Evidence paper, part I (introduction to the new law)

Now I know my posting on the new Evidence Act has been a bit sporadic, and disordered, but now I’ve written my research paper on the subject, and whereas before I was subjecting you to the offcuts I discarded along the way, now I am going to subject you to a serialised version of the essay, probably embroidered a bit as I go, and with the errors pointed out by Associate Professor Palmer expurgated.  I appeared in my first trial involving the new laws the other day, in the County Court.  It was all very anti-climactic: the new Act did not even get a mention.  Anyway, for what may seem like the third time, an introduction to the new laws of evidence:

‘Victoria’s Evidence Act, 2008 commenced on 1 January 2010.  How it will affect civil litigation remains to be seen.  Because the common law, modified by the Evidence Act, 1958 often either defied common sense so profoundly or was inaccessible in intelligible form, there developed a substantial body of civil litigation in which the rules of evidence were not in fact applied, and some other fuzzy, unspoken rules varying between jurisdictions and even lists, were applied instead. That is true of VCAT which is not bound by the rules of evidence[1] and where a large proportion of the state’s civil disputes are resolved, including many claims against lawyers, but it is true also of courts where the law of evidence does ostensibly apply, except in the most hard-fought cases,[2] and especially true of commercial cases.[3] In commercial cases, the rules of evidence did not really apply in the sense that they were waived by the parties not taking objections available to them, but the culture of waiver has undoubtedly given rise to an increasing ignorance of the actual rules.

Though from my own observation many practitioners seem to be approaching the introduction of the new Act as a reason not to worry any more about hearsay in civil cases, the truth may well be that many people will have to think hard about the law of evidence for the first time, for the simple reason that other people will be taking advantage of it, including those restrictions on hearsay as remain.  Some of what was let in though hearsay may not now be let in, despite the radical broadening of the hearsay exceptions, for example because of a failure on the party seeking to tender it to comply with notice provisions, or of the tendering party’s inability to parry the hearsay objection. Equally, those who remain constrained by a general understanding of what has and has not traditionally been admissible (or even by a relatively untutored but nevertheless somewhat accurate gut feel for the same thing), will no doubt miss opportunities to get into evidence material which is newly admissible, or will run up legal costs unnecessarily by going the long way round, and fail to appreciate that something admissible for one purpose is newly admissible for another, or for all other purposes.

The purpose of this paper is to provide an illustration of the application of the Evidence Act, 2008, in civil proceedings involving lawyers. I give four justifications for this unusual exercise, apart from my own need to engage in some project in order to come to grips with the new law:

1. First, learning by illustration and application is preferable to trying to read annotations, and the law relating to lawyers is likely to be a relatively safe comfort zone in which to practise application for most.

2. Secondly, litigation involving lawyers is as good a vehicle as any to illustrate the principles in diverse yet typical landscapes: suits for fees are simple contract claims with a bit of statutory interpretation thrown in; professional negligence is a classic civil action relatively untroubled by complicated law; and the prevalence of claims involving lawyers in VCAT provides a useful counterpoint to claims in courts.

3. Third, litigation involving lawyers throws up special problems worthy of separate analysis:

  • To what extent should the client’s client legal privilege be taken to be waived by virtue of the client suing in relation to the subject matter of the retainer?
  • What is the justification, if any, for disclosure of privileged information in a suit commenced by the solicitor, such as a suit for fees?
  • How does the exception to the business records exception to the hearsay rule in relation to statements connected with litigation apply in costs disputes between a litigant and his lawyer?
  • Is expert evidence of what a competent lawyer would do admissible, or are judges by definition expert lawyers such that they do not need assistance?

The application of the law of evidence to these problems has been relatively comprehensively worked out, but the working out needs to be checked against the new law, something the original uniform evidence legislation jurisdictions have been doing for more than a decade, though decisions given under the legislation before it was substantially amended with effect from 1 January 2009 need to be checked against the latest version, which is to be found in the Victorian Act as at its commencement, subject to a few idiosyncrasies, only one of which is substantive [see this post].

4. Fourth, most areas of practice, and courts, have their own evidentiary provisions and even traditions, the effect of which need to be considered together with the uniform evidence legislation, warranting once again separate analysis.  Examples include facilitation of proof of certain documents of companies and evidentiary provisions in the Legal Profession Act, 2004, and evidence simplification provisions under the Magistrates’ Court Rules.

[1] Victorian Civil and Administrative Tribunal Act, 1998, s. 98(1)(b).

[2] A Supreme Court judge told the March 2007 Readers’ Course that only obsessive middle-class self-represented litigants used s. 53B of the Evidence Act, 1958, for example.  Legitimate evidentiary objections which decision makers considered too technical for the nature of the case being heard were often parried by judicial threats to adjourn the case to allow supplementary evidence to be called to cure the technical defect with a costs order against the legitimate but over-technical objector, a course specifically contemplated by r. 16.06 of the Magistrates’ Court Rules in relation to challenges to documents produced from proper custody.  In Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244, the Court of Appeal included in their criticisms of the conduct of a controversial cross-examination the witness’s counsel for not taking available objections.  In Moar v Duman [2007] VSC 266, Justice Pagone admitted over objection at the trial of an originating motion brought on urgently by the plaintiff an affidavit of the plaintiff’s solicitor exhibiting an ‘unsworn affidavit’ of the plaintiff, as truth of the contents of the exhibit, even though hearsay is inadmissible at trials, and the solicitor did not depose as to his belief in the truth of the client’s alleged statements, or the impossibility of the client endorsing the draft affidavit with a written certificate of the draft affidavit’s content’s truth.

[3] Para 14.4 of the ‘Green Book’, the guide to procedure in the Commercial List, which is still used in the Supreme Court’s Commercial Court, says ‘Practitioners should avoid unduly technical objections to the tender of documents.’  Paras 14.8 and 14.9 say ‘Copy documents will be accepted in evidence unless there is good reason to require the tender of the original.’ And ‘A document in the court book may be tendered without formal proof and will be accepted in evidence as an authentic document unless objection to the tender is taken.’  Even if these provisions do not have legislative force, they are bound in future to inform the discretion given in s. 190(3) of the Evidence Act, 2008 to waive many of the rules relating to the admissibility of documents, including the rules in relation to proving documents.’

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