Land and Environment Court
of New South Wales
CITATION: Randwick City Council v Athens and Anor (No 11) [2004] NSWLEC 771 revised - 17/08/2005 PARTIES: Randwick City Council
Peta Athens
Athens Holdings Pty Limited (ACN 001 166 552)FILE NUMBER(S): 40097 of 2000 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- hearsay evidence - admissibility - civil proceedings - whether makers of statement unavailable - whether notice required LEGISLATION CITED: Evidence Act 1995 ss 63(2), 65, 67, 135 CASES CITED: Australasian Meat Industries Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98;
Australian Consolidated Press v Morgan and Anor (1965) 112 CLR 483;
O'Shea v O'Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59;
Witham v Holloway (1995) 183 CLR 525DATES OF HEARING: 28/01/2004, 29/01/2004, 30/01/2004 EX TEMPORE
JUDGMENT DATE :01/30/2004 LEGAL REPRESENTATIVES:
APPLICANT
A Thompson
SOLICITOR
Bowen & Gerathy
RESPONDENT
M Ramage QC
SOLICITORS
Levitt Robinson Solicitors and Associates
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCowdroy J
30 January 2004
40097 of 2000
RANDWICK CITY COUNCIL
ApplicantPETA ATHENS
First RespondentJUDGMENT No 11ATHENS HOLDINGS PTY LIMITED
Second Respondent
1 Cowdroy J: As I have already said, these proceedings are not criminal. This is clearly established by authority, the clearest statement of which is contained in O’Shea v O’Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59 at 62, where Lord Justice Cotton said:
- The present proceeding is for a contempt of Court. Of course, there are many contempts of Court that are not of a criminal nature; for instance, where a man does not obey an order of the Court made in some civil proceeding, to do or to abstain from doing something – as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt – that is really only a procedure to get something done in the action, and has nothing of a criminal nature in it.
2 Similar observations have been made by the High Court of Australia in Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483 at 497-8, in Australasian Meat Industries Employees’ Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 and, most recently, in Witham v Holloway (1995) 183 CLR 525. Accordingly, s 65 of the Evidence Act 1995 has no application to the current question, that is, whether certain passages contained in para 5 of Mr David Mulcahy’s affidavit sworn 1 September 2003 are admissible.
3 For the purpose of ruling on this question, the Court has read the content of the challenged conversations. They are in a small compass. It is apparent, not only from the content of the conversation but also from other evidence already led in these proceedings, that it is not practical to call the persons who made the actual statements. In these circumstances, the Court considers that s 63(2) of the Evidence Act has application.
4 The Court is mindful that the respondents have not been specifically notified, as required by s 67 of the Evidence Act, of the intention to call such evidence. The Court notes that s 67 of the Evidence Act does not constitute an absolute prohibition. As the statements were contained in an affidavit which was served approximately four months ago upon the respondents, the Court is satisfied that there is no injustice by reason of the failure to give express notice. Accordingly, the Court considers that the provision of the affidavit constitutes sufficient notice.
5 The Court is also minded of s 135 of the Evidence Act and considers that such evidence would not be unfairly prejudicial to the respondents or cause a waste of time.
6 For these reasons, the Court proposes to admit the para 5 of the affidavit of David Mulcahy.
- AGLC
- Randwick City Council v Athens (No 11) [2004] NSWLEC 771
- Case
- [2004] NSWLEC 771
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the hearsay evidence contained in the affidavit could be admitted under the Evidence Act 1995. Specifically, the court needed to assess whether the exceptions to the hearsay rule applied, considering that the original speakers were unavailable and whether the respondents had been adequately notified of the intent to use such evidence. Additionally, the court had to determine if admitting the hearsay evidence would be unfairly prejudicial or a waste of time, as outlined in section 135 of the Evidence Act.
In delivering the judgment, Cowdroy J held that the proceedings were civil in nature, and therefore, the criminal hearsay provisions of the Evidence Act did not apply. The court found that section 63(2) of the Evidence Act, which pertains to exceptions to the hearsay rule, was applicable as it was impractical to call the original speakers. Although the respondents had not been specifically notified of the intent to use this evidence as required by section 67, the court determined that the service of the affidavit four months prior constituted sufficient notice. Moreover, the court concluded that the admission of the evidence would not be unfairly prejudicial or result in a waste of time, aligning with the principles set forth in section 135 of the Evidence Act.
As a result, the court ruled that the contested paragraphs of the affidavit would be admitted as evidence in the proceedings. The decision underscored the importance of balancing the practicalities of litigation with the rights of the parties involved, ensuring that the admission of hearsay evidence was both procedurally sound and substantively just.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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