Oakton Services Pty Ltd v Tessari & Ors [2009] ACTSC 15 (3 March 2009)

Last Updated: 16 March 2009

OAKTON SERVICES PTY LIMITED v GLENN ANTHONY TESSARI & ORS

[2009] ACTSC 15 (3 March 2009)

EVIDENCE – hearsay – prior consistent statements – whether admissible Evidence Act 1995 (Cth) ss 62, 102, 108.

Evidence Act 1995 (Cth), ss 62(1), 64(3), 102, 108(3)

Uniform Evidence Law, Mr Stephen Odgers SC

Commonwealth of Australia v McLean (1996) 41 NSWLR 389

The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476

Corke v Corke [1958] 93

Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961) 106 CLR 23

JUDGMENT

No. SC 729 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 3 March 2009

IN THE SUPREME COURT OF THE )

) No. SC 729 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: OAKTON SERVICES PTY LTD

(ACN 100 103 268)

Plaintiff

AND: GLENN ANTHONY TESSARI

First Defendant

AND: DEBORAH ELIZABETH PARSONS

Second Defendant

AND: WAYNE LESLIE FULLER

Third Defendant

AND: ANTHONY ROSS GARDNER

Fourth Defendant

AND: GRADERN PTY LIMITED

(ACN 113 607 677)

Fifth Defendant

AND: NORTHCOTT PARTNERS PTY LTD (ACN 131 317 309)

Sixth Defendant

AND: CHRISTOPHER JOHNSON

Seventh Defendant

AND: JAMESS ROBERT JOBSON

Eighth Defendant

AND: MICHAEL RONALD WALLER

Ninth Defendant

ORDER

Judge: Refshauge J

Date: 3 March 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The affidavits of Steven John Catrastellero affirmed 4 December 2008, Russell Day affirmed 4 December 2008, Frank Scerri sworn 4 December 2008, Peter Brown affirmed 4 December 2008, Glenn Francis Knight sworn 9 December 2008 and Fiona Davidson affirmed 19 February 2009 are admissible in these proceedings.

1. The plaintiff in these proceedings formerly employed the first defendant under a written contract which included what is generally called a restraint of trade clause.

2. Before the end of the first defendant’s contract, it seems common ground that the first defendant and others, some of whom had a contractual relationship with the plaintiff, prepared a tender in competition to a tender being prepared by the plaintiff, to provide services to the Department of Defence in response to its Request for Tender of 6 May 2008.

3. The plaintiff claims that this breached duties the first defendant owed to the plaintiff and claims damages and an account of profits.

4. The first defendant deposes in an affidavit to a conversation with senior officers of the plaintiff about ten days after the Request for Tender was issued in which he says that he told them of his involvement with the other competing tender and, importantly, that they raised no objection and, indeed, could be said to have encouraged him in that pursuit.

5. The terms of that conversation are denied by the officers of the plaintiff who have each deposed to a different version of that conversation or, at least, who deny the critical parts of the version given by the first defendant.

6. The first defendant seeks to read affidavits by six other persons, including friends and former officers of the Department of Defence, in which they report accounts of the meeting between the first defendant and the senior officers of the plaintiff given to them by the first defendant at various times. Those accounts are consistent with the version of the conversation deposed to by the first defendant and inconsistent with the accounts deposed to by the plaintiff’s officers.

7. Mr Heath, who appears with Mr Neil SC for the first defendant and, indeed, all the defendants, relies on s 64(3) of the Evidence Act 1995 (Cth) (Evidence Act) for the admission of these affidavits.

8. Mr Braham, who appears with Mr Goot SC for the plaintiff, objects to the admission of the affidavits, or at least the critical parts of them. He submits that they offend against the credibility rule contrary to s 102 of the Evidence Act.

9. The affidavits depose to hearsay. The hearsay is the representation made by the first defendant to the deponents. There is no doubt that, subject to other exclusionary rules, s 64 of the Evidence Act renders such evidence admissible. Indeed, s 64(3) appears to widen the gate for such evidence very substantially, since the recent amendment to remove the qualification that the occurrence of the fact asserted must be fresh in the memory of the person who made the representation.

10. The only authority I can find on the section is one referred to by Mr Heath, namely Commonwealth of Australia v McLean (1996) 41 NSWLR 389. The relevant passage is short, it focuses on the now removed qualification and, regretfully, I find it of no particular assistance.

11. The section, however, applies only to first-hand hearsay, that is to say, a previous representation that was made by a person who had personal knowledge of an asserted fact: s 62(1) of the Evidence Act.

12. I was initially inclined to consider that the report of what the senior officer of the plaintiff had said was second-hand hearsay, since it was reporting, by the first defendant, of what that officer had said. The fact, relevant to the definition of first hand hearsay, however, is in this case that the officer had said that there was no objection to the competitive activity of the first defendant and, it will, no doubt be submitted, thereby effectively waiving any operation of the restraint of trade clause or any common law duty of fidelity that would otherwise prevent that activity.

