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Supreme Court of New South Wales |
Last Updated: 16 July 2007
NEW SOUTH WALES SUPREME COURT
CITATION: Connex Group Australia Pty
Ltd v Butt [2004] NSWSC 379 revised - 16/03/2006
CURRENT
JURISDICTION:
FILE NUMBER(S): 002872/02
HEARING DATE{S):
03/05/04, 04/05/04, 05/05/04, 06/05/04, 07/05/04
JUDGMENT DATE:
07/05/2004
PARTIES:
Connex Group Australia Pty Ltd (FKA CGEA
Transport Asia Pacific Holdings Pty Ltd)
v
Kenneth Alfred
Butt
JUDGMENT OF: White J
LOWER COURT JURISDICTION: Not
Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT
JUDICIAL OFFICER: Not Applicable
COUNSEL:
Plaintiff: C
Harris
Defendant: N Manousaridis
SOLICITORS:
Plaintiff: Piper
Alderman
Defendant: Middletons
CATCHWORDS:
Evidence - Fact and
Opinion - Opinion Rule - Lay opinions - Evidence Act 1995 ss 76(1) and
78.
ACTS CITED:
Evidence Act 1995 (NSW)
DECISION:
See
Judgment
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY
DIVISION
WHITE J
Friday, 7 May
2004
002872/02 CONNEX GROUP AUSTRALIA PTY LTD v KENNETH ALFRED
BUTT
JUDGMENT – On Admissibility of Exhibits RP32 and
RP33
1 HIS HONOUR: The plaintiff tendered as Exhibits RP32
and RP33 to the affidavit of Robert Christiaan Postema sworn 16 April, 2003 two
file notes
of Mr Postema prepared on 7 and 8 December 1999 of telephone
conversations said to have been held on 19 November 1999. Objection
was taken
to the part of each of the file notes following word “Note”. The
admissibility of the notes raised the same
issue. On 3 May 2004 I admitted the
parts of the file notes that were objected to and gave brief reasons.
(Transcript pages 9-10).
2 What follows is a full statement of those
reasons. To explain these reasons it is sufficient to deal with the file note
which is
exhibit RP33 being a record of a telephone conversation held on 19
November 1999 between Mr Warrell of the plaintiff and Mr Butt,
who is the
defendant. The conversation was on speakerphone. Mr Parker of the Connex Group
of companies, and Mr Postema, a solicitor
engaged by the plaintiff, were
present. The file note sets out what on its face appears to be a transcription
of notes taken during
the course of the conversation. No objection was taken to
that part of the file note. It then continues as follows:
“The
gist of the conversation was that the parties would await the outcome of the
meeting with the DOT. While my handwritten notes
were not able to capture every
word of the conversation, Ken Butt clearly left the impression he would sort the
matter out and that
it was not a big deal. Conversely, Kevin Warrell made it
clear that CGEA wanted to proceed subject to the DOT issue being sorted
out.
Ken Butt did not say anything that suggested that he would not deal with CGEA or
that the matter would not settle. While Ken
Butt did not say much, I was left
with the impression that at the least everyone would await the outcome of the
meeting on the following
Friday with completion to be postponed until at least
that time or shortly thereafter.”
3 The note was tendered as
evidence of the conversation. It was initially objected to on the grounds of
hearsay and relevance. I
was satisfied it was relevant. The statements
objected to could be characterised as statements of both opinion and asserted
fact.
Although the rules of evidence often assume a dichotomy between fact and
opinion and the distinction is unavoidable, there is a
continuum, rather than a
dividing line, between fact and opinion. (Australian Law Reform Commission,
Interim Report on Evidence (ALRC 26, 1985) Vol 1 para 738; Ritz Hotel
Ltd v Charles of the Ritz Ltd (No. 20) (1987) 14 NSWLR 124 at 127).
Statements of asserted fact may potentially attract both the hearsay rule and
the opinion rule. (Hadid v Australis Media Ltd (28/10/1996, Sperling J,
unreported). Opinions are often used to assert facts. (Ringrow Pty Ltd v
Ultimate Fuel Pty Ltd [2003] FCA 933, per Hely J at [16]-[20]). The note
was tendered to establish the content or effect of the conversation. Its author
was to be called
as a witness. I could infer the note was made on 8 December
1999 when the conversation was fresh in the memory of the witness.
Whether or
not it was also a business record the hearsay rule did not apply. (Evidence
Act 1995 (NSW), s 64(3)). The real objection was that the note contained
conclusions as to the effect of the conversation which were inadmissible under s
76 of the Evidence Act 1995 (NSW) as opinion evidence.
4 I
admitted the part objected to pursuant to s 78.
