Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd

Tim Barr Pty Ltd, the plaintiff, brought an action against Narui Gold Coast Pty Ltd, the defendant, in the Supreme Court of Queensland. The dispute centered on the admissibility of certain documentary evidence, specifically whether the hearsay rule exceptions in sections 63 and 81 of the Evidence Act 1977 (Qld) applied. The plaintiff argued that the defendant's representative was not available to give evidence, while the defendant claimed that the availability of evidence obtained through the Evidence on Commission Act rendered the representative available. Additionally, the plaintiff sought to rely on a previous representation under section 81, which the defendant challenged on the basis of the temporal scope of "shortly after."

The court was required to determine the interpretation of the terms "available," "attendance," and "shortly after" within the context of the exceptions to the hearsay rule. Specifically, the court needed to decide whether the representative's residence in a foreign country and the availability of the Evidence on Commission Act procedures impacted the representative's availability to give evidence. Furthermore, the court had to clarify the meaning of "shortly after" in the context of section 81 of the Evidence Act.

In its decision, the court held that for the purposes of section 63, a person is not available if they are not subject to the process of the court, which includes situations where the person is not within the court's jurisdiction. The court found that the representative's residence in a foreign country meant they were not available to give evidence in person. Regarding section 81, the court determined that "shortly after" meant a period of time that could be days or even weeks, depending on the circumstances of the case. The court emphasised that the key factor was whether the representation was made at a time that was reasonably necessary to understand the admission. Ultimately, the court ruled in favour of the plaintiff, allowing the documentary evidence to be admitted under the applicable hearsay exceptions.

The court made orders permitting the admission of the documentary evidence under sections 63 and 81 of the Evidence Act 1977 (Qld). The court also directed the proceedings to continue with the evidence in question being considered by the trier of fact.