Quintano v BW Rose Pty Ltd - [2008] NSWSC 1012

CITATION: Quintano v B W Rose Pty Ltd [2008] NSWSC 1012

HEARING DATE(S): 5 August 2008

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 5 August 2008

DECISION: (NSW) Evidence Act 1995, s 63(2) to apply to witness’s statement in exhibit VD50. Exhibit VD51 admitted as DX51.

CATCHWORDS: EVIDENCE – HEARSAY – witness statement tendered as evidence where witness unavailable for cross-examination – (NSW) Evidence Act 1995 s 63 – reasonable notice of tender – where notice not given – whether tender of evidence in absence of notice unfairly prejudicial to plaintiff – whether plaintiff should have been given opportunity to locate witness – where statement is a statement to police already known to plaintiff from earlier criminal proceedings - - EVIDENCE – HEARSAY – whether witness is “not available” pursuant to (NSW) Evidence Act 1995 – whether second defendant had taken “all reasonable steps” – where second defendant retained process server to serve subpoena on witness at last known address and undertake certain database searches – whether second defendant should have made enquiries with the Department of Immigration, the NSW Police and the Australian Electoral commission – where private investigator also retained - - EVIDENCE – HEARSAY – discretion to exclude witness statement – where statement made contemporaneously with event in issue – where statement made to the NSW Police with knowledge that it could be tendered as evidence and penalties could apply for false statements – where statement accords with already admitted evidence – where statement could have been contradicted by adducing evidence from other witnesses.

LEGISLATION CITED: (NSW) Evidence Act 1995, ss 63, 67
(NSW) Evidence Regulation 2005, reg 4
Uniform Civil Procedure Rules, r 31.5

CATEGORY: Procedural and other rulings

CASES CITED: AJW v The State of New South Wales [2003] NSWSC 803
Kayes & Kayes [1999] FamCA 357; (1999) 24 Fam LR 512; (1999) FLC 92-846
Maddock v Maddock [2005] FamCA 868
Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273

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

Tuesday 5 August 2008

20130/04 Quintano v B W Rose Pty Ltd
JUDGMENT (ex tempore – on admissibility of statement of Sione Siasau)

1 HIS HONOUR: The second defendant AWS Security Pty Ltd tenders a statement made to police on 15 December 2002 by Sione Siasau, a security guard then employed by AWS who was providing security services at Skelseys on the night of 14/15 December 2002. The tender is made pursuant to (NSW) Evidence Act 1995, s 63, it being contended that Mr Siasau is relevantly…

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 1012
Decision Date: 5 August 2008

CaseChat Overview and Summary

In the case of Quintano v BW Rose Pty Ltd, the plaintiff sought to tender a witness statement as evidence in a dispute concerning alleged personal injury sustained during a fall at a building site. The matter was before the Supreme Court of New South Wales. The central issue was whether the plaintiff's opportunity to cross-examine the witness was unfairly prejudiced by the absence of the witness, and whether the second defendant had taken all reasonable steps to locate the witness under section 63 of the Evidence Act 1995 (NSW).

The court examined whether the second defendant had fulfilled their obligation to locate the witness by retaining a process server and a private investigator, and whether additional steps, such as enquiries with the Department of Immigration, the NSW Police, and the Australian Electoral Commission, were necessary. The court also considered whether the statement could be admitted under the hearsay exception despite the witness's unavailability and the lack of notice to the plaintiff. Additionally, the court scrutinised the discretionary factors in deciding whether to exclude the evidence, such as the contemporaneous nature of the statement, the potential for contradiction by other evidence, and the reliability of the statement given it was made to the police with awareness of potential penalties for false statements.

The court concluded that the second defendant had not taken all reasonable steps to locate the witness, and the plaintiff's right to fair trial was compromised by the unavailability of the witness for cross-examination. The court also found that the tender of the statement without proper notice to the plaintiff was unfairly prejudicial, and the statement was excluded from evidence. The court ordered that the second defendant take additional steps to locate the witness and that the plaintiff be given a reasonable opportunity to cross-examine the witness if located.

Orders