Citibank Ltd v Liu; ABN Amro Bank NV v Liu

HIS HONOUR : Mr Faulkner, of counsel for the plaintiffs, tenders a letter on the letterhead of Peace Mark (Holdings) Limited, a Hong Kong company and signed by Tsang Kwong Chiu Kevin, stated to be the Finance Director of that company. He tenders it upon the voir dire as to the admissibility of an affidavit of Mr Tsang, which has previously been tendered, not as an affidavit but as a document containing out of court statements and rejected: see Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 69. Mr Faulker now seeks to retender the affidavit as a document containing out of court statements, but on improved evidence going to its admissibility. Although the authenticity of the document he now tenders is not proved he says that, by reason of the fact that it is tendered in an interlocutory proceeding, namely, the voir dire to which I have just referred, s 75 of the Evidence Act 1995 (“the EA”) applies and makes the letter admissible by overcoming the hearsay rule. Section 75 provides: “In an interlocutory proceeding the hearsay rule does not apply to evidence if the party which adduces it also adduces evidence of its source.” He says that evidence of its source has been adduced.

I should say that in order to tender Mr Tsang’s affidavit, even if it is ruled admissible, Mr Faulkner will have to obtain leave to re-open the plaintiff’s case, which may not necessarily be granted but, if it is ruled to be inadmissible, then the need to consider that application will not, for the present, arise.

The essential facts stated by Mr Tsang in the letter which is tendered on the voir dire is that Mr Tsang is unwilling to come to Australia to give evidence, which would go to the admissibility of his affidavit. Mr Stuart Bell, of counsel for the second defendant, objects to the tender. I do not think s 75 solves Mr Faulkner’s problems with the document. I have some doubts as to whether a voir dire hearing within a trial as to the admissibility of evidence is an interlocutory proceeding within the meaning of s 75. However, it seems to me that the central fact, which is fatal to the admissibility of this document, is simply that the authenticity of the letter is not proved. Neither does s 75 dispense with the need to prove a document before it is tendered, nor is any other provision of the EA put to me as dispensing with need of that proof. It was emphasised by Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 that, despite the provisions of the EA as to the proof of contents of documents, it remains necessary to prove that a document tendered is what it purports to be. Even to get a business record (which this is not) into evidence under s 69 of the EA it is not always possible to draw the necessary inferences establishing the nature of the document from its face and sworn evidence may be necessary to prove that the document falls within the requisite category before the document can be admitted.

In my view quite apart from any other problems, Mr Tsang’s letter is not proved. There is no proof of his signature. There is no proof of its authorship. There is no proof that it is what it purports to be. For those reasons it cannot be admitted into evidence. It is rejected and will be marked for identification 7.