Supreme Court of Tasmania|1992-09-17|Before: Zeeman J, Peter Gibson J, Green CJ

National Westminster Finance Australia Limited v Des Powe [1992] TASSC 43; (1992) 1 Tas R 161 (17 September 1992)

NATIONAL WESTMINSTER FINANCE AUSTRALIA LIMITED v. Des POWE

Evidence - Interlocutory application - Affidavit deposing to belief - Whether sources of belief must be admissible. Rules of the Supreme Court, O41, r3 and r17.

GREEN CJ The plaintiff's claim is for the delivery up of an excavator and damages for its detention. This is an application by the plaintiff for an interlocutory injunction restraining the defendant from destroying or disposing of the excavator and for orders for its detention and preservation. The defendant objects to the admissibility of the following paragraphs of the following affidavits which the plaintiff seeks to read in support of its application.

as its Manager (Operations) (South Australia). My

duties include the management of the collection

functions of that company and its National

Westminster Finance Limited in South Australia and

Tasmania. I am authorised to swear this affidavit

by both those companies."

3. Counsel agree that I should read that paragraph as if the word "subsidiary" appeared between the words "its" and "National".

4. Counsel for the defendant submits that the entire affidavit should be excluded as it does not comply with the Corporations Regulations, reg1.11(1) and the deponent has not been shown to be one of the officers referred to therein. Regulation 1.11(1) reads:

"1.11(1) (Swearing or making of affidavit) An

affidavit or statement in writing must be sworn or

made, on behalf of a corporation, by a director, a

secretary or the principal executive officer of the

corporation."

5. I very much doubt whether that regulation applies to all affidavits in any proceedings. Although it is not necessary for me to decide the point I would incline to the view expressed by Zeeman J. in ANZ Banking Group v Brewer A66/1992 that reg1.11(1) is limited to affidavits made for the purposes of the Corporations Law. However even if the regulation does apply to this affidavit, I overrule the objection as the deponent does not purport to be swearing the affidavit on behalf of either of the corporations named. Further the regulation does not provide that statements made in an affidavit said to have been sworn on behalf of a corporation by someone other than one of the officers referred to are inadmissible. It may be the case that the effect of reg1.11(1) is that such an affidavit would not bind the corporation or may not be relied upon by the corporation but the regulation does not necessarily render the statements made in the affidavit inadmissible.

6. A number of the remaining paragraphs of this affidavit are only admissible by virtue of the provisions of Rules of the Supreme Court, O41, r3 which provides as follows:

"3-(1) Affidavits shall be confined to facts to

which the deponent is able to dispose (sic) of his

own knowledge, except in the cases specially

provided for by these rules, and except in the case

of affidavits used on interlocutory motions or

applications, in which case statements as to the

belief of the deponent, giving the sources of his

information and the grounds of his belief, may be

admitted."

7. Counsel for the defendant submits on the authority of Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV (1984) 1 WLR 271 and Commissioner of Taxation v Ahern (1986) 87 FLR 112 that a condition of the admissibility of statements under that rule is that the material which is the source of the belief is itself admissible.

8. In the Gasco case objection was taken on the hearing of an application for interlocutory orders to a deponent's statements of belief which were based upon a report of the results of an investigation conducted by inspectors pursuant to companies legislation. The judge hearing the application Peter Gibson J struck out those statements on the ground that the report comprised hearsay and opinion evidence of a kind which it had been held in other cases was not admissible. At 282 and 283 Peter Gibson J said of a rule which is the equivalent of O41, r3:

"Neither counsel has been able to cite any authority

which elucidates the scope of what is or is not

permitted by Ord 41, r 5(2). It is obvious from the

sub-rule itself that it operates as an exception

from the primary rule of evidence stated expressly

in Ord 41, r 5(1), that a person may only give

evidence as to facts, which he is able of his own

knowledge to prove. Rule 5(2), by its including

statements of information or belief, plainly allows

the adduction of hearsay. It also allows a

statement of belief, that is to say, an opinion; but

in its context that belief must be that of the

deponent, and such statements will have no probative

value unless the sources and grounds of the

information and belief are revealed.

To my mind the purpose of rule 5(2) is to enable a

deponent to put before the court in interlocutory

proceedings, frequently in circumstances of great

urgency, facts which he is not able of his own

knowledge to prove but which, the deponent is

informed and believes, can be proved by means which

the deponent identifies by specifying the sources

and grounds of his information and belief. What the

sub-rule allows the deponent to state that he has

obtained from another must, in my judgment, be

limited to what is admissible as evidence. Take,

for example, a case where there are unsuccessful

without prejudice discussions to settle an action,

in the course of which a statement is made by a

party which is highly relevant to an issue in

interlocutory proceedings. I apprehend that the

court would strike out from an affidavit made by

another party who heard the statement any reference

to such statement having been made, as it would not

be admissible as evidence and so would be

irrelevant. So too, in my judgment, a statement in

an affidavit referring to other forms of

inadmissible evidence should be treated as

irrelevant. That would include statements of

opinion not being within any recognised exception to

the general principle to which I have referred."

