Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 2)

[2013] NSWDC 298

District Court

New South Wales

Medium Neutral Citation:	Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 2) [2013] NSWDC 298
Hearing dates:	13 November 2013
Decision date:	13 November 2013
Jurisdiction:	Civil
Before:	P Taylor SC
Decision:	I propose to admit the material as exhibit K but not as evidence against Mr Hammond or the club.
Catchwords:	EVIDENCE - record of interview - whether witness "not available" - whether "just, quick and cheap"
Legislation Cited:	Civil Procedure Act 2005, s 56 Evidence Act 1995, s 59, s 63, s 64, s 81, s 82, s 83, s 91
Category:	Procedural and other rulings
Parties:	2009/339941 Kathaleen Nicoll (plaintiff) Dean Dobeson (first defendant) Robert Hammond (second defendant) Sussex Inlet RSL Club Ltd (third defendant) 2012/281640 Kathaleen Nicoll (plaintiff) The Workers Compensation Nominal Insurer (defendant/cross-claimant) Sussex Inlet RSL Club Ltd (first cross-defendant) Dean Dobeson (second cross-defendant) Robert Hammond (third cross-defendant)
Representation:	Mr H Marshall SC with Mr G Smith (plaintiff) Mr J Wilson (The Workers Compensation Nominal Insurer) Mr R Sheldon (Sussex Inlet RSL Club Ltd) Lough & Wells (plaintiff) TurksLegal (The Workers Compensation Nominal Insurer) Lee and Lyons Lawyers (Sussex Inlet RSL Club Ltd)
File Number(s):	2009/339941 2012/281640
Publication restriction:	No

Judgment

1. Dean Dobeson, in association with Robert Hammond, is alleged to have committed an assault on the plaintiff, an employee of a security company, at the RSL club at Sussex Inlet in 2007. The plaintiff sues Mr Dobeson, Mr Hammond, the insurer (of the security company which I have been informed is no longer operating) and the club. The matter commenced as a matter in a list on circuit. Some days ago, the plaintiff concluded the oral evidence she wished to call, but indicated that she still had some documents to tender.

1. Neither Mr Dobeson nor Mr Hammond attended the hearing either to represent themselves or to give evidence. The defendants contesting the claim, namely the insurer and the club, took no objection to proceeding with their oral evidence notwithstanding that the plaintiff had not closed her case. That evidence appears to be nearing a conclusion.

1. The plaintiff now seeks to tender documentary evidence relating to the conviction of Mr Dobeson in respect of the incident.

1. The documentary material includes the record of interview of Mr Dobeson, which is apparently the most important or relevant of the bundle of documents sought to be tendered. The plaintiff has not sought to distinguish the other documents from the record of interview. No objection is taken by the insurer, but the club objects.

1. The plaintiff submits that I should admit the material under s 56 of the Civil Procedure Act 2005 and s 64 of the Evidence Act 1995. Section 56 of the Civil Procedure Act 2005 is contained in Pt 6, headed "Case management and interlocutory matters". Section 56(1) and (2) provide that:

"56 Overriding purpose

(cf SCR Part 1, rule 3)

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule."

1. As to s 56, the plaintiff submits that it would be just, quick and cheap to admit the material. I have no doubt that it would be cheap and quick, but whether it would be just is another matter. Both the plaintiff and the club assert that the evidence of Mr Dobeson is significant. In my view, that does not support the justice of allowing representations Mr Dobeson has made to be tendered without allowing a party an opportunity to challenge that material.

1. There is another important reason why s 56 does not assist the plaintiff. The obligation on the court in respect of the overriding purpose set out in s 56(1) is that set out in subs (2), namely to give effect to it when exercising any power or interpreting any provision in the Civil Procedure Act 2005 and the rules of court.

1. In general terms, this means that in relation to interlocutory or pre-trial proceedings of the court, the stated overriding purpose should be the lodestar.

1. But I do not think s 56 has anything to say in respect of the admissibility of material at trial. That matter is governed largely by the Evidence Act 1995. Section 64 of the Evidence Act 1995 provides that:

"64 Exception: civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to:

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation,

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

Note. Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection.

(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a) that person, or

(b) a person who saw, heard or otherwise perceived the representation being made.

(4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons."

1. The plaintiff previously applied for this material to be admitted under s 63 of the Act. That provision deals with civil proceedings where the maker is unavailable. During the course of that application the plaintiff accepted that Mr Dobeson was not a person who was "not available", within the proper meaning of that phrase as defined in clause 4 of Part 2 of the dictionary of the Act.

1. The plaintiff also made reference to ss 81 to 83 of the Evidence Act 1995 dealing with admissions, and s 91 dealing with convictions. By the close of submissions, the plaintiff abandoned reliance on these provisions.

1. Accordingly, the plaintiff's attention turned to s 64.

1. In accordance with s 64, the admissibility of the previous representations of Mr Dobeson contained in the record of interview depends upon whether undue expense or undue delay would result, or whether it is not reasonably practicable to call Mr Dobeson. There is no evidence on these matters.

1. Rather, the plaintiff has foreshadowed that if the application is refused, it proposes to seek an adjournment and call Mr Dobeson. It follows from that proposal that, in the absence of other evidence, I could not conclude that the calling of Mr Dobeson as a witness was not reasonably practicable.

1. In circumstances where there is nothing before me as to the expense or delay of calling Mr Dobeson, and where the calling of Mr Dobeson could not be held to be not "reasonably practical", I cannot be satisfied of the preconditions in subs (2) of s 64. It follows that I cannot find that under s 64 the hearsay rule does not apply to the representations contained in the record of interview. Accordingly, I must reject the tender under s 59 of the Act.

1. As the tender is not opposed by the insurer, and the documents appear to me to be admissible under ss 81 and 91 of the Evidence Act 1995 against Mr Dobeson, and as no submission was put to me against this course, I have admitted the documents against the insurer and Mr Dobeson as exhibit K. However, I am not persuaded that I should allow the admission of this Dobeson material against Mr Hammond and, in any event, the plaintiff does not press to have exhibit K admitted against Mr Hammond in the light of my ruling in respect of the club.

1. Therefore, I propose to admit the material as exhibit K but not as evidence against Mr Hammond or the club.

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Decision last updated: 07 March 2014