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

[2007] NSWSC 688

CITATION:	Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 688
HEARING DATE(S):	13 June 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	13 June 2007
DECISION:	Evidence rejected as liable to cause undue waste of time. Report containing expert opinion admitted as business record.
CATCHWORDS:	EVIDENCE – Hearsay – Previous Representations admissible under s 64 – where effect is self corroboration – where no suggestion of recent invention and not apparent that direct evidence will be challenged – where previous representations intermingled with inadmissible material – undue waste of time – EVIDENCE – business records – expression of opinion – whether expert witness guidelines and code of conduct apply – whether Makita v Sprowles applies
LEGISLATION CITED:	(NSW) Evidence Act 1995 ss 59, 135, 183
CASES CITED:	Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
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 Federick 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 and second defendants) Esplins (thirds and fouther defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday, 13 June 2007

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

JUDGMENT (ex tempore)
(as to admissibility of annexure I to affidavit of Ms Dwyer sworn 21 March 2005; transcript p 317)

1 HIS HONOUR: I have so far allowed evidence to be given by Ms Dwyer, particularly in her affidavit sworn 21 March 2005, as to her experience of noise emanating from Luna Park since its reopening in April 2004. That evidence was admitted by me on the limited basis that it potentially corroborated evidence in Glen Eight’s case as to the impact of noise on apartments currently or recently in the market, and thus on the actual value of the Azure to Glen Eight, to be compared with the value the Azure would have had had it been retained as a commercial property and not converted to residential apartments. Admitting Ms Dwyer’s lay noise evidence on that basis assumes that it will be possible to draw inferences, from her experience in an apartment more remote from the noise source than the apartments in the Azure, as to the experience of purchasers or potential purchasers of the apartments in the Azure.

2 The evidence the subject of the present objection is of complaints made by Ms Dwyer to Mr Doughty as to the experience of noise in her apartment. It is intermingled with complaints of others which, as presently advised, seem to be inadmissible hearsay, and responses from Mr Doughty, which seem to be of no present relevance. Although Ms Dwyer’s complaints are in some respects conclusionary in form, I would not reject them on that basis, as I think the experience of noise is something which necessarily lends itself to lay opinion evidence. However, the arrangement of the material – interweaved as it is with inadmissible material – is embarrassing. In the context that, ultimately, all it does is corroborate the assertions already made in Ms Dwyer’s affidavit, and where it is far from apparent that that evidence will be the subject of serious contest, or challenge, or contradiction, reception of this evidence would invite exploration of a further range of material that seems to be of tangential relevance to the case. If it turns out that Ms Dwyer’s evidence, to the extent that I have admitted it, is the subject of challenge, then this material may be retendered, but subject to that, I intend to exclude it under (NSW) Evidence Act 1995, s 135(c), on the basis that it will cause an undue waste of time.

1.05pm (as to admissibility of tab 1 of exhibit NAR to affidavit of Mr Rickard sworn 21 August 2006; transcript p 345)

3 Whilst Mr Clarke’s submission is to the contrary, I am prepared to infer, as I am entitled to pursuant to the Evidence Act, s 183, that the report comprised in Tab 1 of exhibit NAR to Mr Rickard’s affidavit sworn 21 August 2006 is, or is a copy of, a document that forms, or at some time formed, part of the records of the business of Addicoat Hogart Wilson Pty Ltd.

4 The document was plainly prepared before proceedings were contemplated. One of the purposes of Evidence Act, s 69, and its predecessors, is to enable courts to act on documents prepared as a matter of routine business practice in a context in which their impartiality is unlikely to be affected, and they could be regarded as accurate and impartial, as they would be in a commercial contract.

5 I think it is also clear that s 69 extends not only to representations of fact but includes expressions of opinion, at least where that opinion would otherwise be admissible, for example where the source is appropriately qualified.

6 I do not accept that, in the context of a report prepared before proceedings were contemplated, admissible as a business record, the guidelines on admissibility of expert evidence or the Expert Witness Code of Conduct are relevant.

7 The interest of the plaintiffs who tender this report, at the time when it was obtained, was to identify the maximum number of defects in the property, so that the obligation to remediate them could be placed on the vendor of the property. That position is contrary to their present interests and, in those circumstances, I do not think that there is reason to regard this report as being so wanting in impartiality that its admission would be unfairly prejudicial to the defendants.

8 While the report may, in various respects, suffer from deficiencies when the rigours of Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 are applied to it, in the present context of a statement in a document admissible as a business record, I think that goes more to its weight than to its admissibility. Of course, it may well be that if the defendants call evidence on this topic from a witness who is amenable to cross-examination, there would be strong reasons for preferring the evidence of such a witness to that of a witness who is not amenable to cross-examination, but I do not think the unavailability of the author for cross-examination, in the context of what is a business record is a sufficient reason to hold that its receipt would be unduly prejudicial under s 135.

9 I admit tab 1 of exhibit NAR. I will mark it in due course.

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