Quintano v B W Rose Pty Ltd [2008] NSWSC 1012 (5 August 2008)

Last Updated: 29 September 2008

NEW SOUTH WALES SUPREME COURT

CITATION:
Quintano v B W Rose Pty Ltd [2008] NSWSC 1012


JURISDICTION:
Common Law Division
Professional Negligence List

FILE NUMBER(S):
20130/04

HEARING DATE(S):
5 August 2008


EX TEMPORE DATE:
5 August 2008

PARTIES:
Luke Quintano (plaintiff)
BW Rose Pty Ltd (first defendant)
AWS Security Services Pty Ltd (second defendant)

JUDGMENT OF:
Brereton J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr H J Marshall SC w Mr D J Hooke (plaintiff)
Mr S G Campbell SC w Mr A B Parker (second defendant)


SOLICITORS:
Beilby Poulden Costello (plaintiff)
Curwood & Partners (second defendant)


CATCHWORDS:
EVIDENCE – HEARSAY – witness statement tendered as evidence where witness unavailable for cross-examination – (NSW) Evidence Act 1995 s 63 – reasonable notice of tender – where notice not given – whether tender of evidence in absence of notice unfairly prejudicial to plaintiff – whether plaintiff should have been given opportunity to locate witness – where statement is a statement to police already known to plaintiff from earlier criminal proceedings -
EVIDENCE – HEARSAY – whether witness is “not available” pursuant to (NSW) Evidence Act 1995 – whether second defendant had taken “all reasonable steps” – where second defendant retained process server to serve subpoena on witness at last known address and undertake certain database searches – whether second defendant should have made enquiries with the Department of Immigration, the NSW Police and the Australian Electoral commission – where private investigator also retained -
EVIDENCE – HEARSAY – discretion to exclude witness statement – where statement made contemporaneously with event in issue – where statement made to the NSW Police with knowledge that it could be tendered as evidence and penalties could apply for false statements – where statement accords with already admitted evidence – where statement could have been contradicted by adducing evidence from other witnesses.

LEGISLATION CITED:
(NSW) Evidence Act 1995, ss 63, 67
(NSW) Evidence Regulation 2005, reg 4
Uniform Civil Procedure Rules, r 31.5

CATEGORY:
Procedural and other rulings

CASES CITED:
AJW v The State of New South Wales [2003] NSWSC 803
Kayes & Kayes [1999] FamCA 357; (1999) 24 Fam LR 512; (1999) FLC 92-846
Maddock v Maddock [2005] FamCA 868
Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273

TEXTS CITED:


DECISION:
(NSW) Evidence Act 1995, s 63(2) to apply to witness’s statement in exhibit VD50. Exhibit VD51 admitted as DX51.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

PROFESSIONAL NEGLIGENCE LIST

BRERETON J

Tuesday 5 August 2008

20130/04 Quintano v B W Rose Pty Ltd

JUDGMENT (ex tempore – on admissibility of statement of Sione Siasau)

1 HIS HONOUR: The second defendant AWS Security Pty Ltd tenders a statement made to police on 15 December 2002 by Sione Siasau, a security guard then employed by AWS who was providing security services at Skelseys on the night of 14/15 December 2002. The tender is made pursuant to (NSW) Evidence Act 1995, s 63, it being contended that Mr Siasau is relevantly "unavailable" within the meaning of the Evidence Act to give evidence.

2 Evidence Act, s 67, imposes notice requirements in connection with the tender of hearsay evidence under s 63(2), by providing that that sub-section does not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the first party's intention to adduce the evidence. Sub-section (2) provides that such notices are to be given in accordance with any regulations or rules of court made for the purposes of the section, and sub-section (3) provides that the notice must state the particular provisions of the Division on which the party intends to rely in arguing that the hearsay rule does not apply. Nonetheless, sub-section (4) provides that the court may, if notice has not been given, on the application of a party direct that one or more of those sub-sections is to apply, despite the party's failure to give notice.

3 AWS applies for a direction, pursuant to s 67(4), that s 63(2) apply, despite its failure to give notice in accordance with s 67.