5 Before the Evidence
Act 1995, the position at common law was that generally the opinions of lay
witnesses, that is non-expert witnesses, were not receivable.
Phipson on
Evidence (14 Ed 1990) said (at para 32-01) that the opinions, inferences or
beliefs of individuals were inadmissible in proof of material
facts. The ground
most commonly assigned for the rejection of such evidence was that if the
opinions were founded on no evidence,
or on inadmissible evidence, they were
worthless, and if they were founded on admissible evidence, they tended to usurp
the functions
of the tribunal.
6 In his paper “The
Relationship Between Relevance and Admissibility in the Law of
Evidence” in Glass, Seminars on Evidence, p 53, Sir
Richard Eggleston said:
“.....in general, the opinions of
non-experts are excluded. Generally speaking, it is for the tribunal of fact to
formulate its own
opinion on facts presented by witnesses who have perceived
them by the exercise of their physical senses. Nevertheless, the opinion of
an eyewitness who perceived the fact in issue might be of value even though the
witness had no recollection
of the fact perceived but only a recollection of an
opinion formed at the time; and in some cases evidence is allowed to be
given of an opinion formed by a non-expert. Age, identity, speed and now, it
appears,
intoxication are subjects on which non-expert opinion is
admissible.” (At pages 69-70) (my emphasis)
7 In R v
Wright (1986) 19 A Crim R 17, the Queensland Court of Appeal held (at 18-19)
that although evidence that a witness had received an impression of a matter in
the
course of a conversation would not be admissible if that was all that the
witness said, that was not so where the witness was referring
to something which
was said which impressed itself upon her so that she was thereby conveying the
effect of the words used. The
Court said that a witness could give the effect
or purport or substance of what was said although unable to recall the precise
words
used.
8 It is against this background that the Evidence
Act 1995 (NSW) was enacted.
9 Sections 76 (1) and 78 of the
Evidence Act provide as follows:
“76 The opinion
rule
(1) Evidence of an opinion is not admissible to prove the
existence of a fact about the existence of which the opinion was
expressed.
78 Exception: lay opinions
The opinion
rule does not apply to evidence of an opinion expressed by a person
if:
(a) the opinion is based on what the person saw, heard or
otherwise perceived about a matter or event, and
(b) evidence of the
opinion is necessary to obtain an adequate account or understanding of the
person’s perception of the matter
or
event.”
10 “Opinion” is not defined in the Act. In
Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No.
5) (1996) 64 FCR 73 Lindgren J said (at 75) that for the purposes of the
opinion rule an “opinion” was “an inference from observed
and communicable data”. That definition has been frequently cited
with approval. (e.g. Hughes Aircraft Systems International v Air Services
Australia (1997) 80 FCR 276 at 279-280; Guide Dog Owners and Friends
Association Inc v Guide Dog Association of NSW and ACT [1998] FCA 480; (1998) 154 ALR 527 at
532; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 529).
11 The definition adopted by Lindgren J had been referred to by the
Australian Law Reform Commission in its Interim Report on Evidence (ALRC
26, 1985). The Commission referred to Wigmore on Evidence 3 Ed para 1917
and Wills on the Law of Evidence (3 Ed 1938) page 150 as the source of
the definition.
12 Para 1917 of Wigmore summed up the rule
relating to opinion evidence as follows:
“The sum of the history
is, then, that the original and orthodox objection to ‘mere opinion’
was that it was the guess
of a person who had no personal knowledge, and the
‘mere opinion’ of an expert was admitted as a necessary exception;
that the later and changed theory is that wherever inferences and
conclusions can be drawn by the jury as well as by the witness, the witness
is superfluous; and that thus an expert’s opinion is received because and
whenever his skill is greater than the
jury’s, while a lay
opinion is received because and whenever his facts cannot be so told as to make
the jury as able as he to draw the inference. The old objection is a matter
of testimonial qualifications requiring personal observation; the modern one
rests on considerations
of policy as to the superfluity of the testimony. In
the old sense, ‘opinion’ – more correctly, ‘mere
opinion’
– is a guess, a belief without good grounds; in the modern
sense, ‘opinion’ is an inference from observed and communicable
data.” (my emphasis)
13 According to Wigmore, the
opinion rule was simply a rule for the exclusion of superfluous evidence. The
opinion rule did not exclude lay testimony wherever
it was based on inferences
from observed and communicable data. To the contrary, if the lay opinion was
based on personal knowledge
of the witness, the opinion would be received if
“his facts cannot be so told as to make the jury as able as he to draw the
inference”.
14 At para 2097 Wigmore discussed the
application of the opinion rule to evidence as to the effect of conversations.
