Background
Ashleigh Bent brought proceedings in equity to set aside arrangements dating back over a decade that resulted in mortgages in favour of Yuksel Ceper and Yuksel Investments Pty Ltd being registered on a property she purchased in November 2015. The dispute arose from arrangements allegedly made to protect Aydin (Yuksel’s young nephew) following the death of Yuksel’s brother, Uysal, and the division of his superannuation benefits between Ashleigh and Aydin.
At trial, the defendants sought to rely on two affidavits containing hearsay evidence: one from Cicek Ceper (Yuksel’s mother) describing conversations with Yuksel about the property arrangement, and one from Dimitrios Amargianitakis (Yuksel’s accountant) detailing conversations with Yuksel about establishing protective arrangements and loan structures. Ashleigh objected to these passages as inadmissible hearsay under s 59(1) of the Evidence Act 1995 (NSW).
The defendants had failed to provide the formal notice required by s 67 of the Evidence Act. Under the Uniform Civil Procedure Rules, reasonable notice requires at least 21 days before the hearing date. Notice was served only after the court indicated it would allow the evidence if proper notice had been given.
The Court’s Holding
McGrath J held that the defendants’ failure to provide timely notice under s 67 was not fatal to admissibility because the court had discretion under s 67(4) to dispense with the notice requirement. The court applied the statutory test in s 192 of the Evidence Act, weighing factors including fairness, the importance of the evidence, the nature of the proceeding, and the court’s powers to adjourn or make other orders.
The court found that dispensation was justified because: (1) Yuksel was incapacitated due to a heart attack in 2016 and could not testify—a fact Ms Bent did not contest and indeed acknowledged in her own evidence; (2) Ms Bent had received the affidavits nearly a year before trial, substantially reducing any element of surprise; (3) the evidence was important to the defendants’ case, particularly as Ms Bent had been cross-examined on conversations allegedly with Yuksel that the affidavits corroborated; and (4) there was no additional unfairness to Ms Bent from admitting the evidence beyond the inherent limitation that an unavailable witness cannot be cross-examined.
The court rejected the argument that Ms Bent was unfairly prejudiced by losing the opportunity to contest Yuksel’s incapacity, noting that she had always had that opportunity and the incapacity was plainly pleaded by the defendants. The court directed that s 63(2) of the Evidence Act would apply to the identified passages, making the hearsay admissible despite the procedural default.
Key Takeaways
- Courts have discretion under s 67(4) of the Evidence Act to dispense with formal notice requirements for hearsay evidence when justice requires it, applying the multi-factor test in s 192.
- Prior notice of evidence through affidavit service can substantially mitigate claims of unfair surprise, even absent formal statutory notice.
- The unavailability of a witness for cross-examination is an inherent limitation in hearsay cases, not an independent ground for excluding evidence once the witness’s unavailability is established and uncontested.
- A party’s failure to contest an opponent’s pleaded allegation about witness incapacity may weigh against later claims of unfairness from that incapacity.
Why It Matters
This decision clarifies the discretionary nature of procedural notice requirements in Australian evidence law. While the Evidence Act imposes formal requirements for admitting hearsay—including the s 67 notice requirement—courts retain significant discretion to dispense with them when circumstances demonstrate substantive fairness. This is particularly important where witnesses are genuinely unavailable due to incapacity, as opposed to merely inconvenient.
For practitioners, the judgment reinforces that procedural defaults are not automatically fatal if the opposing party has practical notice of the evidence well in advance and has not been prejudiced by surprise or inability to investigate. However, defendants should not rely on this discretion; the burden remains on the party seeking to introduce hearsay without proper notice to demonstrate that dispensation is appropriate under the statutory criteria.