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

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

The failure to give notice did not occasion significant prejudice because the plaintiff already knew the contents of Mr Siasau's police statement, a related log book entry was already in evidence, and it was doubtful that the plaintiff could have located him more successfully. AWS had taken all reasonable steps to find Mr Siasau through investigators, process servers, database and licence searches, and further suggested enquiries were unlikely to assist. The probative circumstances of the statement outweighed the prejudice arising from the absence of cross-examination, so s 63(2) applied and the statement was admitted.

Jurisdiction
Australia
Judgment Date
05 August 2008
Procedural Posture
Civil Proceeding in the Common Law Division, Professional Negligence List / Ex Tempore Ruling on Admissibility of Statement of Sione Siasau
Outcome
Application granted; statement admitted.
Legal Topics
['hearsay Evidence' 'notice of Previous Representation' 'unavailable Witness' 'reasonable Steps to Locate Witness' 'discretion to Admit Witness Statement']
['evidence' 'civil Procedure' 'professional Negligence'] ['hearsay Evidence' 'notice of Previous Representation' 'unavailable Witness' 'reasonable Steps to Locate Witness' 'discretion to Admit Witness Statement']

Case Brief

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Procedural Posture

Civil Proceeding in the Common Law Division, Professional Negligence List / Ex Tempore Ruling on Admissibility of Statement of Sione Siasau

Legal Issues

  1. 1 ["Whether the Court should direct under (NSW) Evidence Act 1995, s 67(4), that s 63(2) apply despite AWS's failure to give notice in accordance with s 67." 'Whether Sione Siasau was not available to give evidence because all reasonable steps had been taken to find him or secure his attendance.' "Whether the statement should be admitted despite the plaintiff's inability to cross-examine Mr Siasau."]

Ratio Decidendi

The failure to give notice did not occasion significant prejudice because the plaintiff already knew the contents of Mr Siasau's police statement, a related log book entry was already in evidence, and it was doubtful that the plaintiff could have located him more successfully. AWS had taken all reasonable steps to find Mr Siasau through investigators, process servers, database and licence searches, and further suggested enquiries were unlikely to assist. The probative circumstances of the statement outweighed the prejudice arising from the absence of cross-examination, so s 63(2) applied and the statement was admitted.

Court Disposition

Application granted; statement admitted.

Orders

  • ["Directed, pursuant to (NSW) Evidence Act 1995, 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." 'VD51 will be DX51.']