He described the “universally
accepted” general rule as being
that:
“the substance or effect of the actual words spoken will
suffice, the witness stating this substance as best he can from the impression
left upon his memory. He may give his ‘understanding’ or
‘impression’ as to the net meaning of the words
heard. This rule
was applicable to oral utterances in general including conversations whether as
forming contracts or merely as
admissions. If the witness could relate from
memory the precise words used, the opinion rule would operate to prohibit him
from
condensing them into a summary statement of their substance or effect,
because by that rule the data observed by the witness must
be laid in detail
before the jury, if they can be without his inferences based upon them.
... if they cannot be laid before the jury, then the witness’
inferences, or net impressions, are by that very rule allowable.
Consequently,
if his memory of the precise words fails him, his impression of their net
meaning is not forbidden by the opinion
rule. That rule does not require the
impossible, it merely forbids the superfluous.” (emphasis in
original)
15 The first sentence was quoted with apparent approval by
McMurdo P and Pincus JA in R v Noble (2000) 117 A Crim R 541 at 542,
544.
16 Wigmore cited and quoted from judgments of Richardson CJ
in Eaton v Rice, 8N.H. 378, 380 (1836) and Cooley J in Bathrick v
Detroit Post and Telegraph Co., 50 Mich 629, 637; 16 NW 172, 175 (1883). In
Eaton v Rice Richardson CJ was quoted as saying:
“The
recollection of a witness as to what an agreement between the parties was,
according to his understanding of what was said by
them at the time, may be very
satisfactory evidence, although he may not be able to recollect distinctly one
word that was said....
The credit that may be due to a witness in these cases
may depend much on his being able to detail enough of the conversation to
show
that his understanding of the matter was probably
right.”
17 Cooley J was quoted as saying in Bathrick v
Detroit Post & Telegraph Co that:
“It is not surprising
that a man should remember the substance or the result of a conversation, and
yet not be able to recall the words
made use of; and it sometimes casts
suspicion on the veracity of a witness that he assumes to remember the very
words of a conversation,
when there was nothing in the case that was likely to
impress upon his mind anything beyond the general
result.”
18 The Australian Law Reform Commission proposed that
an exclusionary rule be maintained against opinion evidence even though the
distinction between fact and opinion was artificial. (Report No. 26 para 738).
It was proposed however to minimise the difficulty
flowing from that rule by
making the primary question for the Court whether the evidence, whether of fact
or opinion, was based on
the witness’ personal perception. If it was, lay
opinion evidence would be admissible “subject to other
requirements”.
The Commission accepted that the ultimate criterion for
admission of opinion evidence should be whether it would assist the trier
of
facts in understanding the testimony or determining a fact in issue. (para
739). The Commission continued:
“To be of the requisite
assistance, the lay opinion evidence must be based on the witness’
personal perception of the matter
or event. ... It is proposed to admit lay
opinion testimony where it is based upon the personal perception of the witness
and it
is necessary to obtain an adequate account of his perceptions.
... The proposal therefore revives the original rationale based on
the distinction between opinion based on the witness’ perception
and mere
uninformed speculation.” (Paras 739 and 740)
19 The exception
which the Commission proposed is now provided for in s 78.
20 It
has been recognised that s 78 has altered the common law by expanding the scope
for lay opinion evidence. (R v Panetta (CCANSW) 2/10/97 unreported at 4
per Hunt CJ at CL; Daniel v Western Australia [2000] FCA 858; (2000) 178 ALR 542 at
546-547). The admissibility of non-expert opinion evidence which is based upon
personal perception is no longer confined to issues
of age, identity, speed, or
intoxication. (Compare Sir Richard Eggleston quoted in para 6 above). Section
76 and its exception
in s 78 apply to evidence of an opinion whether given
testimonially, or otherwise. Both sections apply to the document exhibit RP33.
21 The statements objected to were statements of Mr Postema’s
opinion, being inferences he derived from observed and communicable
data.
However, his opinion was based on what he heard and otherwise perceived about
the telephone conversation. I include in his
perception of the conversation his
understanding of it. A person’s perception includes what the person
understands about the
matter perceived of which he or she has gained knowledge
through the senses. (Macquarie Dictionary 3 Ed, Revised). The conversation
was
a matter or event. The asserted outcome of the conversation is itself a
“matter”. In Guide Dog Owners & Friends’ Association
Inc v Guide Dog Association of New South Wales and ACT [1998] FCA 480; (1998) 154 ALR 527 at
530-531 Sackville J posed but did not answer the question as to whether evidence
of a conversation in which a witness participated
could constitute
“matters” or “events” for the purpose of s 78. I see no
reason why not.
