Plaintiff v Defendant

1. I will partly allow the plaintiff's objection to paragraph 32 of Peter Brown's affidavit. Whilst part of paragraph 32 is inadmissible, I find the letter from Angela Sdrinis Legal to the plaintiff dated 22 February 2015 (the 'Sdrinis letter')[1] admissible pursuant to s 75 of the Evidence Act 2008 (Vic) (the 'Act').
2. I will allow the plaintiff's objection to paragraph 20 of Fr Raper's affidavit. Fr Raper citing 'various successors' as his source is too vague to meet the requirements of s 75.

1. The plaintiff objects to paragraph 32 of the affidavit of Peter Anthony Brown, sworn on 25 January 2024 ('Brown affidavit').[2] Paragraph 32 states:

The file of Angela Sdrinis Legal contains an initial engagement letter provided to [the plaintiff] dated 22 February 2015. [footnote] The engagement letter details the scope of instructions provided by the plaintiff including his desire to pursue further compensation from the Society. Importantly, this letter contained the following advice... [extract from letter follows].

1. The footnote to the first sentence refers to the page numbers of the exhibit containing the Sdrinis letter.
2. The plaintiff objects to the admission of paragraph 32 and the Sdrinis letter. His objection is based on hearsay. Specifically, that the characterisation of the Sdrinis letter is an opinion, and that the Sdrinis letter is irrelevant unless admitted for a hearsay purpose.
3. On the other hand, the defendant says they do not seek admission of the Sdrinis letter for a hearsay purpose.
4. The defendant says, alternatively, if the hearsay rule applies to the Sdrinis letter, then an exception applies - either because it is a business record or because this is an interlocutory application.
5. I will first address whether paragraph 32 is admissible, then turn to the Sdrinis letter.
6. Regarding paragraph 32, I find it is partly admissible. Mr Brown's reference to the Sdrinis letter as an initial engagement letter is simply an apt description. The reference to the advice being 'important' is an opinion and is not admissible. Accordingly, that sentence is inadmissible. The accompanying extract from the Sdrinis letter should be excluded as it is without context given that I have ruled the sentence introducing it is inadmissible.
7. The reference to the plaintiff being provided with the Sdrinis letter is not admissible. Mr Brown does not know whether the Sdrinis letter was provided to the plaintiff. His statement that the plaintiff was provided the letter is hearsay.
8. I will now consider whether the Sdrinis letter is admissible, beginning with why it cannot be presumed that the plaintiff received it.

No presumption that the Sdrinis letter was received by the plaintiff.

1. I do not presume the plaintiff received the Sdrinis letter for the following reasons.
2. First, there is no evidence the plaintiff received the Sdrinis letter. The plaintiff's counsel confirmed this during the hearing.[3] Second, per section 160(1) of the Act, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a specified address in Australia was received at the address on the seventh working day after having been posted. There is no evidence of the Sdrinis letter having being posted.[4] Third, the address stated at the head of the Sdrinis letter is '51 Fisher Street Torquay VIC 3228'.[5] The only other references to this address are in Ms Sdrinis' file note, dated 13 February 2015,[6] and in her letter to the plaintiff dated 3 March 2016.[7] It is not identified anywhere else as having been the plaintiff's address. The deed of variation contains a different address for the plaintiff.[8] The Sdrinis letter includes a place for the plaintiff to sign it and confirm the engagement.[9] That space is blank. There is no evidence that the plaintiff signed it.
3. The next question is whether I should admit the Sdrinis letter as part of the Sdrinis file.

1. Section 59 of the Act is as follows:

59 The hearsay rule - exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

1. The plaintiff submits that the Sdrinis letter is hearsay evidence pursuant to s 59.[10] The defendant submits that they do not tender the Sdrinis letter for a hearsay purpose. The Sdrinis letter, instead, supports the proposition that the settlement was 'very good'.[11] And that, therefore, 'it gets in prima facie as evidence of the representation.'[12]

1. The Sdrinis letter constitutes hearsay evidence. There is no evidence from Ms Sdrinis, the apparent author of the Sdrinis letter.
2. The next question is whether the Sdrinis letter should be admitted under an exception to the hearsay rule.

