Quintano v B W Rose Pty Ltd

[2008] NSWSC 955

CITATION:	Quintano v B W Rose Pty Ltd [2008] NSWSC 955
HEARING DATE(S):	21 July 08
JURISDICTION:	Common Law Division Professional Negligence List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	21 July 2008
DECISION:	Affidavit admitted as PX02.
CATCHWORDS:	EVIDENCE – hearsay – where deponent of affidavit not available for cross examination – whether admission of affidavit should be excluded as being unfairly prejudicial pursuant to Evidence Act 1995, s 135.
LEGISLATION CITED:	(NSW) Evidence Act 1995, ss 63, 67, 135
CATEGORY:	Procedural and other rulings
CASES CITED:	Commonwealth v McLean (1996) 41 NSWLR 389 Ordukaya v Hicks [2000] NSWCA 180 Papakosmas v R (1999) 196 CLR 297 R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 R v Souteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 Young v Coupe [2004] NSWSC 546
PARTIES:	Luke Quintano (plaintiff) BW Rose Pty Ltd (first defendant) AWS Security Services Pty Ltd (second defendant)
FILE NUMBER(S):	SC 20130/04
COUNSEL:	Mr H J Marshall SC w Mr D J Hooke (plaintiff) Mr S G Campbell SC w Mr A B Parker (second defendant)
SOLICITORS:	Beilby Poulden Costello (plaintiff) Curwood & Partners (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

BRERETON J

Monday, 21 July 2008

20130/04 Luke Quintano v B W Rose Pty Ltd & 2 Ors

JUDGMENT (ex tempore; re affidavit of Mr Rose; see page 109 of transcript)

1 HIS HONOUR: The former principal of the first defendant B W Rose Pty Ltd, namely the late Mr Bernie Rose, swore an affidavit in these proceedings on 19 December 2007, in which he deposed to conversations that he claimed to have had with Mr Wilson, the principal of the second defendant AWS Security Services Pty Ltd, which conversations are said to have constituted the oral contract between the first and second defendants, the terms of which are likely to be important in determining the issue of liability in these proceedings. Mr Marshall SC, for the plaintiffs, tenders the affidavit pursuant to (NSW) Evidence Act 1995, s 63.

2 Mr Rose has since died and, as is common ground for the purposes of s 63, unavailable to give evidence in these proceedings. By s 63(2), the hearsay rule does not apply to a document so far as it contains a previous representation where the person who made that representation is not available to give evidence about an asserted fact. Section 67 provides that s 63(2) does not apply unless reasonable notice in writing has been given of, in this case, the plaintiff’s intention to adduce the evidence. Such notice was given, if belatedly, by the letter dated 20 May 2008, expressly referring to s 67 of the Evidence Act, as well as by service of the affidavit itself; Mr Campbell SC, for the second defendant, takes no point on that basis.

3 Accordingly, the starting point is that the evidence is admissible pursuant to s 63(2), and Mr Campbell's submission was that it should be excluded in the exercise of the discretion conferred by s 135, presumably as being unfairly prejudicial (as the other two sub-paragraphs of s 135 could not apply).

4 Mr Campbell advanced, in order to establish such prejudice, the circumstances, first, that the affidavit was made five years after the event and not when the events were fresh in the memory of the deponent; and, secondly, that it was made in contemplation and for the purposes of litigation when Mr Rose's interests were in considerable jeopardy, his insurer having become insolvent. He submits that there would be unfairness in the circumstance that the deponent would not be available for cross-examination, and his version not able to be tested. On the other hand, he accepts that there has been an opportunity to obtain instructions on Mr Rose's version from Mr Wilson, and Mr Wilson has himself provided a statement in response to Mr Rose's version and presumably can be called to give evidence.

5 Although unfairness may arise if the author of the document is unavailable for cross-examination [Young v Coupe [2004] NSWSC 546], a number of cases indicate that, since provisions such as s 63 expressly permit hearsay evidence when the conditions to which they are subject are satisfied, it would be inconsistent with the intended effect of those provisions to then exclude evidence on the basis that cross-examination was not possible [Commonwealth v McLean (1996) 41 NSWLR 389, 400-402; Papakosmas v R (1999) 196 CLR 297; Ordukaya v Hicks [2000] NSWCA 180, [6], [35] – [40]; R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, [164]; R v Souteski [2002] NSWCCA 509; (2002) 56 NSWLR 182, [126] – [127]].

6 The matters to which Mr Campbell has pointed are relevant to be taken into account when weighing the evidence of Mr Rose against that of Mr Wilson, and may be used to detract from the force of Mr Rose's evidence, but I do not think the admission of Mr Rose's evidence would constitute such unfair prejudice as to justify the exercise of the exclusionary discretion. Indeed, even before the Evidence Act, affidavit evidence would be admitted in proceedings notwithstanding the unavailability of the deponent for cross-examination if the deponent was deceased.

7 I will therefore admit the affidavit as PX02.

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