Lewis v Nortex Pty Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq) 1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS JUDGMENT - On application under Part 36 r 5(2)(b) of the Supreme Court Rules 1 HIS HONOUR: I am dealing with an application by Lamru for an order under Part 36 r 5(2)(b) of the Supreme Court Rules 1970 ("the SCR") for leave to use in the present trial the following evidence given in these proceedings before Young J (as his Honour then was) on 24 October 2000 - A Ex A page 848 line 17 to 849 line 55 B Ex B page 875 line 32 to 879 line 22 C Ex A page 915 line 45 to 916 line 15

• in relation to the proof of the particular fact alleged by Lamru that any purported consent of Dufty as co-appointor, said by Kation/Lewis to be contained in a minute of 12 April 1991, was vitiated by the misrepresentation of Lewis. 2 Part 36 r 5 of the SCR provides as follows: "5 Earlier evidence in the proceedings cf RSC (Rev) 1965, O 38, r 12.

(1) Subject to subrule (2), evidence taken in proceedings may be used subsequently in the proceedings.

(2) Subrule (1) does not enable the use, as evidence on any issue at a trial, of evidence taken before the trial, but: (a) evidence at a trial may be used on an assessment of damages or of the value of goods in the same proceedings, and (b) evidence taken in proceedings may, with the leave of the Court, be used as evidence on any issue at a trial in the proceedings in relation to the proof of particular facts." 3 Subr (1) was derived from English rules. The rule at the time of the promulgation of the SCR was Order 38 r 12 of the English Rules of 1965, but was previously Order 37 r 25 of the 1883 Rules and previously to that Order, 5 Feb 1861, rule 15. Order 38 r 12 provided simply: "Any evidence taken at the trial of any cause or matter may be used in any subsequent proceedings in that cause or matter."

The purpose of this rule was essentially to allow evidence taken at the trial to be used on inquiries, as inquiries before the Master as to damages. There is virtually no authority on the incidence of the English rule despite it having a life of some 140 years. Equally, this may be due to its simple terms which clearly make the evidence given at a trial admissible in all subsequent proceedings in the cause without leave. 4 Subr (2) of the New South Wales Rules is novel. No doubt at least part of what it is meant to deal with is the fact that Part 36 r 5(1) of the SCR was expanded beyond evidence taken at a trial (the subject matter of Order 38 r 12) to include evidence in interlocutory proceedings. This raises the problem, among others, that evidence led on interlocutory applications may often be given as of right on a hearsay basis, but would not be admissible at a trial. Despite the complication of the situation in New South Wales by the existence of subr (2), this rule has not been the subject of any decided case that I have been able to find in its career of 30 years. 5 There has been some authority on the incidence of Part 36 r 7, which is in quite similar terms, but deals with the different situation of the use of evidence in totally different proceedings. That is largely English authority (dealing with r 7's predecessors) and decisions of the Federal Court. The Federal Court does have in Order 33 r 5 a rule virtually identical with Part 36 r 7, although it does not have any equivalent of Part 36 r 5. 6 There is one decision of the New South Wales Court of Appeal on Part 36 r 7. That case is Wentworth v Rogers (No 12) (1987) 9 NSWLR 400. There it was said at 423 per curiam (Kirby P, Hope and Priestley JJA): "Subrule (1) in effect reproduces a rule of long standing both in England and Australia. However, subr (2) is new. It is difficult to understand what subr (2) means. It precludes the evidence from being read on any issue at a trial except in relation to the proof of particular facts. But it is difficult to imagine what the evidence could be related to other than proof of particular facts, except some matter of opinion. However the evidence may not be given except by leave of the court. … More significantly, subr (1) has the qualification 'saving all just exceptions'. It has long been established that this subrule did not go to questions of admissibility. In particular it allows the evidence to be tendered only in proceedings between the same parties or their privies as were parties to the original proceedings, and where the issues are the same." 7 That case has been the subject of some commentary in the Federal Court. In Telnet Pty Limited v Takapana Investments Pty Limited (1994) 51 FCR 520 at 524, Olney J cited the passage from the judgment of the Court of Appeal, which I have set out above, and continued: "With respect, it may be that the Court of Appeal's difficulty with the prohibition against reading evidence given in other proceedings 'except in relation to the proof of particular facts' could be resolved if the subrule were construed as being limited in operation to circumstances in which the particular facts sought to be proved are first identified by the party seeking leave."

