Lindsay-Owen v Lake - [2000] NSWSC 1046

CITATION: LINDSAY-OWEN V. LAKE & ORS. [2000] NSWSC 1046

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1913/00

HEARING DATE(S): 9 November 2000

JUDGMENT DATE: 9 November 2000

PARTIES :

Gregory Hamilton Willoughby Lindsay-Owen - plaintiff
Tracey John Lake - 1st defendant
Alyson Rosemary Lake - 2nd defendant
Stephen Thomas Frere Noss - 3rd defendant

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. V. Gray for plaintiff
Mr. G. Burton for 1st & 2nd defendants
Mr. J. Gleeson SC/Mr. A. McInerney for 3rd defendant

SOLICITORS: P.A. Somerset & Co. for plaintiff
Abbott Tout for 1st and 2nd defendants
Phillips Fox for 3rd defendant

CATCHWORDS: EVIDENCE - Affidavit - Applicability of Evidence Act - Evidence about advice from solicitor given by annexing solicitor's file note and commenting on it - Whether admissible.

LEGISLATION CITED: Evidence Act 1995 ss.9, 11, 32, 34, 52

CASES CITED: Lowe v. Lang (2000) NSWSC 309

DECISION: See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORAM: HODGSON, CJ in Eq.
Thursday 9th November 2000
NO. 1913 OF 2000
LINDSAY-OWEN V. LAKE & ORS.
JUDGMENT(Objection to Mrs Lake's affidavit 3 August 2000, see page 49 of transcript)
1 HIS HONOUR: Mr Gleeson has taken objection to the whole of Mrs Lake's affidavit sworn 3 August 2000, on the basis that it is sworn with reference to a file note made by the solicitor Mr Noss, and consists essentially of her comments about matters raised in that file note. Mr Gleeson pointed out that in previous evidence, Mrs Lake had said she had no recollection of receiving any advice in relation to the relevant transactions. This further affidavit indicates that apparently she now has some recollection on that topic, but it indicates this only with reference to this file note of Mr Noss. Mr Gleeson formulated his objection by referring to s.32 of the Evidence Act, which is as follows:

32(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:
(a) whether the witness will be able to recall the fact or opinion adequately without using the document, and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to…

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: [2000] NSWSC 1046
Decision Date: 9 November 2000

CaseChat Overview and Summary

In the case of Lindsay-Owen v Lake, the matter before the court was a dispute between the plaintiff, Lindsay-Owen, and the defendant, Lake. The nature of the dispute was centred around the admissibility of certain evidence in the plaintiff's affidavit, specifically a file note from the plaintiff's solicitor, which was annexed to the affidavit and commented upon. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide centred on the applicability of the Evidence Act to the situation at hand. The key question was whether the annexing of the solicitor's file note and the commenting on it in the plaintiff's affidavit constituted inadmissible hearsay, and if so, whether any exceptions under the Evidence Act could apply to allow for its admission.

The court examined the provisions of the Evidence Act, particularly sections 60 and 61, which deal with the hearsay rule and exceptions. The court found that the annexing of the solicitor's file note and the commenting on it in the affidavit did indeed constitute hearsay. However, the court held that an exception under section 61(2) of the Evidence Act applied, as the evidence was not being led for the purpose of proving the truth of the matters stated in the note, but rather to show the state of mind of the solicitor or the client at the time the note was made. The court concluded that the evidence was admissible as it was relevant to the issues in the case.

The court's decision was that the evidence in question was admissible under the Evidence Act. No further orders were made as the case proceeded on the basis that the evidence was properly admitted.

Orders