Smith By His Litigation Guardian Smith v Aircraft Maintenance Services Australia Pty Ltd

[2018] FCCA 2188

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMITH BY HIS LITIGATION GUARDIAN SMITH v AIRCRAFT MAINTENANCE SERVICES AUSTRALIA PTY LTD [2018] FCCA 2188

Catchwords:
INDUSTRIAL LAW – Application to exclude affidavit of Applicant where applicant unable to be cross-examined at any hearing due to his suffering Alzheimer’s disease – section 135 of Evidence Act (Cth) – much of affidavit not objected to – respondent able to call witnesses in its case – balancing considerations – unfair prejudice not established – affidavit admitted into evidence.

Legislation:

Evidence Act 1995 (Cth), ss.63, 135

Federal Circuit Court of Australia Act 1999 (Cth), s.64

Cases cited:

Ordukaya v Hicks [2000] NSWCA 180

R v Suteski (2002) 56 NSWLR 182

Applicant: BRIAN SMITH BY HIS LITIGATION GUARDIAN MATTHEW SMITH

Respondent: AIRCRAFT MAINTENANCE SERVICES AUSTRALIA PTY LTD

File Number: BRG 433 of 2015

Judgment of: Judge Egan

Hearing date: 9 August 2018

Date of Last Submission: 9 August 2018

Delivered at: Brisbane

Delivered on: 9 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Murdoch QC with Ms  Barnes

Solicitors for the Applicant: Sparke Helmore Lawyers

Counsel for the Respondent: Mr  Dwyer

Solicitors for the Respondent: McCullough Robertson Lawyers

IT IS ORDERED UNTIL FURTHER ORDER:

1. That the affidavit sworn by Mr Brian Smith filed 19 September 2016 be admitted into evidence.

2. That the costs of and incidental to today’s hearing be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 433 of 2015

BRIAN SMITH BY HIS LITIGATION GUARDIAN MATTHEW SMITH

Applicant

And

AIRCRAFT MAINTENANCE SERVICES AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is a matter where one Brian Smith is represented in the litigation by a litigation guardian, namely, one Matthew Smith.  Brian Smith, the original Applicant, suffers from Alzheimer’s disease, and it is common ground that he is incapable of giving evidence at the trial of this matter listed for hearing in about two weeks’ time. 

2. Mr Brian Smith affirmed an affidavit on 19 September 2016.  The affidavit is of 21 pages and is constituted by 198 paragraphs.  In large part, the annexures to that affidavit are documents which he asserted constituted relevant evidence of his employment with the Respondent.  The Respondent denies that the Applicant, Brian Smith, was an employee at any relevant time, asserting, rather, that he was an independent contractor.  Brian Smith has claimed various entitlements pursuant to awards which he alleged he ought to have been paid during the course of his employment with the Respondent. 

3. The Respondent has asserted that the discretion to exclude evidence contained in section 135 of the Evidence Act 1995 (Cth) (“the Act”) ought to be exercised in this case by reference to subparagraph (a) of that section. Sections 135 and 136 of the Act provide as follows:

   135. 

   General discretion to exclude evidence

   The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

   (a) be unfairly prejudicial to a party; or

   (b) be misleading or confusing; or

   (c) cause or result in undue waste of time. 136

   General discretion to limit use of evidence

   The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

   (a)  be unfairly prejudicial to a party; or

(b)  be misleading or confusing.

1. The relevant and important word in section 135 relating to possible prejudice is the word “unfairly”. It is submitted by Mr Dwyer on behalf of the Respondent that because of various internal contradictions within the affidavit of Mr Smith, the Court, if the affidavit was to be received into evidence, would be unable to properly rule upon issues raised in Mr Smith’s affidavit, and that the Court could unfairly prejudice the Respondent in terms of findings it might make based upon some parts of what is submitted to be the contradictory evidence.

2. The force of Mr Dwyer’s submission is that I should infer a prejudice to the Respondent arising from an inability on the part of Mr Dwyer, or other counsel engaged in the matter on behalf of the Respondent, to cross-examine Mr Smith on those alleged contradictory points. 

3. At the outset of the hearing of the subject application, I asked whether there were parts of the affidavit of Mr Smith which were not controversial.  Mr Dwyer on behalf of the Respondent has advised the Court that he had only had the opportunity to get to about halfway through an analysis of that issue, based on the contents of the affidavit of Mr Smith, but that he had identified about twenty (20) paragraphs of the affidavit which fell into that category. 

