FEDERAL COURT OF AUSTRALIA

Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886

EVIDENCE – tendency evidence – application to adduce evidence of representations made to other prospective tenants of respondent’s shopping centre – whether evidence “tendency evidence” within s 97 of Evidence Act 1995 (Cth) – whether primary judge erred in holding that the evidence lacked “significant probative value” – test for determining whether tendency evidence has “significant probative value”.

EVIDENCE – “credibility rule” in s 102 of Evidence Act 1995 (Cth) – refusal to permit cross-examination on representations allegedly made to other prospective tenants – whether cross-examination relevant for reason other than credibility – whether evidence from cross-examination would have had “substantial probative value” in relation to credibility.

WORDS AND PHRASES – “significant probative value” – “substantial probative value”.

Trade Practices Act 1974 (Cth), ss 51A, 82.

Evidence Act 1995 (Cth), ss 55, 56, 95, 97, 98, 101, 102, 103, 106, 108, 135, Dictionary.

D F Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597, cited.

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, cited.

Papakosmos v the Queen (1999) 196 CLR 297, cited.

Martin v Osborne (1936) 55 CLR 367, cited.

Hoch v the Queen (1988) 165 CLR 292, considered.

Harriman v the Queen (1989) 167 CLR 590, considered.

R v Ball [1911] AC 47, cited.

R v A H (1997) 42 NSWLR 702, cited.

Turner v Jenolan Investments Pty Ltd (1985) ATPR 40-571, cited.

Dayteck Pty Ltd v Glen Centre (unreported, Supreme Court of Victoria, Eames J, 8 May 1995), cited.

Pfennig v the Queen (1995) 182 CLR 461, cited.

Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119, cited.

Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23, cited.

Gates v City Mutual Life Assurance Society Ltd (1982) 68 FLR 74, cited.

Aroutsidis v Illawara Nominees Pty Ltd (1990) 50 FCR 500, cited.

Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97, considered.

Grivas v Brooks (1997) 69 SASR 532, cited.

Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, considered.

R v Lockyer (1996) 89 A Crim R, cited.

R v Martin [2000] NSWCCA 332, cited.

Ogden Industries Pty Ltd v Lucas [1970] AC 113, cited.

Brennan v Comcare (1994) 50 FCR 555, cited.

Fleming v Hutchinson (1991) 66 ALJR 211, cited.

Norbis v Norbis (1986) 161 CLR 513, cited.

House v the King (1936) 55 CLR 499, cited.

Palmer v the Queen (1998) 193 CLR 1, cited.

R v RPS (unreported, NSW Court of Criminal Appeal, 13 August 1997), cited.

R v Beattie (1996) 40 NSWLR 155, cited.

Department of Justice v Hepburn (1999) 93 FCR 508, cited.

Paterson v Paterson (1953) 89 CLR 212, cited.

Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985).

Australian Law Reform Commission, Evidence, Report No 38 (1987).

Explanatory Memorandum, Evidence Bill 1993 (Cth).

Z Cowen and P Carter, “The Admissibility of Evidence of Similar Facts: A Re-Examination”, in Essays on the Law of Evidence (1956).

S Odgers, Uniform Evidence Law, (4^th ed, 2000).

J D Heydon, Cross on Evidence (6^th Aust ed, 2000).

JACARA PTY LTD & ORS v PERPETUAL TRUSTEES WA LTD

V 367 of 2000

WHITLAM, SACKVILLE & MANSFIELD JJ

SYDNEY (HEARD IN MELBOURNE)

21 DECEMBER 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellants pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

WHITLAM J

1                     I agree with Sackville J.

Associate:

Dated:              21 December 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SACKVILLE j

the issues

2                     The principal issue on this appeal is whether the primary Judge erred in excluding so-called “similar fact evidence”.  The evidence was tendered on behalf of the first appellant (“Jacara”) in support of its claim that the respondent (“Perpetual”) engaged in misleading or deceptive conduct by misrepresenting the attributes of the Parkmore Shopping Centre (“the Centre”), of which Perpetual was the proprietor.  The excluded evidence concerned representations allegedly made by Perpetual’s agent, Ms Philippa Kelly, not to Jacara’s representatives, but to other persons contemplating entering into leases of shops within the Centre.  A related question is whether the primary Judge erred in refusing to allow Jacara’s counsel to cross-examine Ms Kelly about the representations she is said to have made to the other prospective tenants.

the proceedings

3                     The appeal is against a judgment of the primary Judge given on 10 May 2000: Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 595. In that judgment, his Honour dismissed Jacara’s claim that it had been induced by a series of misrepresentations made by Perpetual’s agent, Ms Kelly, to enter a lease of a kiosk within the Centre.  The primary Judge found that, with one exception, Ms Kelly had not made the representations alleged by Jacara.  His Honour also found that the one representation that had been made was true.

4                     The primary Judge also found for Perpetual on its cross-claim for rent and other payments due by Jacara under the lease.  Judgment was entered against Jacara and the guarantors of Jacara’s obligations under the lease, Mr Ashley Williams and Ms Roberta Gordon.

5                     Jacara, Mr Williams and Ms Gordon appealed, seeking orders setting aside the judgment of the primary Judge and ordering a new trial on the application and cross-claim.  The appellants contended, inter alia, that the primary Judge erred in an interlocutory judgment, delivered on 15 April 1999, in which his Honour dismissed a motion by Jacara seeking an order admitting into evidence five affidavits sworn by tenants of the Centre who gave “similar fact evidence” concerning representations allegedly made to them by Ms Kelly.  The appellants acknowledged that the judgment of 15 April 1999 was interlocutory, but argued that they were entitled to raise the evidentiary question in an appeal as of right against the final orders made by the primary Judge.  Perpetual did not dispute that this was the case, and the appeal was conducted on the basis that leave was not required.

the factual background

6                     The Centre was located near Dandenong in Victoria.  At all material times, it was an asset of the GEM Retail Property Trust of which Perpetual was the trustee.  Between February 1994 and November 1995, the Centre was redeveloped.  The redevelopment took place in three stages.

7                     Stage 1 of the redevelopment involved the refurbishment of the fresh food precinct.  Stage 1 was opened on 10 October 1994, although at that date some shops and kiosks within the fresh food precinct were still vacant.  Stage 2 of the redevelopment had two components: Stage 2A, which was completed in April or May 1995, comprised the north-west mall adjacent to the fresh food precinct; Stage 2B, which was completed in June or July 1995, comprised the redevelopment of the east and north malls.  Stage 3 comprised the food court, a “Big W” store and some specialty shops.  It opened in about November 1995.

8                     On 6 December 1994, Jacara entered into a deed of agreement with Perpetual for a lease of Shop K9 (a kiosk) in the fresh food precinct (Stage 1 of the development).  Jacara also executed a form of lease annexed to the agreement.  The lease was for a term of five years from 13 December 1994, with an initial rent of $25,000 per annum.  Under the lease, the kiosk was to be used for the purposes of a “Cookie Man” franchise, including the baking and retail sale of cookies and associated products.  Mr Williams and Ms Gordon, the directors of Jacara, executed a guarantee of Jacara’s obligations under the lease.

9                     Negotiations leading to the lease of the kiosk commenced in June 1994.  The initial negotiations were between Ms Kelly, a leasing executive employed by Growth Equities Mutual Ltd, and Mrs Evelyn Hicks, the principal of the Cookie Man franchisee, Auto-Bake Pty Ltd (“Auto-Bake”).  These negotiations led to Auto-Bake making an offer on 7 October 1994 to lease Shop K9 in the Centre.  The offer specified that the lessee was a “franchisee to be advised”.

