Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd
[2002] NSWSC 319
•17 April 2002
CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 319 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 3081/97; 1750/02 HEARING DATE(S): 16 April 2002 JUDGMENT DATE: 17 April 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 & Nortex P/L)
No appearance (M Lewis)SOLICITORS: Kemp Strang (P L Lewis & Kation P/L)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator & Nortex P/L)
Corrs Chambers Westgarth (M Lewis)CATCHWORDS: EVIDENCE [48] - Admissibility and relevance - Hearsay - In general - Relevant principles - Civil case - Previous representations by witness including alleged admissions by party - Witness subsequently denies or does not recall previous representations. LEGISLATION CITED: Evidence Act 1995 ss 59(1), 62(1), 81 & 82 CASES CITED: Edwards v The Queen (1993) 178 CLR 193
Dearman v Dearman (1908) 7 CLR 594
Lee v The Queen (1998) 195 CLR 594DECISION: Hearsay evidence ruled inadmissible.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
WEDNESDAY, 17 APRIL 2002
3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LTD (In Liq)
1750/02 LAMRU PTY LTD v KATION PTY LTD & ORS
JUDGMENT ON ADMISSIBILITY OF EVIDENCE
1 HIS HONOUR: This judgment deals with objections taken to two portions of affidavits of Mr R W Lamb, the controller of the plaintiff. The first portion is in his affidavit sworn 19 June 2000, where Mr Lamb deposed:
- "15 I was informed by Mr Michael Potter, an accountant in the employ of the liquidator's firm, in or around November last year, that when he asked Mr Lewis to give his views to him on Lamru's claim in respect of the missing stock that Mr Lewis said words to the effect 'Lamb took the stock'. Mr Potter confirmed this statement in the presence of myself, Mr Silvia, Mr Frost and others at a meeting on 21 January 2000."
The second portion objected to is in an affidavit of Mr Lamb sworn 3 December 2001 where Mr Lamb stated:
- "2 ... I was at the meeting on 21 January 2000 where were present Mr Silvia, Mr Potter (one of Mr Silvia's managers), Mr Somerset and Mr Motbey. ... at this meeting Mr Potter confirmed to all present that Mr Lewis had said to him that it was me, and not him (Mr Lewis) who had misappropriated the missing stock. It is my recollection that Mr Potter, when asked to detail what exactly it was that Mr Lewis had said, said 'I'll have to check my notes'."
2 The Evidence Act 1995 (“the EA”) provides by s 59(1) that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation (“the hearsay rule”). "Representation" is defined in the Dictionary contained in the EA as including an express or implied representation and a representation to be inferred from conduct. Section 62(1) provides that a reference in the Division of the EA relating to hearsay is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. There are various exceptions provided for by the EA to the general rule against the admission of hearsay contained in s 59(1). Amongst those is the provision of s 82 that s 81 does not prevent the application of the hearsay rule to evidence of an admission unless it is given orally by a person who saw, heard or otherwise perceived the admission being made.
3 In deciding the admissibility of hearsay material under the regime created by the EA the High Court has, in Lee v The Queen (1998) 195 CLR 594, emphasised the importance of establishing the purpose for which the evidence is tendered and the intention of the person making a previous representation as to what that person was asserting by the representation.
4 Mr Motbey, of counsel for the plaintiff, challenged as to the purpose for which the evidence was tendered, asserted that in part the evidence was tendered as a direct admission made by Mr Peter Lewis, who is a party to the proceedings. He draws attention to the fact that the assertion "Lamb took the stock" contains an admission that stock was missing. This appears to me to be correct. However, Mr Motbey concedes that, tendered to prove that admission, the evidence falls foul of Lee's case since, as was the situation with Mr Calin in that case, it cannot be said on the evidence that Mr Potter was intending to assert the truth of what he said that Peter Lewis said to him.
5 Mr Motbey, however, puts the admissibility of the passages on a different basis, that they are tendered as part of his establishing that Peter Lewis told a lie concerning the stock. There are central issues in a substantial claim in these proceedings as to whether stock was taken and who took that stock. Mr Motbey says that a lie on that subject matter, namely, that the stock was taken by Mr Lamb, who firmly denies taking it, can be used against Mr Lewis in the proceedings. He draws attention to the use of evidence of lies by accused persons in criminal proceedings. It is clear that a similar use of lies is available in appropriate cases in civil proceedings: see Dearman v Dearman (1908) 7 CLR 594. He says that proving that Mr Lewis made the statement concerned, combined with other evidence that is being or will be led that the statement is untrue, will establish the telling of a lie that can be used by the plaintiff.
6 In the criminal cases the lie may be used in various ways: as corroboration of other evidence; to impeach credit; but also as an admission of guilt: see, for instance, Edwards v The Queen (1993) 178 CLR 193 at 199 per Brennan J. It seems to me that that is the way in which the plaintiff seeks to use the lie and the purpose for which the plaintiff tenders the evidence here. In essence, as is made plain by his Honour at that place, this use of the lie amounts to its use as conduct amounting to an admission. The pattern of the EA is that a representation in the Division of the EA relating to hearsay evidence includes a representation by conduct. Equally, the evidence which by s 82 is prevented from going through the gateway of s 81 is evidence which is not given orally by a person who saw, heard or otherwise perceived the admission being made. An admission is defined in the Dictionary as meaning a previous representation made by a party adverse to that person's interests in the outcome of the proceeding. It thus seems to me that evidence of the conduct constituting an admission is caught and dealt with by ss 81 and 82 of the EA and, even where it is evidence of conduct, must comply with s 82 of the EA to be admissible.
7 For that reason, the evidence which I am ruling on is inadmissible by reason of the hearsay rule on that second basis also.
8 That disposes of the arguments which have been put to me in support of the evidence. In those circumstances I am of the view that the objection taken to the evidence by Mr Rares, of Senior Counsel on behalf of the first and second defendants, and joined in by Mr Ventry Gray, of counsel on behalf of the liquidator, must be upheld. As a result of these reasons my formal ruling is as follows. In the affidavit of R W Lamb sworn 19 June 2000, in the second last sentence I reject the words "that was not accounted for". I admit the balance of the second last sentence and the whole of the last sentence of the paragraph. I reject the balance of the paragraph. In the affidavit of R W Lamb sworn 3 December 2001, I reject the whole of paragraph 2.
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