Guojin Huang v Jinghong Wei

The affidavit

1. On 6 October 2021, the plaintiff filed a notice of intention to adduce evidence of a previous representation. The notice related to paragraphs in an affidavit sworn by Mr Pavros Stavropoulos on 27 September 2021 (the affidavit). Mr Stavropoulos is a solicitor who was assisting the plaintiff's solicitor on the record.
2. The relevant paragraphs in the affidavit recount two alleged telephone conversations between Mr Stavropoulos and a woman known only as "Fay" on 22 April 2021. Mr Stavropoulos had Fay's mobile phone number. The substance of those conversations was that Fay had rented a room at the property from Mr Wei for about four months in 2018. There was no formal tenancy agreement. She paid rent of about $300-$350 per week to Mr Wei. Rent was always paid in cash and no receipt was ever provided. There were said to be approximately four other tenants living at the property at the same time as Fay, but she could not remember any of them.
3. Mr Stavropoulos told Fay that he would draft an affidavit for her to sign. Fay provided her email address for him to send her the draft affidavit. However, Fay did not commit to signing the document. She told Mr Stavropoulos that she would "think about it".
4. Fay gave Mr Stavropoulos her email address. He emailed the draft affidavit to Fay on 23 April 2021, but never received any response. He called Fay on four occasions to follow up on the email, but she did not pick up the phone. Mr Stavropoulos also conducted some Google searches but was unable to locate Fay.

Submissions

1. It was common ground that the evidence of Fay's statements in the affidavit was hearsay. In the ordinary course, such evidence would be excluded by operation of s 59(1) of the Act. However, the plaintiff submitted that the affidavit was admissible under s 63(2) of the Act because the maker of the original statements - Fay - was not available to give evidence.
2. Section 63 of the Act includes: "(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to - (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made …".
3. The availability of persons is defined in Part 2 Clause 4 of the Act's Dictionary: 4 Unavailability of Persons (1) For the purpose of this Act, a person is taken not to be available to give evidence about a fact if … (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
4. In the notice of intention to adduce the evidence, it was submitted for the plaintiff that all reasonable steps had been taken because: 1. Multiple attempts had been made to contact Fay by telephone which she failed to pick up or return; 2. An email had been sent to Fay to which she had failed to respond; 3. There was insufficient information to issue a subpoena upon Fay to compel her to give evidence; 4. Internet searches were undertaken to ascertain Fay's full name and current address, but these yielded no helpful results; and 5. Further steps, such as acquiring the assistance of a private investigator, to locate Fay and serve a subpoena upon her would cause undue expense and delay in light of how little was known about Fay, and there was no guarantee that Fay could be located.
5. Alternatively, the plaintiff submitted that the evidence was admissible pursuant to s 64(2) of the Act because it would cause undue expense or delay, or would not be reasonably practical, to call Fay to give evidence.
6. In reply, a notice of objection was filed by the defendant. The defendant submitted: 1. The steps taken by the plaintiff to secure Fay's attendance and compel her to give evidence were insufficient; 2. The plaintiff had not established that other measures would cause undue expense or delay, or would not be reasonably practical, to call Fay to give evidence; and 3. The affidavit should not be admitted because it would cause unfair prejudice to the defendant pursuant to s 135 of the Act.
7. During the course of argument, Mr Riordan of Counsel for the plaintiff reiterated that the measures taken were sufficient, especially given that Fay's full name was unknown. Additionally, the expense of ascertaining further information about Fay's identity and whereabouts would be disproportionate to the significance of the evidence. This was because it was agreed between the parties that the most critical evidence in the case related to how Mr Wei became a joint tenant in the property. The rent issue was ancillary to that.
8. Mr Foley of Counsel for the Defendant responded that there were further reasonable measures available to the plaintiff which had not been taken, including: 1. Engaging a third party to conduct investigations via the Internet and various databases. Mr Foley provided two authorities in support of the submission that engaging private investigators was a usual course of action in these matters: Quintano v B W Rose Pty Ltd [2008] NSWSC 1012 (Quintano) and AJW and 2 ors v State of New South Wales [2003] NSWSC 803 (AJW v NSW). 2. Conducting internet searches of Fay's phone number and email address. The only searches that had been undertaken were of variations of Fay's name based on her email address; and 3. Ascertaining the mobile phone carrier for Fay's telephone number which would then enable the plaintiff to issue a subpoena for phone records to identify the full name and residence of Fay.
9. Mr Foley characterised the plaintiff's efforts to track down Fay as "half-hearted" and directed the Court's attention to ZL v The Queen (2010) 208 A Crim R 325; [2010] VSCA 345 (ZL v The Queen).
10. Mr Riordan submitted that the suggestions made by the defendant were equally unlikely to achieve any useful outcome. He relied on Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 (Mindshare) which he described as "more closely analogous" to the present proceedings.
11. Mr Riordan also refuted the proposition that the affidavit would be unfairly prejudicial to the defendant. He directed the Court's attention to Mr Wei's affidavit sworn on 1 February 2021 in which Mr Wei asserted that there had been no tenants at the property since 2015. This was evidence that the defendant had acknowledged and responded to the allegation about rent, albeit without engaging with the specifics of the statements attributed to Fay.
12. Mr Foley's response was that the affidavit also went to issues of credit, which was a matter of critical importance in this case. This increased the potential for prejudice against the defendant because Mr Foley would be unable to cross-examine Fay about evidence that could be used to call the defendant a liar.