4 (NSW) Evidence Regulation 2005, clause 4, provides that a notice of previous representation must state the substance of the evidence of a previous representation that the notifying party intends to adduce, the substance of all other relevant representations made by the person who made that previous representation so far as they are known to the notifying party, and particulars of those representations, the persons to whom they were made, and (in a civil proceeding such as the present) the address of each such person; the notice is also required to state particulars of the facts on the basis of which it is alleged that the person who made a representation is not “available” to testify concerning the fact.

5 Uniform Civil Procedure Rules, r 31.5, provides that unless the court otherwise orders, notice for the purposes of Evidence Act, s 67, must be given – in any case where the court by notice to the parties fixes a date for determining the date for hearing – not later 21 days before the date fixed by that notice, and in any other case not later than 21 days before the date on which the court determines the date for hearing. It seems that the court determined 14 July 2008 to be the date for hearing on or about 19 December 2007, so that 21 days before that date would have been late November 2007, when, in accordance with the rules to which I have referred, notice should have been given.

6 The power of the court to direct that s 63(2) apply, notwithstanding the failure to give notice, has been considered in a number of cases. The essential consideration which those cases identify is the prejudice to the other party that would be occasioned by dispensing with the requirement to give notice [see, for example, Tsang Chi Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273, 282 (Hill J); Maddock v Maddock [2005] FamCA 868; Kayes & Kayes [1999] FamCA 357; (1999) 24 Fam LR 512; (1999) FLC 92-846]. Some of those cases gave weight to the circumstance that the evidence was uncontroversial or not seriously in dispute, and I agree that that cannot be said, at least fully, in question here.

7 Essentially, the prejudice which is claimed to arise from the failure to give notice is the inability of the plaintiff to undertake its own efforts to locate Mr Siasau. It is not suggested that the plaintiff was precluded from undertaking enquiries to locate potential witnesses who could contradict Mr Siasau's version; indeed, the plaintiff has called a number of witnesses to the events of the relevant evening. So the essential claim of prejudice is that the plaintiff's representatives were themselves precluded from taking steps to track down Mr Siasau.

8 On the evidence, it must be very much doubted whether such efforts could have been any more successful than the defendant's efforts.

9 It is also relevant that it is accepted, on the plaintiff's part, that his representative knew of the contents of Mr Siasau's statement to police – and have known of them, unsurprisingly, for some time – since the statement would presumably have been available in connection with the criminal proceedings; and in addition that a statement of Mr Siasau, being his annotation in the log book, is already in evidence as part of DX10.

10 In those circumstances, I do not think that the plaintiff has been occasioned significant prejudice by the failure to give notice earlier than it was given orally at the commencement of the hearing.

11 I direct, pursuant to Evidence Act, s 67(4), that s 63(2) apply to Mr Siasau's statement comprised in VD50, notwithstanding that notice was not given in accordance with s 67.

12 The next question, then, is whether the requirement that Mr Siasau be relevantly unavailable is satisfied.

13 In the dictionary to the Evidence Act, clause 4 provides that, for the purposes of the Act, a person is taken not to be available to give evidence about a fact if, relevantly:

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, ...

14 It will be noted that the requirements of steps to find the person, or steps to secure his or her attendance, are disjunctive, and it is only necessary to satisfy one or the other of them.

15 The evidence on the voir dire establishes the following.

16 Mr Siasau made a statement to police at Bankstown Police Station on 15 December 2002 in which he gave as his address a specified unit and block in Meredith Street, Bankstown, and as his telephone number XXXX 1821. He also provided his security licence number, 408069600.

17 The solicitor for AWS, Mr Hedges, was instructed in or about October 2004, and shortly after receiving instructions appointed an investigator to locate Mr Siasau. As a result, he was informed that Mr Siasau had been located at the Meredith Street, Bankstown address, and that the investigator had managed to speak to Mr Siasau, but that Mr Siasau declined to provide a witness statement. In due course, Mr Hedges gained access to documents produced under subpoena by the New South Wales Police which included Mr Siasau's statement, disclosing, as I have said, his residential address at Meredith Street, Bankstown, which was the same address at which the investigator had contacted him in October 2004.

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.

35 VD51 will be DX51.

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LAST UPDATED:
26 September 2008