13. That is to say, the officer was engaged in a speech act which was in itself the fact to be asserted and was not asserting a fact of which he had personal knowledge. The report of the latter by the first defendants to the relevant deponents would have been second hand hearsay and not admissible under s 64(3). I do not consider that this applies here and find that the report is first-hand hearsay.

14. The operation of s 64(3) is thus very wide and, so long as the first defendant is available, I consider that, subject to any other exclusion, the affidavits are admissible.

15. The question then is whether it is excluded under the credibility rule under s 102 of the Evidence Act. That rule excludes evidence

relevant to the credibility of the witness or person that:

(a) is relevant only because it affects the assessment of the credibility of the witness or person; or

(b) is relevant:

(i) because it affects the assessment of the credibility of the witness or person; and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6: s 101A.

16. Here, the definition in (b) is not relevant because (b)(ii) is not satisfied by virtue of the operation of s 64, which falls within Pt 3.2.

17. The question then is whether the evidence is relevant only because it affects the assessment of the credibility of the first defendant.

18. Generally, a prior consistent statement made by a witness was at common law inadmissible. See, for example, among many authorities, The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 at 479, 484, 488 and 491.

19. There were, it was said, two justifications for this rule: testimony concerning prior consistent statements would be superfluous (The Nominal Defendant v Clements at 484) and that if evidence of such statements were admissible, either by way of proof of the facts asserted in them, or as a matter going to the credit of the witness, they would be too easily fabricated (Corke v Corke [1958] P 93 at 101).

20. One exception to that rule was, of course, the doctrine of recent invention which permitted evidence of prior consistent statements to be adduced to rebut a suggestion by an opposing party that the witness had, since the events in question, fabricated a false account of it: The Nominal Defendant v Clements at 479, 480, 481, 482, 484-5, 491 and Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961) 106 CLR 23 at 28-9, 30, 32. This principle is preserved by s 108(3) of the Evidence Act and provides an exception to the credibility rule.

21. The principle is perhaps extended by the rule for it does not suggest in any sense that the fabrication must have been “recent” but simply that it has been fabricated, reconstructed, whether deliberately or otherwise, or the result of suggestion.

22. It is clear that the assertion of approval, if not encouragement, by the officers of the plaintiff alleged by the first defendant is expressly challenged.

23. In his widely used and helpful book, Uniform Evidence Law, Mr Stephen Odgers SC says of this section in the 8th edition at p 487:

It has been suggested that “the denial of the events alleged without more does not necessarily suggest, expressly or implicitly, positively, reconstruction, fabrication or suggestion”: R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51 at [39]. On the other hand, there “is no warrant for reading into the provision a requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived”: Pavitt v The Queen (2007) 169 A Crim R 452 [2007] NSWCCA 88 at [105].

It is enough that one of the suggestions “will be made”. This would allow evidence of the prior consistent statement unless an undertaking is given to not make such a suggestion. On one interpretation, it might allow such evidence before the witness has testified, or while the witness is giving evidence-in-chief. On the other hand, there is much to be said for the view that:

[T]he phrase “if it is or will be suggested” encompasses the suggestion having been made to a witness or an intention to make the suggestion at a later time (most usually in final address). It does not mean that the subsection operates before the witness has been called. Indeed, the section refers explicitly to “evidence given by the witness”: Hadid v Australis Media Ltd [No 2] (NSWSC, Sperling J, 28/10/96, Sperling J, p 11), Eighth ed p 487. (footnotes omitted but citations inserted).

24. In the light of the affidavits to be read by the plaintiff and to which my attention has been drawn which contradict the version of the conversation given by the first defendant, it seems to me that this section permits this evidence to be admitted and, although counsel did not draw my attention to this section, I am bound to apply it.

25. Accordingly, I admit the relevant affidavits, namely those of Steven John Catrastellero, Russel Day, Frank Scerri, Peter Brown, Glenn Francis Knight and Fiona Davidson.

26. The admissibility of these affidavits, however, does not indicate the weight, if any, to be given to them and the evidence to which the makers depose.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 3 March 2009

Counsel for the plaintiff: Mr R M Goot SC and Mr P Braham

Solicitor for the plaintiff: Minter Ellison

Counsel for the 1st, 2nd, 3rd, 4th, 5th,

6th, 7th, 8th and 9th defendants: M I Neil SC and Mr M J Heath

Solicitor for the 1st, 2nd, 3rd, 4th, 5th,

6th, 7th, 8th and 9th defendants: Williams Love Nicol

Date of hearing: 2 March 2009

Date of judgment: 3 March 2009