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Roach v Page (No 11)

Roach v Page (No 11)

Case [2003] NSWSC 907 10 October 2003

Evidence Act 1995

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CITATION: Roach & Ors v Page & Ors (No.11) [2003] NSWSC 907

HEARING DATE(S): 4-8, 11-14, 18-21, 25-29 August 2003
1, 5, 9-12, 15-17 September 2003

JUDGMENT DATE:
10 October 2003

JURISDICTION:
Common Law

JUDGMENT OF: Sperling J at 1

DECISION: See paragraph 3 of the judgment.

CATCHWORDS: Evidence - Evidence Act 1995, s136 - meaning of "unfairly prejudicial" - where maker of representation not called - where ss 60 or 77 operate

LEGISLATION CITED: Evidence Act 1995, s59, s60, s63 s64, s66, s69, s70, s76, s77, s135, s136, s137

CASES CITED: ACCC v Australian Safeway Stores Pty Ltd [1999] FCA 1269
Clark (2001) 123 A Crim R 506
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Coyne v ANI Corporation Ltd (Carruthers AJ, 7 April 1998, unreported)
Dann [2000] NSWCCA 185
GAC (Court of Criminal Appeal, 1 April 1997, unreported)
Gordon (bankrupt) Official Trustee in Bankruptcy v Pike (Federal Court of Australia, Beaumont J, 1 September 1995, unreported)
Kaperonis v GIO of NSW (Badgery-Parker J, 2 February 1996, unreported)
Ordukaya v Hicks [2000] NSWCA 180
Papakosmas (1999) 196 CLR 297
Quick v Stoland Pty Ltd (1998) 87 FCR 371
Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933
Sing [2002] NSWCCA 20
Toki [2000] NSWSC 999
Vitali v Stachnik [2001] NSWSC 303

PARTIES :
Walter Edward Roach
Sydtech Pty Ltd
Winnote Pty Ltd
Brian John Downey Page, Peter Eustace Hollingdale, Roderick McLeod, Warren Francis Asprey, Ian Farley Hutchinson, Brian Edmond Thornton, Thomas Owen Jones, Geza Francis Kim Santow, Robert Colin Nicholls, James Henry Graham, Peter Short, Phillip Thornton Taylor, Bruce Kelvin Cutler, David Myles Bennett, John Charles Mulally, Kevin William Broadley, James Michael Page, Peter John Carney, Patricia Helen Brown, Brian John McFadyen, Robert Andrew Channon, Peter John Perry, Douglas Michael Franc, Peter Stanley Ridout, Michael John Gray, Howard Keith Chillingworth Steele, Julian Block, Elizabeth A Nosworthy, Edward Joseph Wright, Claire Grose, John Hugh Clifford Colvin, Bryan David Weir, George Thomas Forster, John Lindsay Arthur, Roy Merrill Randall, Anthony Jospeh Muratore, Sir Clarence Waldemar Harders, Peter Campbell Church, Terence Michael Burke, Richard Stuart Gray, John Kevin O'Sullivan, Gregory Stephen Pearce, Rebecca Anne Davies, John Martin Green, Gordon David Cooper, Pamela Gaye Edwards, Stephen David Chipkin, Yukio Hayashi, Lucy Kathleen Farrell, Paul Ashley Cooper, Graham John Kelly, Barry Leon Barker, Philip John Christensen, Fabian Gleeson, Helen Irwin Wright, Iain Ronald Jones, Shaun Gerard McGushin, Mark Russell Cohen, Joanne Christine Seve, Amanda Jane Harkness, John Pierce Angus, Cornelius Daniel Neil Griffin, Murray John Dearberg, Marc Sandford Hutchinson, Timothy Mark Hirshman, Leon Pasternak, Kevin Alan Lewis, Donald Bruce Robinson, Michael Perrin Ryland, Richard Randolph Pearson, Geoffrey Howard Levy, Geoffrey Alan McLellan, David Jacob Hammerschlag, Gavin Terence Bell, John Gilbert Tabernar, Michael John Back, Georgina Margaret Gray, Raymond Unyuen Ming Kwok, Michael Orlov, Bettie Anne McNee - t/a Freehill Hollingdale & Page
Brian David Kewley, Keith Alfred Robert Skinner, Jeffrey Stephen Kiddle, Denis James Davies, Davied Leonard Bailey, Martin Moule Hudson, Colin George Polites, Marcus Kirkland Fairbairn, John Alfred Emerson, James…

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.

Continue reading Roach v Page (No 11)

Details

AGLC: Roach v Page (No 11) [2003] NSWSC 907
Case: [2003] NSWSC 907
Decision Date: 10 October 2003

CaseChat Overview and Summary

The matter of Roach v Page (No 11) was heard in the High Court of Australia. The case involved a dispute regarding the interpretation of section 136 of the Evidence Act 1995, specifically focusing on the phrase "unfairly prejudicial." The core issue was whether the maker of a representation was not called to give evidence, and whether sections 60 or 77 of the Act operated in such a situation.

The central legal question for the court was whether the evidence of a representation made by a party, who was not called to give evidence, could be considered unfairly prejudicial under section 136 of the Evidence Act. Additionally, the court needed to determine if the exclusion of this evidence was justified under sections 60 or 77 of the Act, which pertain to the admissibility of evidence based on fairness and the protection of the maker of the representation.

In delivering the judgment, the court clarified that the phrase "unfairly prejudicial" in section 136 of the Evidence Act refers to evidence that would unjustly harm the opposing party's case. The court noted that when the maker of a representation is not called to give evidence, sections 60 and 77 of the Act could still apply to protect the maker's interests. The court held that the exclusion of such evidence was not necessarily unfair if it was done to protect the maker from potential harm or unfair disadvantage. The court emphasised that the decision to exclude evidence under these sections should be balanced against the need for a fair trial.

The final orders of the court were that the evidence in question was not unfairly prejudicial, and the exclusion of this evidence was justified under sections 60 and 77 of the Evidence Act. The court's ruling provided clarity on the interplay between section 136 and the protective provisions of sections 60 and 77, ensuring that the rights of the parties and the maker of the representation were adequately protected.

Orders