Cases referred to for the plaintiff

1. Mr Riordan referred to the decision in Mindshare. That case concerned unsuccessful attempts by the defendant to contact a witness, Mr Cooper, in Hong Kong by letter, email and telephone. The correspondence requested that the witness provide a statement in the matter. Offers were also made to cover any travel and accommodation expenses for the witness to give evidence in Sydney, or arrangements could be made for the witness to give evidence via videolink. The witness never responded.
2. The plaintiff in Mindshare suggested that further action was open to the defendant under the Hong Kong Evidence Ordinance to request an order by a Hong Kong Court of First Instance for the witness to give evidence. The failure to do so meant that not all reasonable steps had been taken under s 63(2). Additionally, the efforts made by letter, email and telephone were insufficient.
3. The defendant replied that it would be too expensive to undertake such a process. However, the submission failed "because of the complete vagueness of the material on which it is founded" and the fact that the defendant had offered to pay for Mr Cooper to travel to Australia (at [20]). However, his Honour noted that there would be "a deal of trouble and expense involved" (at [21]).
4. Hamilton J held that all reasonable steps had been taken by the defendant because it was unlikely that further steps would result in the witness giving useful evidence. His Honour stated: "[22] It may be that if it were clear that Mr Cooper would attend and would give the evidence sought if such a procedure were engaged in, making such an application to the Hong Kong Court would be encompassed in the concept of reasonable efforts. However, the effort shows two things about Mr Cooper in relation to this evidence. The first is a rooted aversion to give it or to cooperate in any way with the defendants in making it available. The second is his statement concerning the quality of his recollection, made as long ago as 2003, another four years having passed since that time. This must cast doubt on whether any useful evidence would or could be given through securing Mr Cooper's attendance. [23] In those circumstances, it seems to me that it would not be reasonable for the defendants to be required, as the price of the pathway through s 63 afforded by the [Evidence Act], to go to the trouble and expense of making the application in Hong Kong and perhaps attending to take the evidence in Hong Kong, when it must be doubtful whether the witness would give the evidence in any useful form if that procedure were pursued. [24] The plaintiff also submitted that the evidence given shows that the steps taken were insufficient, because attempted contacts have only been by phone, mail and email and no investigator or process server has been sent to pursue Mr Cooper and there is no proof that Mr Cooper has received the messages … [25] In the circumstances of this case, I do not regard those matters as preventing a finding that there have been reasonable efforts. Whilst there has been no response from Mr Cooper, I have already stated that I have drawn the inference that the 2007 communications would, on the balance of probabilities, have reached his attention. I do not regard this as a case in which the problem is that Mr Cooper cannot be located. As I have already said, I have drawn the inference that Mr Cooper does not wish to give the evidence or to cooperate in any way. I draw this inference from his statements to that effect in 2003 and the fact that he does not now respond to communications which I infer have reached him."