...

In my judgment the court ought not to allow in

affidavits to be used in interlocutory proceedings

material which cannot be proved because it is mere

opinion or is otherwise inadmissible."

9. In Ahern's case Thomas J sitting as a member of the Full Court of the Supreme Court of Queensland expressed the view that a rule such as O41, r3:

"involves two requirements; first that the source

material itself be admissible, and second that the

source be identified"

and he cited the Gasco case. The other members of the court concurred with the reasons of Thomas J.

10. With respect those statements of the limitations upon the materials which may be used by a deponent to ground his belief are expressed in somewhat wider terms than I would be prepared to accept. I accept that a deponent may not rely upon source material which may not lawfully be adduced in evidence because of some positive rule of exclusion derived from say public policy, the law relating to privilege or a provision in a statute on the ground that any other conclusion would defeat the rule. Thus with respect I agree with the view expressed by Peter Gibson J that statements of belief based upon without prejudice discussions would not be admissible. I also agree that in some cases the sources upon which a deponent purports to rely might be so remote from the fact which the deponent claims to believe that it could not be said that the sources of that belief have really been disclosed at all. But in the latter case the statement would not be inadmissible because the source material was not admissible but because a condition of the operation of the rule viz disclosure of the source had not been satisfied. However I am not persuaded that there is any general principle to the effect that the sources of the deponent's information must be admissible according to the ordinary rules of evidence. Counsel have not been able to find any authority other than the Gasco case which supports such a proposition and it should be noted that the statement to that effect in Ahern's case was obiter dictum as the basis of the court's decision in that case was that the statements under consideration were not admissible because the sources of the deponent's belief had not been disclosed not because those sources were not admissible. Further, in Hardie Rubber Co v General Tire and Rubber Co [1973] HCA 66; (1973) 129 CLR 521 Gibbs J sitting as a single justice of the High Court at 536 rejected a submission that a statement in an affidavit made pursuant to a rule equivalent to O41, r3 was not admissible because it was hearsay upon hearsay and on appeal at 559 that ruling was not disturbed. Order 41, r3 contains no proviso to the effect that the source material must be shown to be admissible and nothing put to me persuades me that I would be entitled to read such a proviso into that rule. With respect I think that the general statements I have cited above from the judgments of Peter Gibson J and Thomas J that the source material must "itself be admissible" or must "be limited to what is admissible in evidence" should be confined to materials falling into the category to which I have referred of materials which may not lawfully be proved in evidence by virtue of some positive rule of exclusion.

11. I return to the particular paragraphs to which objection has been taken.

"3 I know from my work for the plaintiff that in the course

of business National Westminster Finance Australia Limited

lends money to customers on the security of bills of sale

over chattels, and has done since prior to 1986. I am

familiar with the records kept in relation to such loans.

Since 1986, it has been an established practice in the

plaintiff's offices that a duplicate of each bill of sale

given to National Westminster Finance Australia Limited

signed by the mortgagors, is kept in safe custody in a

strong room on the plaintiff's premises. The staff of the

plaintiff also maintain a separate file in relation to each

account in respect of which a bill of sale has been given.

Each such file is marked with the number of the account. I

have seen such a file marked with the account number

61404104 in the plaintiff's office where I work. That file

has in it a signed duplicate bill of sale, a true copy of

which is annexed hereto and marked with the letter 'A'. It

is the practice in the plaintiff's office to remove such

signed duplicate bills of sale from the strong room and

place them in the file to which they relate when enforcement

action is contemplated in relation thereto by an officer of

the plaintiff.

4 I believe that on or about the 4th November 1986 Danny

Mark Powe and Sharron Elizabeth Powe, both of 114 Wellington

Street Longford in Tasmania, gave to National Westminster

Finance Australia Limited a bill of sale in the form of

annexure 'A' hereto to secure a loan of $47,736.51 by that

company to them. The information on which I base that

belief is the information set out in paragraph 3 above. The

grounds for my belief are that the records of the plaintiff

are well kept in my experience."

12. For the reasons I have given I overrule the objection to these paragraphs insofar as those objections are made on the basis that the evidence proving the existence of the materials upon which the deponent's belief is based may not be admissible. However counsel also objects specifically to the evidence of the existence of the duplicate bill of sale marked "A" on the ground that there is no evidence that it has been stamped in accordance with the Stamp Duties Act 1931, s28 which provides:

"28-(1) No instrument shall be admissible or receivable in

evidence in any court, or by any tribunal or person having

by law or by consent of parties authority to receive and

examine evidence, unless it is stamped as required by this

Act, except in the case of proceedings in respect of an

indictable offence or in any proceeding in respect of an

offence against this Act in relation to such instrument."

