Hendricks v El-Dik (No 2)

[2015] ACTSC 351

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hendricks v El-Dik & Anor (No 2)

Citation:

[2015] ACTSC 351

Hearing Date:

31 August 2015

DecisionDate:

1 September 2015

Before:

Mossop AsJ

Decision:

The tender by the Plaintiff of the photographs at pages 35-131 of Exhibit 1 is rejected.

Category:

Ruling on Evidence

Catchwords:

EVIDENCE – Evidence Act 2011 (ACT) s 69 – business records exception to hearsay rule – photographs sought to be tendered in personal injury proceeding without calling person who took photographs – photographs taken by police at place of and soon after motor vehicle accident – photographs taken in contemplation of or in connection with an Australian proceeding or in connection with an investigation relating to a criminal proceeding – tender of photographs rejected

Legislation Cited:

Evidence Act 2011 (ACT) ss 63, 64, 69, 142

Cases Cited:

Lewincamp v ACP Magazines Ltd [2008] ACTSC 69

Nye v New South Wales (2002) 134 A Crim R 245
Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984
S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Company of Australia Ltd (1986) 82 FLR 130
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 695
Vines v Djordjevitch (1955) 91 CLR 512
Vitali v Stachnik [2001] NSWSC 303

Walsh v Walgett Shire Council [2014] NSWSC 812

Texts Cited:

Odgers Uniform Evidence Law (11^th edition)

Parties:

Mohgamat Hendricks (Plaintiff)

Walid El-Dik (First Defendant)

Insurance Australia Limited trading as NRMA Insurance (Second Defendant)

Representation:

Counsel

Mr A Black SC, Mr A Muller and Mr D Crowe (Plaintiff)

Mr J Poulos QC and Mr B Wilson (First and Second Defendants)

Solicitors

Slater & Gordon (Plaintiff)

Sparke Helmore (First and Second Defendants)

File Number:

SC 460 of 2013

Introduction

1. The plaintiff has sought to tender photographs appearing at pages 35 to 131 of exhibit 1.  The defendants have objected on the basis that the documents are hearsay.

1. The documents are photographs which were produced from the records of the Australian Federal Police.  They include photographs which clearly were taken at about the time of the accident the subject of these proceedings as the photographs show the plaintiff being treated by ambulance officers next to the vehicle which he collided with and his bicycle lying on the ground nearby.  They also record some aspects of the investigation into the circumstances of the accident, for example, marking of the lengths of skid marks made by the first defendant’s vehicle.

Basis for the tender

1. The basis on which the plaintiff tenders the documents is that they fall within the exception to the hearsay rule in s 69 of the Evidence Act 2011 (ACT) (the Act) because they are records of the Australian Federal Police which is a business within the extended meaning of that term in the Act.

1. Senior counsel for the defendants submits that the documents are not subject to the exception in s 69 because s 69(3) prevents their admission because the representation in each photograph:

(a)was prepared or…