Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2)
[2018] VSC 219
•7 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 03382
| ROO-ROOFING PTY LTD (ACN 131 182 093) | First Plaintiff |
| MATSUH PTY LTD (ACN 105 461 818) | Second Plaintiff |
| v | |
| THE COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2018 |
DATE OF RULING: | 7 May 2018 |
CASE MAY BE CITED AS: | Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 219 |
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EVIDENCE – Hearsay – Exceptions – Where plaintiffs seek to rely on prior statements – Whether witness unavailable – Whether plaintiff took all reasonable steps to secure attendance – Reasonable steps not taken – Tender of prior statements refused – Evidence Act 2008 (Vic) ss 59, 63, Dictionary cl 4 (f) and (g).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Delaney QC with Dr C G Button, Ms C Van Proctor and Mr R Chaile | ACA Lawyers |
| For the Defendant | Ms R M Doyle SC with Ms R L Enbom, Mr L T Brown and Mr J Hooper | Australian Government Solicitor |
HIS HONOUR:
Mr Gregory Rashleigh made statements touching on the HIP for the purposes of the Hanger Royal Commission. His attendance at court has not been secured and the plaintiffs seek to tender those statements and a transcript of his evidence to the Royal Commission as evidence of his prior representations, pursuant to the exception to the hearsay rule under s 63 of the Evidence Act 2008 (Vic) (‘the Act’) on the basis that he is not available to give evidence about the facts asserted in the documents to be tendered.
The defendant objected to the tender on the basis the plaintiffs have not proved that Mr Rashleigh is ‘not available’ to give evidence. In particular, the defendant disputed that the plaintiffs have taken all reasonable steps to secure Mr Rashleigh’s attendance to give evidence at trial.
For the reasons which follow I am not satisfied that the plaintiffs have taken all reasonable steps to secure Mr Rashleigh’s attendance, and the tender is refused.
The plaintiffs relied on:
(a) an affidavit of Ross Williams, a licenced process server, sworn on 20 April 2018; and
(b) an affidavit of Mark Farrell, a solicitor for the plaintiffs, sworn on 22 April 2018.
From that material I make the following findings.
On 8 February 2018, Mr Farrell conferred with Mr Rashleigh at the property of Mr Hannam of the plaintiffs and then told him that the plaintiffs would like him to give evidence in this proceedings. Mr Rashleigh expressed a concern that he may have to return to hospital for further treatment for skin cancer. Mr Farrell mentioned the possibility of giving evidence via video-link, and that he would be in touch to discuss it further.
Mr Williams, on instructions from the plaintiffs, attempted to serve a subpoena to give evidence at trial on Mr Rashleigh at his home on 8 March 2018 at 4pm; on 12 March 2018 at 10:15am; and on 15 March 2018 at 8am. Mr Williams reported about each occasion that ‘the premises are part of a gated community. Access to the premises was prevented by a locked gate. I rang the intercom for 1628 Rosebank Way and did not receive a response.’
A report provided by the process server company of their attempts to serve Mr Rashleigh with the subpoena contradicted Mr Williams’ account in his affidavit of the third attempt at service on 15 March 2018. In that report, the agent is said to have reported that he rang the intercom with no response, but he then gained access to the community and knocked on Mr Rashleigh’s door, receiving no response. He called out to the occupants but could not draw any response. The divergence in these accounts was unexplained.
The defendant submitted that the evidence of the attempts at service by the process server were inadequate and that the evident opportunity to enter the gated community to be inferred from the report demonstrated that there were further reasonable steps towards effecting service that might have been taken.
There was no cross-examination of the deponents of the affidavits and other alternative steps which might reasonably have been taken by entering the gated community were speculative.
On 19 March 2018, a solicitor told Mr Rashleigh by phone that a process server had tried to serve him with the subpoena and ‘that it was imperative that the subpoena be served on him as soon as possible’. Mr Rashleigh said he would be home the following morning. Later that day, Mr Rashleigh left a message for the solicitor that he did not want to be served with a subpoena or give evidence in the proceeding. No attempt was made to serve Mr Rashleigh on 20 March 2018.
