| 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…
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- Case
- [2018] VSC 219
- Decision Date
CaseChat Overview and Summary
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.
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Evidence
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