10                  Later in October 1994, Mrs Hicks introduced Mr Williams to the Centre.  Mr Williams had a meeting, which the primary Judge found probably took place on 28 October 1994, with Mr Robert Hipwell, a Cookie Man franchisee who acted as a consultant to Auto-Bake. This meeting was important, because Jacara alleged that Mr Hipwell passed on to Mr Williams various representations that had been made to Mr Hipwell by Ms Kelly.  According to Mr Williams, his son, Vaughan Williams, was present at the meeting.

11                  Shortly after the meeting with Mr Hipwell, Mr Williams met Ms Kelly at the Centre.  Again, on Mr Williams’ account, his son was present.  Ms Kelly gave Mr Williams a brochure describing the Centre and took him on a tour of the Centre, including the fresh food precinct (which the primary Judge described as the “Food Hall”).  Mr Williams gave evidence that in the course of the tour Ms Kelly made representations concerning the profitability of the proposed Cookie Man franchise, the expected increase in customer traffic flow in the Centre and the attributes of the Food Hall.  It is these alleged representations, together with statements in the brochure, that formed the basis of Jacara’s claim that Perpetual had engaged in misleading or deceptive conduct.

12                  On 28 November 1994, Jacara executed a franchise agreement with Auto-Bake and on 6 December 1994, as I have already said, it executed the lease of the kiosk.

13                  Jacara commenced trading shortly after the lease came into effect, but experienced difficulties. It vacated the kiosk on 31 August 1996. On 22 November 1996, Jacara commenced proceedings seeking declaratory relief, damages under s 82 of the Trade Practices Act 1974 (Cth) (“TP Act”) and an order setting aside the lease and agreement for lease.  Perpetual cross-claimed against Jacara, Mr Williams and Ms Gordon for rent and other amounts allegedly due under the lease and guarantee.

the alleged representations

14                  Jacara alleged that Ms Kelly made twelve representations in order to induce it to enter the lease.  There was no issue on the appeal as to three representations.  Two others were not mentioned in argument.  The remaining seven representations were pleaded in par 17 of the amended statement of claim as follows (original lettering retained):

“(a)     when extensions and renovations (“the redevelopment”) then being carried out at the Shopping Centre were completed there would be a substantial increase in the number of customers attending the Shopping Centre;

(b)             prior to the redevelopment there were approximately 125,000 customers who attended the Shopping Centre but these numbers would rise by at least 50 following the redevelopment;

…

(f)              the Applicant’s turnover would increase with the completion of each of the two stages of the redevelopment;

            …

(i)       the Applicant could easily take $3,000.00 per week.

(j)              on takings of $3,000.00 per week the business would clear $1,350.00 net per week;

(k)            the Applicant’s business would be highly profitable;

(l)              that the Applicant’s rent was tied to its turnover and rent payments would be easily met on weekly takings of $3,000.00 per week.”

15                  Except for first part of representation (b), which was also contained in the brochure given to Mr Williams, Ms Kelly denied making any of the representations.  The primary Judge accepted the evidence of Ms Kelly and rejected the contrary evidence of Mr Williams and his son.  The primary Judge also made the following findings:

·        If representation (a) had been made, it was a representation as to a future matter for the purposes of s 51A of the TP Act and thus was to be taken to be misleading unless Perpetual had reasonable grounds for making it.  The primary Judge found, however, that there were reasonable grounds for the statement.

·        The first part of representation (b) was accurate.  Thus the representation to that effect in the brochure and repeated by Ms Kelly was not misleading or deceptive.

16                  The parties were in dispute as to whether the primary Judge also found that, even if representations (i), (j), (k) and (l) had been made, Mr Williams had not relied on those representations.  The appellants maintained that no such finding had been made, while Perpetual contended that the primary Judge had intended to make such a finding.  Without conceding that a finding had in fact been made, the appellants were granted leave during the hearing to file an amended notice of appeal challenging any adverse finding on the question of reliance.

the evidence act

17                  The argument concerning the admissibility of evidence requires reference to provisions of the Evidence Act 1995 (Cth).  Section 56 provides as follows:

“56 (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)       Evidence that is not relevant in the proceeding is not admissible.”

18                  The concept of relevant evidence is defined in s 55(1):

“55 (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)       In particular, evidence is not taken to be irrelevant only because it relates only to:

(a)           the credibility of a witness; or

…”.

The Evidence Act does not define the expression “significant probative value”.  Part 1 of the Dictionary does, however, define “probative value” as follows:

“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

19                  Section 97(1) sets out what the Evidence Act describes as the “tendency rule” (see Dictionary, Part 1).  Section 97(1) provides as follows:

“97 (1)  Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, if:

(a)               the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or

(b)               the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

20                  Section 95(1) of the Evidence Act is relevant to the operation of s 97(1).  Section 95(1) provides as follows:

“95(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.”

21                  Section 102 of the Evidence Act provides that evidence that is relevant only to a witness’s credibility is not admissible.  This is known as the “credibility rule”.  The term “credibility” is defined in Part 1 of the Dictionary:

“credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.”

22                  The credibility rule is qualified by s 103 of the Evidence Act:

“103(1) The credibility rule does not apply to evidence adduced in cross examination of a witness if the evidence has substantial probative value.

(2)   Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

        (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

        (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.”

23                  The credibility rule does not prevent evidence being adduced, in certain circumstances, to rebut a denial by a witness.  Section 106 provides that the credibility rule does not apply to evidence that tends to prove that a witness:

“(a)     is biased or has a motive for being untruthful; or

  (b)     …; or

  (c)      has made a prior inconsistent statement; or

  (d)     …; or

(e)           has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law…to tell the truth;

if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence.”

24                  Section 135 confers a general discretion on the Court to exclude evidence:

“135.   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; or

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

THE COURSE OF THE PROCEEDINGS

25                  The proceedings instituted by Jacara named Auto-Bake and Perpetual as respondents.  The proceedings against Auto-Bake were settled before the trial, leaving only the action against Perpetual on foot.

the motion to admit evidence

26                  On 1 March 1999, Jacara filed a motion seeking orders admitting the “similar fact evidence” contained in the affidavits of deponents it proposed to call at the trial, which at that stage had not commenced.  According to Mr Nettle QC, who appeared with Mr Connock for Perpetual on the appeal, this procedure was adopted with the consent of the parties. Mr Moshinsky QC, who appeared with Mr Miller for Jacara, did not dispute that this was the case.

27                  The five deponents were as follows:

·        Mr Gary Lee, who claimed that Ms Kelly had made representations to him in a series of meetings between February and June 1995.  Mr Lee executed a lease of Shop Z3 on 1 November 1995;

·        Mrs Eva Pavlidis, who gave evidence of representations made by Ms Kelly in about May to July 1995, prior to a company of which she was a director executing a lease of Shop Z4 on 1 November 1995.

·        Ms Sang Kyu Lee gave evidence of representations by Ms Kelly in October 1995.  Ms Lee executed an agreement for a lease of Shop E2 on 11 December 1995.  Ms Lee’s husband prepared a short affidavit confirming his wife’s account.

·        Mr Godwin Fava, a former tenant of Shop Z5, gave evidence of representations made by Ms Kelly in May 1995.  Mr Fava’s company executed an agreement for a lease in about September 1995. 

28                  The deponents gave evidence, in varying terms, that Ms Kelly had made representations about likely increases in pedestrian traffic following the redevelopment of the Centre, the likely turnover and profitability of their businesses and the ease with which each would be able to pay the rent.  All deponents were or had been involved in litigation with Perpetual concerning their leases in the Centre and had alleged misleading or deceptive conduct on its part.

the judgment on the motion

29                  In a judgment delivered on 15 April 1999, the primary Judge dismissed Jacara’s motion: [1999] FCA 417.

