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…

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.

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Details

Case: [2008] NSWSC 955
Decision Date: 21 July 2008

CaseChat Overview and Summary

The case of Quintano v B W Rose Pty Ltd involved a dispute between the plaintiff, Quintano, and the defendant, B W Rose Pty Ltd. The plaintiff sought damages for personal injury sustained in an accident at the defendant's construction site. The defendant sought to exclude an affidavit submitted by the plaintiff, arguing that it contained hearsay evidence and that the deponent was not available for cross-examination, making the evidence unfairly prejudicial. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the affidavit, which contained hearsay evidence, should be excluded under section 135 of the Evidence Act 1995. This section allows for the exclusion of evidence if it is unfairly prejudicial to a party. The court had to consider whether the hearsay evidence in the affidavit was so prejudicial that it should not be admitted, even in the absence of the deponent for cross-examination. The court also needed to determine whether the potential prejudice outweighed any probative value the evidence might have.

The court held that the hearsay evidence in the affidavit was indeed unfairly prejudicial. The deponent's unavailability for cross-examination significantly undermined the reliability and weight of the evidence. The court found that the prejudice to the defendant, in terms of the potential impact on their ability to fairly defend the case, substantially outweighed any probative value of the hearsay. Consequently, the court excluded the affidavit as evidence. The court ruled that the exclusion of the hearsay evidence was necessary to maintain the fairness of the trial process.

The final orders of the court were that the affidavit submitted by the plaintiff, containing hearsay evidence, was to be excluded from the trial. This decision was based on the application of section 135 of the Evidence Act 1995, which allows for the exclusion of unfairly prejudicial evidence. The trial proceeded without the contested affidavit, with the court ensuring that the defendant's rights to a fair trial were upheld.

Orders