations 1995 (Cth) reg 5

Australian Competition and Consumer Commission v CC (NSW)Pty Ltd [1998] ATPR 41-650

APPLICANT: Mr Hejiz

RESPONDENT: Ms Hejiz

FILE NUMBER: PAC 2891 of 2014

DATE DELIVERED: 14 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Coleman Greig Lawyers

COUNSEL FOR THE RESPONDENT: Mr Richardson SC with Mr O’Reilly

SOLICITOR FOR THE RESPONDENT: Thornton Storgato Law Pty Ltd

Orders

1. That paragraphs 113, 120 and 135 of the wife’s trial affidavit, filed 15 September 2017, be struck out.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hejiz & Hejiz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2891 of 2014

Mr Hejiz 

Applicant

And

Ms Hejiz

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are final property proceedings as between the applicant wife and respondent husband. 

2. In the context of preliminary issues prior to the commencement of the trial an issue has arisen as to the question of the admissibility or use of evidence sought to be relied upon by the applicant wife.

3. Section 192A of the Evidence Act 1995 (Cth) (“the Evidence Act”) permits the Court, if appropriate, to give a ruling or make a finding in relation to admissibility before evidence is adduced in the proceedings. At this stage no evidence has been adduced and oral evidence has not commenced.

4. In the circumstances of this matter it is appropriate that the Court deal with the preliminary issue under s 192A of the Evidence Act.

5. The impugned evidence relates to notices provided to the respondent husband, by the wife seeking to rely upon the provisions of s 64 of the Evidence Act that provides exceptions to the hearsay rule. The hearsay rule is comprised in s 59(1) of the Evidence Act and provides that:

   Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can be reasonably supposed that that person intended to assert by the representation.

   In short, it relates to out of Court representations where the person making the representation is not to give evidence in the proceedings.

6. The evidentiary “hearsay rule” as set out in s 59 of the Evidence Act is subject to s 62 of the Evidence Act that provides that a reference to a previous representation, is a reference to a “previous representation that was made by a person who had personal knowledge of an asserted fact and such person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

Exception to the Hearsay Rule

1. The provisions of Division 2 of Chapter 3.2 provide certain exceptions to the exclusionary hearsay rule.

2. Section 64 of the Evidence Act provides an exception in civil proceedings, such as these, if the maker of such a representation is available to give evidence, but certain preconditions apply.

3. The section provides:

   (1)This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. 

   (2)The hearsay rule does not apply to:

   (a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or

   (b)a document so far as it contains the representation or another representation to which it is reasonably necessary to refer to in order to understand the representation,

   if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

The Notice provisions

1. The provisions of s 64 are subject to the provisions of s 67 of the Evidence Act requiring notice to be given by a party who seeks to rely upon the exception provisions of s 64 of the Evidence Act.

2. Section 67 of the Evidence Act provides:

   (1)Sections 63(2), 64(2) and 65(2), (3) and (8) do 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. 

   (2)Notices given under subsection (1) are to be given in accordance with any regulations or rules of the Court made for the purposes of this section. 

   (3)The notices must state:

   (a)the particular provisions of this division in which the party intends to rely on in arguing that the hearsay rule does not apply to the evidence, and

   (b)if subsection (64)(2) is such a provision, the ground specified in that provision on which the party intends to rely.

3. Section 67(4) of the Evidence Act provides that:

   Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.

4. No such application has been made in the present proceedings. 

5. Section 68 of the Evidence Act provides for the receiver of the notice to, not later than 21 days after the notice has been given, object to the tender of the evidence or a specified part of the evidence. The Court is required, at a discrete hearing, to then determine the objection at or before the hearing of the primary proceedings.

The Subject Notices under s 67

1. The notices, the subject of the current dispute, have come before the Court in what would seem to be a somewhat unusual manner. 

The R Representations: The CC2 Notice

1. The wife on 15 September 2017 filed her trial affidavit together with six volumes of material exhibited to her trial affidavit comprising almost 800 pages of documents.  In paragraph [113] of her trial affidavit the wife says this:

   I seek leave to rely on representations made to me by [Ms R], set out in exhibit CC2 hereto.

2. By reference to the wife’s trial affidavit and documents exhibited thereto, Volume 6 of the exhibited material contains a copy of a notice, purportedly pursuant to section 67 of the Evidence Act, seeking to rely upon the representations made by Ms R pursuant to section 64 of the Evidence Act. Similarly, the wife, in paragraph [120] of her affidavit, says this:

   I received a telephone call over the weekend of 21 to 23 April 2017.  This led me to make inquiries from separate witnesses, one of whom informed me [Mr S] and [Mr Hejiz] (the husband in these proceedings) had purchased the [C Business] at [Suburb T].  Another witness gave me evidence which I refer to at exhibit CC4 hereto.

3. No reference is made in the body of the affidavit to the existence of a notice pursuant to s 67 of the Evidence Act that is contained in the wife’s affidavit in volume 6 of her exhibited material at page 182. The notice purports to be a notice pursuant to s 67 of the Evidence Act seeking to rely on those representations on the basis that it would cause undue expense or undue delay and would not be reasonably practical to call the person who made the representation to give evidence. The asserted notice was not served as a discrete document but “served” presumably by being included in the wife’s trial affidavit material that was served some months before trial.