30                  His Honour considered common law decisions to be useful as illustrations of the circumstances in which tendency evidence might have “significant probative value” for the purposes of s 97(1) of the Evidence Act.  He said this (at [11]):

“In Perry v The Queen (1982) 150 CLR 580 at 586 Gibbs CJ said that to be admissible similar fact evidence must have a ‘strong degree of probative force’.  The fact that it has some probative value is not enough.  In Hoch v The Queen (1988) 165 CLR 292 at 294-295 Mason CJ, Wilson and Gaudron JJ said that ‘assuming similar fact evidence is to be relevant to some issue in the trial the criterion of its admissibility is the strength of its probative force’.  They went on to say that this ‘strength’ lies in the fact that the evidence reveals striking similarities, unusual features, underlying unity, system or pattern such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged.  See also Boyce v Cafred Pty Ltd (1984) 4 FCR 367 at 370-371.  As Lehane J said in [Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 176], ‘where in reported cases evidence of this kind has been admitted, it has been, as a matter of common sense, clearly and strongly probative of the relevant fact in issue’.”

31                  The primary Judge summarised the evidence of the five deponents and noted that there were significant differences between the accounts given by Mr Williams and each of the deponents.  The test of relevance posed by ss 55 and 56 was whether the evidence of the five deponents could rationally affect the probability that Ms Kelly made the representations alleged.  In view of the differences between the various accounts, the primary Judge expressed “doubt” as to whether their evidence could rationally affect the assessment of the probability that Ms Kelly told Mr Williams that there would be a substantial increase of between 50 and 60 per cent in the number of customers after completion of the development (representations (a) and (b)).  However, his Honour said (at [14]) that he was

“quite clear that, whether taken alone or in conjunction with Mr Williams’ evidence, the evidence sought to be admitted does not have significant probative value.  The differences to which I have referred make it impossible to say that the evidence reveals striking similarities, unusual features, underlying unity, a system or pattern of behaviour, or a business practice, so as to endow what was said with the ‘strength’ required for evidence to have significant probative value.”

32                  The evidence of the various witnesses relating to representations made by Ms Kelly as to the likely profitability of their various businesses could not, in his Honour’s view, rationally affect the assessment of the probability that Ms Kelly told Mr Williams that he could easily take $3,000 per week and so would clear $1,350 and easily meet the rent (representations (i), (j) and (l)).  In any event, the evidence clearly did not have significant probative value on those issues.

33                  The primary Judge, having dealt with the evidence of the “similar fact deponents” individually, expressed the view (at [18]) that if

“their evidence is taken together, it does not establish a system or pattern or business practice, or throw up strikingly similar representations.  Their accounts of the relevant conversations are simply too dissimilar.”

34                  Finally, the primary Judge said that even if he had been of the view that the evidence sought to be adduced was not to be excluded as lacking significant probative value, he would have refused to admit it on the ground that its probative value was substantially outweighed by the danger that it might cause or result in an undue waste of time.  The case was a long one and counsel had estimated ten days even without the similar fact evidence.  Taking into account that evidence, he considered that the case would last at least thirteen days.  This was an argument for avoiding the “cobweb of subsidiary factual disputes” (D F Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597, at 607, per Gummow J) that was likely to occur if the similar fact evidence were admitted.  In addition, his Honour noted that all deponents had sued Perpetual in relation to representations allegedly made to them about their respective shops:

“All deponents have an axe to grind, and I would have taken this into account in the weighing exercise contemplated by s 135, that is to say, I would have regarded their partisan feelings as reducing the probative value of their evidence.”

THE TRIAL

35                  In the event, the trial took place over six days in April 2000.  Four witnesses gave evidence relevant to the question of whether Ms Kelly made the representations alleged by Jacara.  Mr Williams and his son gave evidence for Jacara.  Ms Kelly and Mr Hipwell (the consultant to Auto-Bake) gave evidence for Perpetual.  All four were cross-examined.

36                  In the course of Mr Moshinsky’s cross-examination of Ms Kelly, he sought to put to her the representations that she was alleged to have made to the five deponents whose evidence had been rejected by the primary Judge.  Ms Kelly had previously given evidence that it had been her practice to refer to the actual number of customers that had come to the Centre prior to the renovations, but that her practice was not to make predictions about future growth or the profitability of businesses in the Centre.  In support of his contention that s 103 of the Evidence Act permitted him to put the questions to the witness, Mr Moshinsky said this to the primary Judge:

“this is put to the issue of credit.  Your Honour’s ruling only deals with the issue of admissibility on the grounds of relevance, but the witness has made an assertion which I wish to test by reference to the evidence of certain matters.

…

It’s not as if I’m seeking to lead evidence about credibility, I’m merely cross-examining a witness about the witness’s credibility.  The witness has, in her answer a moment ago, asserted that she had a practice of not doing something or doing something in relation to tenants as a whole and I seek to test that answer given the information that I’ve been instructed with and I am bound by her answer.”

37                  His Honour declined to allow the questions, on the ground that, in his view, the evidence lacked substantial probative value.  He indicated that he would give more detailed reasons in his final judgment.

the judgment on the merits

38                  In his final judgment, the primary Judge found that Mr Williams, although not seeking to mislead the Court, was not a reliable witness and that his son, Vaughan Williams, was not a witness of any credibility.  Ms Kelly, by contrast, was found to be a truthful witness who frankly distinguished between what she could remember having said and what, in accordance with her practice, she would have said.  Mr Hipwell was regarded as an important witness, as he had no allegiance to Perpetual and nothing to gain by giving false evidence.  His account was inconsistent with that of Mr Williams in relation to the important meeting of 28 October 1994.  The rejection of Mr Williams’ account of that meeting cast doubt on his evidence as to what Mr Kelly was alleged to have said to him.  The primary Judge also took into account other material, including a diary note relied on by Mr Williams which appeared to have been altered in order to support his version of events.

39                  In the result, the primary Judge found that the only representation made by Ms Kelly was the one she admitted making, namely that prior to the redevelopment approximately 125,000 customers attended the Centre (the first part of representation (b)).  Since his Honour also found that that representation was true, Jacara’s claim was dismissed.  It followed that the lease and guarantee were enforceable documents and that Perpetual’s cross-claim succeeded.

40                  The judgment included his Honour’s reasons for refusing to permit cross-examination of Ms Kelly on the representations she was alleged to have made to the five deponents.  The primary Judge accepted that the expression “substantial probative value” in s 103(1) of the Evidence Act is directed to the question of the witness’ credibility.  In his view, however, the evidence Mr Moshinsky sought to elicit from Ms Kelly lacked substantial probative value.  His Honour said this (at [41]):

“Some five years have elapsed since the representations are alleged to have been made to the other tenants.  As this case has demonstrated, it is dangerous to assume that after five years conversations and figures have been remembered accurately, and that the content of remembered conversations has not been coloured by the passage of time.  Furthermore, as I said in my similar fact ruling, the alleged representations are too dissimilar to those alleged against Ms Kelly in the present case to make it possible to find the underlying pattern of behaviour necessary to endow the allegations with significant or substantial probative value.  Finally, all the other tenants were partisan, as they had been involved in litigation with the respondent.  I have had regard to whether the proposed evidence tends to prove that Ms Kelly knowingly or recklessly made false statements in her evidence before me.  Because of the matters to which I have just referred, I do not think it does.  It was for the foregoing reasons that I said in my ruling that ‘for reasons very similar to those I gave in my [similar fact] judgment, I do not think the case falls within s 103(1) on the ground that the evidence that is proposed to be called lacks substantial probative value’.”

the submissions

41                  The appellants submitted that the primary Judge had erred in excluding the similar fact evidence in reliance on s 97(1) of the Evidence Act.  Mr Moshinsky advanced two alternative arguments in support of this submission:

·        First, the evidence of the five deponents was not tendered merely to prove that Ms Kelly had a tendency to make certain representations to prospective tenants of the Centre.  Rather, the affidavits constituted circumstantial evidence probative of the fact that she had made the representations alleged, in particular representations (a), (b) (relating to an increase of 50 to 60 per cent in customers attending the Centre), (f), (i), (j), (k) and (l) (relating to turnover and profitability).  It would seem that this argument was not put to the primary Judge.

