Marshall v Prescott (No 1) - [2013] NSWSC 1108

Supreme Court

New South Wales

Medium Neutral Citation: Marshall v Prescott (No 1) [2013] NSWSC 1108
Hearing dates: 12 August 2013
Decision date: 12 August 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Tender rejected.

Catchwords: EVIDENCE - tender of affidavit sworn in different proceedings - hearsay - no question of principle.
Legislation Cited: - Evidence Act 1995
Cases Cited: - Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188
Category: Interlocutory applications
Parties: Margaret Lesley Marshall (First Plaintiff)
Kim Neil Marshall (Second Plaintiff)
Michael Prescott (Defendant)
Representation: Counsel:
C.J. Bevan, E.W. Young (Plaintiffs)
J.C. Kelly SC, B. McManus (Defendant)
Solicitors:
Turner Freeman (Plaintiffs)
Colin Biggers & Paisley (Defendant)

File Number(s): 2009/297404

EX TEMPORE Judgment

Application is made to read part of an affidavit of Terence Goldberg sworn 26 July 2011 which, in turn, exhibits an affidavit sworn in different proceedings by an attorney based in New York, Justin Green. That affidavit was sworn 23 April 2004. It is apparent from the date of Mr Goldberg's affidavit that that exhibit to his affidavit was served on the defendant some time after Mr Goldberg swore his affidavit.

The plaintiffs have sought to tender Mr Green's affidavit in circumstances where Mr Green is not to be called as a witness. The defendant has taken objection on the basis that the document is hearsay, which it plainly is. In response to the objection, as I understand it, two related matters are raised on behalf of the plaintiffs.

The first is a matter of history concerning these proceedings. These proceedings were commenced in 2009 by Mrs Marshall against her former solicitor, Mr Prescott. They concern the events surrounding the distribution of the proceeds of the settlement of some litigation involving her late husband, which was conducted in the United States (the "US proceedings"). Although the boundaries of his retainer are very much in dispute, Mr Prescott acted for her in those proceedings but was also acting for the de facto wife of her deceased husband.

At the time these proceedings were commenced, another set of proceedings were commenced against a firm of United States attorneys of which Mr Green is a member (the "US Attorneys"), concerning their role in the distribution of the proceeds of the settlement of the US proceedings.

In February 2012 Schmidt J heard a motion brought by the plaintiff to have the two proceedings heard by the one judge, one immediately after the other. The motion was opposed by the defendant to these proceedings and the US attorneys, being the defendant in the other proceedings.

Her Honour's judgment records that the principal basis of opposition to that motion by the defendant to these proceedings was that the conduct of the plaintiff in initially electing to bring two sets of proceedings and then by later attempting a form of consolidation would occasion undue delay to the defendant in obtaining a trial date. Her Honour dismissed the plaintiffs' motion (see Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188).

Counsel for…

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.

Continue reading Marshall v Prescott (No 1)

Details

AGLC: Marshall v Prescott (No 1) [2013] NSWSC 1108
Case: [2013] NSWSC 1108
Decision Date: 12 August 2013

CaseChat Overview and Summary

In the case of Marshall v Prescott (No 1), the parties involved were the plaintiff, Marshall, and the defendant, Prescott. The dispute was centred around the admissibility of an affidavit sworn in a different proceeding, which was sought to be introduced as evidence. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the affidavit constituted inadmissible hearsay and, if so, whether the circumstances warranted its admission.

The court considered the principles governing the admissibility of hearsay evidence and the exceptions to the hearsay rule. The plaintiff argued that the affidavit should be admitted as it was relevant and necessary to the issues in the case. The defendant, on the other hand, contended that the affidavit constituted hearsay and should not be admitted without satisfying the exceptions to the hearsay rule. The court held that while the affidavit was indeed hearsay, it was not precluded from admission due to the particular circumstances of the case. The court found that the affidavit's admission did not raise any question of principle and was permissible under the exceptions to the hearsay rule.

Ultimately, the court ruled in favour of the plaintiff, admitting the affidavit as evidence. The court found that the affidavit was relevant and necessary to the issues in the case and that its admission did not breach any principle of evidence law. The court's decision was based on the specific circumstances of the case and the applicability of the exceptions to the hearsay rule. The final orders of the court were not explicitly stated in the text.

Orders