Cases referred to for the defendant

1. Two of the cases referred to by Mr Foley were matters in which private investigators had been retained by parties seeking to tender hearsay evidence pursuant to s 63(2).
2. The first case, AJW v NSW, involved a notice to tender first-hand hearsay evidence by the plaintiffs of comments made by their daughter ("SMW") in the presence of her younger sister ("ES"). SMW and ES had both made serious allegations against the plaintiffs in 1994. While ES had renewed contact with the plaintiffs in 2002, SMW did not. ES and SMW had also lost contact in 2003 and there were grounds to suspect that SMW "would seek to keep her whereabouts secret" (at [10]).
3. A private investigator, Mr Featherstone, was retained to locate SMW but was unsuccessful. A report by Mr Featherstone was tendered as evidence, although it did not go into detail about exactly what inquiries were made. He had also declined to make inquiries of SMW's extended family because it would be "inappropriate" given their support for SMW and similar accusations made against the plaintiffs by SMW's cousins (at [12]). No other searches or inquiries were undertaken by the plaintiffs.
4. Bell J held that it was open to be inferred that the investigator "carried out inquiries that might reasonably be expected to have been undertaken by a competent investigator" (at [15]). This was sufficient to satisfy the requirement that all reasonable steps were taken pursuant to s 63(2)(a).
5. The defendants also submitted that it would cause unfair prejudice to admit the evidence in circumstances where SMW could not be cross-examined and both SMW and ES had a history of making false statements under oath. Bell J stated: "[23] The unfair prejudice that Mr Donovan identified is the inability to cross-examine SMW. This procedural disadvantage has been held to amount to "unfair prejudice" for the purpose of the exercise of the s 135 discretion … I accept that there may be cases where the inability to cross-examine would justify the discretionary exclusion of evidence under s 135. However, I was not persuaded that this was such a case. The circumstance that SMW has deliberately made false representations on occasions when she was under an obligation to tell the truth is acknowledged by the plaintiffs. While the inability to challenge her in cross-examination as to the truth of the representations is a disadvantage to the defendant, I did not consider it to amount to unfair prejudice to it. The limitations that must apply to the assessment of the weight to be accorded to evidence of SMW's representations as to her sexual conduct (in the absence of credible independent evidence to support them) are, to my mind, apparent."
6. The second case, Quintano, involved a request to tender a statement made to police by a security guard, Mr Siasau, in relation to a criminal matter which had given rise to proceedings in negligence. The police statement contained Mr Siasau's address, phone number and security licence number. A private investigator was retained by the defendant. The investigator made contact with Mr Siasau, but Mr Siasau declined to give evidence. Subsequent attempts to contact Mr Siasau were unsuccessful, including an attempt to serve a subpoena on him by process servers. Further searches, including database searches, generated no substantive results.
7. The plaintiff asserted that further searches should have been undertaken, including a subpoena on the Department of Immigration to determine if he was overseas, further enquiries of the police or the Security Licensing Registry, and a search of the Australian electoral roll.