C Business, Suburb U Representations: The CC1, 3 and 5 Notice

1. A second notice under s 67 of the Evidence Act is relied on by the wife by reason of paragraph [135] of the wife’s trial affidavit filed 15 September 2017 which says:

   I have since contacted two other persons regarding the owners of the [C Business, Suburb U].  I will seek to rely on the conversations I had with those witnesses, set out at exhibits CC1 and 3 and 5 hereto.

2. Once again, the exhibited documents CC1, 3 and 5 are embedded in the wife’s exhibits to her affidavit in Volume 6.  CC1 is found at page 123 of the exhibited material, CC3 is found at page 160 of the exhibited material and CC5 is found at page 197 of the exhibited material.

Discussion

1. The submissions of the parties’ counsel were brief. It is the contention of senior counsel for the wife that in the absence of notice being given by the husband, pursuant to s 68 of the Evidence Act, by way of objection to the s 67 notices embedded in the affidavit of the wife, he is now precluded from objecting to the tender of what would otherwise be first hand hearsay evidence in these civil proceedings.

2. The determination as to the admissibility or otherwise of the evidence falls to be determined initially by reference to the nature of the evidence to be adduced so as to determine whether the evidence is indeed firsthand hearsay evidence and thus properly the subject of a notice under s 67 of the Evidence Act.

3. The CC2 notice, referred to in paragraph [113] of the wife’s affidavit, seeks to excuse the wife from calling the person making the representation, Ms R, by reason of the fact it would cause undue expense, delay and it would be not reasonably practical to call Ms R to give evidence.  It appears that the representations relied upon are comprised in text messages between the wife and Ms R, set out in volume 6 of the wife’s exhibited documents pages 141 through to 147.

4. None of the asserted representations by Ms R have any relevance to the substantive issues for determination, mostly being courtesy conversation and then various assertions by the wife as to her belief as to the husband having an interest with others in various pharmacy partnerships.  Ms R provides no evidence or information to the wife by way of representation of fact from her own firsthand knowledge or observation.

5. Yet notwithstanding, the wife’s solicitors wrote to Ms R on 28 August 2017 purporting to forward to her a draft affidavit and warning her that the wife would prefer not to instruct them to issue a subpoena compelling her to attend and give evidence and on that basis they invited her to duly swear the draft affidavit exhibited to the wife’s affidavit.

6. The proposed affidavit is simply not referable to the asserted representations made by Ms R in the text message conversation and not matters known to Ms R from her own observation or knowledge. Thus the representations sought to be relied on under s 64 of the Evidence Act do not fall within the exception to the first hand hearsay evidence rule provided by the section.

7. The second asserted representations relied upon are found in paragraph [120] of the wife’s affidavit and the documents referable to those representations are found in volume 6 of the wife’s exhibited material at pages 182 through to 196.  The wife provides a notice seeking to rely upon the previous representations of a Mr V (CC4) on the basis that it would cause undue expense or delay and would not be reasonably practical to call him to give evidence.

8. The documents that she refers to as exhibited comprise a letter to Mr V, once again enclosing a draft affidavit for his consideration and indicating the wife would be reluctant to issue a subpoena to compel him to give evidence that would expose him to cross‑examination by the husband’s legal team.  The draft affidavit is not primary evidence of any representations made by Mr V to the wife, and there is no other primary evidence of those representations relied upon by the wife.

9. Accordingly, the documents comprised in CC4 also do not form an exception to the first hand hearsay rule as provided for under s 64 of the Evidence Act. The wife simply relies upon the draft affidavit prepared by her solicitor, presumably on information provided by her to her solicitor, that was then engrossed as a draft affidavit.

10. The third representations objected to are found in paragraph [135] of the wife’s affidavit, as referred to above. That paragraph incorporates exhibited material at CC1, CC3 and CC5. CC1 provides a notice, pursuant to s 67 of the Evidence Act, relating to representations made by a Mr W contained in a draft affidavit attached to the notice. It is asserted that it would cause undue expense or undue delay and would not be reasonably practical to call Mr W, who made the representations, to give evidence.

11. CC1 is email correspondence between the wife and her solicitor, Martina, providing some information from the wife as to her asserted conversations with Mr W.  Regrettably, those asserted conversations seem to be assertions by Mr W that he had been told something by “previous staff” at Business C or “staff who work at the Business C” at Suburb U or from discussions with some person at the industry association in New South Wales.

12. She also asserts in the email that Mr W had advised her that a Mr X had met with various persons and confirmed to Mr W certain information in relation to the businesses, the subject of the wife’s inquiry.  Clearly, that email does not comprise firsthand representations by Mr W, but clearly repeats representations that had come to him from other sources.

13. The affidavit does not reflect representations by Mr W but is simply a document prepared on the instructions of the wife by her solicitor, based upon instructions given by the wife to the solicitor for the preparation of the affidavit. The affidavit was never signed by Mr W nor in any event would it have contained first hand hearsay representations by him. Once again the evidence sought to be adduced does not fall within the province of s 64 of the Evidence Act as an exception to the hearsay rule.

