PPK Willoughby Pty Ltd v Baird
[2019] NSWSC 705
•17 June 2019
Supreme Court
New South Wales
Medium Neutral Citation: PPK Willoughby Pty Ltd v Baird [2019] NSWSC 705 Hearing dates: 11 June 2019 Date of orders: 17 June 2019 Decision date: 17 June 2019 Jurisdiction: Common Law Before: Harrison J Decision: Evidence admitted
Catchwords: EVIDENCE – affidavit evidence – where plaintiff sues defendants for negligence and misleading and deceptive conduct – where evidence previously excluded from plaintiff’s claim for negligence – whether evidence should be excluded from plaintiff’s claim for misleading and deceptive conduct – whether s 5D(3) of the Civil Liability Act extends to evidence in a claim for misleading and deceptive conduct Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Cases Cited: Burns v Grevler [2010] NSWSC 1219
Polon v Dorian [2014] NSWSC 571
PPK Willoughby Pty Ltd v Baird [2019] NSWSC 704
Reavill Farm Pty Ltd v Burrell Solicitors Pty Ltd [2017] NSWCA 156
Vieira v O’Shea [2012] NSWCA 21Category: Procedural and other rulings Parties: PPK Willoughby Pty Ltd (Plaintiff)
David Baird and others (2nd to 106th Defendants)Representation: Counsel:
Solicitors:
M Green SC with A D Crossland and M Cobb-Clark (Plaintiff)
T Faulkner SC with J Williams (2nd to 106th Defendants)
Coleman Greig Lawyers (Plaintiff)
Gilchrist Connell (2nd to 106th Defendants)
File Number(s): 2012/163736 Publication restriction: Nil
Judgment
-
HIS HONOUR: On 12 June 2019 I published reasons for judgment dealing with the question of whether s 5D(3) of the Civil Liability Act 2002 precluded certain evidence given by a non-party: see PPK Willoughby Pty Ltd v Baird [2019] NSWSC 704
-
Section 5D(3) of the Civil Liability Act provides as follows:
“5D(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.”
-
That provision deals with causes of action alleging that damage has been caused or sustained by reason of someone’s negligence. That is apparent from at least s 5D(1) which provides as follows:
“(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”
-
In the present proceedings the plaintiff sues the defendants alleging not only that it suffered harm as the result of the defendants’ negligence but also by reason of the defendants’ misleading and deceptive conduct. It goes without saying, and it is not in dispute, that a cause of action alleging misleading and deceptive conduct is separate and distinct from a cause of action alleging that the harm sustained was the result of negligence or breach of duty, even if the different allegations arise out of the same or similar facts.
-
Statements of the type made by Mr Webb in paragraph 50 of his affidavit have also been made by other witnesses in these proceedings. The defendants object to all of this evidence upon the basis that s 5D(3) extends to such evidence even in the context of a claim for damages said to have been caused by the defendants’ misleading and deceptive conduct.
-
This issue has arisen in several cases to which I was referred: see, for example, Reavill Farm Pty Ltd v Burrell Solicitors Pty Ltd [2017] NSWCA 156 at [179]; Burns v Grevler [2010] NSWSC 1219; Polon v Dorian [2014] NSWSC 571 at [536] – [537]; Vieira v O’Shea [2012] NSWCA 21. The burden of these decisions, although not the unanimous view, is that s 5D(3) is limited to the exclusion of the relevant evidence in cases of negligence and not otherwise.
-
It is tempting to attempt to find an analysis that leads to the treatment of such evidence in a consistent and uniform fashion within the context of any particular case. That is for the obvious and practical reason that it simplifies the approach to be taken to such evidence and eliminates the prospect of an apparent inconsistency in the way that it is to be treated depending on the legal framework within which it is tendered. An apparent absurdity might arise if a witness is able to say that he or she would have acted in a particular way if the defendants had not acted in a misleading and deceptive fashion on the one hand but he or she is not able to say so with respect to the very same conduct founding a claim in negligence on the other hand. However, that practical problem does not mean that the unambiguous words of the provision are to be given a meaning that they do not have in order to avoid that possible difficulty.
-
In my view, s 5D(3) of the Act does not operate to exclude statements of the kind made by Mr Webb in paragraph 50 of his affidavit, tendered in support of the claim based upon misleading and deceptive conduct, or other evidence by witnesses given to similar effect.
*************
Decision last updated: 17 June 2019
5
1