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[2012] NSWSC 122
Supreme Court of NSW
2012-02-06
Stevenson J
Original judgment source is linked above.
Judgment 1The first, second and fifth defendants read the affidavit of James William Moir affirmed on 27 April 2011. 2The plaintiffs object to paragraphs 56, 72, 84 and 125 of that affidavit. 3In those paragraphs Mr Moir gives evidence of conversations he alleges he had with Mr James Hanna. 4The evidence in the proceedings establishes that, during 2004, Mr Hanna had an association with IBIS Trading Bank, an entity said to be based in New Zealand. 5I made a preliminary ruling that these paragraphs should be admitted as evidence that the conversations took place, but not as evidence of the truth of the matters asserted in the conversations. 6Mr Einfeld QC, who appears for the first, second and fifth defendants, seeks to read the paragraphs as evidence of the truth of the matters asserted in the conversations deposed to. Mr Einfeld advances two reasons for this. First, Mr Hanna is "unavailable" for the purposes of Evidence Act 1995 (NSW) (the Act) s 63. Secondly, the first, second and fifth defendants have given the plaintiffs a notice pursuant to s 67 of the Act. 7On 22 February 2012 I rejected Mr Einfeld's application and ruled that the paragraphs should be admitted only as evidence of the fact that the conversations had taken place. I said I would deliver reasons for that decision. These are the reasons.
Is Mr Hanna "unavailable"? 8Section 4(1)(f) of the Dictionary to the Act provides that Mr Hanna is "unavailable" for the purpose of s 63 if "all reasonable steps" have been taken by the first, second and fifth defendants to find Mr Hanna or secure his attendance without success. 9The evidence in support of the proposition that "all reasonable" had been taken was said to be found in the affidavit sworn by Mr Einfeld's instructing solicitor, Mr Easton, on 16 February 2012. 10I find that this affidavit does not establish that all reasonable steps have been taken to find Mr Hanna or secure his attendance. 11Mr Easton deposes that he has caused searches to be conducted at ASIC, at and at NSW Land Property Information. Those searches revealed several Australia addresses. Mr Easton further deposes that attendance by process servers at these Australia addresses have failed to locate Mr Hanna. 12Mr Easton also deposes to the lack of success of attempts to locate Mr Hanna by reference to addresses and telephone numbers appearing on correspondence signed by Mr Hanna in 2004. 13Furthermore, Mr Easton deposes to attempts to contact IBIS Trading Bank. 14In response to one of those attempts, a Mrs Rutherford telephoned Mr Easton's administrative assistant on 8 February 2012. Mrs Rutherford said that she had not heard from Mr Hanna for 10 years and that he had been made bankrupt in both New Zealand and Australia. 15There the matter rested. At the time that he swore his affidavit of 16 February 2012, Mr Easton had not, so far as the evidence reveals, made any enquiry of the bankruptcy authorities in either New Zealand or Australia as to Mr Hanna's whereabouts. 16Mr Jucovic QC, on behalf of the plaintiffs, read an affidavit of his instructing solicitor, Mr Mark Faraday. Mr Faraday gave evidence of the results of an enquiry made by him of the New Zealand insolvency authorities. This enquiry showed that Mr Hanna was made bankrupt by an order made by the Blenheim High Court on 24 July 2009. It was also recorded that Mr Hanna's "address at adjudication" was 115 Matthews Lane, Blenheim, New Zealand 17In response, Mr Einfeld tendered an extract from (evidently an entity association with the New Zealand electoral office) which recorded the Matthews Lane address for Mr Hanna and stated: - "Your enrolment is currently inactive because correspondence sent to you has not been responded to or has been returned undelivered". 18Mr Einfeld submitted that this document showed that there was no utility in endeavouring to contact Mr Hanna at the Matthews Lane address. 19I do not agree. The document is equivocal as to whether Mr Hanna still resides at the Matthew Lane address. 20What the evidence shows is that there are a number of steps which could have been taken, but which have not been taken to ascertain Mr Hanna's current whereabouts. That includes ascertaining whether Mr Hanna still lives at the Matthews Lane address. It also includes making an enquiry of the New Zealand bankruptcy authorities as to whether those authorities have any other information concerning Mr Hanna's whereabouts. 21In these circumstances, I am not satisfied that all reasonable steps have been taken to locate Mr Hanna. For that reason alone, I would refuse Mr Einfeld's application to read these paragraphs as evidence of the truth or what Mr Hanna represented.