Is the Sdrinis letter a business record pursuant to s 69 of the Act?

1. There is a dispute between the parties as to whether the Sdrinis letter is a business record per s 69.
2. Section 69 of the Act provides an exception for business records:

(1) This section applies to a document that -

(a) either -

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

...

(3) Subsection (2) does not apply if the representation -

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

...

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

1. The plaintiff submits that the Sdrinis letter does not fall under the business records exception in s 69.[13] Specifically, given the Sdrinis letter's form and features, it must relate to an Australian legal proceeding, thereby enlivening s69(3)(a).[14]
2. On the other hand, the defendant submits that the Sdrinis letter, having been part of Ms Sdrinis' file, must be considered a business record pursuant to s 69.[15] The defendant submits that the Sdrinis letter constitutes legal advice. The defendant further submits that the exclusion from the exception under s 69(3)(a) does not apply to legal advice but only to documents made in contemplation of, or in connection to, a proceeding, for example, 'a pleading or the like.'[16] Therefore, the legal advice was neither connected to nor in contemplation of an Australian legal proceeding.[17] The Sdrinis letter records that Ms Sdrinis advised the plaintiff not to commence proceedings.[18]

1. In Vitali v Stachnik[19] ('Vitali'), Barrett J, in considering the NSW equivalent to s 69 of the Act, stated as follows,[20]

The purpose of the exclusion is, as I see it, to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings. (emphasis added)

1. The Sdrinis letter references the risk faced by the plaintiff 'if legal proceedings are issued'.[21]
2. The statement 'if proceedings are issued' creates a prima facie 'atmosphere or context' relevant to the outcome of legal proceedings. Another statement in the Sdrinis letter apprehends the outcome of future legal proceedings. Therefore, this part of the Sdrinis letter was drafted 'in contemplation' of an Australian legal proceeding.
3. In Vitali, Barrett J interpreted the phrase 'in contemplation of' in an analogous provision.[22] His Honour favoured a wide interpretation, consistent with previous authority.[23] Since Vitali, a wide interpretation has been applied.[24]
4. In Eastbound Estate Pty Ltd v D.C. Consolidated Investments Pty Ltd ('Eastbound'),[25] Croft J considered the application of s69(3) of the Act to a legal representative's termination letter.[26] His Honour, citing Vitali, found that the letter,[27]

was prepared "in an atmosphere or context" in which the rationale for the business records exception to the hearsay rule carries less weight, and in which the purpose of s 69(3)(a) is firmly engaged.

1. In alignment with the cited authorities, I consider the phrase 'in contemplation of' to have a wide meaning. Therefore, s69(3) of the Act is engaged, denying admission of the Sdrinis letter under the business records exception.

Is this an interlocutory proceeding per s 75 of the Act? Should the Sdrinis letter be admitted under s 75?

1. The defendant submits that the Sdrinis letter may be admitted because this is an interlocutory proceeding per s 75.[28]
2. Section 75 of the Act provides:

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

1. In Wily v Terra Cresta Business Solutions Pty Ltd[29] ('Wily'), Palmer J stated the rationale for the rule:[30]

The purpose of s 75 of the Evidence Act is to facilitate the conduct of interlocutory proceedings in circumstances where it is often difficult, at short notice, to adduce evidence in direct and admissible form. For that reason, evidence on information and belief is accepted. However, the requirement of the section that the source of the information be revealed goes some way to assisting the Court in assessing the reliability of that evidence. Without any indication of the source of the evidence proffered on information and belief, the Court is unable to assess its weight nor can the opponent test the evidence or make any sensible submission as to its weight.

