Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors

[2007] NSWSC 1295

CITATION:	Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 1295 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23, 24, 26 October 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	23 October 2007
DECISION:	Affidavit admitted; document at LO24.1 rejected; documents at 1-211 to 1-233 admitted; tab 46 of PH 3 rejected
CATCHWORDS:	EVIDENCE – rule in Browne v Dunn – proceedings on affidavit – where contradictory affidavit served - EVIDENCE – admissibility – relevance – provisional relevance
LEGISLATION CITED:	(NSW) Evidence Act 1995 ss 55, 56, 57, 87
CASES CITED:	Street v Luna Park Sydney Pty Limited [2007] NSWSC 697
PARTIES:	Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hesse (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) Robert Simkin (sixth plaintiff) Glen Frederick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant) Peter Hearne (third defendant) Warwick Doughty (fourth defendant)
FILE NUMBER(S):	SC 2267/05
COUNSEL:	Mr T Alexis SC w Ms P M Sibtain (plaintiffs) Mr T G Parker SC w Mr J A Potts (first & second defendants) Mr J R Clarke (third & fourth defendants)
SOLICITORS:	Wise Legal (plaintiffs) Clayton Utz (first & second defendants) Esplins (third & fourth defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 23 October 2007

2267/05 Joan Paula Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors

JUDGMENT (ex tempore)

On admissibility of evidence; transcript p 1089

1 HIS HONOUR: The defendants read the affidavit of John Flower Diddams, sworn 29 November 2005. In that affidavit Mr Diddams records a conversation that he had with Ms Cherie Murray, a real estate agent, who had been retained by Mr Simkin and Ms Dwyer to act for them on the sale of their property, apartment 2 in the Cavill at 6 Cliff Street. Mr Diddams attributes to Ms Murray in the course of the conversation various statements, the substance of which is to suggest that noise was a minimal problem in the apartment.

2 The evidence is tendered on the basis that Ms Murray was an agent of Mr Simkin and Ms Dwyer so that statements made by Ms Murray are admissions. In my view, having regard to (NSW) Evidence Act 1995, s 87, it is at least reasonably open to find that when the representations were made, Ms Murray had authority to act for Mr Simkin and Ms Dwyer, and that the representations set out in the affidavit as having been made by her related to a matter within the scope of her authority, namely the sale of their unit.

3 The question, then, is whether the evidence should be rejected because Mr Simkin and Ms Dwyer were not cross-examined about it. They could not have given evidence as to whether or not Ms Murray made the statement in question, since there is no suggestion that they were present when she made those statements; indeed, it is plain that they were not. To the extent that Ms Murray’s representations contradict their evidence, at least the substance of a substantial part of what is attributed to Ms Murray was put to Mr Simkin: see, for example, pages 412 and 413 of the transcript.

4 Insofar as the rule in Browne v Dunn is applicable at all in the context of this evidence, it has two limbs: the first is one of fairness requiring notice that the witness’ evidence will be impugned before contrary evidence is called; and the second is one of weight, in that a court will more readily accept evidence of a witness that has not been challenged by cross-examination. The second limb affects weight, not admissibility. In proceedings such as these, conducted on affidavit and/or witness statements, the natural justice aspect of the rule is of diminished significance, because notice is given by the service of opposing affidavits; Mr Diddams’ affidavit was sworn and served in November 2005. It cannot be said that the plaintiffs did not have notice of the intention to contradict the substance of their evidence in that way.

5 In my view, Mr Diddams’ affidavit is admissible and I shall read it.

Wednesday, 24 October 2007

On admissibility of evidence; transcript p 1101

6 Evidence Act, s 56(2), provides that evidence that is not relevant in the proceeding is not admissible. Section 55(1) provides that the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceeding. Accordingly, when questions of relevance arise, it is usually important to identify the fact in issue, the probability of the existence of which might be informed by the subject evidence.

7 The only fact in issue which has been identified for that purpose in connection with the document the subject of the present tender is the time at which an intention to locate or relocate amusement rides – and, in particular, thrill rides – was formed.

8 I accept that it is a fact in issue in the proceeding as to when an intention was formed to locate thrill rides in the area north of Coney Island. However, I do not understand there to be a fact in issue in the proceedings as to whether there was at all times an intention to operate amusement rides, including thrill rides, in Luna Park generally, leaving aside the area north of Coney Island.

9 The document presently under consideration is silent as to the question of the location of thrill rides – or any rides for that matter – north of Coney Island. I do not see how it informs the assessment of the probability of the existence of the relevant fact in issue in the proceedings.

10 I therefore reject the document LO24.1, being pages 1-1 to 1-210.

On admissibility of evidence; transcript p 1106

11 If the material in the document at page 1-211 to 1-230 came to the notice of the relevant defendant, it might show that the description in the 2002 DA of the Ranger as if it were a children’s ride, at least as the plaintiffs would put it, was not an unintentional oversight.

12 Although I am far from persuaded that evidence of intent would be relevant in the case against the first and second defendants, it is possible, as I explained in the judgment given on 26 June 2007, [2007] NSWSC 697 (at [10]), that such evidence might be relevant. Evidence of intent would be relevant against the third and fourth defendants on the “knowingly concerned” case.

13 Section 57 provides that if the determination of the question whether evidence adduced is relevant depends on the court making another finding, the court may find that the evidence is relevant if it is reasonably open to make that other finding, or subject to further evidence being admitted at a later stage of the proceedings that would make it reasonably open to make that other finding. The circumstance that what might be inferred to be a distribution list showing the initials PH (Mr Hearne) and WD (Mr Doughty) appears on the front of the document might permit a court to find that this document came to their notice. I think that brings it within section 57(1). On that basis, I admit the document at pages 1-211 to 1-230.

14 The next document, at 1-231 to 1-233, more clearly came to the notice of Mr Hearne and Mr Doughty. I will admit it for substantially the same reasons.

Friday, 26 October 2007

On admissibility of tab 46 to exhibit PH 3; transcript p 1156

15 As I understand the position, this material is tendered in support of an argument, proposed to be advanced by the plaintiffs, that the defendants – in particular the third and fourth defendants – believed that it was important to avoid the attention of the planning authorities being drawn to the potential for noisy thrill rides to be located to the area north of Coney Island. It is hypothesized that supply of a photograph of the model in the form in which it appears in tab 46 of exhibit PH3 to Mr Hearne’s affidavit, is an illustration of this.

16 Whatever may be the fate of the proposed argument on other available evidence, I cannot see how it could safely be founded on the evidence relating to supply of the photograph of the model, in circumstances where it would not be open to be satisfied, on balance, that the model was supplied in conjunction with the phase E development application. The request to which provision of the photograph responded appears to have been one for copies of the model used in conjunction with the phase D application. It is not apparent whether the request was made by the Planning Department, or by others. It is not apparent how the photographs came to be included in the report prepared by the Planning Department on the phase E application.

17 For the purposes of the proposed argument, I do not think there is a sufficient foundation to make this relevant in the requisite sense.

18 The material will remain rejected.

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16/11/2007 - Correct Judgment Date - Paragraph(s) Cover Page