Citation: Hamod v State of New South Wales (No 10) [2008] NSWSC 611
Court: Supreme Court of New South Wales, Common Law Division
Date: 18 June 2008
Judge(s): Harrison J
Background
The plaintiffs, an individual and a corporate entity, brought proceedings against the State of New South Wales and a financial services company. The claim included an action for malicious prosecution, arising from earlier criminal proceedings in the Local Court in which the first plaintiff had been a defendant and the charges had been dismissed.
On the eleventh day of hearing, two separate evidentiary applications arose. The first concerned a series of documents already admitted into evidence, in respect of which the second defendant sought a limitation on their use under s 136 of the Evidence Act 1995. The second concerned the plaintiffs' application to tender the entire transcript of the Local Court proceedings before Magistrate Horler.
Legal Issues
- Whether the use of a series of admitted documents (Exhibits AU to AAAK) should be limited under s 136 of the Evidence Act 1995 so that they were received only as evidence of their contents, and not as evidence of the truth of those contents.
- Whether the plaintiffs could tender the whole of the Local Court transcript in support of their malicious prosecution claim, where no specific portions of the transcript had been identified as relevant to any fact in issue.
Decision
Section 136 limitation on exhibits
Harrison J granted the second defendant's application to limit the use of Exhibits AU to AAAK. The "usual document limitation" applied: each document was admitted only as evidence of the contents of a communication between its named author and addressee, and not as evidence of the truth of anything stated in it. Drawing on the reasoning in Roach v Page (No 11) and Young v Coupe, his Honour confirmed that where documents are admitted for a non-hearsay purpose, ss 60 and 77 of the Evidence Act can otherwise operate to make hearsay representations inadvertently probative of the facts they state. Section 136 exists to prevent that outcome causing unfair prejudice.
His Honour noted that the relevant principles, though developed in the context of expert opinion evidence, applied by analogy to the documents in question. The inability to cross-examine the makers of representations in such documents reinforced the appropriateness of the limitation.
Rejection of the Local Court transcript
Harrison J rejected the tender of the entire Local Court transcript. The plaintiffs had not identified any particular statements or portions of the transcript as relevant to a specific fact in issue in their claim. Without that identification, the court could not meaningfully assess objections based on witness immunity, hearsay, or other grounds.
His Honour acknowledged the High Court's observation in Jamieson v The Queen that witness immunity does not apply to malicious prosecution claims, because such claims are based on the instigation of proceedings rather than statements made within them. However, his Honour found this principle did not assist the plaintiffs, because their evident intention was to rely on the content of witness statements made during the Local Court proceedings, not merely on the fact of the proceedings being brought. The tender was refused at that stage, leaving open the possibility of a future application to tender specific, identified portions.
Orders Made
- Exhibits AU to AAAK (inclusive) limited in use pursuant to s 136 of the Evidence Act 1995, admitted only as evidence of the contents of the relevant communications and not as evidence of the truth of those contents.
- Tender of the whole of the transcript of the Local Court proceedings before Magistrate Horler rejected.
Key Takeaways
- Under s 136 of the Evidence Act 1995, a court may limit the use of admitted documents where their unrestricted use would cause unfair prejudice, particularly where ss 60 or 77 would otherwise transform hearsay representations into evidence of the facts they assert.
- The principles justifying use-limitation under s 136 are not confined to expert opinion documents; they extend by analogy to other documents admitted for a non-hearsay purpose where the maker of representations cannot be cross-examined.
- A tender of an entire transcript will be rejected where the tendering party has not identified any specific passage as relevant to a fact in issue, leaving the court unable to assess the admissibility of the material or consider immunity and hearsay objections in a meaningful way.
- The High Court's statement in Jamieson v The Queen that witness immunity does not apply to malicious prosecution actions does not automatically justify tendering the transcript of the underlying proceedings, at least where the intended use goes beyond proving the instigation of those proceedings.
- In Roach v Page (No 11), Sperling J's analysis of "unfair prejudice" under ss 135 and 136 was affirmed as providing the relevant framework for assessing use-limitation applications, including consideration of whether the maker of a representation was available to be called but was not.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 60, 77, 135, 136, 137
- Civil Procedure Act 2005 (NSW)
Cases
- Roach v Page (No 11) [2003] NSWSC 907
- Young v Coupe [2004] NSWSC 546
- Ringrow Pty Ltd v BP Australia Limited [2003] FCA 933
- Commonwealth v Griffiths [2007] NSWCA 370; (2007) 245 ALR 172
- Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574
- A v New South Wales [2007] HCA 10
- D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
- R v Beydoun (1990) 22 NSWLR 256