13. It is common ground that the original document of which annexure "A" purports to be a copy is an instrument upon which stamp duty would have been payable and it follows that a condition of the admissibility of that instrument is that it has been stamped. There is no evidence that it has been stamped and therefore the original instrument is not receivable nor is secondary evidence of that instrument or its contents admissible - see Dent v Moore (1919) 26 CLR 316 and the Evidence Act 1910, s68Y. In my view evidence of the contents of the bill of sale falls into the category of what I have characterised as evidence which is inadmissible because it is excluded by a positive rule of law and it therefore follows from the principle I extract from the Gasco case and Ahern's case that par4 and the following sentence in par3 are inadmissible: "That file has in it a signed duplicate bill of sale, a true copy of which is annexed hereto and marked with the letter 'A'."

14. I return to the remaining paragraphs of Mr. Moore's affidavit.

"5 I know from my work for the plaintiff that the plaintiff

maintains a computerised accounting system. I am familiar

with that accounting system. By operating a computer

terminal one can obtain a printout from the computer system

in relation to a particular loan showing inter alia the

amount of any arrears outstanding under the loan and the

date and amount of the last payment made to the plaintiff in

respect of it. On the 28th July 1992 by operating a

computer terminal I obtained from the plaintiff's computer

system such a printout relating to account number 61404104.

Annexed hereto and marked with the letter 'B' is a copy of

that printout, which shows that as at 1.20 pm central

standard time, on the 28th July 1992 the arrears outstanding

in relation to that account were $10,820, with the last

payment being a payment of $1,352.40 made on the 23rd

January 1992.

6 Information relating to accounts of the plaintiff and

accounts of National Westminster Finance Australia Limited

are kept on the plaintiff's computer system. There is only

one account in respect of which records are kept on that

computer system that is numbered 61404104. I believe that

account to be the account of Danny Mark Powe and Sharron

Elizabeth Powe with National Westminster Finance Australia

Limited to which the said bill of sale relates. My source

of that information is that the said carbon copy bill of

sale bears on the page on which it has been signed that

account number. I hold that belief because it is the

practice of the staff of the plaintiff so to record on bills

of sale the numbers of the accounts to which they relate and

such notations are invariably accurate and reliable.

7 I believe that default was made in the payment of the

instalments required to be made pursuant to the said bill of

sale ever since January 1992. My belief is based upon the

information referred to in paragraphs 5 and 6 above. The

grounds of my belief are that the computerised accounting

records of the plaintiff are invariably kept accurately.

8 I believe that on the 4th February 1992 the defendant

spoke by telephone to Len Riseley, then an employee of the

plaintiff, and claimed to have a lien over the excavator

referred to in the said bill of sale for about $6,000. I

believe this on the basis of a record of such a conversation

kept on the plaintiff's computer system in relation to the

said account, a true copy of a printout of the relevant part

of which is annexed hereto and marked with the letter 'C'.

I believe this because such computerised records are kept

reasonably accurately by the plaintiff in relation to

conversations concerning loan accounts, and because I know

'CB51LXR' was Mr Riseley's personal computer operator code,

which referred only to him.

9 I believe that on or about the 13th March 1992 the

defendant told Mr Riseley that a fellow by the name of Clark

from Brighton had looked at the excavator and was seeking

costings on repairs and might purchase it for its payout

figure. I believe this on the basis of a record of such a

conversation kept on the plaintiff's computer system in

relation to the said account, a true copy of a printout of

which is annexed hereto and marked with the letter 'D'.

Again I believe this because such computerised records are

kept reasonably accurately by the plaintiff and because I

recognise the code 'CB 51 LXR' which I know to refer to Mr

Riseley and him only."

15. Counsel for the defendant submits that pars5 and 6 are not admissible and that therefore the statements of belief made in pars7,8, and 9 which are based upon the materials referred to in pars5 and 6 are not admissible. For the reasons I have given I reject that submission. The deponent has sworn to his belief and the grounds upon which he holds that belief and the materials which are the source of that belief do not fall into the special category of inadmissible materials to which I have referred. I am satisfied that the conditions prescribed in O41, r3 have been met. I should add however that I am admitting annexures "B" and "C" on the understanding that they are presented as evidence of the grounds of the deponent's belief rather than as independent evidence of the truth of the facts referred to or recorded in those annexures.