The s 67 notice 22Mr Easton's affidavit reveals that the s 67 notice was served on 13 January 2012. It also reveals that it was only on that day that attempts were made to try to locate Mr Hanna. 23The notice identified paragraphs 56 and 125, but not paragraphs 72 and 84 of Mr Moir's evidence, as being the subject of the notice. 24More significantly, the notice was served very late. 25Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 31.5 provides that, unless the Court otherwise orders, a s 67 notice must be served 21 days before the date upon which the Court determines the date for the hearing of the proceedings. This matter was set down for hearing by order of Bergin CJ in Eq on 13 May 2011. By reason of r 31.5 of the UCPR, the s 67 notice should have been served 21 days before that date.
Prejudice 26The Court has power to allow hearsay evidence under s 63(2) of the Act, notwithstanding the failure to give a s 67 notice in a timely fashion, or at all. 27My attention has been drawn to the observations of Brereton J in Quintano v BW Rose Pty Ltd [2008] NSWSC 1012 where his Honour said, at [6]: - "The power of the court to direct that s 63(2) apply, notwithstanding the failure to give notice, has been considered in a number of cases. The essential consideration which those cases identify is the prejudice to the other party that would be occasioned by dispensing with the requirement to give notice [see, for example, Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273 at 282 (Hill J); Maddock v Maddock [2005] FamCA 868; Kayes & Kayes [1999] FamCA 357; (1999) 24 Fam LR 51 2 ; (1999) FLC 92-846]. Some of those cases gave weight to the circumstance that the evidence was uncontroversial or not seriously in dispute, and I agree that that cannot be said, at least fully, in question here." 28I am satisfied that prejudice has been occasioned to the plaintiffs by reason of the late service of the s 67 notice. 29Mr Jucovic has drawn my attention to s 108A of the Act which concerns admissibility of evidence of credibility of person who has made a previous representation. Mr Jucovic submits that if evidence from Mr Hanna's "previous representations" is admitted and if Mr Hanna is not called to give evidence, "credibility evidence" about Mr Hanna can be adduced if it "could substantially effect the assessment of [Mr Hanna's] credibility. 30Mr Jucovic has pointed to a number of documents which suggest that there is, or there may be, evidence available to the plaintiffs which might "substantially effect the assessment" of Mr Hanna's credibility. 31Those matters include material of the kind referred to in the letter sent by the second defendant, Mr Robert Renshall, to the IPC Joint Venture Trust (this letter is also included at Vol 11 p 4487 in Exhibit A in the proceedings) in which Mr Renshall accuses Mr Hanna of "fraud including the misappropriation of $150,000" and in which Mr Hanna states: - "We will be using all of the people you have mentioned and six others who are on public record as describing you as a fraud as witnesses together with a raft of false and misleading documents not to mention your failure to disclose you are an undischarged bankrupt". 32Mr Jucovic also pointed to allegations made in an affidavit sworn by Steven Symonds on 20 April 2011, as well as assertions made on various documents obtained by the plaintiffs by doing a "Google" search in relation to Mr Hanna. 33Mr Jucovic also relied upon allegations made by a Mr John Rutherford in a letter dated 9 May 2011 sent to the Registrar of the Court in response to a subpoena to produce documents served on him. 34Mr Jucovic did not suggest that the material to which he referred itself contained admissible evidence of matters relevant to Mr Hanna's credit. Rather, his submission was that this material showed that there was, or there may be, evidence available that could be used to attack Mr Hanna's credit and of the late service of the s 67 notice had prejudiced his ability to marshal such evidence. 35It appears to me that there is substance in these submissions. 36For these reasons I decline to extend the time for the service of the s 67 notice.
Section 135 considerations 37For the same reason, and by reason of s 135(a) of the Act I would refuse to admit paragraphs 56, 72, 84 and 125 of Mr Moir's evidence as evidence of the truth of the matters represented by Mr Hanna. 38There is a live issue in these proceedings as to whether there were funds available to the first defendant to invest in the project with which these proceedings are concerned. 39Were I to admit the paragraphs to which objection has been taken (and in particular paragraph 125) as evidence of the truth of matters asserted by Mr Hanna, the result would be that untestable hearsay evidence would be adduced in relation to this central question. 40In my opinion that would unfairly prejudicial to the plaintiffs.
Conclusion 41For these reasons I have ruled pursuant to s 136 of the Act that paragraphs 56, 72, 84 and 125 of Mr Moir's evidence are to be received as evidence only of the fact of the conversations, and not as evidence of the truth of the matters represented by Mr Hanna in those conversations.
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: 28 February 2012
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