Vella v Wah Lai Investment (Australia) Pty Ltd, Wah Lai Investment (Australia) Pty Limited v Koleta Gleeson, Paul Vella v Wah Lai Investment (Australia) Pty Limited

[2004] NSWSC 583

CITATION:	Vella v Wah Lai Investment (Australia) Pty Ltd, Wah Lai Investment (Australia) Pty Limited v Koleta Gleeson, Paul Vella v Wah Lai Investment (Australia) Pty Limited [2004] NSWSC 583
HEARING DATE(S):	21/6/04 - 2/7/04
JUDGMENT DATE:	29 June 2004
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Leave granted to read affidavits, on terms that those paragraphs concerning which absence of cross-examination would prejudice opposite party are not read.
CATCHWORDS:	EVIDENCE - witnesses - deponent of affidavits not made available for cross-examination after notice - application to read affidavits notwithstanding deponent not being produced for cross-examination - affidavits contain some material concerning which opposite party would be prejudiced if deponent not available for cross-examination, and other material where unavailability of deponent does not prejudice opposite party - appropriate form of order
LEGISLATION CITED:	Supreme Court Rules 1970
PARTIES :	Paul Vella - First Plaintiff and Cross Defendant in 4900/98, Plaintiff in 2907/96 Craftmill Pty Limited - Second Plaintiff in 4900/98, Second Defendant in 1850/99 Wah Lai Investment (Australia) Pty Limited - Defendant and Cross-Claimant in 4900/98, Defendant 2907/96, Plaintiff in 1850/99 Koleta Gleeson - First Defendant in 1850/99
FILE NUMBER(S):	SC 4900/98; 1850/99; 2907/96
COUNSEL:	J E Simpkins SC; E M Frizell - Vella Interests J R McKenzie - Wah Lai Interests
SOLICITORS:	Beilby Poulden Costello - Vella Interests W Chan & Co - Wah Lai Interests

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 29 JUNE 2004

4900/98 PAUL VELLA & ANOR v WAH LAI INVESTMENT (AUSTRALIA) PTY LIMITED & ORS
1850/99 WAH LAI INVESTMENT (AUSTRALIA) PTY LIMITED v KOLETA GLEESON & ANOR
2907/96 PAUL VELLA v WAH LAI INVESTMENT (AUSTRALIA) PTY LIMITED & ANOR

JUDGMENT – Ex Tempore (On admissibility of affidavits; see transcript p 362)

1 HIS HONOUR: Josephine Hui has sworn three affidavits in these proceedings, which the defendant seeks to read. Ms Hui has been a secretary of the defendant company since 21 March 1995, and she has been, it appears from other evidence in the case, a person who carried out various activities in Sydney on behalf of the defendant when the defendant's directors were either absent in Hong Kong, or hampered in their ability to conduct business negotiations in Sydney through their unfamiliarity with the English language. Ms Hui is someone whose affidavits were identified well in advance of the hearing as ones which the defendant wished to read. The plaintiffs gave notice that they required her to attend for cross-examination.

2 The position has been arrived at today, where it is apparent that Ms Hui will not be available to attend for cross-examination. Consequently, Mr McKenzie, counsel for the defendant, has sought an order under Part 38 rule 9 of the Supreme Court Rules 1970 that the court grant leave for Ms Hui's affidavits be read notwithstanding that she is unavailable.

3 The circumstances of Ms Hui's unavailability emerge from an affidavit which Mr Nguyen, solicitor for the defendant, has sworn and filed today.

4 On 20 May 2004 Ms Hui told Mr Nguyen that she was returning to Hong Kong to be with her seriously ill mother. At that stage, she indicated she would return to Australia the week before commencement of the hearing of the matter. On or about 17 June 2004, Mrs Chan, one of the directors of the defendant, and a long term friend of Ms Hui's parents stated that Ms Hui would remain in Hong Kong indefinitely, and it was unlikely she would return to Australia prior to the conclusion of the hearing. In fact, Ms Hui's mother passed away on 18 June 2004. Mr Nguyen has been informed by Mrs Chan that the funeral will not take place until 21 July 2004 and that Ms Hui would return to Australia sometime after 21 July 2004.

5 The topics on which Ms Hui gives evidence in her three affidavits fall into various categories. There are some of them which are not controversial at all, and where the affidavit merely provides a formal means of proof. There are others where the evidence which she gives covers topics which have been covered by other witnesses in the case. There is a third category of evidence, however, where the evidence which she gives relates to her own dealings on behalf of Wah Lai.

6 There has been no attempt made by the defendant to cater for Ms Hui's desire to be in Hong Kong immediately following the death of her mother by seeking to arrange for her to give evidence from Hong Kong by video link. There is no evidence of her mother's death having had an effect on Ms Hui such as it would make it not possible for her to give evidence.

7 The evidence which Ms Hui gives on the third of the types of topic which I have identified is evidence which, it seems to me, could not practicably be received and accorded little weight or reduced weight on the basis that Ms Hui had not been cross-examined. The matters which fall within this third category are ones where the Court either accepts that a particular state of affairs is so, or does not, and whether the Court accepts that that particular state of affairs is so is likely to be affected by whether there has been cross-examination on the evidence. It would be unfairly prejudicial to the plaintiff for Ms Hui’s evidence to be received but not cross-examined on. In these circumstances, I am not prepared to allow evidence in the third category to be given, when Ms Hui is not made available to be cross-examined.

8 The form of the rule in Part 38 rule 9 is one which needs to be accommodated in the type of order which I make. Part 38 rule 9 subrule 3 says, “Where the attendance of a person is required under subrule (1), the affidavit may not be used unless the person attends or is dead or the Court grants leave to use it.” That rule seems to contemplate that the affidavit is used in its entirety or not at all. It seems to me, however, that the prejudice to the plaintiff which would be sustained by the evidence of Ms Hui being taken on the third of the topics can be adequately dealt with, while not preventing Ms Hui's evidence being received on matters concerning which the plaintiff would not be prejudiced by her not being cross-examined, by my granting leave on terms for her affidavits to be read. The term which I would propose is that her affidavits be permitted to be read, on condition that those paragraphs which deal with the third type of topic are not read. The paragraphs of her affidavit which deal with the third type of topic are as follows: In her affidavit of 22 October 1997: paragraphs 5(a), 5(b), first sentence 5(c), first sentence 5(d), 6, 7, and the penultimate sentence in paragraph 8. In her affidavit of 20 May 2004: paragraphs 4, 11, 12, 14, and 15.

9 I grant leave for the affidavits of Josephine Hui dated 22 October 1997, 30 October 2002, and 20 May 2004 to be read, on condition that the portions I have just identified are not read.

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Last Modified: 07/12/2004