Nagle & Anor - as Executors, Estate Late Marie Jewell Lodge v Lavender

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

4475/99 PATRICIA NAGLE - AS EXECUTOR OF THE ESTATE OF MARIE JEWELL LODGE - & ANOR v GEOFFREY LAVENDER JUDGMENT - (On objection to paragraphs 2 to 8 of affidavit of Patricia Nagle sworn 6 March 2001) 1 HIS HONOUR: Paragraphs 2 to 8 say that the deponent is aware of the personal history of Miss Lodge from many conversations the deponent has had with her mother and with Miss Lodge, and that the deponent's mother is dead. (Other evidence establishes that Miss Lodge is dead.) The paragraphs go on to recount facts the deponent has learned from those conversations. 2 I propose to reject paragraphs 2 to 8. They were tendered by Mr Ashhurst on two alternative bases:

(1) Opinion evidence. I agree with the submission of Mr Lovas they purport to state facts, not opinions.

(2) The second basis on which Mr Ashhurst sought to support the admissibility of the paragraph was under s 63 of the Evidence Act. It provides an exception to the hearsay rule, enabling first hand hearsay in circumstances where the maker of the previous representation is not available. 3 The presently relevant condition for admissibility is set out at s 63 subsection 2(a), namely that it applies to oral "evidence of the representation that is given by a person who saw or heard or otherwise perceived the representation being made". That requires that the subject matter of the evidence be the representation which was made by the person who is no longer available. 4 The evidence in paragraphs (2) through to (8) simply does not have that form. Rather, it is rolled up evidence of conclusions which have been drawn, apparently by Mrs Nagle from various things which were said to her by her mother and by Miss Lodge. She does not give evidence about the actual statements that were made by her mother and Miss Lodge. 5 It would be necessary, before s 63 could be invoked, for the evidence to have taken the form of being a recounting of the substance of the statements which were made to her by her mother and Miss Lodge. 6 Mr Ashhurst seeks leave to adduce supplementary oral evidence only concerning the matter in paragraph 8. I grant leave for supplementary oral evidence to be given for the material contained in paragraph (8). **********

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

4475/99 PATRICIA NAGLE - AS EXECUTOR OF THE ESTATE OF MARIE JEWELL LODGE - & ANOR v GEOFFREY LAVENDER JUDGMENT - (On admission of evidence) 1 HIS HONOUR: The issues in this case concern whether some withdrawals of money which the defendant, Mr Lavender, made from various bank accounts of Miss Lodge, who is now deceased, were authorised or were not authorised. Mr Lavender's case is that the withdrawals were ones which were authorised by Miss Lodge, during her lifetime, through many conversations with him. 2 One of the withdrawals in question is a withdrawal which was made on 24 June 1998, some three weeks after Miss Lodge had died. It is common ground that it was made at a time when Mr Lavender was aware Miss Lodge had died. 3 Mr Lavender has given evidence that he made that withdrawal following a telephone conversation with Mr Hogan, a gentleman who at that time was acting as the solicitor for the executors. Mr Lavender says, in broad terms, that Mr Hogan authorised him to make the withdrawal.

