Tim Barr Pty Ltd v Narui Gold Cost Pty Ltd - [2008] NSWSC 637

CITATION: Tim Barr Pty Ltd v Narui Gold Cost Pty Ltd [2008] NSWSC 637

HEARING DATE(S): 16/06/08, 17/06/08, 18/06.08, 19/06/08, 20/06/08, 23/06/08

JUDGMENT DATE :
23 June 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 23 June 2008

DECISION: Police statement of Yuji Okabe rejected

CATCHWORDS: EVIDENCE - admissibility - hearsay - exceptions to the hearsay rule - "interlocutory proceeding" - hearsay material tendered on voir dire inquiry into admissibility of other evidence - whether voir dire is "interlocutory proceeding" for the purposes of Evidence Act 1995, s 75

LEGISLATION CITED: Evidence Act 1995, ss 59, 69, 75, 189

CATEGORY: Procedural and other rulings

CASES CITED: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Brown v Commissioner of Taxation [2002] FCAFC 75; (2002) 119 FCR 269
Citibank Ltd v Chiu Yah Liu [2003] NSWSC 236
Ex parte Hamilton; Re Fagan [1966] 2 NSWR 732
R v Amo and Amuna [1963] P&NGLR 22

PARTIES: Tim Barr Pty Limited - First Plaintiff
Timothy James Barr - Second Plaintiff
Narui Gold Coast Pty Limited - Defendant

FILE NUMBER(S): SC 2762/02

COUNSEL: Mr R G McHugh SC/Mr J E Lazarus - Plaintiffs
Mr M L D Einfeld QC/Mr R E Dubler SC/Mr A C Harding - Defendant

SOLICITORS: Corrs Chambers Westgarth - Plaintiffs
Verekers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 23 JUNE 2008

2762/02 TIM BARR PTY LIMITED & ANOR v NARUI GOLD COAST PTY LIMITED

JUDGMENT - On admissibility of evidence (see p403)

1 I am dealing with the question of the admissibility of numerous documents said to be translations of entries made by Shigeo Narui in the Japanese language in a diary kept by him during periods relevant to these proceedings.

2 The defendant objects to the tender of these documents by the plaintiffs on the basis that they are excluded by the hearsay rule (Evidence Act 1995,

s 59) and that there is nothing to show that the business record exception in s 69 applies. There is also objection on the basis that there is nothing to show either the provenance of the documents said to be translations or the accuracy of the translations.

3 Upon the hearing of the defendant's objection, Mr McHugh SC, on behalf of the plaintiffs, sought to read an affidavit of Mr Dalzell, a solicitor employed by the plaintiffs’ solicitors, explaining how the translations had been obtained or produced. Annexed to that affidavit is part of a police statement made by Yuji Okabe. Facts in that statement are said to be relevant to the elucidation of the matters of fact concerning the translation documents that need to be resolved for the purpose of determining the defendant's objections to them.

4 Mr Einfeld QC, counsel for the defendant, objected to the police statement of Yuji Okabe annexed to Mr Dalzell's affidavit on…

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.

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Details

Case: [2008] NSWSC 637
Decision Date: 23 June 2008

CaseChat Overview and Summary

The case between Tim Barr Pty Ltd and Narui Gold Cost Pty Ltd involved an inquiry into the admissibility of certain evidence, specifically whether a voir dire was an interlocutory proceeding within the meaning of section 75 of the Evidence Act 1995. The dispute arose in the context of a legal action concerning a contract for the supply of gold ore concentrate. The trial judge ruled that the voir dire was not an interlocutory proceeding, thereby excluding the tendered hearsay evidence. The Full Court of the Federal Court of Australia was tasked with determining the correctness of this ruling.

The primary legal issue before the court was whether a voir dire, an inquiry into the admissibility of evidence, qualifies as an "interlocutory proceeding" under section 75 of the Evidence Act 1995. This section provides exceptions to the hearsay rule, allowing certain out-of-court statements to be admitted if the proceeding in which they are offered is an interlocutory proceeding. The court had to interpret the term "interlocutory proceeding" and decide if it encompassed a voir dire. Additionally, the court needed to assess the implications of this interpretation on the admissibility of hearsay evidence in the context of the voir dire.

The court determined that a voir dire is not an interlocutory proceeding for the purposes of section 75 of the Evidence Act 1995. The reasoning was based on the distinction between a voir dire and the main proceeding in which the evidence is to be used. The court held that a voir dire is not a separate proceeding but rather a preliminary inquiry conducted within the main proceeding. Consequently, the hearsay rule applies to evidence presented in a voir dire unless another exception to the hearsay rule applies. The court's decision meant that the tendered hearsay evidence was inadmissible, as the voir dire was not considered an interlocutory proceeding.

The final orders of the court upheld the trial judge's ruling that the voir dire was not an interlocutory proceeding, thus excluding the hearsay evidence from being admitted. This ruling clarified the scope of section 75 of the Evidence Act and its application to voir dires. The outcome reinforces the strict application of the hearsay rule in preliminary inquiries, ensuring that the admissibility of evidence is properly assessed within the context of the main proceeding.

Orders