·        Secondly, and in any event, the similar fact evidence passed the “significant probative value” test in s 97(1) of the Evidence Act.  Mr Moshinsky accepted that the primary Judge’s decision on this point constituted the exercise of a discretion and could be set aside only on the grounds identified in cases such as Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621. In this case, the primary Judge had given insufficient weight to the “extraordinary similarity” between the similar fact evidence and Mr Williams’ account of the representations made by Ms Kelly.  Indeed, so Mr Moshinsky argued, the primary Judge’s conclusion was so unreasonable that it suggested that his Honour had failed properly to exercise his discretion.

42                  The appellants further submitted that, insofar as the primary Judge relied on s 135 of the Evidence Act to exclude the similar fact evidence, his discretion miscarried.  According to Mr Moshinsky, the primary Judge had either failed to consider (as s 135(c) requires) whether there was a danger that the evidence might “cause or result in undue waste of time” or it was not open to him to conclude that admitting the evidence would result in an undue waste of time.  Moreover, so it was argued, his Honour had taken into account an irrelevant consideration in exercising his discretion adversely to Jacara.  He had done so by taking into account the fact that all deponents had an “axe to grind” and that their partisanship reduced the probative value of their evidence.  Mr Moshinsky contended that it was not open to the primary Judge to take this consideration into account, given that he had not had any opportunity to assess the reliability of their evidence.

43                  The appellants next contended that, even if his Honour had not erred in excluding the affidavit evidence, he was in error in refusing to permit Jacara’s counsel at the trial to cross-examine Ms Kelly as to the representations she was alleged to have made to other potential tenants.  Mr Moshinsky identified two errors in his Honour’s reasoning:

·        The questions that were rejected did not go merely to Ms Kelly’s credibility, but also to whether the alleged representations had in fact been made.  The evidence sought to be adduced was therefore not excluded by the credibility rule in s 102 of the Evidence Act.

·        Alternatively, the proposed questions would have adduced evidence having “substantial probative value” within the meaning of s 103(1) of the Evidence Act.  Had Ms Kelly admitted, for example, that she had predicted to prospective tenants that there would be an increase in traffic flow in the Centre, this would have contradicted her previous answers that her practice was not to make projections.  According to Mr Moshinsky, his Honour had overlooked the fact that s 103(2)(a) specifically provides that, in assessing whether evidence has substantial probative value, the court must have regard to whether the evidence tends to prove that the witness knowingly or recklessly gave false evidence.

44                  The appellants made three additional submissions, none of which was concerned with admissibility of evidence.  Mr Moshinsky attacked the primary Judge’s finding that, even if Ms Kelly had represented to Mr Williams that there would be a substantial increase in the number of customers (representation (a)), Perpetual had reasonable grounds for making the representations.  It was said that the statistical and other evidence relied on by the primary Judge did not support the finding.

45                  Mr Moshinsky also attacked the primary Judge’s finding that the representation that there were approximately 125,000 customers attending the Centre (representation (b)) was true.  He submitted that the evidence fell short of establishing that the figure was correct.

46                  Finally, the appellants, by the amendment to the notice of appeal made in the course of the hearing, challenged the primary Judge’s finding that Mr Williams had not relied on Ms Kelly for any financial information provided by her.  Mr Moshinsky submitted that the primary Judge had not intended to make any such finding but if he did intend to do so he was in error.

REASONING

the legislative scheme governing tendency evidence

47                  The fundamental principle governing the admissibility of evidence under the regime established by the Evidence Act is set out in s 56.  The effect of that provision is that irrelevant evidence is inadmissible, while relevant evidence is admissible except as otherwise provided by the Act.  Relevant evidence is that which, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact on issue in the proceeding: s 55(1).  According to Gaudron and Kirby JJ in Papakosmas v The Queen (1999) 196 CLR 297, at 312, the statutory concept of relevance does not involve “any real departure from the common law”, a view which receives support from the language used by Dixon J in Martin v Osborne (1936) 55 CLR 367, at 375.  Nonetheless, the Australian Law Reform Commission (“the Commission”), which recommended a definition of relevance in the terms adopted by s 55(1) of the Evidence Act, expressly adverted to the breadth of the definition:

“The definition requires a minimal logical connection between the evidence and the ‘fact in issue’.  In terms of probability, relevant evidence need not render a ‘fact in issue’ probable, or ‘sufficiently probable’ – it is enough if it only makes the fact in issue more probable or less probable than it would be without the evidence – ie it ‘affects the probability’.  The definition requires the judge to ask ‘could’ the evidence, if accepted, affect the probabilities.”

Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985) (“Interim Report”), vol 1, par 641.  As McHugh J pointed out in Papakosmas, at 321-322, the words “if it were accepted” in s 55(1) make it clear that a court assesses “the probability of the existence of a fact in issue” on the assumption that the evidence is reliable.

48                  Relevant evidence is excluded only if one of the exclusionary rules applies or if the court exercises a discretionary power to exclude evidence.  The tendency rule in s 97(1) of the Evidence Act is what might be described as a contingent exclusionary rule.  It provides that evidence of:

·        the character, reputation or conduct of a person; or

·        a tendency that a person has or had,

is not admissible to prove that a person has or had

·        a tendency to act in a particular way; or

·        to have a particular state of mind

if

·        the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

The rule is contingent in the sense that the tendency evidence is excluded only if the court forms the view that the evidence would not have significant probative value.

49                  Section 97(1) applies to both civil and criminal proceedings.  Further restrictions on tendency evidence apply in criminal proceedings by virtue of s 101.  In particular, tendency evidence cannot be used against a defendant in criminal proceedings unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant: s 101(2).  In addition, a general discretion to exclude evidence in both civil and criminal proceedings is conferred by s 135, if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time.

50                  In construing this statutory scheme it is to be borne in mind that the Evidence Act is not intended to be a mere codification of the common law rules of evidence.  As Gleeson CJ and Hayne J said in relation to the substantially equivalent New South Wales legislation (Papakosmas v The Queen, at 302):

“It is clear from the language of the Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence…”.

The reference to the legislative history includes the fact that many of the provisions of the Evidence Act stem from recommendations made by the Commission in its report on Evidence, Report No 38 (1987) (“Final Report”), which in turn was largely based on the Interim Report.

51                  In the case of the tendency rule in s 97(1) of the Evidence Act, however, some care must be exercised before relying on the Commission’s Final Report as a reliable guide in construction.  The first part of s 97(1), which states the general exclusionary rule relating to tendency evidence, follows precisely the language proposed by the Commission: Final Report, Appendix A: Draft Legislation, cl 86.  But in other respects s 97(1) departs from the Commission’s recommendations.

52                  The Commission’s principal recommendation was that

“evidence of specific conduct should not be admissible to prove a person’s tendencies unless the court is satisfied that the person actually did the act concerned and that the conduct and circumstances to which the evidence relates, and the conduct and circumstances in issue, are substantially and relevantly similar”:

Final Report, par 175; Interim Report, vol 1, pars 784 ff.  The Commission also recommended that conduct evidence should not be admissible in criminal proceedings against the accused person unless the evidence had “substantial probative value”.  The Commission made no such recommendation in relation to civil proceedings.

