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 that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

2 Section 32 appears to be directed to a situation where oral evidence is being given in court, and a witness is invited during that oral evidence to use a document to revive memory. It does not directly appear to relate to evidence given by affidavit. In fact, the Evidence Act as a whole does not in terms deal with giving evidence by affidavit or witness statement. In my opinion, the Evidence Act does not exclude evidence being given by affidavit or witness statement. This is a long-standing and indeed increasing practice of this Court, especially in the Equity Division. I think ss.9, 11 and 52 of the Evidence Act make it clear that the Evidence Act does not preclude the giving of evidence by affidavit or witness statement. However, I think the Evidence Act does apply to evidence given by affidavit or witness statement, so far as its terms are applicable to that kind of evidence. Certain provisions of the Act would not apply because they are apt only to evidence given orally in court, for example, s.37 relating to leading questions. 3 In my opinion, s.32 does not preclude preparation being made for the giving of oral evidence by way of a witness being referred, during that preparation, to all relevant contemporary documents, not limited to the documents made by the witness. I would understand it to be the normal practice for affidavits and witness statements to be prepared in a process in which the witness is referred to and prompted by all available documents. I do not understand there to be any rule of law or professional ethics to the contrary. As I have said, s.32 does not appear to deal in any way with that process, because it only applies to what can happen in the course of a witness actually giving evidence. 4 Section 34 of the Evidence Act does appear to apply to a witness being aided by documents in the preparation for evidence. It is in the following terms:

34(1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.
(2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.

5 As I understand it, s.34 reflects a general law rule about a witness refreshing memory before giving oral evidence from statements previously made by the witness. However, that section is not in its terms limited to that situation, and would in its terms appear to apply to any document used by a witness before giving evidence to refresh that witness's memory. That seems to be the view taken by Hamilton J in Lowe v Lang (2000) NSWSC 309. I should say, however, that insofar as that decision may seem to suggest that s.34 of itself may displace legal professional privilege, otherwise than in relation to previous statements made by the witness, I would not at this stage wish to be taken as adopting that view. 6 In this case, it appears that the witness was originally unable to recall any advice in relation to the relevant documents. It appears that, on being referred to the solicitor's file note, her recollection was prompted to the extent set out in the affidavit. Had the evidence been given orally, rather than on affidavit, the witness could have been referred to the file note during preparation for giving evidence; and then, when giving oral evidence, the witness could have been asked for her recollection about the matter, that already having been prompted to some extent by seeing the file note. If, in response to that question, the witness did not exhaust every topic referred to in the file note, it would have been open for the advocate to ask the witness specifically whether anything was said about specified topics in the file note, which topics could have been put to the witness. As I understand it, Mr Gleeson submits that that is how this evidence should now be given, with the affidavit being rejected. 7 In my opinion, what the witness can say about this matter does appear reasonably clearly and fairly from her affidavits. The affidavits themselves seem to disclose reasonably clearly and fairly the nature of her recollection, in a reasonably straightforward way. The affidavits have the difficulties of all affidavit evidence-in-chief, that the Court cannot really know how much of the evidence has been the result of the witness being led and/or has not been put in the witness's own words, but these affidavits are no worse in that respect than affidavits in general. Those are matters that I would, in any event, take into account in deciding the weight to be given to the evidence. 8 In matters of this nature, where there is or could be a serious dispute about the precise terms of a conversation, it is very often a preferable course to direct that all evidence on such a conversation be given orally at the trial, and not by affidavit. However, I think that is a direction that should be sought fairly early in the proceedings, and it is a direction that has not been made in this case. Of course these proceedings have come on quickly, and Mr Gleeson's client was not originally involved in these proceedings, so that it can be said there has been little opportunity for Mr Gleeson's client to apply for such a direction. However, in my opinion it is really too late now to consider such a direction. 9 For those reasons, it is appropriate to allow the evidence to be given in the form in the affidavit, and I allow it.

*********

Last Modified: 11/13/2000