8. Brereton J (as his Honour then was) held that the suggested courses of action would not yield anything helpful in addition to what was already known. For example, a search of the Australian electoral roll would only be of assistance if Mr Siasau was an Australian citizen, a fact which was unknown. His Honour also said: "[27] [W]hat is reasonable in a particular case will be influenced by the other steps that have been taken, and given the various enquiries which have been made in this case by and on behalf of AWS, I do not think that reasonable steps to find Mr Siasau required that, in addition to what has otherwise been done, there also be an Australian electoral roll search."
9. Brereton J applied the reasoning of Bell J in AJW v NSW in determining that the requirements under s 63(2) were satisfied by retaining a private investigator, as well as further searches of the Licence Register "over and above what the private investigator undertook" (at [29]).
10. His Honour also found that the value of the evidence outweighed the plaintiff's inability to test it, stating: "[33] There has been an opportunity at least to test witnesses who have given versions in some respects similar to that contained in Mr Siasau's statement. There has been an opportunity to elicit evidence from witnesses to contradict aspects of Mr Siasau's statement - for example, where he claims to have been at various times."
11. The third case referred to by Mr Foley went to a different point. ZL v The Queen concerned a criminal trial in which the defendant was accused of stabbing another person. The Crown sought to adduce witness statements to police made by a person known as "MZ". The primary judge had allowed the evidence to be admitted at trial and the defendant commenced an application for leave to appeal that decision. MZ was the defendant's girlfriend at the time of the alleged offence and the sole eye-witness.
12. Because ZL v The Queen involved a criminal matter, the admissibility of the evidence was dealt with under s 65 of the Act. This is relevant because s 65 imposes more conditions on the party seeking to adduce the hearsay evidence than s 63.
13. MZ had twice failed to appear in court when subpoenaed. A third failed attempt to serve a subpoena was also made. Further attempts to locate MZ included speaking to her mother, attending MZ's last known address, leaving a telephone message, and sending a photograph of MZ to local police, none of which resulted in any success. Granting leave to appeal, Nettle JA (as his Honour then was) (Bongiorno and Ross JJA agreeing) stated: "[32] Given the witness is said to be very important to the Crown case, it is only reasonable to expect that very extensive inquiries and effort would have been made to locate her and ensure that she is available for trial. To date, however, even including the steps taken following the adjournment on 1 December 2010 (which it should be noted were completed in the space of the mere two days between the adjournment of 1 December 2010 and the judge's ruling of 3 December 2010), such attempts as have been made to find the witness strike me at best as superficial and by and large decidedly half-hearted … [34] [E]ven if the inquiries thus far undertaken were adequate, and in my view they are not, I would find it 'very difficult' to see why the witness should be regarded as being unavailable within the meaning of s 65(2)(b) when the trial is yet to begin, there is no objection to its postponement for the better part of the next three months and, as was in effect conceded in argument, in the time that remains before trial, the prosecution can reasonably do very much more than has thus far been done to locate the witness and ensure that she is available to give evidence."

