FEDERAL COURT OF AUSTRALIA

Murphy v Overton Investments Pty Ltd [2000] FCA 366

EVIDENCE – s 135 of the Evidence Act 1995 (Cth) - whether probative value of evidence is substantially outweighed by danger that the evidence might cause or result in an undue waste of time

Evidence Act 1995 (Cth), s 135

Trade Practices Act 1974 (Cth), s 52

JOHN JAMES MURPHY v OVERTON INVESTMENTS PTY LIMITED

N 159 OF 1999

DAPHNE MURPHY v OVERTON INVESTMENTS PTY LIMITED

N 946 OF 1999

NEVILLE CARNEGIE v OVERTON INVESTMENTS PTY LIMITED

N 857 OF 1999

EMMETT J

10 MARCH 2000

SYDNEY

REASONS FOR JUDGMENT

1                     Counsel for the applicants has foreshadowed a desire to adduce further evidence that has not been the subject of affidavits hitherto.  These proceedings involve allegations inter alia of contravention of section 52 of the Trade Practices Act 1974 (Cth) insofar as it is alleged that the respondent engaged in trade or commerce in conduct that was misleading or deceptive.  The conduct relied on is representations alleged to have been made to the applicant and his wife that induced them to enter into a lease of a unit in The Heritage Retirement Village.

2                     While Mrs Murphy is still living, it is common ground that her mental state is such that she is incapable of giving evidence that would support her case. Evidence has already been adduced without objection from Mr Murphy as to conversations that he had with his wife prior to their entering into the lease with the respondent.  It is accepted that such conversations are relevant in that they are direct evidence of conduct of Mrs Murphy from which an inference can be drawn as to the state of her mind prior to her entering into the lease.

3                     Originally counsel for Mr Murphy sought to adduce evidence from relatives of Mr and Mrs Murphy as to the conversations alleged to have taken place between Mrs Patti Taylor, the representative of the respondent, on the one hand and the Murphys on the other.  It is accepted that the respondent is not in a position to dispute that evidence because Mrs Taylor has since died.  Mr Murphy has already been cross-examined by counsel for the respondent and that cross-examination would not leave it open to the respondent to dispute the terms of the conversations alleged between the Murphys on the one hand and Mrs Taylor on the other.

4                     Insofar as evidence is sought to be adduced to corroborate the evidence of Mr Murphy, the evidence appears to me to have no great significance.  Under section 135 of the Evidence Act 1995 (Cth):

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing;

(c) cause or result in undue waste of time.”

In the light of the circumstances that I have just indicated the evidence as to those matters has no probative value and will result in delay.  Accordingly I would not permit the applicant to adduce evidence along those lines.

5                     However, counsel for Mr Murphy has indicated that the relatives would also give evidence of conversations that they had with Mrs Murphy otherwise than in the presence of Mr Murphy.  That is to say, the conversations relate to conduct of Mrs Murphy in respect of which Mr Murphy was not in a position to give evidence.  Such conduct appears to me to be relevant in the sense that it is additional conduct from which an inference could be drawn as to the state of mind of Mrs Murphy prior to her entering into the lease.  Accordingly I would not be prepared to exclude that evidence under section 135 of the Evidence Act 1995 (Cth).   However, counsel for the respondent points out that some of this evidence has not previously been foreshadowed and he is unable, until he has seen the evidence, to indicate whether he will be able to deal with the evidence when it is adduced.

6                     It seems to me, therefore, that the appropriate course is to permit the evidence to be adduced on the voir dire.  If counsel for the respondent, having heard the evidence, finds that he has difficulty with it, I will deal with any application that he wishes to make at that time.  If counsel for the respondent has no difficulty, then I will admit the evidence as evidence in the proceedings.

Associate:

Dated:              27 March 2000