Helena Jenny Movsas v Donald William Gordon and 6 Ors

[2004] NSWSC 1005

CITATION:	Helena Jenny Movsas v Donald William Gordon & 6 Ors [2004] NSWSC 1005
HEARING DATE(S):	25/10/04, 26/10/04
JUDGMENT DATE:	26 October 2004
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Brownie AJ
DECISION:	Evidence rejected.
CATCHWORDS:	Evidence: one witness swears affidavit and then becomes incapable of being cross examined - whether a second person can give hearsay evidence as to what the first witness said
LEGISLATION CITED:	Evidence Act 1995 (Cth)
PARTIES :	Helena Jenny Movsas (Plaintiff and First Cross Defendant) Donald William Gordon (First Defendant and First Cross Claimant) Angus Gordon (Second Defendant and Second Cross Claimant) Ann Armstrong (Third Defendant and Third Cross Claimant) Hamish Gordon (Fourth Defendant and Fourth Cross Claimant) Jennifer Helen Theresa Gaudron (Fifth Defendant and Second Cross Defendant) Russell Walter Keddie (Sixth Defendant and Third Cross Defendant) Scott John Roulstone (Seventh Defendant and Fourth Cross Defendant)
FILE NUMBER(S):	SC 108279/03
COUNSEL:	Mr P Hallen SC, Mr JM White (Plaintiff and First Cross Defendant) Mr G Underwood, Mr T Thawley (First to Fourth Defendants and First to Fourth Cross Claimants) Mr M Wilmott SC, Mr R Wilson (Fifth Defendant and Second Cross Defendant)
SOLICITORS:	Kemp Strang (Plaintiff and First Cross Defendant) David Kennedy (First to Fourth Defendants and First to Fourth Cross Claimants) Champion Legal (Fifth Defendant and Second Cross Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Brownie AJ

Tuesday 26 October 2004 ex tempore
Revised 27 October 2004

108279/03 Helena Jenny Movsas v Donald William Gordon & 6 Ors
The Estate of Beryl Dalwood

JUDGMENT

1 Objection has been taken to paragraph 12 of the affidavit of Ann Margaret Armstrong sworn 19 February 2004. In that paragraph she recounts a statement made to her by her father, Donald William Gordon.

2 The plaintiff objected to the passage in question on the ground that it was hearsay evidence. That led to a debate as to whether the evidence of Mrs Armstrong is admissible under s 64 of the Evidence Act, and a separate objection was taken under the provisions of ss 135 and 136 on the ground that the admission of the evidence would be unfairly prejudicial to the plaintiff.

3 On the case propounded by the first to fourth defendants, Mrs Armstrong being the third defendant and Donald William Gordon the first defendant, that the testatrix lacked testamentary capacity at various moments in history, paragraph 12 of Mrs Armstrong’s affidavit appears to go to that issue. She recounts a statement made by the testatrix to the effect that she did not know something.

4 Mr Donald Gordon swore an affidavit on 21 February this year. In the course of the debate I was referred to an affidavit of Angus Donald Gordon, a son of Donald William Gordon. Angus Gordon annexed to his affidavit a report of a neurologist, Dr Corbett, of 5 April 2004 and a report of Ms Roberts, a neuro-psychologist, of 30 November 2003.

5 Ms Roberts opined in November 2003 that she believed that Donald Gordon’s ability to recall events and to record those events is likely to be relatively good, although he might require prompting to retrieve well-known information at times. She thought that his recall of specific dates and times might not be absolutely accurate and that this might result in apparent inconsistencies at times.

6 She thought that his recall of recently presented new information, or of questions which had been put to him earlier in the day or the day before, might fluctuate. She thought that he was likely to fatigue after a couple of hours so that his evidence would become less reliable. She thought that he might require repetition of questions due to his impaired hearing.

7 Subject, however, to those matters and to his general health remaining stable, she thought that his faculties were not likely to deteriorate markedly in the succeeding nine months.

8 Unhappily, according to Dr Corbett, that diagnosis changed. Dr Corbett said in April 2004 that in his opinion Mr Gordon had significant deficits in both short and long term memory. He was unable to recall content and sequence of events and because of deficits in cognitive functioning, his judgment was significantly impaired. Dr Corbett did not believe that Mr Gordon could accurately recall past events or record those events in sworn affidavits and legal proceedings within the last six months.

9 Dr Corbett believed that Mr Gordon’s ability to give oral evidence and to be cross-examined about previous events was significantly compromised. He believed that Mr Gordon had a progressive disorder, and that his cognitive abilities and memory would deteriorate significantly in the next six months. He did not believe that Mr Gordon had the ability to accurately recall past events or give oral evidence or be cross-examined over the period up to 31 December 2004. He said more along the same general lines.

10 There is an application now by Angus Donald Gordon to be appointed as next friend of Donald William Gordon on the basis that he is a disable person. I said a few minutes ago I would make an order to that effect, that order to take effect from yesterday, so as to regularise what has happened during the hearing.

11 Mr Underwood has indicated that he proposes to seek to read the affidavit of Mr Donald Gordon, that is to say the affidavit of 21 February last. It seems to me at the moment that I probably ought to permit that, having regard to the provisions particularly of Pt 38 r 9. There will be a need to consider in detail later on what weight should be given to the affidavit of Mr Donald Gordon. For the moment, however, I am immediately concerned with the admissibility of paragraph 12 of the affidavit of Mrs Armstrong.

12 It is, I think hearsay. Mr Underwood has urged that it ought to be admitted because Mr Donald Gordon is unable to give evidence now in a meaningful way. I understand that he did not in his affidavit record anything as to what Mrs Armstrong says in paragraph 12 of her affidavit. That may be so but I do not think it is relevant to a consideration of the issues raised by s 64.

13 Sub-section 2 of that section provides that the hearsay rule does not apply to evidence of the relevant representation made to Mrs Armstrong by Mr Donald Gordon if it would cause undue expense or undue delay or if it would not be reasonably practicable to call the person who made the representation to give evidence.

14 Clause 4 of the dictionary to the Evidence Act provides that for the purposes of the Act a person is taken not to be available to give evidence about a fact if the person is dead or if the person is not competent to give evidence about the fact.

15 If Mr Donald Gordon’s affidavit is read as evidence in chief, but the proposition is accepted that he cannot be expected to give any useful or reliable evidence in cross-examination, then there is a real practical problem in terms of actual fairness and perceived fairness in permitting hearsay evidence of the kind in question.

16 Mr Hallen referred to the steps taken prior to the trial. They do not, to my mind, add anything particularly weighty but what does seem to me to be significant is that, for the purposes of s 135(a) and 136(a) of the Evidence Act, the use of evidence such as is contained in paragraph 12 of Mrs Armstrong’s affidavit is likely to be unfairly prejudicial to a party, namely, the plaintiff. At this point, what Mr Gordon said in his affidavit is significant.

17 There is, so far as I can see at the moment, no way in which the plaintiff can be expected to challenge what Mrs Armstrong says in that paragraph. In all the circumstances I reject paragraph 12 of the affidavit.

I certify that paragraphs 1 - 17
are a true copy of the reasons
for judgment herein of
the Hon. Acting Justice Brownie
given on 26 October 2004 and
revised on 27 October 2004

___________________
Susan Piggott
Associate

27 October 2004

Last Modified: 11/01/2004