14. The next exhibited documents referred to in paragraph [135] are contained in CC3. CC3 comprises, once again, a s 67 notice embedded in the affidavit of the wife, in volume 6 of her exhibited material at pages 160 through to 181. The representations relied upon in the notice are representations made by an Mr Y contained in the draft affidavit attached to the notice.

15. Prior to the draft affidavit the wife attaches what would appear to be the course of some electronic communication between herself and Mr Y in which Mr Y makes various statements in that conversation, such as “from what I’ve heard recently” or refers to matters that were told to him by Mr Z, one of the employees at the Suburb I store.  Nowhere does Mr Y make representations that are representations of fact personally known to him or observed by him.

16. Notwithstanding that, the wife’s solicitors wrote to Mr Y by letter dated 29 August 2017, once again forwarding to him a draft affidavit and inviting him to duly complete the affidavit and return it to them on the basis the wife would prefer not to instruct them to issue a subpoena compelling him to attend and give evidence.   

17. Looking at the course of communication between the wife and Mr Y, none of the matters that may be relevant to these proceedings in any way fall within the province of the exception to the first hand hearsay evidence rule that would facilitate the evidence being adduced pursuant to s 64 of the Evidence Act.

18. The fourth representation objected to found at paragraph [135] is CC5. CC5 is found at pages 197 to 203 of the wife’s exhibits in volume 6 and provides a notice pursuant to s 67 of the Evidence Act seeking to rely upon records of conversation exhibited to the affidavit, being representations of one Ms AA. Once again, the representations are sought to be relied upon on the basis it would cause undue expense or undue delay and would not be reasonably practical to call the person who made the representation to give evidence.

19. Regrettably, the evidence provided by the wife appears to be evidence of, in fact, her solicitor, who provides a copy of a telephone note of a conversation between her and Ms AA on Friday 21 July 2017, together with a long telephone note of the solicitor’s telephone conversation with a Mr S on 21 July 2017, although that second telephone conversation is not referred to or relied upon in the s 67 notice.

20. Once again, the representations relied upon are the representations of the wife’s solicitor as to her conversation with Ms AA, who appears to be an employee at Company C at Suburb U. In effect, this evidence is second‑hand hearsay and not caught by the exclusion or the assisting provisions of s 64 of the Evidence Act as an exception to the first hand hearsay evidence rule.

21. The determination of the matter is further assisted by a consideration of reg 5 of the Evidence Regulations 1995 (Cth) (“the Evidence Regulations”), made pursuant to the Evidence Act. Regulation 5 provides:

    (1)This regulation is made for the purpose of section 67 of the Act.

    (2)A notice of previous representation must state:

    (a)subject to sub regulation (6), the substance of evidence of a previous representation that the notifying party intends to adduce; and

    (b)the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party; and

    (c)particulars of:

    (i)the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made; and

    (ii)the names of the persons by whom, and the persons to whom, each of those representations was made; and

    (iii)in a civil proceeding — the address of each person so named;

    so far as they are known to the notifying party.

22. Each of the notices provided pursuant to s 67 do not include such particulars of the representations relied but simply identify documents, some of them lengthy wherein it is asserted the representations may be found, and by reason of the mandatory provisions of reg 5 of the Evidence Regulations the notices are, by reason of that ineffective: Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1998] ATPR 41-650.

23. Otherwise, subparagraph (4) relevantly provides, in the context of this matter:

    If a notifying party intends to rely on paragraph 64 (2) (a) or (b) of the Act, the party’s notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in subsection 64 (2) of the Act.

24. Those grounds being the facts and circumstances establishing the reason why it would cause undue expense or undue delay and would not be reasonably practical to call the person who made the representations to give the evidence.

25. Each of the notices provided pursuant to s 67 do not include such particulars and by reason of the mandatory provisions of reg 5 of the Evidence Regulations the notices are, by reason of that defect, are also ineffective.

26. It would be appropriate in the context of this matter to make reference to the provisions of s 192 of the Evidence Act by reason of the provisions of section 67(4) of the Evidence Act, that provides that:

    Despite subsection (1), if notice has not been given the Court may, on application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

1. Section 192 of the Evidence Act provides that:

   (1)If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

   (2)Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

   (a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

   (b)the extent to which to do so would be unfair to a party or to a witness; and

   (c)the importance of the evidence in relation to which the leave, permission or direction is sought; and

   (d)the nature of the proceeding; and

   (e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

2. No such application for leave was made.

3. In these proceedings, by consequence of the defect in the notices themselves, the s 67 notices are ineffective. However, for the reasons given above, the evidence that is sought to be adduced does not fall within the exception provided by s 64 of the Evidence Act. The notices thus were of no utility in any event.

4. If it was required to determine any application for leave to rely on the evidence pursuant to s 192 of the Evidence Act, that application, although it has not been made, would be refused for the reasons given above.

5. Orders will be made accordingly.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 March 2018.

Associate: 

Date:  7 May 2018