Smith v Gould (Ruling No 1) - [2012] VSC 210

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 2006 4269

GEOFFREY SMITH	Plaintiff
v
ROBERT GOULD	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MAY 2012
DATE OF RULING:	18 MAY 2012
CASE MAY BE CITED AS:	SMITH v GOULD Ruling No 1
MEDIUM NEUTRAL CITATION:	[2012] VSC 210

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Evidence – admissibility – statements in letters marked ‘without prejudice’ – letters sent between solicitors for persons who are not parties to or witnesses in the proceeding to solicitors for a bank – representations in the communications relevant to issue in the proceeding – no attempt to negotiate settlement of a dispute – letters not excluded by ‘without prejudice’ privilege – whether letters excluded from evidence by the hearsay rule - whether letters are ‘business records’ – whether business record exclusion to hearsay rule permits reception in evidence of the letters – Evidence Act 2008 (Vic), ss 59, 69 and 131.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Kendall QC with Dr P Vout
For the Defendant	Mr SK Wilson QC with Mr P Herzfeld
For Mr Simon Parsons, Ms Maxine Holden and Simon Parsons & Co	Mr M Lapirow
For Mr Gary Singer	Mr M Corrigan

HIS HONOUR:

This is a proceeding in which the plaintiff, Mr Smith, seeks orders under Part IX of the Property Law Act 1958 (Vic) adjusting property interests following the termination of a domestic relationship with the defendant, Mr Gould.

During the course of cross-examination of Mr Smith, I admitted, as exhibit D35, a redacted form of three letters from Richard Szental, a legal practitioner, to Garland Hawthorn Brahe, Solicitors, dated 14 April 2005, 14 June 2005 and a later undated letter. Objection to the tender of these documents was taken by counsel appearing for two groups of non-parties, being Mr Simon Parsons, Ms Maxine Holden, and Simon Parsons & Co and Mr Gary Singer, who was separately represented. Mr Smith also supported the objection. I stated that I would later publish my reasons for this ruling and I now do so. In this ruling, unless the context otherwise requires, I shall refer to these persons collectively as the objectors.

The objectors relied on s 131 of the Evidence Act 2008, which, broadly speaking protects communications subject to ‘without prejudice’ privilege. If the letters were not excluded from being adduced in evidence by s 131, the objectors contended the letters were inadmissible by operation of s 69, the hearsay rule.

Prior to trial, the defendant, Mr Gould, became aware that Mr Smith asserted that he held title to a property at 6 Avoca Street, South Yarra, as a bare trustee on trust for Mr Gary Singer. In 2005, Mr Gould was contacted by Garland Hawthorn Brahe and learned from that contact that those solicitors were acting for Macquarie Bank Ltd and inquiring on its behalf into the financial affairs of Mr Singer and others. Those inquiries were about…

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 Smith v Gould (Ruling No 1)

Details

AGLC: Smith v Gould (Ruling No 1) [2012] VSC 210
Case: [2012] VSC 210
Decision Date: 18 MAY 2012

CaseChat Overview and Summary

The case of Smith v Gould (Ruling No 1) involved a dispute concerning the admissibility of certain evidence in a proceeding. The dispute arose between Smith, the plaintiff, and Gould, the defendant, and was heard in the County Court of Victoria. The central issue was whether letters marked 'without prejudice', sent between solicitors for non-party individuals to solicitors for a bank, were admissible as evidence. The contents of these letters were relevant to a matter at hand in the proceeding, but there was no attempt to negotiate a settlement of a dispute.

The court was required to determine whether the letters were excluded from evidence by the 'without prejudice' privilege, and whether they were excluded from evidence by the hearsay rule. Additionally, the court considered whether the letters could be admitted as 'business records' under the Evidence Act 2008 (Vic). The court examined sections 59, 69, and 131 of the Act to determine the admissibility of the letters.

The court found that the letters were not excluded by the 'without prejudice' privilege because they were not part of a negotiation to settle a dispute. However, the court held that the letters were excluded from evidence by the hearsay rule as they were out-of-court statements being used to prove the truth of the matters asserted. The court then considered whether the business record exception to the hearsay rule applied, and concluded that the letters did not qualify as business records because they were not made in the ordinary course of business, nor were they made contemporaneously with the events they recorded. The court therefore held that the letters were inadmissible as evidence.

No further orders were made by the court in this ruling, as the primary focus was on the admissibility of the letters. This ruling provides important guidance on the scope of the 'without prejudice' privilege and the business record exception to the hearsay rule in the context of evidence in legal proceedings.

Orders