On 22 March 2018, Mr Farrell called Mr Rashleigh and told him that a process server had been attempting to serve him with a subpoena. This must have been a reference to the three attempts noted above. Mr Rashleigh responded that he knew and had been dodging him. Mr Farrell asked that he co-operate, because his evidence was considered important in the case, and could be taken by video link. Mr Rashleigh replied that his wife had forbidden him to be part of the case at any level, he was unwell and the stress of giving evidence would make him worse. He stated, ‘it’s not going to happen’.
I pause to note that although there were references to some ill-health, cancer and possible hospital readmission, the evidence did not support a conclusion that Mr Rashleigh was not available to give evidence because of his health and it did not appear that the solicitor considered that his health was the reason for his want of co-operation. The same day, the plaintiff’s solicitor by email provided the process server with some further details regarding Mr Rashleigh, including his mobile phone number, car make, and some details of his physical appearance. The solicitor then said ‘ I am further informed that he may be attempting to avoid service. Would it be possible to have an agent monitor his movements over half a day to a day to effect service?’
The process server later responded:
Our agent has advised that no access can be made into this community as the gates only allow 1 car to pass when it is opened. Security at the premises will not allow entry to serve any documents and Gregory Rashleigh's house is about a kilometre inside the gates, therefore no monitoring can be possible.
Please advise how you would like us to proceed.
No further instructions were provided to the process server. It is clear from the report that the process server did not monitor Mr Rashleigh’s movements as he had been instructed to and the solicitor did not follow up on the process server’s failure to do so. The process server’s assertion that no monitoring was possible was unconvincing. The attempts at service amount to no more than buzzing the intercom on three occasions.
On 28 March 2018 the plaintiffs’ solicitor sent Mr Rashleigh a copy of the subpoena by email and invited his co-operation. No response was received.
On 1 and 3 April 2018, Mr Rashleigh did not answer telephone calls and did not respond to a request for information about his health to be provided to the court.
On 15 April 2018 Mr Hannam called Mr Rashleigh who did not answer, and left a text message. Again, he did not receive a response.
The plaintiffs’ solicitors did not apply for an order for substituted service.
The documents sought to be tendered are prior representations to be adduced to prove the existence of facts that the maker intended to assert by the representations. The parties proceeded on the basis that such representations were relevant under s 55. By force of s 59 (the hearsay rule) such representations are not admissible. An exception to the hearsay rule may apply where the maker of the previous representation is not available to give evidence.
63 Exception—civil proceedings if maker not available
(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to—
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
The plaintiffs submitted that Mr Rashleigh was ‘not available to give evidence’ in the sense in which those words are used in s 63(1). This submission directs attention to the definition, found in cl 4 of the Dictionary in the Act.
Clause 4 of Part 2 to the Dictionary provides that a person is taken not to be available to give evidence about a fact in only the following circumstances:
(a) the person is dead; or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
(d) it would be unlawful for the person to give the evidence; or
(e) a provision of this Act prohibits the evidence being given; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
The plaintiff relied on sub-clauses (f) and (g), but in my view sub-clause (g) is inapplicable in the present circumstances. That sub-clause is concerned with the separate matter of taking reasonable steps to compel a person, whose attendance to give evidence has been secured, to give the evidence. The plaintiffs submitted that an indication that the witness ‘does not wish to give evidence or cooperate in any way’ is sufficient to satisfy the requirements of clause 4(f). That submission was misconceived. In my view, that definition only comes into play where the attendance of the witness at trial has been secured, but despite all reasonable steps the person cannot be compelled to give the evidence.[1]
[1]Compare the discussion in Fletcher v The Queen (2015) 45 VR 634, 645-646 [59]–[61].
The issue on this application concerned sub-clause (f) and was whether the plaintiff had taken all reasonable steps to secure Mr Rashleigh’s attendance to give evidence but without success. Plainly, the plaintiff was not successful in securing his attendance to give evidence. His whereabouts were known and he was contactable.
The question was whether the steps that were actually taken constituted taking all reasonable steps to secure his attendance in the witness box, whether physically or by video link.[2] It is clear from the authorities that the question of whether all reasonable steps have been taken in the circumstances is fact sensitive.
[2]Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598, 601 [11] (‘Tim Barr’).
It is the experience of the law that witnesses are often reluctant or unable readily to attend court to give evidence. Order 42 of the Rules currently regulates the longstanding practice of subpoenas to compel attendance to testify. In exceptional circumstances, talking all reasonable steps might not involve serving a subpoena, but this is not such a case.
