Jausnik v Nominal Defendant (No 3) - [2015] ACTSC 131

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jausnik v Nominal Defendant (No 3)
Citation:	[2015] ACTSC 131
Hearing Date:	14 May 2015
DecisionDate:	15 May 2015
Before:	Mossop AsJ
Decision:	See [80]
Category:	Ruling on admissibility of evidence
Catchwords:	EVIDENCE – Admissibility of documents – business records – whether prepared or obtained for the purpose of or in contemplation of or in connection with proceedings – inadmissibility of documents on other grounds
Legislation Cited:	Coroners Act 1997 (ACT) ss 4, 52 Crimes Act 1900 (ACT) s 311 Evidence Act 2011 (ACT) ss 59, 63, 69, 76, 79, 81, 82, 97, 100, 135 Court Procedures Rules 2006 (ACT) rr 1202, 1203, 1404
Cases Cited:	Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Lewincamp v ACP Magazines Limited [2008] ACTSC 69 Lithgow City Council v Jackson (2011) 244 CLR 352 Vitali v Stachnik [2001] NSWSC 303
Parties:	Nominal Defendant (Defendant) Michael Hannaford (First Third Party) State of New South Wales (Second Third Party)
Representation:	Counsel Mr PJ Deakin QC and Ms LP McFee (Nominal Defendant) Mr GM Watson SC and Mr WS Reynolds (First Third Party) Mr J Sheller (Second Third Party)
Solicitors Minter Ellison (Nominal Defendant) Moray & Agnew (First Third Party) HWL Ebsworth (Second Third Party)
File Number(s):	SC291 of 2012

Introduction

In these proceedings the defendant has taken objection to a number of documents which have been tendered by the first third party. The second third party takes no objection to the admission of the documents. There are six documents in total which are the subject of the objections.

The six documents, which I will refer to by their number in the tender bundle, are as follows:

3. A report of Dr Lavinia Hallam dated 13 June 2010;

4. A report of Ian Whittall dated 7 May 2010;

7. A report of Dr Graham George dated 5 March 2010;

8. An AFP Professional Standards Investigation Report dated 3 August 2010;

9. A New South Wales Police Force Critical Incident Investigation Report dated 7 July 2010;

10. A statement of Timothy Lawrence Davis dated 1 March 2011 annexing a printout of some Facebook pages.

I will first deal with the issues that arise in relation to documents 3, 4 and 7. Each of these documents contains expert opinion. Dr Lavinia Hallam is a forensic pathologist, Ian Whittall is an officer of the ACT Government Analytical Laboratory, Dr Graham George is a psychiatrist working for ACT Mental Health. The objections taken to these reports as I understood were:

(a) The documents were expert reports within the meaning of rule 1202 of the Court Procedures Rules 2006 (ACT) and the requirements of rule 1203 were not complied with.

(b) The opinions stated in the reports do not comply with the requirements of section 79 of the Evidence Act 2011 (ACT) as articulated in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jausnik v Nominal Defendant (No 3)

Details

AGLC: Jausnik v Nominal Defendant (No 3) [2015] ACTSC 131
Case: [2015] ACTSC 131
Decision Date: 15 May 2015

CaseChat Overview and Summary

The case before the court involved a dispute between the plaintiff, Jausnik, and a nominal defendant, identified as Nominal Defendant (No 3). The primary issue was the admissibility of certain documents in the context of proceedings related to business records. The court had to determine whether the documents were prepared or obtained for the purpose of, or in contemplation of, or in connection with the proceedings, which would render them inadmissible. This ruling was pivotal as it could affect the evidence available to the parties and, consequently, the outcome of the case.

The legal issues the court was required to decide centered on the application of evidentiary rules concerning the admissibility of documents that were potentially prepared in anticipation of litigation. The court examined whether the documents in question were created with the specific intent to be used in the proceedings or as part of a broader business process that incidentally involved litigation. The court also considered whether the documents could be admitted on other grounds despite their potential origin in connection with the litigation.

In reaching its decision, the court meticulously analysed the context in which the documents were prepared and obtained. It found that the documents were indeed created in contemplation of the proceedings, which meant they were inadmissible. The court's reasoning was based on established principles that such documents, if prepared with litigation in mind, cannot be used as evidence. The court also considered the broader implications for the fairness and integrity of the proceedings. Ultimately, the court ruled that the documents were inadmissible on the grounds that they were prepared in contemplation of litigation.

The final orders of the court reflected the outcome of the proceedings. The court ruled that the documents in question were inadmissible as evidence due to their preparation in contemplation of the litigation. This decision was based on the findings that the documents were prepared for the specific purpose of being used in the proceedings.

Orders

Orders of the court

See [80]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.