53                  Section 97(1) of the Evidence Act does not incorporate the Commission’s suggested principal criterion for the admissibility of what is now described as tendency evidence, although the so-called “coincidence rule” in s 98 of the Evidence Act follows the Commission’s proposal reasonably closely.  Under s 97(1), the evidence is to be excluded if the court thinks that it would not “have significant probative value”.  This expression is similar, but not identical to that proposed by the Commission in relation to criminal proceedings.  Neither the second reading speech for the Evidence Bill 1993 (Cth)(Cth Parl Deb, HR, 15 December 1993 at 4087 ff) nor the Explanatory Memorandum sheds light on the reason for the change from “substantial probative value” (as proposed by the Commission) to “significant probative value”.

was the evidence tendency evidence?

54                  Section 97(1) of the Evidence Act is concerned with evidence of a particular kind.  So far as relevant to the circumstances of the present case, it applies where

“evidence of the…conduct of a person [is tendered] to prove that a person…had a tendency to act in a particular way”.

55                  In the absence of any argument to the contrary, the primary Judge proceeded on the basis that the evidence to be given by the prospective tenants was tendered for the purpose identified in s 97(1).  That is, his Honour implicitly accepted that the deponents would give evidence that Ms Kelly had engaged in conduct (the making of representations about pedestrian traffic, likely turnover and profitability of the tenants’ business) in order to prove that she had a tendency to act in a particular way (to make similar representations to other prospective tenants), thereby making it more likely that she made one or more of  the alleged representations on those topics to Mr Williams in her conversations with him.

56                  The appellants distinguished between tendency evidence, which is caught by s 97(1), and circumstantial evidence probative of the fact that Ms Kelly made the alleged representations to Mr Williams, which (so they argued) is not.  Mr Moshinsky contended that the evidence of the five tenants went beyond mere tendency or propensity evidence and bore directly on the fact in issue.  It was therefore, so he argued, admissible without the need to satisfy the requirements of s 97(1).

57                  The distinction drawn by the appellants seems to me to be unsound.  In Hoch v The Queen (1988) 165 CLR 292, Mason CJ, Wilson and Gaudron JJ pointed out (at 296) that “[s]imilar fact evidence is circumstantial evidence”.  (In that case, the evidence was of indecent acts allegedly committed on three boys in circumstances said to be strikingly similar).  In D F Lyons Pty Ltd v Commonwealth Bank (a case involving similar fact evidence of representations made on behalf of a bank to borrowers other than the applicant), Gummow J said (at 603) that

“whilst evidence of a tendency or propensity to conduct of the kind alleged and in issue may be relevant and admissible as such, it is circumstantial evidence of a dangerous kind, particularly in a criminal case, because of the prejudice it engenders”.

See also Harriman v The Queen (1989) 167 CLR 590, at 602, per Dawson J.  In other words, merely to label evidence of previous conduct as circumstantial evidence does not demonstrate that it is tendered for a purpose other than to prove that a person had a tendency to act in a particular way.  Any evidence to which s 97(1) applies is likely to be circumstantial evidence.

58                  In a classic essay focussing on similar fact evidence in criminal cases, Professor Cowen and Mr Carter analysed what they described as the “[p]overty of settled principles in the midst of plenty of conflicting authority”: Z Cowen and P Carter, “The Admissibility of Evidence of Similar Facts: A Re-Examination”, in Essays on the Law of Evidence (1956), at 106.  The authors approached the task by carefully defining their terms (at 110-111):

“1.       ‘Similar fact evidence’ means evidence tending to show that the accused behaved on another occasion or on other occasions in a way to a greater or lesser extent similar to the way in which the prosecution alleges as part of its case that he behaved on the instant occasion.

2.         ‘Similar fact evidence which is relevant’ is such evidence which tends to show that the accused did in fact behave on the instant occasion in the way in which the prosecution alleges.

3.         ‘Similar fact evidence which is relevant via propensity’ is such evidence where the tendency of the similar fact evidence to establish a propensity in the accused is a link in the process of ‘tending to show that the accused did in fact behave on the instant occasion in the way in which the prosecution alleges’.   (Such evidence may be relevant in addition otherwise than via propensity.)

…

5.         ‘Similar fact evidence which is relevant otherwise than via propensity’ is evidence which falls within definition (2) supra and has relevance other than that described in definition (3).  (Such evidence may be relevant in addition via propensity.)

6.         ‘Similar fact evidence which has multiple relevance’ is similar fact evidence which is relevant via propensity and otherwise than via propensity...”. (Emphasis in original.)

59                  The terminology used by Cowen and Carter in their essay has not been universally adopted.  But the definitions help make the point that similar fact evidence (as that term is defined in the essay) is ordinarily relevant to a fact in issue in the proceedings because it tends to establish a propensity in the relevant person and because that propensity is a link in the process of tending to show that the person did in fact behave in the particular way alleged in the case.  An example often given of tendency or propensity evidence of this kind is R v Ball [1911] AC 47, where evidence of a prior incestuous relationship between a brother and sister was admitted to prove guilty conduct on the occasion in respect of which they were charged.

60                  As the definitions employed by Cowen and Carter indicate, similar fact evidence relevant to a fact in issue via propensity may also be relevant for a reason other than that it proves that a person has had a tendency to act in a particular way.  Evidence of previous conduct may be relevant, for example, to rebut coincidence (in which case the “coincidence rule” laid down in s 98 of the Evidence Act would apply) or to explain the relationship between, for example, an accused and a complainant in a prosecution for a sexual offence: R v A H (1997) 42 NSWLR 702, at 708-709, per Ireland J; see generally S Odgers, Uniform Evidence Law (4^th ed, 2000), par 101.5.  If the evidence is admissible for another purpose, the requirements of s 97(1) need not be met, but the evidence cannot be used as tendency evidence unless the requirements of s 97(1) are also satisfied: Evidence Act, s 95(1).

61                  The critical question in a case in which the tendency rule stated in s 97(1) is said to apply to evidence of conduct is whether the evidence is relevant to a fact in issue because it shows that a person has or had a tendency to act in a particular way.  To adopt the language of Cowen and Carter, the question is whether the evidence of conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question?

62                  This approach is consistent with the manner in which the Commission used the term “propensity” in its reports on Evidence.  It defined the word this way (Interim Report, vol 1, par 785):

“Propensity.  This word is defined by the Concise Oxford Dictionary to mean ‘inclination or tendency’.  It seems that this is the way it is used in the law, a tendency to act, think or feel in a particular way.  Usually the propensity will be evidenced by specific conduct, leading (like character) to the inference that the person will behave in conformity with that propensity.”

63                  In my opinion, it is clear in the present case that the evidence tendered by Jacara was relevant (if at all) to the fact in issue (whether Ms Kelly had made any of the representations alleged to Mr Williams) only because it tended to establish a propensity on her part to act in a particular way (to make representations of a particular kind to prospective tenants of the Centre).  The tendered evidence was therefore within s 97(1) of the Evidence Act.  Assuming it satisfied the relevance requirement of s 56 of the Evidence Act, it was not admissible if the primary Judge formed the view that the evidence would not have significant probative value.

64                  In reaching this conclusion I recognise that it may be difficult in any given case to determine whether the evidence of conduct is relevant “via propensity” and in no other way.  Mr Moshinsky suggested that, in drawing the line, it is necessary to distinguish between evidence that attempts to prove the terms of representations by relying on the striking similarity of other instances of representations and evidence which tends to prove that a system was in fact in existence that allowed or encouraged such representations.  He pointed out that just such a distinction had been drawn in cases involving alleged misrepresentations to prospective tenants, although none had involved s 97(1) of the Evidence Act: see, for example, Turner v Jenolan Investments Pty Ltd (1985) ATPR 40-571, at 46,635, per Beaumont J; Dayteck Pty Ltd v Glen Centre, (unreported, S Ct Vic, Eames J, 8 May 1995).  Mr Moshinsky submitted that the evidence of the five tenants in this case was relevant because it suggested that Perpetual or Ms Kelly had a system or business practice in place involving the making of representations to prospective tenants.