Both those decisions were referred to with apparent approval by Hill J in Complete Technology Pty Limited v Toshiba (Australia) Pty Limited (1994) 53 FCR 125 at 132. The cases were further dealt with by R D Nicholson J in Instant Colour Pty Ltd v Canon Australia Pty Ltd FCA 13 April 1995 unreported. There, his Honour followed what had been said in the Court of Appeal and refused to admit evidence in earlier proceedings where the parties were not the same: see at [66]. His Honour at [62] and [63] cited the authorities referred to above and in [64] relied also on Printing Telegraph and Construction Company of the Agence Havas Ltd v Drucker [1894] 2 QB 801, a decision of the English Court of Appeal to the same effect. 8 In proceedings to which r 5 applies, there will generally be no difficulty as to the identity of parties. It may be thought, from the similarity of the wording of r 5 to that of r 7, that the limitation as to the identity of issues enunciated by the Court of Appeal would apply also to that rule. But the wording must be viewed in the context of the particular rule in which it is used and in the context of the whole of the Rules and, in particular, in the light of the work that the rule is intended to do in the framework of the procedure of the Court. The circumstances in which the evidence comes to be used at a later stage of the same proceedings will certainly be in many cases, if not most, not upon identical issues. But r 5 contemplates that the evidence may be used with leave, and, in its English form, provided that the evidence might be used without leave, on the later occasion. 9 Whilst the power to order separate trials must be used sparingly, they are not a rarity in the modern practice of the Court. It would certainly be most inconvenient for the Court if there were unnecessary impediments to the use of evidence in an earlier trial upon a later trial, compelling the evidence to be given afresh. This would have the vices both of wasting the Court's time and of the risk of the evidence coming out in different form in the second trial in the same proceedings. In my view, part of the purpose of the rule is to avoid these vices and to provide for evidence to be used at later stages of the proceedings including later trials of separate questions without being given again when this is not contrary to the requirements of justice. 10 In my view, the provision for leave in r 5(2), where, ex hypothesi, the proceedings will ordinarily be between the same parties, is not to guard against the admission of evidence which was given in proceedings involving strangers and in which a party had no opportunity to deal with it, but rather to deal with such situations as I have earlier adverted to, for instance, to prevent the use of hearsay evidence given by right on an interlocutory application on a trial, where it would not normally be admissible as of right. 11 Like the Court of Appeal in the different context of r 7, I find rather curious the expression in r 5(2) "except in relation to the proof of particular facts", perhaps even more so in the case of this rule than in the case of r 7. However, I agree with what Olney J said in the Telnet case supra. In formulating his application, Mr Motbey has taken that course and defined the facts he seeks to prove by the tender of these reasonably short passages of evidence. It may be that the present form of the rule merits reconsideration by the Rule Committee. 12 The first two of the three passages of evidence sought to be tendered are in cross examination of witnesses called by the Lewis interests at the earlier trial, the first in the evidence of Mr Dufty and the second in the evidence of Mr Peter Lewis. Mr Lewis' evidence would certainly be admissible as admissions as against himself, as he is a party to the proceedings. The same is not true of the evidence of Mr Dufty. The third extract sought to be tendered is material from the re examination of Mr Lewis as to a state of health, which might have reflected upon the quality of his recollection. This has been included in the tender by Mr Motbey as a matter of fairness, bearing in mind the apparent inconsistency of some of Mr Lewis' answers in the passage of cross examination tendered. 13 Mr Cotman, of Senior Counsel for the Lewis interests, at first took some time objecting on the ground that the evidence was not material to any issue before the Court in this trial. However, it is clear from par 5 of the reply filed on Lamru's behalf that there is an issue in the trial to which this material is directly relevant. 14 Mr Cotman then protested at the unfairness of this evidence being thrust upon the Lewis interests without there being a right of cross examination. However, if the two witnesses were called in this trial (and it is significant that the Lewis interests are currently reserving the right to make a no case application at the end of the plaintiff's case, at least in relation to certain fraud claims), it is likely that they would be called for the Lewis interests again, if they go into evidence. Affidavits by both of them are on file. Mr Dufty appears to be in the Lewis camp, in the sense that he was called as a witness by the Lewis interests before Young J. The Lewis interests were, of course, represented by counsel in the trial before Young J and there was ample opportunity to re examine after the cross examination, as is shown by the inclusion in the tender of some of the re examination of Mr Lewis. 15 Bearing in mind the purpose of Part 36 r 5 as discussed in [11] above, it is my view that that rule is not to be construed so that evidence is to be excluded if the issue on which it was led on the earlier occasion is not identical with the issues before the Court on the occasion on which leave is sought under r 5(2)(b). I do not attempt to make any exhaustive specification of the factors that may be relevant in the exercise of discretion under r 5(2)(b). No doubt, if the admission of evidence would in some way wreak unfairness, then that would be a material consideration. But I see no unfairness in admitting the evidence in respect of which leave is sought in the present circumstances. 16 I shall therefore grant to Lamru leave to use the portions of the earlier evidence in respect of which application has been made. Those portions of the transcript will remain permanently in Exhibit A. As I have earlier directed, the rest of the transcript may remain in Exhibit A at the present time. At least one other part is already confirmed as being in evidence and it remains to be seen whether any more of it is tendered (for example, as a result of cross examination) later in the trial. At the close of evidence the situation can be reviewed and any pages of transcript not by then confirmed as being in evidence will be removed from Exhibit A. 17 The order of the Court will be that Lamru have leave to use in the present trial the following evidence given in these proceedings before Young J on 24 October 2000 - A Ex A page 848 line 17 to 849 line 55 B Ex B page 875 line 32 to 879 line 22 C Ex A page 915 line 45 to 916 line 15

• in relation to the proof of the particular fact alleged by Lamru that any purported consent of Dufty as co-appointor said by Kation/Lewis to be contained in a minute of 12 April 1991 was vitiated by the misrepresentation of Lewis.

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