Supreme Court New South Wales

• Medium Neutral Citation: Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 922
• Hearing dates: 27/06/2011
• Decision date: 27 June 2011
• Jurisdiction: Equity Division
• Before: Brereton J

Decision

Refuse to admit notices of valuation

• Catchwords: EVIDENCE - documents contain statement of land value by Valuer-General - (NSW) Evidence Act s 156 does not provide for admissibility of public documents - whether documents business records - business includes activity engaged in or carried on by the Crown in any of its capacities - document a business record falling within business records exception to the hearsay rule - whether if hearsay rule does not apply document containing opinions may be excluded by opinion rule - prevailing view that opinion rule applies to business records - document containing opinions based on specialised knowledge, training, study or experience admissible - general discretion to exclude evidence - Makita principles do not apply to render business records containing opinions inadmissible -circumstances include Valuer-General not available for cross-examination, plaintiffs to call other valuation evidence, defendant serves no valuation evidence, notice of valuation does not reveal rationale - evidence unfairly prejudicial to defendant and discretion exercised to exclude.
• Legislation Cited: (NSW) Evidence Act 1995, s 69, s 76, s 79, s 156, Dictionary Pt 2.; (NSW) Valuation of Land Act 1916, s 14CC
• Cases Cited: Enviro Energy Australia Pty Ltd (in liq) [2010] NSWSC 1217; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.; Re Australian Securities and Investments Commission v Rich, (2005) 216 ALR 320; Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2011] NSWSC 395; Young v Coupe [2004] NSWSC 546
• Category: Procedural and other rulings
• Parties: Eddie Michael Awad (first plaintiff); Karen Elizabeth Awad (second plaintiff); Twin Creeks Properties Pty Ltd (defendant)
• Representation: Counsel: CJ Birch SC and DS Wienberger (plaintiffs); J Robson SC and D Healey (defendants); Solicitors: Thurlow Fisher Solicitors (plaintiff); Surry Partners Lawyers Pty Ltd (defendant)
• File Number(s): 2009/00291401

Judgment (ex tempore)

1 The plaintiffs tenders two notices of valuation issued by the Valuer-General in respect of the subject land, and seeks to rely on the Valuer-General's statement of value contained in them, as evidence of the value at the relevant dates of the subject property, without intending to call the Valuer-General.

2 Although the plaintiffs rely on the proposition that the documents are public documents, or extracts from a public document, being a notice of valuation, namely, a document maintained by the Valuer-General in the Register of Land Values providing information as to the value of the land [see (NSW) Valuation of Land Act 1916, s 14CC], so far as I can tell the (NSW) Evidence Act 1995 makes no specific reference or provision for the admissibility of documents of that kind, as distinct from provisions contained in s 156 of that Act which facilitate the proof of public documents. I think that is because it was intended that the business records provisions cover the circumstances in which such documents would be admissible. Hence, in the Part 2 of the Dictionary to the Evidence Act , a reference to a "business" is defined as including a reference to "an activity engaged in or carried on by the Crown in any of its capacities".

3 It seems to me that the notices of valuation are unquestionably business records. However, what is tendered from them is a statement of opinion and the weight of authority now favours the view that the opinion rule does apply to documents admissible as business records under Evidence Act, s 69 [see Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; Young v Coupe [2004] NSWSC 546; Re Enviro Energy Australia Pty Ltd (in liq) [2010] NSWSC 1217, [6]-[8] (White J); Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2011] NSWSC 395, [4] (Brereton J), contra Australian Securities and Investments Commission v Rich, (2005) 216 ALR 320, [205]-[208] (Austin J)]. In other words, for a statement of opinion in such a document to be admitted, it must comply not only with the business records provisions of Evidence Act, s 69, but also with the opinion rule in Evidence Act, s 76.

4 That said, it must reasonably be supposed that the person who expressed the opinion of value contained in the notice of valuation is a person who had, within the meaning of the exception to the opinion rule provided by Evidence Act s 79, specialised knowledge based on training, study or experience as to the valuation of land. The opinion rule therefore does not exclude the admissibility of the opinion stated in the notices of valuation, and it follows that those statements are admissible.

5 So far as a statement of expert opinion in a business record is concerned, I do not consider that the so called Makita principles [see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705] affect the admissibility of such an opinion, so that a bare statement of opinion in a business record is admissible, although the absence of reasoning of the type called for by Makita may well go to its weight, and may go to considerations relevant to Evidence Act, s 135, as they do here.

6 The defendant submits, however, that the notices should nonetheless be excluded under Evidence Act, s 135, on the basis that they would be unfairly prejudicial. The principal basis upon which that is put is that the author will not be available for cross-examination and, therefore, the defendant will not be in a position to test the opinion of value. That is a complaint that can almost always be made of business records and if it were upheld, at least on its own, would defeat the whole purpose of the business records provisions, which is to enable statements in documents of a class generally regarded as reliable to be received into evidence, without a witness having to be called to testify as to them.

7 In this case, however, the plaintiffs propose to call an expert valuer to tender a valuation in the ordinary way and to produce that valuer for cross-examination. The defendant does not intend to call any valuer, and has served no valuation evidence. The question therefore is whether, in those particular circumstances, it would be unfair to allow the plaintiffs effectively to buttress their position on the valuation issue through the untested evidence contained in the notices of valuation, in circumstances where, at least theoretically, the evidence of the valuer might be affected by cross-examination.

8 Although I have not found the balancing exercise an easy one, ultimately it does seem to me that there would be prejudice to the defendants in allowing the statements in the notices of valuation to be relied on in those circumstances. Had the case been one from the outset in which the only valuation evidence to be relied on by the plaintiffs was the notice of valuation, the position might have been different; but in circumstances where the valuation issue is to be fought primarily through a qualified valuer who has given a report and will be cross-examined, there does seem to me to be unfair prejudice if the plaintiffs' position was able to be buttressed by an opinion that cannot be tested, and does not reveal its basis or rationale.

9 For those reasons, pursuant to Evidence Act, s135, I reject paragraphs 63 and 86 of the affidavit.

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Decision last updated: 19 August 2011