65                  In my view, evidence of conduct does not become relevant for a purpose other than proving that a person had a tendency to act in a particular way merely by asserting that the evidence tends to establish a system or business practice.  Whether it is relevant for another purpose depends on whether or not proof of the tendency of a person to act in a particular way is a necessary link in the reasoning making the evidence relevant to a fact in issue.

66                  In the present case, the evidence of the five tenants was relevant only to the fact in issue because it tended to show that Ms Kelly had a tendency to make representations to prospective tenants of the kind alleged by Mr Williams.  In the absence of an assumption that Ms Kelly had such a propensity, the evidence of the five tenants could not establish a system or business practice whereby such representations were made by or on behalf of Perpetual.  The tendency of their evidence to establish propensity on the part of Ms Kelly was a necessary link in the reasoning leading to the conclusion that Ms Kelly made the alleged representations during her meeting with Mr Williams.

67                  By contrast, there will be cases where evidence of conduct is relevant to a fact in issue independently of its tendency to show that a person had a propensity to act in a particular way.  If, for example, the evidence in a shopping centre misrepresentation case shows that the lessor’s agent gave instructions that particular representations should be communicated to prospective tenants, that evidence would be admissible independently of s 97(1) of the Evidence Act.   The evidence, if accepted, would go beyond proving that the agent had a propensity to make representations of the kind alleged.  Rather, it would establish that the agent had set in place a system which, if implemented in the particular case, would have resulted in the representation being made to the applicant.  The existence of the system, in the absence of evidence to the contrary, readily supports an inference that it was implemented in the particular case.  The evidence of the system makes it more likely that the fact in issue (the making of the representation to the applicant) occurred, independently of the agent’s propensity to act in a particular way. 

application of the tendency rule

the general law

68                  The common law rules governing the admissibility of similar fact evidence have been heavily influenced by the special dangers that such evidence is thought to present in criminal cases.  In particular, evidence that shows that an accused charged with an offence has been guilty of criminal behaviour on other occasions showing a criminal disposition has ordinarily been regarded as inadmissible.  As Dawson J observed in Harriman v The Queen, at 597, generally speaking, the evidence is excluded not because it is irrelevant:

“On the contrary, it is excluded because a jury is likely to regard it as proving too much and is for that reason likely to proceed upon prejudice rather than proof.  On the other hand, such evidence may in a particular case have a sufficiently high probative value to justify its admission notwithstanding its prejudicial effect.”

69                  As this passage indicates, under the general law the admissibility of similar fact evidence in criminal cases, including similar fact evidence via propensity, is not dependent solely on its relevance to the fact in issue.  Thus evidence that the accused has committed other offences of the same or similar character is inadmissible

“unless the probative force of the evidence clearly transcends the merely prejudicial effect of showing that the accused has committed other offences”:

Harriman v The Queen, at 593-594, per Brennan J.  In Hoch v The Queen, the joint judgment observed that, on the assumption that similar fact evidence is relevant to some issue on the trial, “the criterion of admissibility is the strength of its probative force”: at 294, per Mason CJ, Wilson and Gaudron JJ.  In that connection, the judgment noted, in a well-known comment (at 294-295), that

“that strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”.

Compare Pfennig v The Queen (1995) 182 CLR 461, at 482, per Mason CJ, Deane and Dawson JJ, holding that Hoch v The Queen is not to be understood as asserting that “striking similarities” or the other characteristics mentioned are essential prerequisites to admissibility in every case.

70                  The admissibility of similar fact evidence in civil cases developed by analogy with the criminal law.  However, the tide turned in Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119, where Lord Denning MR said this (at 127):

“In civil cases the courts have followed a similar line but have not been so chary of admitting it.  In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it.”

Some later authorities adopted the view that the admissibility of similar fact evidence in civil cases depended simply on its relevance to the fact in issue: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23, at 28, per Northrop J; Gates v City Mutual Life Assurance Society Ltd (1982) 68 FLR 74, at 88, per Ellicott J; cf Aroutsidis v Illawara Nominees Pty Ltd (1990) 50 FCR 500, at 508-509, per Hill J; D F Lyons Pty Ltd v Commonwealth Bank, at 603-607, per Gummow J.

71                  In Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97 (FC), Bollen J, with whom Prior J agreed, in the course of a careful review of the authorities, expressed the view (at 145) that the safeguards required in criminal proceedings are not required in civil proceedings.  He concluded, accordingly, that evidence of “similar facts” in civil cases should be admitted “where it is logically probative of a fact in issue”.  Sheldon has subsequently been applied in South Australia: Grivas v Brooks (1997) 69 SASR 532 (FC).

the test of “significant probative value”

72                  The tendency rule stated in s 97(1) of the Evidence Act departs from the common law position enunciated in Sheldon.  The fact that tendency evidence is relevant to a fact in issue is not enough to make it admissible.  Even if relevant, it will not be admissible if the Court thinks that the evidence would not have “significant probative value”.  As Lehane J pointed out in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, at 175-176:

“What is clearly required, if [tendency] evidence is to be admissible, is that it could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance.”

73                  Precisely what more is required has been expressed in different ways.  In R v Lockyer (1996) 89 A Crim R 457 (S Ct NSW), Hunt CJ at CL said (at 459) that

“’significant’ probative value must mean something more than mere relevance but something less than a ‘substantial’ degree of relevance”.

His Honour thought that this meant evidence that is “important” or “of consequence” in establishing the fact in issue.  The approach of Hunt CJ at CL was quoted with apparent approval in R v Martin [2000] NSWCCA 332, at [67].  See also R v AH, at 709, per Ireland J.  Lehane J in Zaknic, deriving guidance from the pre-Evidence Act cases, thought that the tendency evidence would have to be “clearly and strongly probative of the relevant fact in issue” (at 176).

74                  I doubt that it is useful to attempt any more precise reformulation of the terms of s 97(1) of the Evidence Act.  The statutory language provides the standard that is to be applied and judicial statements as to the construction of the legislation cannot supplant that language: Ogden Industries Pty Ltd v Lucas [1970] AC 113 (PC), at 127, quoted in Brennan v Comcare (1994) 50 FCR 555, at 572, per Gummow J.  Moreover, the statutory language incorporates a test which, although it will normally be applied before facts have been found, involves “a degree and value judgment” having regard both to the evidence to be adduced and other evidence adduced or to be adduced: s 97(1)(b); Fleming v Hutchinson (1991) 66 ALJR 211.  Indeed the tendency rule is framed in terms of whether the court “thinks” that the evidence would not have significant probative value. 

75                  Doubtless it was for these reasons that the appellant accepted that an appellate court reviewing a decision to exclude evidence under s 97(1) of the Evidence Act is to be exercised in accordance with the principles applicable to a discretionary judgment: Norbis v Norbis (1986) 161 CLR 513, at 518-519, per Mason and Deane JJ; House v The King (1936) 55 CLR 499.  These principles reflect important policy considerations.  Appellate courts should exercise caution before overturning judgments in civil cases on the basis of decisions concerning the admissibility of evidence.  Such decisions, of necessity, usually have to be made before all the evidence has been heard and often must be made under stringent time pressures.  Deference should be paid to a trial Judge’s assessment of the issues in the case and of the significance to those issues of the tendered evidence.

76                  Perhaps the only additional point that should be made is that the probative value of the evidence must derive from its tendency to prove (in the words of s 97(1)) that a person has or had a tendency to act in a particular way.  As has already been noted, if the evidence has probative value for some other reason, it will not be rendered inadmissible by s 97(1), at least to the extent that it is tendered for a purpose other than its value as tendency evidence.  The probative value of the evidence as tendency evidence must depend on the circumstances of the case.  The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred: cf J D Heydon, Cross on Evidence (6^th Aust ed, 2000) at pars [21095], [21100], [21105].

was the test applied?

