18 As I have said, on or about 19 December 2007, the matter was set down for hearing. On that day Ms Alexis King, a solicitor in the office of the second defendant's solicitors, telephoned Mr Siasau on XXXX 2920 and obtained no answer. She then telephoned his business telephone number, recorded as XXXX 5100, and was informed that he no longer worked for that business, and no forwarding phone number could be provided. On 20 December 2007, she again telephoned Mr Siasau on XXXX 2920, but recorded that the line seemed to be disconnected.
19 On 11 June 2008, Mr Hedges caused to be issued a subpoena to Mr Siasau to give evidence and produce documents, which was forwarded to process servers, for service at the Meredith Street, Bankstown address. The process server attempted to serve the subpoena at that address on 23 June 2008 and spoke to a female occupant, who said that Mr Siasau used to live there before her but moved to Georges Hall about six months ago, and that she did not have a forwarding address or contact number for him.
20 The process servers undertook what they call a basic data base search which failed to locate a listing for Mr Siasau, and asked whether the solicitors had any further information to assist in locating him.
21 Mr Hedges then instructed the process servers to conduct a number of searches to try and locate Mr Siasau. The process servers conducted the searches on a number of data bases said to include API, FCS, ABN, TRA, RP Data, ABR and LPI, none of which revealed any current or historical listing in Mr Siasau's name. Historical information on his last known address at Meredith Street revealed a listing in the name of Charlene Lisa Siasau, but further searches failed to identify any current listings for her. An Australian Business Name search revealed no listings in his name. Land Title searches revealed that he owned no property in New South Wales. The Trading Reference Australia database search revealed no listings in his name, nor in that of Charlene Siasau, nor in respect of the last known address. A property search revealed the ownership of the Meredith Street property, unassociated with him.
22 Further searches failed to identify any current telephone listing at the last known address, although there was a listing for a neighbour. The operative spoke to a neighbour, who said that she had never heard of the subject. An electronic White Pages search revealed no listings in Mr Siasau's name anywhere in Australia. On 30 July 2008, an electronic enquiry was made of the public register of licences in respect of Mr Siasau's name and licence number, which revealed that the number entered was not that of a current licence.
23 Other witnesses in the proceedings have indicated that they have not heard of or had contact with Mr Siasau since shortly after 15 December 2002.
24 For the plaintiff, it has been suggested that a number of further enquiries could reasonably have been undertaken to find Mr Siasau. The first suggestion was a subpoena to the Department of Immigration. Such a subpoena might establish whether Mr Siasau had departed Australia and, if so, his destination (in terms of a country), or otherwise that he remained in Australia, but it would not find where he was overseas (identifying only the country of destination) and it would certainly not find him if he remained in Australia.
25 It was suggested that further enquiries might have been made of the police or the Licensing Registry to ascertain the address held in respect of his former security licence, but in circumstances where an enquiry was made of the Licensing Register which identified that the number was not that of a current licence, and where at least until October 2004 he was resident at Meredith Street, Bankstown, it is improbable that an enquiry in respect of a licence, since lapsed, would have revealed any more recent address than the Bankstown address.
26 It was suggested that an enquiry might have been made of the Australian Electoral Commission roll. That would only assist if Mr Siasau was an Australian citizen, and there is no evidence on that topic. It was also suggested that a letter to his former address might at least have produced a forwarding address, but in circumstances where the occupant of his former address had no forwarding details for him, that also seems unlikely.
27 I am not to be taken as suggesting that an Australian Electoral roll search would not normally be an appropriate enquiry. In many cases it would be. But what is reasonable in a particular case will be influenced by the other steps that have been taken, and given the various enquiries which have been made in this case by and on behalf of AWS, I do not think that reasonable steps to find Mr Siasau required that, in addition to what has otherwise been done, there also be an Australian Electoral roll search.
28 In AJW v The State of New South Wales [2003] NSWSC 803, Bell J concluded (at [15]) that "all reasonable steps" had been undertaken to find a person in circumstances where an experienced private investigator had been employed to undertake that task and the investigator carried out enquiries that might reasonably be expected to have been undertaken by a competent investigator in an effort to locate the person.
29 In this case, a private investigator has been instructed to undertake the relevant task, and that investigator has deposed to the various enquiries and investigations she undertook. In addition, there is evidence of the search in the Licences Register over and above what the private investigator undertook. In the circumstances, I do not think that reasonable steps require more.
30 I am satisfied, for the purposes of clause 4, that all reasonable steps have been undertaken by AWS to find Mr Siasau.
31 There remains the question of discretion. On this, it is relevant that Mr Siasau's evidence is potentially important; indeed he is effectively the agent of the second defendant whose negligence is said to found the case against the second defendant. It is also significant, in those circumstances, that there will not be an opportunity to test his evidence. And I accept that it is not always enough to observe that the absence of that opportunity can be taken into account in weighing all the evidence.
32 On the other hand, there are a number of factors which favour the admission of the statement. First, it was made practically contemporaneously with the events on 15 December 2002, when those events would have been fresh in his memory. Secondly, it was made to persons in authority in a solemn setting, namely the police, and expressed to have been made knowing that, if tendered in evidence, the witness would be liable to prosecution if he had stated in it anything known to be false or not believed to be true. Thirdly, there is the circumstance that the witness' other representation, contained in DX10, the security log book, and made shortly before this statement, is already otherwise in evidence, as a business record. And fourthly, although I had at first deferred reading the statement, having ultimately decided to do so before admitting it, it seems to me that in light of what appears in the witness's entry in the log book and the other evidence, including that of Mrs Rose and Mr Tukuafu, its content is not radically different from that of the evidence otherwise before the court.
33 There has been an opportunity at least to test witnesses who have given versions in some respects similar to that contained in Mr Siasau's statement. There has been an opportunity to elicit evidence from witnesses to contradict aspects of Mr Siasau's statement - for example, where he claims to have been at various times.
34 Having regard to all of those matters, I do not think that the prejudice that the admission of this document without the witness being available to be tested may occasion the plaintiff, is sufficient to justify its rejection.