Following the giving of that evidence, Mr Ashhurst, counsel for the plaintiff, sought to adduce evidence from Mr Hogan. I gather that the substance of the evidence will be that there was not a telephone conversation of the kind that Mr Lavender's evidence related to. A question has arisen about the admissibility of that evidence. 4 The starting point of any such inquiry is s 55(1) of the Evidence Act. It says: "The evidence that is relevant in the proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings". Section 55(2) goes on to say, "In particular evidence is not to be taken to be irrelevant only because it relates to (a) the credibility of the witness or [other topics not presently relevant]". 5 Section 102 of the Evidence Act provides, "Evidence that is relevant only to a witness's credibility is not admissible". 6 The High Court, in Adam v R (2001) 75 ALJR 1537, has recently examined the credibility rule. The judgment of the majority in that case has confirmed that if evidence has relevance other than to credibility, s 102 is not a bar to it. 7 The common law which existed before the Evidence Act, can elucidate some of the concepts which the Evidence Act has adopted from the common law. One such common law decision is that of the New South Wales Court of Appeal in Urban Transport Authority of New South Wales v Weiser (1991) 28 NSWLR 47. It examined the question of the circumstances in which evidence could be given which related to a respondent's credit. It was a case where a plaintiff claiming damages for personal injury said to have been sustained in a motor accident was met, at the trial, by the desire of the defendant to adduce evidence showing that he had been involved in staged, fraudulent motor accidents previously. It was in that context that the Court of Appeal examined whether evidence of these alleged previously staged accidents could be admitted. 8 The judgment of the Court was given by Clarke JA. His Honour said that the evidence could be admitted on two alternative bases, one that it was an exception to the usual finality of evidence adduced in cross examination, the other that it was itself relevant to an issue of whether the motor accident concerning which the plaintiff now sued for damages, had happened. On both those bases his Honour would have been prepared to allow the evidence. 9 In Palmer v R [1998] HCA 2; (1998) 193 CLR 1, at [51]-[55], 22-24 McHugh J pointed out how the distinction between evidence relevant to credit and evidence relevant to a fact in issue was often indistinct and unhelpful, and for that reason the common law had not based any hard and fast rules about admissibility on the distinction, but had rather used the distinction as a guide to a rule of convenience about admissibility, namely the finality rule. That proposition is not one that I would for a moment doubt, however, the wording of s 102 of the Evidence Act requires that the courts continue to struggle with the concept of whether evidence is, or is not, relevant only to a witness's credibility. 10 Mr Ashhurst has submitted in the present case that an issue which I have to decide is the credibility of Mr Lavender. That submission is true enough. However, s 55 cannot, in my view, be read so that, when it refers to "the assessment of the probability of the existence of a fact in issue in the proceeding", that expression can encompass the credibility of one of the participants in the story which is being litigated about. 11 It seems to me that if something is to fall within s 55 it must relate to the probability of the existence of one of the matters which needs to be proved to make out the case of the plaintiff, or which needs to be proved to make out the case of the defendant. That a witness is unworthy of belief may be a reason why either the plaintiff or the defendant ultimately fail to make out the case they need to make out; it does not in my view, itself amount to an issue in the sense in which s 55(1) uses that expression. 12 Nor does s 55(2)(a) assist Mr Ashhurst. Section 55(2)(a) means that the fact that evidence relates to the credibility of a witness is not a sufficient reason for treating that evidence as inadmissible. But evidence can relate to more than one matter. Section 55(2)(a) says that if evidence relates to a fact in issue in the way s 55(1) lays down as the test for relevance, the fact that it also relates to credibility of a witness is not a reason for denying it the status of being relevant. 13 Mr Ashhurst also submitted that there is authority of a kind summarised in Wigmore, Evidence in Trials in Common Law, 1979 para 277, that evidence can be called of conduct by a witness which shows consciousness of a weak case. It is certainly true that evidence of conduct by a party outside court of matters like, to use Wigmore's expression, "suppression of evidence, bribery of witnesses, non production of evidence and the like" is receivable as evidence that the case of the person who engages in that sort of conduct is not a strong one. It seems to me that principle does not extend to conduct which is engaged in in the witness box itself. Were it otherwise, it would be open to call evidence to contradict any statement at all which a witness made in the witness box, on the ground that that evidence could be justified as showing a consciousness on the part of the witness of the weakness of his case. 14 The facts in issue in the present case concern whether Miss Lodge did or did not, grant to Mr Lavender authority, during her lifetime, to make withdrawals which it is undisputed that he made. In my view his conduct immediately after her death is relevant to the probabilities of whether such authority was conferred. If he is correct in saying that he contacted Mr Hogan and tried, through what looked like orthodox means by which creditors of deceased estates seek to get paid, to be paid the amount of money which was due to him, that is a matter which would be relevant to whether he was given the authority which he says he was given. 15 Likewise, now that he has put into the ring the fact that he had such a conversation with Mr Hogan, it has become a fact which is part of the factual matrix which needs to be taken into account in deciding whether the authority that he says was conferred by Miss Lodge, was indeed conferred. 16 In those circumstances it seems to me that the evidence which is sought to be called, is evidence which is relevant to a fact in issue, and is not relevant only to a witness's credibility. For those reasons, I allow the evidence to be called. **********

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