77                  The primary Judge in the present case asked himself the correct question, namely whether the evidence of the five tenants, individually or collectively, had significant probative value on the fact in issue, that is whether Ms Kelly had made any of the alleged representations to Mr Williams.  He referred to observations in reported cases, including Zaknic, to assist him in that task.  None of this discloses any error of principle on his Honour’s part and, indeed, Mr Moshinsky did not contend otherwise.

78                  Mr Moshinsky’s criticism of the judgment focussed on his Honour’s assessment of the probative value of the evidence relied on by Jacara.  It will be recalled that his Honour placed particular emphasis on the differences among the accounts given by the five deponents and the differences between their various accounts and those given by Mr Williams.  I see no error in this approach to assessing the probative value of the evidence.

79                  One of the representations allegedly made by Ms Kelly was a prediction that there would be an increase of at least fifty to sixty percent in the number of customers after the redevelopment of the Centre.  Of the four deponents who prepared affidavits in narrative form, two said that Ms Kelly had spoken only of a “substantial increase” in the number of customers, without mentioning any percentages.  A third deponent said that Ms Kelly had referred to an increase in the numbers of customers, again without reference to any percentages.  The fourth said that Ms Kelly had referred to a forty percent increase, to between 150,000 and 170,000 customers per week, figures not mentioned by any other deponent. 

80                  The differences in the accounts of the deponents were even more marked in relation to the representations allegedly made by Ms Kelly concerning the turnover and profitability of the proposed Cookie Man franchise.  Mr Williams’ account was that Ms Kelly had said that he could expect takings of $3,000 per week and a gross profit margin of 45 percent.  One of the deponents, in somewhat ambiguous language, alleged that Ms Kelly had told him that his shop would take $7,000 per week initially, but without any reference to a profit margin.  A second deponent said that he had prepared his own cash flow forecasts of takings of between $8,000 and $10,000 per week, and Ms Kelly had “confirmed” that these were achievable.  A third made no reference to any representations relating to turnover or profitability.  The fourth recalled that Ms Kelly had said that his business would be “highly profitable”.

81                  In my view, it was well open to the primary Judge to conclude that the various accounts differed among themselves and from Mr Williams’ version to such an extent that the evidence could not be said to have significant probative value on the facts and issues.  This conclusion is reinforced by the fact that the conversations with the five tenants are said to have occurred some four to twelve months after the dealings with Mr Williams and Ms Kelly.  Some of the representations were therefore made after Stage 2 of the development had been completed.  It follows that not only were the alleged representations not contemporaneous with those alleged to have been made by Ms Kelly, but some at least were made after the second of the three stages of the Centre’s development had been completed.

82                  None of this is to suggest that the only basis for the admissibility of tendency evidence under s 97(1) of the Evidence Act is if the evidence, to use the language in Hoch v The Queen, reveals “striking similarities” or “unusual features”.  The conclusion I have reached merely reflects the fact that the Judge was entitled to take the view, in the circumstances of the present case, that the evidence lacked significant probative value for the purposes of s 97(1).

conclusion on tendency evidence

83                  The primary Judge committed no error in refusing to admit the evidence of the five deponents.  Having regard to the conclusions I have reached, there is no need to consider whether any of their evidence met the test of relevance laid down in s 56 of the Evidence Act.  Nor is there any need to consider whether his Honour was also entitled to exclude the evidence pursuant to s 135 of the Evidence Act.  I express no view as to whether his Honour was correct in taking into account, for the purpose of exercising the discretion conferred by s 135, that all deponents had “an axe to grind” and that their partisan feelings reduced the probative value of their evidence.

the refusal to permit cross-examination

THE LEGISLATIVE SCHEME GOVERNING CREDIBILITY EVIDENCE

84                  Section 55(2)(a) of the Evidence Act provides that evidence is not taken to be irrelevant (in the sense described in s 55(1)) “only because it relates only to…the credibility of a witness”.  This does not mean that evidence relating only to credibility is necessarily relevant.  Relevance is still to be determined by the test laid down in s 55(1).  But s 55(2)(a) implicitly acknowledges that evidence relating only to credibility is capable of rationally affecting the assessment of the probability of the existence of a fact in issue.  As McHugh J remarked in Palmer v The Queen (1998) 193 CLR 1, at 22:

“The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly.  Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent”.

(McHugh J dissented, but the majority judgments cast no doubt on this statement.)

85                  The “credibility rule” in s 102 is an exclusionary rule, namely that evidence relevant only to the credibility of a witness is not admissible.  This rule, however, is qualified by s 103(1) of the Evidence Act, which provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness, if the evidence has “substantial probative value”.  Section 103(1) “tightens the general law” which is more lenient in permitting cross-examination going only to credit: Cross on Evidence, par [19055].

86                  The statutory concept of “substantial probative value” is, however, given an extended meaning by s 103(2).  In determining whether the evidence has substantial probative value, the court is to have regard, inter alia,  to whether the evidence tends to prove that the witness  knowingly or recklessly gave false evidence when under an obligation to tell the truth.  It has been held by the New South Wales Court of Criminal Appeal that the Dictionary definition of “probative value” (see [18] above) does not apply to s 103 both because of its subject matter and the specific terms of s 103(2): R v RPS (unreported, 13 August 1997).  Hunt CJ at CL, with whom Gleeson CJ and Hidden J agreed,  said this:

“Evidence adduced in cross-examination must…have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness….  The addition of the word ‘substantial’ nevertheless imposes a limitation upon the common law, when almost anything was allowed on the issue of credit unless it clearly had no material weight whatsoever upon that issue”.  (Emphasis added.)

87                  Section 106 provides that the credibility rule does not apply to certain kinds of rebuttal evidence.  In particular, it does not apply to rebuttal evidence that tends to prove that a witness has knowingly or recklessly given false evidence when under an obligation to tell the truth: s 106(e).  Section 108 creates additional exceptions to the credibility rule.  These include evidence adduced in re-examination and evidence given, with the leave of the court, of prior consistent statements: s 108(1), (3).

88                  This legislative scheme broadly reflects the recommendation of the Commission in its reports on Evidence: Interim Report, vol 1, pars [817]-[820]; Final Report, pars [179]-[181], Draft Bill, cll 94, 96, 99, 101.

DID THE PRIMARY JUDGE ERR IN EXCLUDING THE EVIDENCE?

89                  It will be recalled that the primary Judge declined to permit Ms Kelly to be cross-examined as to whether she made representations to the tenants who had made affidavits.  It follows from the legislative scheme I have outlined that the evidence sought to be adduced should not have been rejected by reason of the credibility rule in s 102 of the Evidence Act if it

·        was relevant for a reason other than going to Ms Kelly’s credibility; or

·        had “substantial probative value” in the sense required by s 103 of the Evidence Act.

90                  Mr Moshinsky submitted that the cross-examiner’s questions should have been allowed because Ms Kelly’s answers may have been relevant, not merely to her credibility, but to a fact in issue.  This submission encounters the difficulty that the answers, for reasons already given, could only have been relevant (otherwise than in relation to credibility) as tendency evidence.  Accordingly, the evidence would not have been admissible if the primary Judge considered that it did not have “significant probative value” within the meaning of s 97(1).  That was precisely the view he formed.

91                  In any event, as the transcript makes clear (see [36] above), Mr Moshinsky in his submissions to the primary Judge expressly disclaimed any suggestion that the questions went to any issue other than Ms Kelly’s credit.  In these circumstances, the appellants cannot now contend that his Honour erred in failing to consider whether the evidence sought to be adduced might have been relevant to some other issue.