Tim Barr,[3]
cited by the plaintiff, principally concerned the meaning of ‘attendance’. That issue arose in different circumstance, although I agree, with respect, with
Barrett J’s conclusion that the relevant enquiry is about the steps which, if taken, will or, might cause the person to be physically present in the court room. In that case, the witness, who was resident in Japan, clearly stated that he would not come to Sydney or participate in the trial by a video link. Barrett J noted that there were extremely limited avenues available to a litigant to secure the attendance, as a witness, of a citizen of Japan who was resident and physically present in that country. Barrett J was satisfied that all reasonable steps to secure his attendance had been taken without success.
[3]Ibid.
In Mindshare Communications Ltd v Orleans Investment Pty Ltd[4] the tendering party sought to establish that all reasonable steps had been taken to secure the attendance of a witness who lived in Hong Kong. The court noted that, within the meaning of the equivalent of sub-clause (g), if a witness simply refuses to answer questions, the witness is taken not to be available to give evidence.
[4][2007] NSWSC 976 (‘Mindshare’).
In Mindshare, the court concluded that the equivalent of sub-clause (f) was the relevant definition of unavailability. Hamilton J was persuaded that the failure of the party seeking to call the witness to make an application to the Hong Kong court to compel the witness’s attendance was not encompassed in the concept of reasonable efforts for two reasons. First, the evidence showed a demonstrable aversion on the part of the witness to cooperate in any way. Secondly, there was serious concern about the quality of the witness’s evidence that cast doubt on whether the expense of an application in a foreign court to secure the attendance of an adverse witness would be useful. Accordingly the court was satisfied that all reasonable steps had been taken to secure the witness’s attendance but without success.
In ASIC v Flugge,[5] Robson J, who examined these authorities, considered it significant that ASIC had not sought to serve the witness with a subpoena when he had been in Australia, it having known for many years that the witness’s evidence of his conference with Mr Flugge was relevant to their case. They had not taken any steps towards securing his attendance until years after the proceedings were instituted and well after the trial dates were fixed.
[5][2015] VSC 690.
Simply because further reasonable steps could have been taken does not mean the steps already taken cannot be considered reasonable. However, in this case I am satisfied that there were such clear and reasonable further steps available - with no explanation as to why they weren’t taken - and the steps in fact taken were so minimal that they cannot be considered reasonable.
Unlike the circumstances in the authorities I have referred to, the witness was resident in Queensland. His location was known and both the solicitors and the plaintiffs could contact him.
The process server was described in submissions as experienced, but there was no evidence supporting that submission. It ignored the further instruction to monitor the witness when he might have left the gated community. Why it was not a reasonable step, given Mr Rashleigh lived inside a gated community, to attempt serve him at some other location, or on leaving that place was not explained. The possibility that a process server in fact gained access to the community and might do so in further occasions, other than by car, was not explained. All that was done by the process server was, essentially, pressing on the intercom to Mr Rashleigh’s home on three occasions. I am not satisfied that the process server took all reasonable steps to serve the subpoena. Dealing with persons ‘dodging’ service is bread and butter for process servers. The process server’s report concluded by stating it awaited further instructions. It did not state that it could not have reasonably taken any further steps to effect service, nor did it report that the witness was an artful dodger whom it was unlikely it would be able to serve.
The plaintiffs have not explained why the solicitors did not follow up the further instructions to the process server. The specific instruction given by the process server to monitor the gate to ascertain whether the witness left the gated community was ignored. The process server’s artless efforts were simply accepted. There were reasonable steps that the solicitors might have taken to press the process server to continue, by other and different means, to effect service. The solicitor was clearly aware of at least one option.
The plaintiffs submitted that all reasonable steps had been taken to secure cooperation from Mr Rashleigh, but that is not the test and as I have noted it has long been the experience of the law that witnesses are unwilling to voluntarily attend court. For that reason the submission that I should give weight to Mr Rashleigh’s stated unwillingness to attend must be rejected. There was also no explanation for why the solicitors did not apply for substituted service of the subpoena. The defendant indicated it would not have opposed such an application. Seeking an order for substituted service was plainly open and a reasonable step to take to secure the attendance of the witness. In these circumstances it was necessary for the plaintiffs to explain why such an application was not made.
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