Abigroup Contractors Pty Ltd v BPB Pty Ltd [2001] VSC 484

8. The plaintiff seeks to rely upon statements made by Mr Fortune and to do so by putting those statements forward as evidence. They consist of two documents each of which is headed "Witness statement of Reyan Fortune" and dated respectively March 2001 and April 2001. The veracity of material contained in those witness statements is attested to by Mr Fortune in an affidavit sworn by him in Malaysia on 26 November 2001.

11. The plaintiff seeks to rely upon documentary evidence because, according to the affidavit to which I have just referred, Mr Ryan is not only out of Australia at present, but is not prepared to return to Australia to give evidence in this trial and indeed is not even prepared to attend at an appropriate location in Malaysia or elsewhere to enable his evidence to be given via video link. Among the reasons put forward by Mr Fortune for his reluctance, indeed refusal, to participate in a video link is first the fact that his father is in poor health and that Mr Fortune's attendance in South Africa where his father lives is required. The second reason put forward by Mr Fortune for his refusal to cooperate in the taking of his evidence via video link is that since ceasing his employment or engagement with the plaintiff he has provided substantial assistance to the plaintiff in its preparation for this case and in related arbitration proceedings and that the giving of that assistance resulted in his position with his present employer being made difficult. Mr Fortune implies in his affidavit that any further cooperation in giving evidence in these proceedings might result in his employment being terminated.

14. It is not for me to decide whether or not Mr Fortune is truthful in his evidence concerning his lack of availability for the purposes of giving the evidence either in Australia or elsewhere. What I think I must conclude on the basis of the material before me, that material being unchallenged by any evidence on the part of the defendant, is that the plaintiff is not in a position to obtain the oral testimony of Mr Fortune. Accordingly, if any evidence is to be received from him it can only be in the form of the two witness statements to which I have referred. The plaintiff submits that both at common law and pursuant to the provisions of the Evidence Act, Mr Fortune's witness statements can properly be tendered.

17. It is, as I understand the common law, the position that at common law in certain circumstances evidence by way of written statement as to facts in issue was admissible. Doubtless the ultimate decision whether or not to admit such evidence at common law was determined by the justice of the case. I prefer to base my decision upon s.55 of the Evidence Act 1958. As I understand it that section has codified and expanded the common law position.

20. The statutory provisions now embodied in s.55 have existed in one form or another for very many years. In 1946 the Victorian Parliament enacted the Evidence Act of that year, No.5183. The relevant portions of that enactment are to be found in s.3. They are as follows,

"3(1). In any civil proceedings where direct oral evidence of a fact would be admissible. Any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say:

(i) had at the time of making the statement personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record made ... in the performance of a duty to record information supplied to him by a person who at the time of supplying the information had ... personal knowledge of those matters; and

(b) if the maker of a statement is called as a witness in the proceedings: provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is ... out of Victoria and it is not reasonably practicable to secure his attendance or if all reasonable efforts to find him had been made without success ...

(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipate involving a dispute as to any fact which the statement might tend to establish."

It is also relevant to refer to s.4 of that Act which provides in effect that in estimating the weight if any to be attached to a statement rendered admissible as evidence by the Act, the court may among other things have regard to whether or not the maker of the statement had any incentive to conceal or misrepresent facts.

30. The reference to s.4 is important because it indicates in my opinion that the parliament had in mind the admission pursuant to s.3 of evidence from persons who were interested to the extent that they had a reason to wish to put forward a particular version of the facts, albeit not a reason based upon such considerations as material advantage; who, in short, might not be impartial.

33. It was under the provisions to which I have just referred that Mr Justice Sholl handed down two decisions in this court. They were first Shepherd v. Shepherd [1954] VicLawRp 71; [1954] V.L.R. 514 and secondly Tobias v. Allen (No.2) [1957] VicRp 32; [1957] V.R. 221. Those cases were relied upon by the defendant in resisting the plaintiff's application to admit Mr Fortune's witness statements.

36. In my opinion I should not follow the reasoning of Mr Justice Sholl as expressed in his judgments in those cases. First it seems to me that His Honour omitted to take into account the words in s.4 to which I have referred. More importantly His Honour was then considering the Evidence Act 1946 which is in material respects different to the provision of the present s.55.

