In Re Qintex Ltd

[1990] TASSC 117

Serial No B40/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            In re Qintex Ltd [1990] TASSC117; B40/1990

PARTIES:  IN RE QINTEX LTD

FILE NO/S:  CWU 81/1990
DELIVERED ON:  19 July 1990
JUDGMENT OF:  Underwood J

Judgment Number:  B40/1990
Number of paragraphs:  10

Serial No B40/1990
List "B"
File No CWU 81/1990

IN RE QINTEX

REASONS FOR JUDGMENT  UNDERWOOD J

(Given during course of hearing)  19 July 1990

1. The issue of fact which arises on this interlocutory application is whether the respondent company to a creditor's petition for an order that the company be wound up, has instructed a practitioner of this Court to appear on its behalf on the hearing of the petition and related applications. In stating the issue of fact I abstain from any observation with respect to the applicant's entitlement to the order sought by the application. That will be a matter for argument once all the evidence is adduced. At this stage I am merely required to rule upon the admissibility of certain evidence given by a solicitor, Mr Carter of the firm of Page Seager, and received de bene esse.

1. It appears to be common ground that counsel, Mr Colin Brown, is instructed to appear by Mr Carter who has been instructed to engage Mr Brown by a Brisbane firm of solicitors. I have already received evidence that, since 28 December 1989, before the petition was filed, there have been only two directors of the respondent company. It is an admitted fact that the company is a public company and thus, it is submitted, that by virtue of the provisions of the Companies Code, s219(1), the respondent company is unable to instruct any practitioner to appear on its behalf on the winding up proceedings.

1. Distilled to its essence, Mr Carter's evidence is that he was instructed to act for the respondent by one Jane MacDonnell, a solicitor of the Brisbane firm, Henderson, Trout. He said that Jane MacDonnell told him that she was instructed to act for the respondent company and that those instructions were given her by a Mr Skase, a Mr Putland and some other persons whose names Mr Carter can not now recollect. Other evidence put before me tends to prove that a Mr Skase is one of the two remaining directors and a Mr Putland is one of the secretaries of the respondent company.

1. Mr Carter also gave evidence that he believes that what he was told was true and that he bases his belief in part, on an affidavit he has seen and which purports to have been sworn by Mr Skase. Clearly, evidence of what passed between Messrs Skase and Putland and Jane MacDonnell is relevant. It is probative of the fact in issue. Equally clearly, evidence from Mr Carter of this matter is hearsay.

1. Order 41, r1(1) provides that upon any summons "evidence may be given by affidavit". This rule is applicable to these proceedings by virtue of the Rules of Court, Part VI, r2. Order 32, r2(1) prescribes the circumstances in which a summons for directions shall be taken out. Such a summons is now known as an application by virtue of the Civil Process Rules, O4, r1. It would appear that this application is an interlocutory application within the meaning of those rules and consequently, in accordance with O32, r6, no affidavit shall be used on the hearing of the interlocutory application except by special order. No such order was sought and no affidavit was read on behalf of the respondent company. Order 41, r1 (applicable to these proceedings by virtue of Civil Process Rule O5, r2) provides that, on the hearing of a summons, evidence may be received by way of affidavit and arguably, by affidavit alone. However, I am satisfied that notwithstanding the existence of O41, r1, the Court has an inherent power to regulate its own procedure and, for present purposes, to admit oral evidence if it thinks it appropriate to do so, on the hearing of an interlocutory application. As to this see The Inherent Jurisdiction of the Court I H Jacob, (1970) 23 Current Legal Problems 23, especially at pp50, 51 and the authorities referred to in that article; Litigation Evidence and Procedure, Arronson, Hunter and Weinberg at p988.

1. In the present proceedings it was appropriate to receive oral evidence from Mr Carter as neither counsel raised any objection to this course being taken. Therefore, the admissibility of that evidence falls to be determined on the basis that there is no objection to the form in which it was given.

1. Apart from statutory provisions, the law of evidence is the common law and thus binding on this Court. It was submitted that, because of the provisions of O40, r3(1) which permit, subject to the conditions there specified, affidavits on the hearing of a summons to contain hearsay, I should admit oral hearsay evidence on the same basis. No authority was cited and I have been unable to find any to support this submission. Rule 3(1) is confined to the contents of affidavits, prior notice of which will, by virtue of O41, have been given to the opposing party.

1. There are illustrations of circumstances in which a practice has been adopted of relaxing the applicability of the rules of evidence to certain proceedings. For example, in criminal cases see R v Christie [1914] AC 545 at p564 and in proceedings relating to the welfare and custody of infants, In re K [1965] AC 201 at pp242, 243 and Rossage v Rossage & Ors [1960] 1 WLR 249 at p257. There may be occasions on the hearing of an interlocutory application where it is appropriate to require a less strict adherence to the rules of evidence but even if this is so I am satisfied that this is not an appropriate case for doing so. See Savings and Investment Bank Ltd v Gasco Investments (Netherlands) B V & Ors [1984] 1 All ER 296.

1. The critical fact sought to be established is whether the respondent company gave instructions to Jane MacDonnell and not whether Jane MacDonnell gave instructions to Mr Carter. To permit that fact to be established by Mr Carter's evidence that Jane MacDonnell told him that such fact had occurred, would constitute a substantial breach of the rule of evidence which forbids the Court receiving hearsay evidence. The oral evidence of Mr Carter that he believes that what he was told was true is inadmissible as it is irrelevant. Truth is an issue for the tribunal of fact to determine. As the evidence received de bene esse is in part hearsay and in part irrelevant it is inadmissible. In so far as there is a discretion to relax the applicability of the laws of evidence on the hearing of an interlocutory application, it is not appropriate that I do so for the evidence to which objection has been taken goes to the very heart of the factual issue requiring determination.

1. Accordingly, I rule that the evidence of Mr Carter received de bene esse is inadmissible.