16. Counsel for the defendants objected to these paragraphs on the grounds that they are not relevant. As I have not received all the evidence or heard any submissions upon the substance of the application I do not think that it would be appropriate at this stage to hold that under no circumstances at all could any of the material in these paragraphs be relevant to any material fact or any consideration relevant to the exercise of my discretion. I shall postpone my consideration of the relevance of these paragraphs until after I have heard submissions upon the application.

"14 I believe that on the 26th June 1992 Steven Reeding from

'Statewide Collections' in Ulverstone went to 7 Wellington

Street Longford in Tasmania in company with a Mr Bob

Howlett, that Mr Reeding told the defendant that he was

there to collect the excavator, that the defendant promised

that payments would be made on the excavator, that the

defendant said he had people interested in purchasing the

excavator, that the defendant said he would not allow the

excavator to be removed from the property, that the

defendant said that it would take a court order for Mr

Reeding and Mr Howlett to remove the excavator from his

property if it was still on his property when the order was

obtained, that Mr Reeding told him that any consent he may

have been given in the past to try to sell the excavator or

to trade it on another machine was withdrawn, and that Mr

Reeding told him he was not to use the excavator or to move

it without Natwest's express consent pending a court order

being obtained. I believe this on the basis that Steven

Reeding told me so by telephone on or shortly after the 26th

June 1992. One reason I believe him is that I requested him

and Bob Howlett to go to 7 Wellington Street Longford to

take possession of the excavator from Des Powe. I asked

them both by telephone. Another reason for my belief is

that I have had dealings with Steven Reeding in the past and

never found him unreliable."

17. Relying upon the Gasco case and Ahern's case, counsel objected to this evidence on the basis that it was double hearsay. For the reasons I have given I reject that submission. In any event the evidence is not double hearsay as Mr. Reeding's statement is a first hand account of a conversation he had with the defendant which conversation is a relevant fact in itself. I overrule the objection.

18. Counsel for the plaintiff submitted that any paragraphs of this affidavit which are held to be inadmissible for non compliance with O41, r3 may nevertheless be admitted pursuant to O41, r17 which provides as follows:

"17 The Court or a judge may receive any affidavit sworn for

the purpose of being used in any cause or matter,

notwithstanding any defect by misdescription of parties or

otherwise in the title or jurat, or any other irregularity

in the form thereof, and may direct a memorandum to be made

on the document that it has been so received."

19. In my view a failure in an affidavit to satisfy a condition of the admission of evidence which would otherwise be inadmissible is a fundamental flaw not a mere "irregularity in the form thereof". As well I adopt with respect the view expressed in Ahern's case at 117 and 118 that a power to treat non compliance with the rules as a mere irregularity which may be excused does not empower a court to receive evidence which does not comply with O41, r3. I reject the submission.

20. Counsel for the plaintiff does not seek to submit that pars7 and 8 are admissible. The other paragraphs of the affidavit were objected to on the ground that they are irrelevant. I repeat the ruling I have made in relation to pars10,11 and 12 of Mr. Moore's affidavit.

21. The defendant has given notice to the plaintiff that he desires to cross-examine this deponent. The deponent has not appeared and the plaintiff has applied pursuant to O41, r34(1) or r34(2) for special leave to use the affidavit or for an order that the deponent be exempted from attending for cross-examination. Order 41, r34(3) provides:

"(3) The Court or a judge may make an order under sub-rule

(2) exempting a deponent from attending for

cross-examination if it or he is satisfied that the

deponent's attendance is not necessary in the interests of

justice, having regard to the circumstances of the case,

including the subject-matter of the cause or matter and the

cost of procuring the attendance of the deponent."

22. The plaintiff has said nothing in support of this application other than that the deponent is in Queensland. The deponent's evidence relates to material facts and I have been informed that the defendant disputes his evidence. I am not satisfied that the deponent's attendance is not necessary in the interests of justice.

23. Counsel are agreed that it would be convenient if I were to rule provisionally on the admissibility of paragraphs of Mr. Howlett's affidavit to which objection has been taken. Counsel for the plaintiff does not submit that par5 is admissible. The remaining objections are based upon a submission that other paragraphs are irrelevant. I repeat the ruling I gave in relation to pars10,11 and 12 of Mr. Moore's affidavit.

24. I record that the foregoing rulings are confined to the issues going to admissibility which I have identified. I am not at this stage directing my mind to weight or relevance or the issue of what if anything is capable of being proved by these affidavits.

Stamp Duties Act 1931

National Westminster Finance Australia Limited v Des Powe [1992] TASSC 43;

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

National Westminster Finance Australia Limited v Des Powe [1992] TASSC 43; (1992) 1 Tas R 161 (17 September 1992)

Parties

Legislation Cited (2)

Cases Cited (4)