22 As Sir Richard Eggleston acknowledged in the passage
quoted in paragraph 6 above, and as the passages from Wigmore
demonstrate, a person’s opinion about a matter or event may be of value
even if the person has no recollection, or an incomplete
recollection, of the
primary facts perceived. In my view the combined effect of ss 76 and 78 is to
exclude non-expert opinion evidence
if it is not based on personal perception
(ss 76 and 78 (a)), or, if it is superfluous because all of the facts can be
told to the
tribunal so as to put it in as good a position to draw the inference
as the person expressing the opinion. (ss 76 and 78 (b)).
23 There is a
number of cases in which it has been suggested that s 78 has a relatively narrow
operation. In R v Leung and Wong [1999] NSWCCA 287; (1999) 47 NSWLR 405 Simpson J said of s
78 that the section assumes that the matter or event as perceived by the witness
is the primary evidence, and
that the witness’s opinion is admissible as
being incidental to an understanding of the primary evidence. (at 411-412).
(Spigelman
CJ and Sperling J did not find it necessary to express an opinion on
s 78). In Australian Securities and Investments Commission v Vines
[2003] NSWSC 1237 Austin J held at [25] that s 78 was not intended to apply to
opinion which was itself an articulation of the witness’ perception
of the
matter or event referred to in s 78 (a). His Honour drew this conclusion from
the language of the section. In Guide Dog Owners and Friends Association Inc
v Guide Dog Association of NSW & ACT [1998] FCA 480; (1998) 154 ALR 527 Sackville J (at
531) expressed the same idea. His Honour said, obiter, that it was
difficult to describe a person’s opinion about a vehicle’s speed or
a person’s age as necessary to
obtain an adequate account or understanding
of the first person’s perception of the matter or event. Rather, his
Honour said,
the opinion would be formed by reason of that perception.
24 With the greatest respect I think the interpretation of s 78 in
Australian Securities and Investments Commission v Vines [2003] NSWSC 1237 and that suggested in Guide Dog Owners and Friends Association Inc v
Guide Dog Association of NSW & ACT [1998] FCA 480; (1998) 154 ALR 527 is too narrow.
The interpretation suggests a dichotomy between the opinion of which evidence is
given and the witness’ perception
of the matter or event. However a
witness’ perception of the matter or event will typically be formed and
expressed either
as opinion or as a mixture of fact and opinion. As the
Australian Law Reform Commission noted at paragraphs 350 and 351 of its Interim
Report, a witness when testifying cannot aspire to a perfect and non-modified
reproduction of the data perceived. People customarily
express themselves in
terms of opinion and belief when testifying as to their perceptions.
25 The opinion may be the only evidence of the perception. In R v
Van Dyk [2000] NSWCCA 67 at [129-133] evidence that the accused “had a
look of wanting” was admitted as the only evidence of the perception.
That opinion
was admissible under s 78 even though there was no evidence of the
primary facts on which the witness’ opinion was
based.
26 Frequently the opinion will be part of a witness’
perception. Even in a traditional category in which a lay witness could
express
an opinion, such as one about a person’s age, the opinion of age would
typically be accompanied by whatever evidence
the witness could recount as to
what the person being identified looked like. The opinion about another’s
age would undoubtedly
be “formed by reason of his or her perception of the
relevant matter or event”, (Re Guide Dog Owners and Friends Association
Inc v Guide Dog Association of NSW & ACT supra) and be
“itself the articulation of [the witness’ perception] of the
matter”. (ASIC v Vines supra). Nonetheless, if that opinion is
necessary for the tribunal of fact to get a full account of what the witness saw
it is admissible.
27 The file note of Mr Postema was said not to
capture every word of the conversation. Therefore, Mr Postema’s opinions
about
the effect of the conversation were not superfluous. It was necessary to
receive the opinions to obtain an adequate account or understanding
of what he
perceived of the conversation. His perception in December 1999 has probative
value. His opinions were based on what
he personally heard. In my view if the
person giving the opinion had the opportunity to form a correct understanding of
the effect
or outcome of the discussion so that there is a rational basis for
his or her understanding to satisfy the test of relevancy under
s 55, and
provided the witness has exhausted his or her recollection of what was said so
that s 78 (b) is satisfied, (see also LMI Australasia Pty Ltd v Baulderstone
Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31 at 33), s 78 operates so that the
witness’s opinion about the effect or outcome of the conversation is not
excluded by s 76.
28 No submission was made that the opinion should be
excluded under s 135 of the Evidence Act.
29 For these reasons I
admitted the passages objected to in exhibits RP32 and
RP33.
LAST UPDATED: 16/03/2006
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