CEEDIVE Pty Ltd v MAY, TIMMS, McFADDEN & MUDWAY [2004] NSWSC 33 | Case summary

1 The question for decision is the admissibility of certain paragraphs, or part of them, in an affidavit sworn on 7 May 2003 by Kevin Leslie McFadden in action number 12918/02 between the plaintiff and Phillip James McFadden. 2 The deponent states that he was born on 22 August 1936 and annexes a copy of his birth certificate. He then purports to relate matters concerning his parents, where they were residing at the time he was born, and his grandparents. In particular, in paragraph 3, where his parents and grandparents lived is sworn to as being known by the deponent based upon "many conversations with my father" and is further based upon "studying various government records and records of the Lithgow Valley Colliery Company" and further assertions are made in paragraphs 8 and 9 without express statements as to source. 3 The historical material relating to the deponent's parents and grandparents and, where relevant, place of work and place of residence, I am of the view, is relevant to the issues joined between the parties on the plaintiff's claim for possession and the defendants' denial of any entitlement thereto and claims in a cross-claim which give rise to the nature of the occupation of the house, the source of it, the relationship of the house to the land and at least to issues relating to estoppel by convention. Thus, as I have said, the material is relevant. 4 At common law, in a very general sense, this type of evidence would have fallen within the exception to the hearsay rule generally described as pedigree declarations. (See Cross on Evidence, 6th Australian edition, paragraphs 33.205 to 33.255.) 5 In New South Wales, ss73 and 74 of the Evidence Act 1995 provide: 73 Exception: reputation as to relationships and age (1) The hearsay rule does not apply to evidence of reputation concerning: (a) whether a person was, at a particular time or at any time, a married person, or (b) whether a man and a woman cohabiting at a particular time were married to each other at that time, or (c) a person's age, or (d) family history or a family relationship. (2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by a defendant unless: (a) it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted, or (b) the defendant has given reasonable notice in writing to each other party of the defendant's intention to adduce the evidence. (3) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted.

74 Exception: reputation of public or general rights (1) The hearsay rule does not apply to evidence of reputation concerning the existence, nature or extent of a public or general right. (2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted. 6 That section, when one consults usual sources, appears to have received little judicial consideration. I myself have had occasion to consider it in Marsden v Amalgamated Television Services [2000] NSWSC 55 in relation to a hearsay statement as to a person's age. It was the subject of consideration by Hidden J in R v Mrish (unreported, Thursday 15 August 1996) where, in the context of the criminal law, his Honour rejected tendered evidence under that section, namely s73(1), saying in the context of the material sought to be led, that ss73 and 74 expand the common law rules relating to hearsay evidence and pedigree and public rights but in the instance with which his Honour was concerned did not extend evidence to the quality or stability of a relationship which the evidence might otherwise have been admissible to prove. 7 In Day v Couch [2000] NSWSC 230 Bryson J was concerned with the operation of s73(1)(d) in relation to statements, as I understand it, set out in para [67] of his Honour's judgment. His Honour found that the substance of disputed transactions did not fall within the reference to family history within s73(1)(d), though his Honour significantly stated in para [69] that that section widens the range of matters that may be proved by reputation to some extent beyond the common law relating to pedigree but in the instant case family history did not include "detailed...real estate transactions". I note and agree, respectfully, with his Honour's general observations set out in para [72]. 8 I will mention one other authority in which reference is made to s 73(1)(d) and that is the decision of Olney J in Yaramirr v Northern Territory of Australia & Ors (1998) 82 FCR 533 which was a native title case (see 554F where his Honour considers the operation of ss73(1)(d) and 74(1) of the Evidence Act isolated from s82 of the Native Title Act). I would add that the learned editors of the 6th edition of Cross, in dealing with pedigree declarations, do no more than set out the terms of s73 of the Evidence Act. 9 It would seem to me when one considers the express terms of s73(1)(a), (b) and (c) that they are provisions enacted to reflect, as much as any statute can, particular matters that the common law dealt with in the area of pedigree declarations. For the purposes of matters of family history or relationship in those areas with which the common law more often than not is concerned, the enactment of s73(1)(d), "family history or family relationship", separately, in my view, conforms with the observations of Bryson J and Hidden J which reflects an extension of the common law in permitting evidence of reputation of a kind to be admitted as an exception to the hearsay rule. Family history, however, does not mean family gossip. Family history in its ordinarily understood meaning in my view encompasses date and place of birth, date and place of marriage, date and place of cohabitation in the 21st century or the 20th century and place of work of ancestors of the witness. This matter is not to be understood as making admissible broad genealogical general material, but in a sense that must be rendered relevant to the issues to which the evidence is sought to be related (See Cross, supra, para 33.210 10 I am not concerned with defects in form in Mr McFadden's affidavit. A fair reading of it indicates that the source of his knowledge was conversations with his father; that is a conversation between the witness and a blood relative when one goes back to the old laws of declarations of pedigree. 11 I am of the view that s73 generally and s73(1)(d) does not require anything more, in the context of this case, than a statement that the witness' knowledge is acquired based upon a conversation with one person, namely between son and father. 12 In relation to paragraph 2, I will admit it even though it the source is not expressly stated. Common sense would dictate that that information can only have been founded in the witness' parents having informed him. 13 Paragraph 3 I will admit only to this extent: "To the best of my knowledge and based upon many conversations with my father…" to the end of the paragraph. So much of that paragraph as refers to government records or company records cannot fall within s73 and because I would not regard it as reputation evidence in the strict sense; it could not be that kind of hearsay which is excepted by the section. 14 I will allow paragraphs 4 and 5 and 7 and 8 and 9 and 10.

CEEDIVE Pty Ltd v MAY, TIMMS, McFADDEN & MUDWAY

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