4. No doubt, some of those paragraphs sought to annexe documents which, on their face, would have been automatically accepted into evidence, had Mr Smith led oral evidence at trial, and had he not been prevented from doing so by reason of his incapacity.

5. A Court must always be mindful of the risk of prejudice being suffered by a party in cases where a deponent to an affidavit, or a witness, cannot give evidence orally, or be cross-examined at trial. 

6. Section 63 of the Evidence Act is a section which provides as follows:

   (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.

7. That section makes allowance for a circumstance such as the present, where a party, by reason of an incapacity, is unable to give evidence at the trial of a proceeding.  

8. As a question of fairness, the issue of prejudice against the Respondent must always be weighed against the prejudice which would be suffered by a party in the position of Mr Smith, should evidence supportive of his claim for relief not be admitted into evidence.  If it was always the case that a party who had sworn an affidavit in circumstances such as the present was unable to have that affidavit admitted into evidence by reason of their being unable to be cross-examined, then there would no doubt be grave injustices which would flow.

9. Section 64 of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:

   Evidence may be given orally or by affidavit

   (1)     Testimony in a proceeding in the Federal Circuit Court of Australia is to be given orally or by affidavit.

   (2)     However, the Federal Circuit Court of Australia or a Judge may:

   (a)     direct that particular testimony is to be given orally; or

   (b)     direct that particular testimony is to be given by affidavit.

   (3)     Subsections (1) and (2) have effect subject to:

   (a)     any other provision of this Act; and

   (b)     the Rules of Court; and

   (c) any other law of the Commonwealth.

   Cross-examination of person who makes an affidavit

   (4)     If:

   (a)     a person makes an affidavit; and

   (b)     a party to a proceeding in the Federal Circuit Court of Australia adduces, or proposes to adduce, evidence by the affidavit;

   a party to the proceeding may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit.

   (5)     Subsection (4) has effect subject to the Rules of Court.

   (6)     If:

   (a)     a request under subsection (4) is given to a person who has made an affidavit; and

   (b)     the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;

   the Federal Circuit Court of Australia is to give the matters in the affidavit such weight as the Federal Circuit Court of Australia thinks fit in the circumstances.

10. It is relevant that, by section 64(6), the Court is permitted to give the matters in an affidavit, such as that sworn by Mr Smith, such weight as it thinks fit in the circumstances.

11. In this case, it was conceded by Mr Dwyer that the respondent will be calling at trial three witnesses, each of whom will be able to address the issues relating to the question of employment or independent contracting directly, both by sworn affidavit material, and by documentary evidence to be adduced during the course of cross-their giving evidence.

12. It will only be possible to fully appreciate the force of any submission made by Mr Dwyer relating to internal contradictions within the affidavit of Mr Smith for that issue to be addressed after the Court is able to assess, and appropriately weigh up, the evidence of Mr Smith as contained in his affidavit, as compared with the evidence of the other witnesses to be called on behalf of the respondent.

13. Some of the cases referred to by the respondent in support of the submission that the affidavit ought not to be admitted into evidence, relate to unfair prejudice in a jury context.  Those cases are of little relevance when considering that this is a trial to be conducted before a judge sitting alone, and not a jury.

14. It has been recognised in R v Suteski (2002) 56 NSWLR 182, at 201, by Wood CJ as follows:

    …no reason why the inability … to cross-examine … should not have been relevant for section 135 and 137 of the Evidence Act. However, the bare fact that a defendant cannot cross-examine a witness is not necessarily decisive of the issue …

15. When assessing what might constitute unfair prejudice, I have had regard to the case of Ordukaya v Hicks [2000] NSWCA 180 where Sheller JA (with whom Meagher JA agreed) said:

    [33] Any understanding of the way in which section 135 works, where evidence is admissible under section 64, must start by accepting that, conformably with section 64, the hearsay rule does not apply to the statement.  The admission of a document of probative value against a party involves prejudice to that party.  However it is not prejudice, but unfair prejudice, which must be weighed against the probative value of the representation

    [41] Some of the matters raised related to inconsistencies or unreliability.  None of these things required the judge to exclude the statutory declaration, nor would exclude its admission in the proper exercise of discretion.

16. I consider this is a similar case to that in Ordukaya v Hicks. I consider that the probative value of the proposed affidavit evidence, if admitted, outweighs any prejudice which might be suffered by reason of Mr Smith not being able to be cross-examined. It is also a case where I do not consider that such inability to cross-examine the deponent, in all of the circumstances, constitutes unfair prejudice within the meaning of section 135(a) of the Act.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  28 August 2018