Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2) - [2018] VSC 219

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

---

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

---

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).

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 219
Decision Date: 7 May 2018

CaseChat Overview and Summary

In Roo-Roofing Pty Ltd v Commonwealth, the Federal Court was asked to decide whether the plaintiffs could rely on prior statements made by a witness who was unable to attend the trial. The plaintiffs, Roo-Roofing Pty Ltd, sought to tender the prior statements of a witness as evidence under the hearsay exception outlined in the Evidence Act 2008 (Vic). The court had to determine whether the plaintiffs had taken all reasonable steps to secure the attendance of the witness at the trial, as required by the Act. The Commonwealth argued that the plaintiffs had not taken all reasonable steps, and therefore, the prior statements should not be admitted.

The court found that the plaintiffs had not taken all reasonable steps to secure the attendance of the witness, as required by section 59 of the Evidence Act 2008 (Vic). The court held that the plaintiffs had not made reasonable efforts to locate the witness, and as such, the prior statements were inadmissible under the hearsay rule. The court also noted that the plaintiffs had failed to comply with the requirements outlined in the Dictionary to the Act, specifically clauses 4 (f) and (g), which outline the circumstances in which prior statements may be admissible. The court found that the plaintiffs had not met the burden of proof required to admit the prior statements as evidence.

As a result, the court refused to admit the prior statements as evidence, and the plaintiffs were unable to rely on them in their case. The court held that the plaintiffs had not taken all reasonable steps to secure the attendance of the witness, and therefore, the prior statements were inadmissible under the hearsay rule. The court found that the plaintiffs had not met the requirements outlined in the Evidence Act 2008 (Vic) to admit the prior statements as evidence. The final order of the court was that the prior statements were inadmissible, and the plaintiffs were unable to rely on them in their case.

Orders