39. The latter section provides by sub-s.(1) in effect that where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall be admissible as evidence of that fact if either one of two conditions is in existence. First that the maker of a statement had at the time of its making personal knowledge of the matters with which the statement deals. Secondly, or alternatively, that the document is or forms part of a record relating to any business.

42. In this case there is no contest, as I understand it, with the proposition that Mr Fortune had, at the time he made his witness statements, personal knowledge of at least the substance of that to which he there attests (I say attests given that in his affidavit of 26 November he deposed to the truth of the facts set out in his witness statements).

45. There is in s.55 a sub-section which reflects sub-s.(3) of s.3 of the Evidence Act 1946.

48. That subsection is sub-s.4 of s.55. It provides that "Nothing in this section shall render admissible as evidence in any legal proceedings, any statement made by a person interested at a time when the proceedings were pending or anticipated, involving a dispute as to any facts which the statement might tend to establish".

51. Mr Cawthorn, for the defendant, relied heavily upon this subsection. He submitted that Mr Fortune was a person interested within the meaning of that expression, in that subsection. In my opinion Mr Fortune was not. it is true that his evidence will be the subject of challenge, doubtless strenuous challenge, by the defendant. The fact that he is a contentious witness does not, in my view, make him interested within the meaning of that expression in sub-s.4.

54. More important, in my opinion, is the fact that Mr Fortune on the evidence before me stands to gain no material advantage according as to whether the plaintiff is successful or not in this case. Nor is there any suggestion that Mr Fortune will benefit or be disadvantaged in a non-material way, depending upon the outcome of this litigation, save that his reputation may be affected. Such a possibility, that is that Mr Fortune's reputation may be affected, is in my opinion not sufficient to amount to an interest for the purposes of sub-s.4. I rely in this connection on statements in Cross on Evidence to the effect that there must be a real likelihood of bias before the maker of a statement can be said to be a person interested.

57. In any event, it seems to me that sub-s.5 of s.55 is decisive in favour of the plaintiff's application, at least in the circumstances of this case. That subsection, which of course follows sub-s.4, is in the following terms so far as relevant: "Notwithstanding anything to the contrary in the foregoing provisions of this section, the condition that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness, need not be satisfied where...(b) he is out of Victoria and it is not reasonably practicable to secure his attendance".

60. For the reasons I have already expressed it seems to me that Mr Fortune being out of Victoria, it is not reasonably practicable to secure his attendance to give oral evidence in Melbourne or to give evidence by way of videolink outside Australia.

63. It will be noted that sub-s.5 does not appear as a separate provision in the Evidence Act 1946. Its enactment as a separate subsection, with the opening words which I have already quoted, takes the present statutory provisions some distance away from those which obtained when Mr Justice Sholl handed down the two judgments to which I have referred.

66. In my opinion, it is now incumbent upon a court faced with circumstances such as those which presently confront me, to determine whether the discretion given by sub-s.5 should or should not be exercised in favour of the applicant/plaintiff. In my opinion justice demands the reception of the evidence in question. Were its admissibility to be refused or denied, the plaintiff would be deprived of important evidence going to an essential element of its case. The defendant would likewise be accorded the very great advantage of having no contrary evidence put forward in response to the evidence which it will call on this important issue, or these important issues.

69. On the other hand it seems to me that no substantial injustice would be done to the defendant by the admission of Mr Fortune's witness statements. The defendant will be relieved of the requirement to put to Mr Fortune those aspects of the defendant's case which, were Mr Fortune called, would be required to be put to him pursuant to the rule in the case of Browne v. Dunn.

72. The defendant will be able to call its evidence on the matters covered by Mr Fortune's witness statements while not being confronted with sworn oral testimony in opposition from Mr Fortune. The defendant will be able to go to me during final address with the submission that I should, and perhaps must, take into account the fact that its evidence on important matters has not been challenged by oral testimony.

75. Likewise the defendant will be in a position to put to me that I should give little or no weight to Mr Fortune's witness statements. The defendant will be in a position to point to inconsistencies in those statements and to call evidence as to those inconsistencies.

78. Meanwhile the plaintiff will of necessity be deprived of such benefit as it might have obtained through Mr Fortune's oral evidence. Accordingly justice, it seems to me, will best be done if I allow to be put in evidence pursuant to s.55 of the Evidence Act 1958 the two witness statements of Mr Fortune to which I have referred. I will order accordingly.