63. Exception - civil proceedings if maker not available

63. Exception-civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to-

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Notes

1. Section 67 imposes notice requirements relating to this subsection.

2. Clause 4 of Part 2 of the Dictionary is about the availability of persons.

The hearsay exception is intentionally broader in civil cases than criminal ones.

Though s 67 provides notice to be given of a party's intention to lead hearsay evidence under this section, s 67(4) is frequently invoked to waive this requirement: Tsang Chi Ming v Uvanna Pty Ltd (1996) 140 ALR 273; Maddock v Maddock [2005] FamCA 868; Kayes v Kayes [1999] FamCA 357; Huang v University of NSW & Anor (No 5) [2010] FMCA 975. In all cases a central consideration is the extent of prejudice caused to the other party.

In Quintano v BW Rose Pty Ltd [2008] NSWSC 1012 it was argued that the prejudice suffered as a result of not being served with notice was that the plaintiff was deprived of the opportunity of making their own efforts to locate the unavailable witness. Cameron FM was not satisfied that the plaintiff would have been any more successful in locating the witness than the defendant had been.