Xiang v Ward (No 2)
[2016] NSWDC 69
•02 May 2016
District Court
New South Wales
Medium Neutral Citation: Xiang v Ward (No 2) [2016] NSWDC 69 Hearing dates: 2 May 2016 Date of orders: 02 May 2016 Decision date: 02 May 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: I refuse to admit the document into evidence.
Catchwords: PROCEDURE – admissibility – correspondence – business record – created after litigation commenced – hearsay representation Legislation Cited: Evidence Act 1995, s 63, s 64, s 67, s 69 Category: Procedural and other rulings Parties: Youfa Xiang (plaintiff)
Peter Luscombe Ward (defendant)Representation: Counsel:
Solicitors:
Mr M W Young SC (plaintiff)
Mr M W E Maconachie (defendant)
Dixon Holmes Lawyers (plaintiff)
Cappello Rowe Lawyers (defendant)
File Number(s): 2013/304886 Publication restriction: None
Judgment
-
The defendant, Peter Ward, seeks to tender correspondence from his claimed accountant, Arthur Stedman, to attempt to explain the circumstances surrounding the deregistration of Alternate Fuel Solutions Pty Ltd in about August 2013.
-
The proceedings were commenced in October 2013 and the correspondence is dated 23 March 2014. Mr Ward initially relied upon s 69 of the Evidence Act 1995 for the admission of the document on the basis that it was a business record. There were some matters that might have supported it being a business record but when Mr Ward considered the effect of subs (3) of s 69, the circumstance that the document was created almost six months after the commencement of proceedings against him alleging Alternate Fuel Solutions Pty Ltd had been deregistered and remained deregistered, and that the document followed "recent discussions" presumably between Mr Ward and Mr Stedman, Mr Ward took the view that s 69(3) would operate to preclude the application of s 69(2) and thus leave the hearsay rule applicable to the document. Mr Ward thereupon withdrew any reliance upon s 69 as a basis for admissibility of the document.
-
Mr Ward, however, called in aid s 64 of the Evidence Act 1995. He expressly conceded that he was unable to establish that Mr Stedman was a person not available to give evidence, and that therefore s 63 had no application.
-
The difficulty with s 64 rendering the hearsay representations in the document admissible is twofold.
-
First, s 64(2) requires, among other things, that it would cause "undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence". No evidence was adduced about Mr Stedman's absence, or the delay, cost or practicability of obtaining evidence from him. In those circumstances, I cannot be satisfied that s 64(2) is satisfied.
-
Secondly, were s 64(2) satisfied, Mr Ward would still be obliged, in order to rely upon that provision, to give notice under s 67 of the Evidence Act 1995. There is no suggestion that notice was given and only a faint submission was made about the exercise of my discretion under s 67(4) to relieve Mr Ward of the obligation for notice. No submission was made as to why I should exercise that power under s 67(4).
-
Mr Ward did submit that the need for evidence from Mr Stedman only became apparent during cross-examination. I am not satisfied of this as the significance of the deregistration was always apparent, it having been pleaded in the statement of claim. If this was intended to be the basis of relief against the requirement of notice, it would not of itself be sufficient to persuade me to grant leave.
-
Given that s 64(2) is not satisfied and no submission was advanced suggesting a proper basis upon which a lack of notice should be excused, I need not finally decide whether this might be a case for relief from the requirements of notice under s 67(4). I note that Mr Xiang opposes the exercise of any discretion under s 67(4).
-
I also note that no reliance is placed upon s 69 of the Evidence Act 1995 for the admission of the document for a non‑hearsay purpose.
-
Accordingly, I refuse to admit the document into evidence.
-
Mr Xiang also relied upon the circumstance of Mr Ward attempting, in re‑examination, to put in dispute or explain away a clear answer of the witness in cross‑examination. In the circumstances of my ruling, I do not need to and do not propose to decide that matter.
**********
Decision last updated: 10 May 2016
0
0
1