1 By motion filed on 31 August 2005, the applicant, Mr Martin Terry, sought an order setting aside a number of notices given by the respondents pursuant to s 67 of the Evidence Act 1995, in relation to certain statements made by Peter Muir, Lucy Holding, Graham Holding and certain correspondence of Jane Newhouse.
2 At a hearing on 2 December 2005, I made the orders sought, indicating that I would in due course give short reasons for the orders made, together with a costs order. This judgment deals with those matters.
3 A notice under s 67 of the Evidence Act in civil proceedings such as this is concerned with first hand hearsay (s 62). Under s 63, the hearsay rule provided in s 59 does not apply in circumstances where a person who made a previous representation is not available to give evidence and if available, under s 64, if calling the person would cause undue expense, or undue delay, or would not be reasonably practicable. In this case, the notices relied upon both s 63 and/or s64.
4 A s 67 notice must comply with the requirements of clause 4 of the Evidence Regulation 2005. Exceptions to hearsay rule - notices of previous representations, which provides:
4 Exceptions to hearsay rule - notices of previous representations
(1) This clause is made for the purpose of section 67 of the Act.
(2) A notice of previous representation must state:
(a) subject to subclause (6), the substance of evidence of a previous representation that the notifying party intends to adduce, and
(b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party, and
(c) particulars of:
(i) the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made, and
(ii) the names of the persons by whom, and the persons to whom, each of those representations was made, and
(iii) in a civil proceeding - the address of each person so named, so far as they are known to the notifying party.
(3) If a notifying party intends to rely on any of sections 63 (2) (a) or (b) or 65 (2) (a), (b), (c) or (d), (3) (a) or (b) or (8) (a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts on the basis of which it is alleged that the person who made a representation referred to in the notice is not available to testify concerning the fact to be proved by adducing evidence of that representation.
(4) If a notifying party intends to rely on section 64 (2) (a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in section 64 (2) of the Act.
(5) If a notice of previous representation refers to a previous representation that is in writing:
(a) a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice, and
(b) the notice must identify the document unless:
(i) a copy of the document is attached to the notice, and
(ii) the identity of the document is apparent on the face of the copy.
(6) If a copy of a document, or of a portion of a document, is attached to a notice it is a sufficient compliance for the purposes of subclause (2) (a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation evidence of which the notifying party intends to adduce.
(7) On the application of a party in a criminal proceeding, the court may make an order directing the notifying party to disclose the address of any person named in a notice given under this clause by whom, or to whom, a representation referred to in the notice was made.
(8) The direction may be given on such terms as the court thinks fit.
(9) In this clause:
notice of previous representation means a notice given under section 67 (1) of the Act.
5 The applicant's case was that the s 67 procedure was not designed to permit parties to avoid the requirement that they have their witnesses available for cross examination. Here, the applicant had advised of his wish to cross examine the respondents' witnesses. The notices subsequently given sought the wholesale admission of unsworn statements and letters and reports from private investigators. The notices were not restricted to first hand hearsay and did not satisfy the requirements of clause 4 of the Regulation.
6 It was also argued that the respondents had led no evidence which could support the conclusion that the requirements of s 63 or s 64 were satisfied. To the contrary, the notices themselves, as well as correspondence from the respondents' solicitors which was in evidence, showed that each person from whom evidence was sought to be tendered was alive, compellable and able to be located. That correspondence also demonstrated that while the calling of the witnesses via videolink had been considered, there had been no investigation as to its cost. The conclusion that this would cause undue expense, delay or would not be reasonably practicable, could not be formed. There was no evidence led as to such matters.
7 In any event, given the contents of the statements and documents themselves, the Court would exercise extreme caution in accepting the evidence sought to be tendered, in the absence of cross examination. Matters such as assertions in correspondence that witnesses had to be cajoled to make statements and in the private investigators' documents, that they had been frustrated at one witness's attitude, after it was explained to him that it 'would be prudent to disassociate himself from this matter' and in the case of another witness, who was only prepared to meet in a public place, were relied upon.
8 It was submitted that the unreliability of the material and the prejudice to the applicant if admitted, was patent.
9 After an adjournment, it was announced that the only issue which the respondents wished to rely on, was the question of the compellability of the witnesses.
10 In that circumstance, the conclusion that the orders sought had to be made became unavoidable. The applicant's complaints that the statements and documents were not confined to first hand hearsay; that the notices did not comply with the requirements of clause 4 and that the respondents had not met the onus which fell upon them, to make out an evidentiary basis for the requirement that either, the witnesses were not available to be called, or that calling them would involve undue expense, or undue delay, or would not be reasonably practicable, were all plainly made out. It was unnecessary, therefore, to come to any conclusions on the questions raised as to unreliability and prejudice. Had it been, the conclusion that this too was made out, could hardly be avoided in these circumstances, given the matters relied on by the applicant.
11 As Hamilton J observed in Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 69 at [5] the onus falls on the respondents to meet the test laid down in ss 63 and 64. This was not attempted, for good reason it seems, given what appears on the face of the notices and the evidence sought to be tendered, as well as what was said in the respondents' solicitor's correspondence.
12 It was for these reasons that the orders sought were made.
13 As I observed at the hearing, the usual approach in the case of such a conclusion, would be that costs follow the event. The applicant sought an order that costs be payable forthwith. I am satisfied that this is the appropriate order in this case, having in mind the circumstances in which the s 67 orders were served, their patent deficiencies, the failure to attempt to meet the onus which fell upon the respondents and despite this, the resistance to the motion, which finally resolved in only one point being pressed, as I have earlier outlined.
Orders