Maria Saravinovska v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 3)

[2014] NSWSC 1961

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Maria Saravinovska v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 3) [2014] NSWSC 1961

Hearing dates:

29 October 2014

Decision date:

29 October 2014

Jurisdiction:

Equity Division

Before:

Kunc J

Decision:

Evidence rejected

Catchwords:

Evidence - Admissibility - Relevance - Admission of evidence will cause undue waste of time - Evidence Act 1995 (NSW), s 135(c)

Legislation Cited:

Evidence Act 1995 (NSW)

Category:

Procedural and other rulings

Parties:

Maria Saravinovska (Plaintiff)
Krste (Chris) Saravinovski (Defendant)

Chris Saravinovski (Plaintiff/Cross-Defendant)
George Saravinovski (Defendant/Cross-Claimant)

Representation:

Counsel: G.A. Sirtes SC and A.L. Avery-Williams (Plaintiff)
E.A. Cheeseman SC and J.A. English (Defendant)
Counsel: E.A. Cheeseman SC and J.A. English (Plaintiff/Cross-Defendant)
G.A. Sirtes SC and A.L. Avery-Williams (Defendant/Cross-Claimant)

Solicitors:
Gells Lawyers (Plaintiff)
F.C. Bryant Thomas & Co. (Defendant)

Solicitors: Rudra Legal Corporation Ltd (Plaintiff/Cross-Defendant)
Gells Lawyers (Defendant/Cross-Claimant)

File Number(s):

2011/361081 and 2012/39748

Publication restriction:

No

EX TEMPORE Judgment

1. Without disrespect, I shall again refer to the parties by their given names.

1. In the affidavit of Chris sworn 4 June 2013 objection was taken to evidence from Chris in these terms:

"I was assaulted by George on four or five occasions over the whole period of time that he and the plaintiff lived with me. On one occasion I heard an argument between the plaintiff, George and my son Bill Saravinovski, about Rada in the kitchen."

1. In my indicative rulings on evidence I indicated that I proposed to reject that passage. I have now heard submissions from Ms Cheeseman SC on behalf of Chris against the indicative ruling.

1. Ms Cheeseman SC submitted that the passage was relevant both in relation to the question which is very much at the forefront of at least part of these proceedings, namely whether or not care was provided by George and, to a lesser extent, Maria to Chris and his late wife, Rada. It was also suggested that this was relevant as a matter of general context to the relationship between George and his father. This was said to relate particularly to the circumstances in which George's estoppel claim should be understood.

1. Mr Sirtes SC for George and Maria submitted that this evidence was not relevant to any pleaded issue. Furthermore, he submitted that it should be excluded under s 135(c) of the Evidence Act 1995 (NSW) (the "Act").

1. The Court is not satisfied that the evidence is relevant to any pleaded issue. There are two reasons for that conclusion. First, as a matter of pleading, the bare denial of the allegation of care being provided by George is insufficient to make evidence of the alleged assaults relevant. If it was intended to mount a positive case by that denial, then it would have been necessary to plead the matters that would be advanced by way of a positive case. As it stands, the pleading of a denial, if it was intended to mount a positive case rather than simply putting George to proof, suffers from the vice of being a negative pregnant. Matters such as assaults, given their very serious nature, should have been notified in the pleadings. It is not sufficient that there was evidence in affidavits exchanged before the proceedings going to that question. A party is perfectly entitled to take the view that evidence in an affidavit will be excluded because it is irrelevant. The fact that it has been included in the affidavit does not make it relevant or provide a substitute for a proper pleading which puts the opposing party "on notice".

1. The second reason the evidence is irrelevant is because it it is not rationally probative of whether or not care was provided. The two issues seem to me to be entirely unrelated as a matter of legal proof. Furthermore, as an ordinary incident of human conduct, the Court is aware that, sadly, it is possible for people to have a caring relationship over many, many years, interspersed with regrettable incidents of physical violence. I do not regard evidence of one or more assaults over more than 20 years as having any rationally probative effect, even to the slightest degree of weight, as to the question of whether or not care was provided.

1. In relation to Mr Sirtes SC's further objection the Court is also satisfied that the evidence should be excluded under s 135 of the Act because, if admitted, it will cause or result in undue waste of time. These proceedings already involve an investigation of a relationship between these parties over more than 20 years in circumstances where credit is squarely in issue. The Court will have to resolve many disputed questions of fact over the course of that relationship. To admit this evidence will necessitate what may be at least four or five mini-hearings as to all the circumstances attending the alleged assaults. In the context of a case originally listed for three weeks, then listed for four weeks and now listed for at least six, with further written submissions before it comes to its conclusion, the Court is satisfied that to admit this evidence will cause or result in undue waste of time within the terms of s 135(c) of the Act. That conclusion provides a further basis on which the evidence is excluded.

Amendments

10 April 2015 - Medium neutral citaiton [2015] NSWSC 1515 removed and unique MNC assigned

10 March 2015 - Solicitor for Defendant in proceedings 2011/361081 changed, solicitor for Plaintiff/Cross-Defendant in proceedings 2012/39748 changed

Decision last updated: 10 April 2015