Roach & Ors v Page & Ors (No.11) [2003] NSWSC 907

Roach & Ors v Page & Ors (No.11) [2003] NSWSC 907

The three documents were admissible as documents because their creation, existence or publication was relevant to issues in the proceeding, but s136 required limiting their use where reliance on their factual representations or opinions for their truth or as proof of facts would create a danger of unfair prejudice to the defendants. That danger arose particularly where statements were unsourced, authors or true sources were not called or shown unavailable, qualifications and assumptions were not disclosed, and ss 60 or 77 would otherwise give evidentiary effect to hearsay or opinion material merely because the document was admitted for another purpose.

Jurisdiction
Australia
Judgment Date
10 October 2003
Procedural Posture
Common Law Division, Professional Negligence List; Professional Negligence Claim Concerning Alleged Failure to Advise on Victorian Mining Legislation / Judgment No.11 on Admissibility of Documentary Evidence and Limiting Use Under S136 of the Evidence Act 1995
Outcome
The court admitted all three documents but limited their use so that specified representations of fact and opinion were not to be used as evidence of the truth of facts stated or as proof of facts the subject of opinions. Some passages in the Marketing Sales Plan were not limited.
Legal Topics
['evidence Act 1995 S136' 'unfair Prejudice' 'hearsay Rule' 'opinion Rule' 'documentary Evidence' 'limiting Use of Evidence' 'ss 60 and 77 Evidence Act 1995']
['evidence' 'professional Negligence' 'civil Procedure'] ['evidence Act 1995 S136' 'unfair Prejudice' 'hearsay Rule' 'opinion Rule' 'documentary Evidence' 'limiting Use of Evidence' 'ss 60 and 77 Evidence Act 1995']

Case Brief

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Procedural Posture

Common Law Division, Professional Negligence List; Professional Negligence Claim Concerning Alleged Failure to Advise on Victorian Mining Legislation / Judgment No.11 on Admissibility of Documentary Evidence and Limiting Use Under S136 of the Evidence Act 1995

Legal Issues

  1. 1 ['Whether three tendered documents were admissible as relevant documents notwithstanding hearsay and opinion content.' 'Whether the use of representations of fact and opinion in the documents should be limited under s136 of the Evidence Act 1995 because their use for truth or opinion purposes might be unfairly prejudicial.' 'What considerations are relevant to whether evidence is unfairly prejudicial where ss 60 or 77 operate and the maker of a representation is not called.']

Ratio Decidendi

The three documents were admissible as documents because their creation, existence or publication was relevant to issues in the proceeding, but s136 required limiting their use where reliance on their factual representations or opinions for their truth or as proof of facts would create a danger of unfair prejudice to the defendants. That danger arose particularly where statements were unsourced, authors or true sources were not called or shown unavailable, qualifications and assumptions were not disclosed, and ss 60 or 77 would otherwise give evidentiary effect to hearsay or opinion material merely because the document was admitted for another purpose.

Court Disposition

The court admitted all three documents but limited their use so that specified representations of fact and opinion were not to be used as evidence of the truth of facts stated or as proof of facts the subject of opinions. Some passages in the Marketing Sales Plan were not limited.

Orders

  • ['The tender of "Marketing Sales Plan 2001-2002", Mr N Farnan, 29 July 2002 was allowed, with limitations on use of passages 1 to 4 and no limitation on passages 5 to 7.' 'The tender of "Swan Marsh Peat Deposit Valuation", Mr C Young, 1 January 2002 was allowed, but its use was limited so it would not stand as...