Uzabeaga v Town of Cottesloe - [2001] WADC 287

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: UZABEAGA -v- TOWN OF COTTESLOE [2001] WADC 287

CORAM: YEATS DCJ

HEARD: 5 DECEMBER 2001

DELIVERED : 11 DECEMBER 2001

PUBLISHED : 18 DECEMBER 2001

FILE NO/S: CIV 359 of 1995

BETWEEN: LUIS ALBERTO UZABEAGA
Plaintiff
AND
TOWN OF COTTESLOE
Defendant

Catchwords:

Admissibility of documentary evidence - Application of s 79C - Whether statement in document was statement of qualified person - Qualified person never shown documents nor signed or relied upon such - No evidence linking the document with the qualified person - Application refused

Legislation:

Evidence Act 1906, s 79B, s 79C(1)(a), s 79C(1)(b)(i), s 79C(2)(c)

Result:

Defendant's application refused

Representation:

Counsel:

Plaintiff: Mr T Lampropolous & Mr M E Herron
Defendant: Mr J Gilmour QC

Solicitors:

Plaintiff: Gibson & Gibson
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Cullis v Hamersley Iron Pty Ltd [1970] WAR 170
Markovina v The Queen (1996) 16 WAR 354

Case(s) also cited:

Nil

YEATS DCJ: This is the defendant's application pursuant to s 79C of the Evidence Act to tender the notes of Mr John Hymus, a loss assessor, who interviewed Mr Ivan Diaz in 1993. There has been evidence that Mr Diaz is presently overseas in Chile. There is also evidence that Mr Diaz was present at the groyne at Cottesloe Beach on 1 March 1993 when the plaintiff suffered the spinal injury for which he seeks damages in this trial. The relevant portions of s 79C are:
"79C.Documentary evidence, admissibility of
(1)Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement —
(a)was made by a qualified person; or
(b)directly or indirectly reproduces or is derived from one or other or both of the following ¾
(i)information in one or more statements, each made by a qualified person
…
(2)Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless —
…
(c)he is out of the State and it is not reasonably practicable to secure his attendance."
The defendant contends that Mr Hymus' handwritten notes of his conversation with Mr Diaz in 1993 is a statement, as that word is used in s 79C, by Mr Diaz, and the defendant submits that Mr Diaz is a qualified person as those words are defined in s 79B of the Evidence Act. Therefore the defendant submits that the notes of Mr Hymus, including a draft statutory declaration prepared by Mr Hymus, are documents which contain the statements of the qualified person, Mr Diaz. As Mr Diaz is overseas the defendant submits that Mr Hymus' documents containing Mr Diaz' statements can be tendered into evidence without Mr Diaz being called as a witness in reliance on s 79C(2)(c) of the Evidence Act.
The defendant submits that Mr Hymus' documents contain either statements made by Mr Diaz as referred to in s 79C(1)(a) or statements directly or indirectly reproduced or derived from information in one or more statements each made by a qualified person as referred to in s 79C(1)(b)(i). Thus it could be the case that Mr Hymus paraphrased the words used by Mr Diaz but it is submitted that that would not prevent the admission of the documents because they contain statements derived from information provided by Mr Diaz.
The word "statement" is defined in s 79B to include any representation of fact or opinion, whether made in words or otherwise. I accept that the words in Mr Hymus' documents are statements. The issue is whether the statements in Mr Hymus' documents are Mr Diaz' statements. I accept the defendant's submission that s 79C should be given a wide and liberal interpretation and that the word "statement" should not be given a restricted meaning (Cullis v Hamersley Iron Pty Ltd [1970] WAR 170).
In Cullis' case the statements were in a document signed by the witness. The witness had left Australia and was living in Copenhagen. The maker of the statement had signed the document and initialled each page. In that case the documents were received into evidence under s 79C despite the witness being overseas and not called to give evidence during the trial.
The defendant submits that, properly understood, there is no requirement under s 79C that the document containing the statement be a document of the qualified person. The defendant relied on Markovina v The Queen (1996) 16 WAR 354 as authority for that proposition. In Markovina the appellant had been convicted of crimes concerning the importation of prohibited drugs into Australia contrary to the Customs Act. At trial, two electronic diaries contained on a computer in the appellant's possession were received into evidence pursuant to s 73A to s 73B of the Evidence Act as constituting business records of the drug business being run by the appellant and by a man named Holmes. The evidence established that Mr Holmes had made the entries in the electronic diaries. There was no evidence that the appellant had used the diaries or knew how to use them. The appellant did however know of the existence of the diaries and contributed information which was incorporated into the diaries by Mr Holmes.
The ratio of Markovina's case is that the diaries were admissible under the Evidence Act as business records but Malcolm CJ went on to consider s 79C and said that in his opinion:
"Statements contained in the diary reproducing or derived from information in one or more statements made by the appellant would be admissible under s 79C(1)(b)(i) of the Evidence Act on the basis that the appellant was a qualified person." (Markinova at 386)
In the particular circumstances of Markovina's case the Court of Criminal Appeal was prepared to find that entries put in the diaries by Mr Holmes containing information provided by the appellant were admissible under s 79C as statements of the appellant, who was a qualified person within the meaning of s 79C. To that extent Markovina's case does provide authority for the defendant's proposition that a document may contain the statement of a qualified person even though the qualified person was not the maker of the document. But the factual basis was much different in Markovina's case. The document consisted of diaries found on a computer owned by the appellant and in his possession. Although the appellant did not know how to enter information on the document, the document itself was directly connected with the appellant so that it could be said to be his document even though the appellant did not create it. There was evidence the document was used by the appellant.
None of that is present in this case. The documents in this case contain Mr Hymus' notes and were made by him and used by him in preparing his report to the plaintiff's solicitors. There is no evidence the qualified person Mr Diaz was ever shown the documents. The notes were never signed or initialled by Mr Diaz. They were never used or relied on by Mr Diaz. In those circumstances I do not accept the proposition that the documents prepared by Mr Hymus contained statements of Mr Diaz. The documents contain no more than Mr Hymus' statements of what Mr Diaz told him. Unless the document was acknowledged or used in some way by the qualified person, I could not accept the proposition that the statements in the document are his statements within the meaning of s 79C.
By s 79C the legislature intended to make admissible statements in documents when those statements are made by qualified persons. While I accept that a qualified person need not make the document, there must be some evidence linking the document itself with the qualified person before a court could be satisfied that the statement as contained in the document was the statement of the qualified person. There is no such evidence in this case.
For these reasons the defendant's application is refused. Mr Hymus' notes of his conversation with Mr Diaz are in my opinion not admissible under s 79C.