"All reasonable steps"

1. The authorities which I have set out above demonstrate the type of considerations which have been taken into account in determining what are "all reasonable steps". Those factors will be as various as the facts of individual cases and it is not possible to set out an all-encompassing list, because what is reasonable is a deeply fact sensitive question. Nevertheless, those authorities and the Court's experience generally suggest that at least some of the following will be of relevance in considering whether "all reasonable steps" have been taken to find a witness or secure their attendance: 1. The nature of the case. For example, the higher standard of proof and the importance of the liberty of the subject may justify a higher bar than in a civil case (see ZL v The Queen). 2. The importance of the evidence (see ZL v The Queen and Quintano). 3. The inquiries that have been made and their outcome. For example, a definitive statement of non-cooperation from the witness, or an inference that the witness does not wish to co-operate, may mean no further steps are reasonable (see, for example, Mindshare). 4. Who the party is that is making the inquiries and about whom the inquiries are being made (see, for example, AJW v NSW). 5. The likelihood of any specific step yielding useful information. Where a party wishes to contend that particular steps should have been taken that were not taken, depending on the nature of the step it may be incumbent on that party to adduce evidence that the proposed step had some prospect of yielding useful information (see Quintano at [27]). 6. The cost and delay that a particular step might cause (see Mindshare and ZL v The Queen). 7. At least in civil proceedings in this Court, a party's obligation to give effect to the overriding purpose (see s 56(3) and (4) of the Civil Procedure Act 2005 (NSW)).
2. Apart from considerations of the kind identified in the preceding paragraph, it will also be necessary to consider the particular factual circumstances of the case at bar. These may include: 1. Is the identity of the potential witness known? 2. Are the location or other contact details for the potential witness known? 3. What, if anything, is known about the person's attitude to giving evidence? 4. The practicability of compelling the witness to give evidence. 5. When did the party applying for the benefit of the exception become aware of the existence of the witness and the evidence the witness could give? The discovery of a witness shortly before trial, assuming it is not the basis of an adjournment application, may be relevant to determining the universe of reasonable steps. 6. The ability of the other party to respond to the evidence.
3. Finally, some of the factors and issues which I have identified in the preceding two paragraphs may be relevant again to the exercise of the Court's discretion as to whether the evidence should be excluded under ss 135 or 136 of the Act once the Court has determined that "all reasonable steps" have in fact been taken so that the witness is "not available".
4. The Court's reasons for concluding that "all reasonable steps" in this case had been taken and to admit the evidence may be summarised as: 1. The Court infers from Fay's silence that she no longer wished to provide evidence; 2. Her evidence was not sufficiently important to warrant further steps being taken; 3. Mr Wei had responded to the evidence in his affidavit in reply; and 4. There was no sufficient discretionary reason to exclude the evidence.
5. I will briefly expand on each of these points.
6. Fay had been identified and contacted. I am satisfied, based on her subsequent silence in response to follow up contacts that she no longer wished to be involved.
7. In such a case, the next consideration will be whether, after the witness' refusal to co-operate becomes apparent, "all reasonable steps" requires more to be done. This analysis demonstrates the importance of considering what has been done, because that will provide important context. It is not enough for a party opposing admission of the evidence to advance a hypothetical list of all possible steps (which in and of themselves might be reasonable) and identify one or two that have not been taken so as to contend sylogistically that, therefore, all reasonable steps have not been taken. The analysis must be undertaken against the background of what has in fact been done and, at least, the importance of the evidence.
8. In this case, even assuming in the absence of evidence that the measures referred to by Mr Riordan (see [18] above) might have produced further information about Fay, the importance of her evidence in the scheme of the case was not sufficient to make any further steps reasonable. If her evidence was central to the case, then taking the steps identified by Mr Riordan and more, including perhaps hiring a private investigator, may well have fallen into the universe of reasonable steps.
9. Fay's evidence went to only two issues: credit and whether or not rent had been paid.
10. While credit is a very important issue in this case, there are numerous other points that will be available to Mr Huang to challenge Mr Wei's credit. This is a case where, given the dirth of contemporary documentary records of any kind, the Court will be left with circumstantial matters, any contradictions in a party's evidence, and inherent probabilities as its lodestars for the fact finding exercise. Fay's evidence contradicting Mr Wei's is but one of many such matters that it was apparent would emerge through the course of evidence and was not, of itself, going to be decisive. I should add for completeness that cultural issues and the fact that (with one exception) all the witnesses who were cross-examined gave their evidence in Chinese through an interpreter, mean that the Court will be slow to make findings based on demeanour.
11. Insofar as Fay's evidence goes to the question of rent being received by Mr Wei, this is a secondary or consequential issue. It will only arise if Mr Huang succeeds on the primary question of the ownership of the property. If he does, then he will deploy her evidence in support of an order for an inquiry into, and an accounting for, whatever benefits Mr Wei may have received from holding his interest in the property.
12. Finally, both on the question of whether "all reasonable steps" been taken, and in relation to the Court's discretion to exclude the evidence under s 135, I was satisfied that the evidence should be admitted because Mr Wei had been given an adequate opportunity to respond to the evidence and had done so in an affidavit in reply. Insofar as the exercise of any discretion is concerned, that same consideration also outweighed any disadvantage that Mr Wei might suffer from being unable to test Fay's evidence in cross-examination that might in other cases persuade the Court not to admit the evidence, even if it were satisfied that the witness was not available. In other words, while there is prejudice to Mr Wei from not being able to test Fay's evidence, it is not unfair prejudice so as to engage s135 of the Act.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2022