1. Victorian authorities have subsequently affirmed this rationale.[31]
2. To be admitted per s 75, the Sdrinis letter must be accompanied by evidence as to its source. This requirement is satisfied as there is evidence that the source is Angela Sdrinis and Angela Sdrinis Legal, who produced the documents in response to a subpoena.[32] Additionally, the source evidence must be adduced by the same party seeking to adduce the Sdrinis letter. This requirement is satisfied because the defendant seeks to adduce the evidence.
3. However, as outlined above, this exception only applies in interlocutory proceedings. The next question is whether this is an interlocutory proceeding. A pre-trial application may be considered an interlocutory proceeding. Here, such an application is on foot, namely a pre-trial application to set aside deeds in an action for damages.
4. In Bienstein v Bienstein[33], the plurality stated that:

The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success.

1. The set aside application has been made pursuant to the Limitation of Actions Act 1958 (Vic). Like an application to extend time under that Act, an application to set aside a deed will not finally determine the parties' rights. It would be open to a plaintiff to make a further application if they were unsuccessful. Accordingly, the application must be considered an interlocutory proceeding for the purpose of s 75. Subject to s 135, I therefore find the Sdrinis letter admissible.
2. Given the finding above , I need not consider the defendant's alternative submission that the Sdrinis letter is admissible under s 60.

Should the Sdrinis letter be excluded under s 135?

1. Section 135 provides a general discretion to exclude evidence:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time

1. 'Probative value' denotes the 'extent to which the evidence could rationally affect the probability of the existence of a fact in issue'.[34]
2. The parties did not address the application of s 135. It applies to the exercise of my discretion.
3. The Sdrinis letter has some probative value, although it is not a critical document. Its inclusion may assist in proving the advice given to the plaintiff, despite there being no evidence that he had received the letter. Further, the Sdrinis letter records Ms Sdrinis' opinion and forms part of her file. That file includes notes of Angela Sdrinis Legal's discussions with the plaintiff.[35] Excluding the Sdrinis letter would mean that whilst some of the file appears to be in evidence, the document recording Ms Sdrinis' opinion is not. The Sdrinis letter provides context to other documents in the file.
4. Turning now to the question of whether the probative value of the Sdrinis letter is outweighed by other factors. I find, firstly, that its admission would not unfairly prejudice the plaintiff. As I have explained, I draw no inference that the plaintiff received the Sdrinis letter. Secondly, this application is not a jury matter; the Sdrinis letter is therefore unlikely to mislead or confuse. Finally, admission of the Sdrinis letter will neither cause nor result in an undue waste of time.
5. I will allow the Sdrinis letter to be admitted. The circumstances here do not require exclusion per s 135.

1. The plaintiff objects to paragraph 20 of the affidavit of Fr Raper, sworn on 23 February 2024 ('Fr Raper affidavit'). [36] Paragraph 20 states:

After I finished my tenure as Provincial for the Province in July 2008, based on my discussions with my successors, I understand that the changes implemented during my time as Provincial continued and the Province maintained the approach to present itself as a model litigant and no longer rely upon the Ellis defence or the expiration of limitation periods when responding to proceedings involving historical claims of sexual abuse.

Does paragraph 20 of the Fr Raper affidavit constitute hearsay evidence? If so, does s 75 of the Act apply?

1. The plaintiff submits that the statement by Fr Raper contained in paragraph 20 of his affidavit is speculative.[37] He says Fr Raper did not receive independent knowledge as to how the relevant policy was applied after he had completed his tenure as Provincial. And, that his stated source being 'my successors' without further specification is an excessively vague disclosure of sources.[38]
2. The defendant submits that what is deposed is merely Fr Raper's beliefs and state of mind. Therefore, the evidence is not hearsay. Further, in an interlocutory proceeding, a deponent need not name all individual sources which led to his forming a particular belief in order to have adduced evidence of his source for the purposes of s 75.[39]

1. I find that paragraph 20 contains hearsay. Fr Raper relies not on his direct knowledge but rather on discussions with his 'successors' to prove the existence of an asserted fact. The asserted fact is that the Jesuits did not rely on the Ellis defence or limitation period after his tenure. The question then is whether the hearsay exception in s 75 is applicable.
2. The admissibility of paragraph 20 hinges on whether 'my successors' is a sufficient identification of Fr Raper's source for s 75.
3. In NSW Crime Commission v Vu[40], Spigelman CJ considered the importance of source identification for the NSW equivalent provision. His Honour observed that:[41]

The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the court to assess the weight to be given to the basis of the expressed suspicion and, therefore, to determine that reasonable grounds for the suspicion exist.

