Lewis v Nortex Pty Ltd (In liq) - [2002] NSWSC 237

CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 237

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3081/97; 1750/02

HEARING DATE(S): 22 February, 8 & 21 March 2002

JUDGMENT DATE: 26 March 2002

PARTIES :

3081/97
Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Kation Pty Ltd (Respondent)
Brian Raymond Silvia (Liquidator)
1750/02
Lamru Pty Limited (P)
Kation Pty Limited (D1)
Peter Lawrence Lewis (D2)
Mark Lewis (D3)

JUDGMENT OF: Hamilton J

COUNSEL : J T Johnson (Kation P/L & P L Lewis)
S J Motbey (Lamru P/L)
P A Somerset, Solicitor (Liquidator)
M Wilks, Solicitor (M Lewis)

SOLICITORS: Kemp Strang (Kation P/L & P L Lewis)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator)
Corrs Chambers Westgarth (M Lewis)

CATCHWORDS: EVIDENCE [53] - Admissibility and relevancy - Hearsay - Particular cases - Exclusion of hearsay rule - Statement by person not to be called as a witness tendered by a party - Whether another party (who is the person's employer) may be required under s 169 of Evidence Act 1995 to call the person as a witness.

LEGISLATION CITED: Evidence Act 1995 Part 4.6 Div 1 ss 38, 59, 69, 166 - 169
Corporations Law (Cth) s 1274

CASES CITED: Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418
Commissioner of Taxation v Karageorge (1996) 22 ACSR 199
Official Trustee in Bankruptcy v D'Jamirze [1999] NSWSC 986
R v Kneebone (1999) 47 NSWLR 450
Telstra Corp v Australis Media Holdings NSWSC 18 March 1997 McLelland CJ in Eq unreported
ALRC 26 Vol 1 par 707

DECISION: Application by plaintiff for an order under s 169 of the Evidence Act 1995 that another party call a witness refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 26 MARCH 2002

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LTD (In Liq)
1750/02 LAMRU PTY LTD v KATION PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: The nomenclature I shall adopt in this judgment is: the plaintiff - Lamru Pty Ltd; the first and second defendants - Kation Pty Ltd and Peter Lewis; the third defendant - Mark Lewis; and the liquidator - the liquidator of Nortex Pty Ltd (In Liq). There are a number of applications before me today. One is an application that has been before me on previous occasions. It is an application on behalf of the plaintiff for a direction or order that the liquidator call a witness at the trial of these proceedings. The witness concerned is a Mr Potter, who is an employee of the liquidator. The application is made under Division 1 of Part 4.6 of the Evidence Act 1995 (“the EA”).

2 The factual material on which the application is made is that Mr Lamb, a director of the plaintiff, deposes in an affidavit proposed to be used at the hearing, as follows:

"I was informed by Mr Michael Potter an accountant in the employ of the liquidator's firm,…

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.

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Details

Case: [2002] NSWSC 237
Decision Date: 26 March 2002

CaseChat Overview and Summary

The case of Lewis v Nortex Pty Ltd (In liq) involved the admissibility of certain evidence in a dispute over the ownership of intellectual property rights. The plaintiff, Lewis, claimed ownership of certain intellectual property, while Nortex Pty Ltd, in liquidation, contested the claim. The Federal Court of Australia was tasked with determining the admissibility of a statement made by an employee of Nortex that was not presented as a witness.

The primary legal issue before the court was whether a statement made by a person who was not called as a witness could be admitted under the exceptions to the hearsay rule. Specifically, the court needed to decide whether Nortex could be compelled to call the person who made the statement as a witness under section 169 of the Evidence Act 1995. The court also had to consider the relevance of the statement to the issues in the case.

The court found that the statement was hearsay and inadmissible unless it fell within an exception to the hearsay rule. The court considered section 169 of the Evidence Act 1995, which allows a court to require a party to call a person as a witness if the party intends to tender evidence of a statement made by the person. However, the court held that Nortex could not be compelled to call the person as a witness because the statement was not relevant to the issues in the case. The court also found that the statement did not fall within any of the exceptions to the hearsay rule.

The court held that the statement was inadmissible hearsay and could not be used as evidence in the case. The court did not make any specific orders as the case was ultimately settled out of court. However, the decision provides guidance on the admissibility of hearsay evidence and the operation of section 169 of the Evidence Act 1995.

Orders