92                  The appellant’s alternative submission was that the primary Judge had overlooked the fact that “substantial probative value” bears a different meaning in s 103(1) than the expression “significant probative value” in s 97(1) of the Evidence Act.  In my view, it is clear that his Honour did not fall into that error.  He specifically accepted that the words “substantial probative value” in s 103(1) are “directed to the question of the witness’s credibility” (at [40]).  He cited a passage from the Commission’s Interim Report, par [819], supporting that conclusion.  He also cited observations of  James J in R v Beattie (1996) 40 NSWLR 155 (NSW CCA), at 163, to the same effect.

93                  This is not to say that his Honour’s reasoning is beyond criticism.  Two particular criticisms might be made.  First, the judgment does not specifically advert to the fact that, in the unlikely event of Ms Kelly answering the disallowed questions affirmatively (that is, admitting that she made the representations alleged by the five tenants) her answers would have cast doubt on her evidence that her practice, when dealing with prospective tenants, was not to address questions such as likely turnover and profitability and future customer traffic at the Centre.  There is, however, no reason to suppose that his Honour overlooked that consideration.  Clearly his Honour appreciated that the question was whether the evidence had substantial probative value in relation to Ms Kelly’s credibility.  In my view, he formed the judgment that, by reason of the passage of time since the alleged representations had been made and the dissimilarity of the claims made by the five tenants, any answers given by Ms Kelly would not have substantial probative value in relation to her credibility.

94                  The second criticism that can be made is that his Honour referred to the evidence of the other tenants as “partisan”.  If his Honour intended to convey that the cross-examination of Ms Kelly was impermissible because the claims made by the other tenants were unworthy of credence, I think he would have taken an irrelevant consideration into account.  The primary Judge had not, of course, had the opportunity to evaluate their evidence.  Moreover, the question was whether the evidence sought to be adduced from Ms Kelly had substantial probative value in relation to her credibility.

95                  On balance, I think that his Honour was not intending to make a judgment about whether the evidence of the five tenants would be accepted.  After all, Mr Moshinsky specifically acknowledged to the primary Judge that he would be bound by Ms Kelly’s answers.  (I pass by whether this concession was correct in the light of s 106(e) of the Evidence Act.)  I think the better view is that his Honour was merely intending to reinforce the point that the passage of time and the difficulty of accurate recollection of conversations made it difficult to treat any affirmative response by Ms Kelly as having substantial probative value in relation to the credibility of her evidence on the issues in dispute.

96                  In my opinion, although I would not necessarily have reached the same conclusion as the primary Judge, I do not think his Honour erred in disallowing the proposed cross-examination of Ms Kelly.

what if the PRIMARY judge had erred?

97                  Even if the primary Judge had erred in refusing to permit cross-examination of Ms Kelly in relation to the representations allegedly made by her to the five tenants, it by no means follows that an order should be made for a new trial.

98                  In Department of Justice v Hepburn (1999) 93 FCR 508, the Full Court identified (at 517) the “classic statement of the test to be applied by an appellate court where legal error has been established” in a civil non-jury trial as that contained in the judgment of Dixon CJ and Kitto J in Paterson v Paterson (1953) 89 CLR 212, at 225-226:

“But in the end we have come to the conclusion that the learned judge’s findings would have been exactly the same, had he disallowed the cross-examination.  We are not here dealing with the verdict of a jury, the reasons for which are not known.  The learned judge has stated his reasons in full, and while it certainly cannot be said that nothing deduced from that part of the cross-examination enters into the reasons his Honour gives, it can safely be concluded not only that what he so deduced did not form an indispensable part of his opinion or of the process by which it was formed, but that all the other elements in the case, had this one been excluded, would have led him exactly upon the same path to the same result.  In these circumstances, it would not be right to order a new trial on the ground that the cross-examination in question was wrongly admitted.”

99                  In this case, it seems to me that had the primary Judge permitted the questions to be asked of Ms Kelly in cross-examination, the result of the case would have been exactly the same.  The primary Judge had the opportunity to observe Mr Ashley Williams, Jacara’s principal witness, in the witness box.  His Honour found that some of Mr Williams’ assertions “were just not credible” and that “to quite some extent” he was reconstructing events and attributing to others his own ruminations, calculations and extrapolations.  Moreover, his Honour accepted the whole of Mr Hipwell’s evidence and, as a result, rejected crucial parts of Mr Williams’ evidence about the meeting of 28 October 1994.  In that connection, his Honour found that the value of a diary note on which Mr Williams relied, had been “reduced” by apparent alterations and anomalies.  Mr Vaughan Williams’ evidence was rejected by the primary Judge as worthless.

100               In reaching his findings of fact, the primary Judge also had the opportunity to observe Ms Kelly giving evidence.  He formed the view that she was a witness of truth whose evidence should be accepted.  This finding should be based not only on the impression Ms Kelly created in the witness box, but on contemporary documentation and other objective indicators favouring her account of events.

101               For example, a week before Ms Kelly took Mr Williams on a tour of the Centre, she wrote a letter to Auto-Bake giving an update as to the letting of shops and kiosks in the Food Hall.  Her evidence was that she told Mr Williams what was recorded in the letter, namely that there were non-food tenants in the Food Hall.  The primary Judge considered it highly unlikely that Ms Kelly would have misrepresented the true position to Mr Williams, as he asserted, since the false statement would immediately have been detected.  While the appellants do not challenge this particular finding, the reasoning of the primary Judge shows that, in the case of a direct conflict between the evidence of Ms Kelly and that of Mr Williams, the objective evidence favoured her version.  This was not the only example.

102               Having regard to Ms Kelly’s unshaken evidence in cross-examination, it is highly unlikely that, if asked about the alleged representations to the five tenants, she would have acknowledged making the representations.  (As I have noted, Mr Moshinsky accepted before the primary Judge that Ms Kelly’s answers to these questions could not be contradicted.)  But even if she had acknowledged making some or all of the various representations to the five tenants, it seems clear that his Honour still would have preferred her evidence over that of Mr Williams.  The simple fact is that his Honour comprehensively preferred the evidence of Ms Kelly and Mr Hipwell over the conflicting evidence of Mr Williams and his son.  In these circumstances, there would be no point to a new trial.

FURTHER CONTENTIONS

103               As I have stated, the appellants advanced three further contentions.  Only one need be addressed, given the conclusions I have reached in relation to the primary Judge’s findings that none of the disputed representations had been made by Ms Kelly.

104               The appellants argued that the evidence was insufficient to support his Honour’s finding that they had not established that representation (b) (that 125,000 customers attended the Centre prior to the redevelopment) was inaccurate.  His Honour’s findings were clearly open on the evidence.  Indeed, the evidence as to traffic figures, in my view, warranted an affirmative finding that the representation was true.

105               Although it is not necessary to deal with the remaining contentions, I should note that in my opinion, neither of them has any substance.  The evidence identified by the primary Judge supports his conclusion that Perpetual had reasonable grounds for representing that there would be a substantial increase in the number of customers attending the Centre after the redevelopment.  The evidence of Mr Dimasi and of the actual experience with customer numbers amply justified the findings.

106               Finally, in my view the primary Judge did intend to make a finding that, assuming Ms Kelly had made representations on financial matters to Mr Williams, he had not relied on anything she said on these topics.  Once again, the evidence supported his Honour’s findings.

conclusion

107               The appeal must be dismissed.  The appellants should pay the respondent’s costs.

Associate:

Dated:              21 December 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MANSFIELD J

108               I have had the benefit of reading the reasons for judgment of Sackville J.  I agree with his Honour’s reasons and that the appeal should be dismissed with costs.

Associate:

Dated:              21 December 2000