1. Adding to Spigelman CJ's comments, Dixon J later clarified that 'the exigencies of each particular case decide what is a sufficient disclosure of sources, and the court's direction is not to be fettered.'[42]
2. In Wily, Palmer J found that identification of the source as 'our client' did not fulfil the requirements of s 75.[43] In his reasoning, his Honour reiterated that,[44]

The requirement of [section 75] that the source of the information be revealed goes some way to assisting the Court in assessing the reliability of that evidence. Without any indication of the source of the evidence proffered on information and belief, the Court is unable to assess its weight nor can the opponent test the evidence or make any sensible submission as to its weight.

1. I adopt Palmer J's reasoning. I find that 'my successors' is not a sufficient identification of Fr Raper's sources for s 75.
2. Alternatively, if Fr Raper's statement is simply his belief, then it is irrelevant.
3. Paragraph 20 of Fr Raper's affidavit is therefore inadmissible.

THE SOCIETY OF JESUS IN AUSTRALIA LIMITED (ACN 628 008 979)

[1] Exhibit "PAB-1" to affidavit of Peter Brown sworn on 25 January 2024 ('Brown affidavit'), 1 - 5.

[2] Transcript of 1 March 2024 ('T'), 8:6 - 8:13.

[5] Exhibit 'PAB-1' to the Brown affidavit, 1.

[6] Exhibit 'BLM-1' to the affidavit in Response of Beth Louise Marsh, affirmed on 7 February 2024, 9.

[7] Exhibit 'RN-1' to the affidavit in support of Rachael Nevill, affirmed on 27 February 2024 ('Nevill affidavit'), 20 - 21.

[8] Exhibit 'PJ-1' to the affidavit of Peter Jens affirmed on 13 March 2024, 14-17.

[9] Exhibit 'PAB-1' to the Brown affidavit, 5.

[14] T119:30 - 120:11, 123:20 - 123:23, T123:29 - 124:4.

[19] [2001] NSWSC 303 ('Vitali').

[21] Exhibit 'PAB-1' to Brown affidavit, 1.

[23] Ibid; For cited previous authority see: Marsden v Amalgamated Television Services [2000] NSWSC 425, [6] - [7].

[24] See: Lewis v Nortex Pty Ltd [2002] NSWSC 1083, [4]; Timms v Commonwealth Bank of Australia [2003] NSWSC 576, [14].

[25] [2024] VSC 40 ('Eastbound').

[29] [2006] NSWSC 949 ('Wily').

[31] See: Madafferi v Age Co Ltd [2015] VSC 687; (2015) 50 VR 492 at 522 per Dixon J; Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust (Ruling No 1) [2014] VSC 481, [57].

[32] Defendants submissions filed on 12 February 2024, [21]; Exhibit "PAB-1" to Brown affidavit, 96 - 101.

[33] (2003) 195 ALR 225 at 230 per McHugh, Kirby, and Callinan JJ.

[34] Evidence Act 2008 (Vic), Dictionary pt 1 (definition of 'probative value').

[35] Exhibit "BLM-1" to the Affidavit in Response of Beth Marsh, affirmed on 7 February 2024, 4 -15.

[40] [2009] NSWCA 349.

[42] Madafferi v Age Co Ltd [2015] VSC 687; (2015) 50 VR 492, [96]; see also: Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust (Ruling No 1) [2014] VSC 481, [79].

[43] Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949, [12].