Supreme Court of NSW|1996-01-08|Before: Mr P, McLelland CJ

Lane v Jurd and Anor (No 2) No. 3886/94 Evidence [1996] NSWSC 5 (8 January 1996)

COURT IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MCLELLAND CJ in EQ HRNG SYDNEY, 24 November 1995 #DATE 24:11:1995 #ADD 8:1:1996

Mr P Hallen appeared for the Defendants ORDER Orders made JUDGE1 MCLELLAND CJ in EQ The defendants have tendered a signed witness statement by Mr Laszlo Major. Unfortunately Mr Major died within the last few days. Objection has been taken to the tender of the statement. The defendants rely on two separate bases of admissibility of the statement. One is Part 36 rule 4A(2A) of the Supreme Court Rules and the other is s.63 of the .

The argument based on Part 36 rule 4A(2A) rests on the proposition that if a provision of the Rules renders evidence admissible, it is unnecessary to go to the Evidence Act to find some basis for its admission. Part 36 rule 4A deals with witness statements. The relevant subrule says: "(2A) If an intended witness, to whose evidence a statement under subrule (1) relates does not give evidence, no party may put the statement in evidence at the hearing without leave of the Court."

The defendants ask for leave under that rule, and argue that if the Court grants leave, then by virtue of the rule the statement becomes admissible regardless of the Evidence Act - it being common ground that the statement in question was a witness statement under subrule (1) of rule 4A. I do not accept that argument. It seems to me that the starting point is not the Rules but the Evidence Act.

The Act says in s.8: "This Act does not affect the operation of the provisions of any other Act."

It does not say that the operation of the provisions of delegated legislation (such as the Supreme Court Rules) made under the authority of another Act is preserved, nor is there any implication to that effect.

Section 193 of the Evidence Act makes specific provision (albeit prospectively) about the powers of a person or body to make rules of court. Subsections (2) and (4) of that section provide: "193 ...

(2) The power of a person or body to make rules of courts extends to making rules not inconsistent with this act or the regulations prescribing matters; (a) required or permitted by this act to be prescribed or; (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act."

(4) Without limiting subsection (2), rules made under that subsection may provide for the exclusion of evidence, or for its admission on specified terms, if the rules are not complied with."

In my opinion, it is reasonably clear that the words "or for its admission on specified terms" in subs.(4) are intended as a qualification of the exclusion referred to in that subsection in the event that the rules are not complied with, and provides no independent basis for a rule of court providing for the admissibility of evidence which would otherwise be inadmissible under the Evidence Act.

Attention has also been drawn also to s.11(1) of the Act which provides: "11(1) The power of a court to control the conduct of a proceeding is not affected by the Act except so far as this Act provides otherwise expressly or by necessary intended."

I do not think that that provision provides any basis for applying evidentiary rules which are inconsistent with other provisions of the Act. The central provision of relevance, so far as the present matter is concerned, is s.59(1) of the Act which provides: "59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation."

This is referred to in the Act as the hearsay rule. Mr Major's witness statement comprises (with one minor qualification) "previous representations" (see definitions in Part 1 of the Dictionary at the end of the Act, and s.62), and the purpose of the tender is to prove the existence of facts that he intended to assert by those representations.

In the following sections of the Act there are various exceptions to the hearsay rule; the only one of possible relevance being s.63, to which I will come. But, subject to those exceptions, s.59 expressly renders inadmissible evidence of the kind sought to be tendered here, and must prevail over any rule of court which would otherwise have the effect of rendering such evidence admissible. In other words, a rule of court cannot make evidence admissible which the Evidence Act says is not admissible.

I turn to consider s.63 of the Act. Section 63 does not apply unless reasonable notice has been given of an intention to adduce the evidence in question (s.67(1)), unless the Court directs that it is to apply despite a failure to give such notice (s.67(4)). No such notice has been given in relation to Mr Major's statement but the plaintiff does not object to a direction being given under s.67(4) if the statement would be otherwise admissible.

Section 63 applies in a civil proceeding if a person who made a "previous representations" is not available to give evidence about an asserted fact (s.63(1)). In determining the application of that provision in relation to Mr Major's statement, the Court may examine that statement and draw reasonable inferences from it (s.183). Where s.63 applies, subs.(2) excludes from the operation of the hearsay rule, a document so far as it contains a previous representation (or another representation to which it is reasonably necessary to refer in order to understand that representation). It has been argued that some of the representations in Mr Major's statement are not "previous representations" as limited by s.62, which requires such a representation to have been made by a person who had personal knowledge of the asserted fact. It has been submitted that some of those representations contain assertions by Mr Major of matters said to him by the plaintiff, and the argument is that the relevant asserted facts are such facts as were asserted by the plaintiff to Mr Major, and it is further said that some of the matters asserted to Mr Major by the plaintiff as recorded in Mr Major's statement, are not facts at all but matters of law. I reject this argument. It is important to recognise that an asserted fact may be the fact that something was said by some other person, and that fact becomes admissible if that other person is a party and what was said can be utilised as an admission of a relevant fact by that party, or if the making of the statement is itself relevant to a fact in issue (otherwise than as an intended assertion of that fact).

Since all of the representations by Mr Major in his statement are previous representations within the meaning of s.63 (with the possible and insignificant exception of an assertion of his own age) and Mr Major, being dead, is not available to give evidence about those facts (see the definition in Part 2 of the Dictionary), the conditions of the application of s.63 are satisfied. The hearsay rule is thereby excluded and the statement so far as it contains the previous representations referred to is admissible.

Counsel for the plaintiff has asked me, if I should come to that conclusion, to refuse to admit the evidence under s.13 5 on the ground that it would be unfairly prejudicial to the plaintiff to do so. There is some substance in that submission in that Mr Major was not an entirely disinterested person. He was the father of the second defendant, and the plaintiff, by reason of his unavailability, is unable to cross-examine him with a view to testing the accuracy of what is asserted in his statement. I recognise the weight of those considerations but they do not persuade me that admission of this statement would be unfairly prejudicial to the plaintiff. Clearly they limit its probative value, but that can be assessed in the light of all the evidence.

Accordingly, pursuant to s.67(4), I direct that s.63(2) is to apply in relation to the statement by Mr Major despite the failure of the defendants to give notice under s.67(1) of the Evidence Act, and subject to one matter of detail I propose to admit the statement.

The matter of detail is that it is submitted that the first seven words of paragraph 10 do not relate to a matter of which Mr Major had personal knowledge. I agree, and accordingly that passage should be rejected from the document to be admitted into evidence. The statement of Mr Laszlo Major excluding the first seven words of paragraph 10 will be admitted as exhibit DX18.

Lane v Jurd and Anor

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Judgment (21 paragraphs)

Lane v Jurd and Anor (No 2) No. 3886/94 Evidence [1996] NSWSC 5 (8 January 1996)

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