Supreme Court New South Wales

• Medium Neutral Citation: Walsh v Walgett Shire Council [2014] NSWSC 812
• Hearing dates: 03/06/2014, 4/06/2014, 05/06/2014, 06/06/2014,10/06/2014, 11/06/2014
• Decision date: 11 June 2014
• Jurisdiction: Common Law
• Before: McDougall J

Decision

Tender rejected

• Catchwords: EVIDENCE - documentary evidence - statutory provisions relating to business records - whether document of WorkCover a 'business record' - whether representations in document are made in connection with an investigation - whether investigation must in fact lead to proceedings for exception to apply - application of s 69(3)(b) of the Evidence Act 1995 (NSW); EVIDENCE - admissibility - whether discretionary reasons for refusing to admit evidence - where evidence in the form of answers to specific questions - where witness not called - application of s 135 Evidence Act 1995 (NSW)
• Legislation Cited: Evidence Act 1995 (NSW); Occupational Health & Safety Act 2000 (NSW); Work Health & Safety Act 2011 (NSW)
• Cases Cited: Lewincamp v ACP Magazines Ltd [2008] ATCSC 69; Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984; Vitali v Stachnik [2001] NSWSC 303
• Category: Procedural and other rulings
• Parties: Daniel Peter Walsh (Plaintiff); Walgett Shire Council (Defendant)
• Representation: Counsel: DR Campbell SC / IJ McGillicuddy (Plaintiff); JE Sexton SC / G Donnellan (Defendant); Solicitors: Beston Macken McManis (Plaintiff); Mills Oakley Lawyers (Defendant)
• File Number(s): 2012/380694

Judgment (ex tempore revised - 11 june 2014)

1 HIS HONOUR: The plaintiff claims damages for catastrophic injuries that he suffered when, to use a neutral term, he entered a spa pool in the Artesian Baths owned and operated by the defendant council at Lightning Ridge. The accident occurred in the evening of 29 August 2011.

2 The spa, or bore bath as it is often called, had been emptied because work was being done on the seating within it. That work was being undertaken by members of Rotary, apparently as some form of community service. The council had a cross-claim against Rotary, but that cross-claim has been settled and yesterday I made orders by consent dismissing it.

3 A problem has arisen because the plaintiff wishes to rely on answers given by a Rotary member, Mr Michael Taylor, to questions posed to him by WorkCover under s 155 of the Work Health & Safety Act 2011 (NSW).

4 Mr Taylor was one of the Rotary members who was actually carrying out the work in question.

5 Section 155 empowers WorkCover to give written notice to persons whom, it has reasonable grounds to believe, may give information, provide documents or give evidence in relation to, among other things, a possible contravention of the Work Health & Safety Act. The notice given by

WorkCover to Mr Taylor makes it clear that the questions were required to be answered, "in relation to a possible contravention of s 8 of the Occupational Health & Safety Act, 2000". That is to say, the notice makes it clear that WorkCover was investigating possible contravention, and not for the other purpose (monitoring or enforcing compliance) specified in s 155(1).

6 Mr Campbell of Senior Counsel, who appears with Mr McGillicuddy of counsel for the plaintiff, submits that it is appropriate that he be given leave to rely on the questionnaire and answers given to it by Mr Taylor, in circumstances where, by reason of the settlement as between the council and Rotary, it is likely that otherwise Mr Taylor would not be called.

7 However, as Mr Sexton of Senior Counsel, who appears with Mr Donnellan of counsel for the council, submits, there is an immediate problem with that submission. Mr Campbell could never have been assured, or even have in my view reason to believe, that Rotary would have called Mr Taylor. In any event, given the nature of the relationship between Rotary and its members (to the extent that it is apparent from the material in this case that is already in evidence), there is no reason why a subpoena to give evidence could not have been issued at the request of the plaintiff, requiring Mr Taylor to give evidence.

8 I mention those matters because, to the extent that Mr Campbell relied on s 64(1), (2) of the Evidence Act 1995 (NSW), it seems to me that the failure to give notice under s 67 of the Evidence Act stands in the path of success. It is correct, of course, that the court can in effect dispense with the failure to give notice (see s 67(4)). However, the matters to which I have referred suggest that it would not be appropriate, absent some further explanation, to exercise in favour of dispensation, the discretion given by s 67(4).

9 Mr Campbell submits that the document in question is a business record for the purposes of s 69 of the Evidence Act. I am prepared to assume that it is, despite the submission put by Mr Sexton to the contrary. (See, in particular, the extended and inclusive definition of "business" in clause 1 of Pt 2 of the Dictionary to the Evidence Act).

10 If the document is a business record, it is clear, in the main, that Mr Taylor either had or might reasonably be supposed to have had personal knowledge of the asserted facts constituted by his answers. There are some exceptions (for example, where Mr Taylor in effect opines as to the understanding, intention or objects of others) but they can be put to one side.

11 A more substantial problem arises because of s 69(3)(b). That provides in effect that the exception to the hearsay rule contained in s 69(2) does not apply to representations made in connection with an investigation relating or leading to a criminal proceeding.

12 It seems to be clear that the representations were made in connection with an investigation being undertaken by WorkCover. The question is whether that investigation could be classed as one relating or leading to a criminal proceeding.

13 In Pt 1 of the Dictionary, a "criminal proceeding" is defined to mean a prosecution for an offence, and to include both committal proceedings and proceedings relating to bail. There is an irrelevant exception in respect of "prescribed taxation offences". It seems to me to be reasonably clear that the investigation was undertaken in relation to a possible contravention of the occupational health and safety legislation that, if proved, would amount to a criminal offence. Thus, there was at least a prospect of "a criminal proceeding" in this case.

14 So far as the evidence goes, there has never been any prosecution for an offence, arising out of the events of 29 August, 2011. Thus, as a matter of language, whatever investigation WorkCover undertook did not in fact lead to a criminal proceeding. Nor could it be said to relate to a criminal proceeding, at least in the literal sense: again, because (so far as the evidence goes) there has been no criminal proceeding.

15 Nonetheless, to give such a limited construction to s 69 (3)(b) would seem to me to ignore the obvious purpose intended to be achieved by both limbs of that sub-section. In relation to s 69 (3) (a) (which in turn refers to representations prepared or obtained for the purpose of conducting or for or in contemplation of or in contemplation with, civil litigation), it has been said that the purpose of the exclusion is to prevent the introduction of material prepared in circumstances which might cause it to be self-serving. See Vitali v Stachnik [2001] NSWSC 303 at [12]; and see also, to the extent that it adds anything, my own decision in Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 at [22], [23], [24].

16 Besanko J expressed a similar view, in relation to s 69(3)(b), in Lewincamp v ACP Magazines Ltd [2008] ACTSC 69. As is clear from [106] of the decision, his Honour dealt with issues as to the admissibility of certain evidence in Appendix 2 to his reasons.

17 Besanko J said, at [29] of Appendix 2, that the purpose of the s 69(3)(b) exception was to exclude representations made which might have a self-serving motivation. His Honour observed that such circumstances might exist "in connection with an investigation, though the investigation never in fact leads to a criminal proceeding". In that circumstance, his Honour said that if the investigation were of a type that would relate or lead, in the ordinary course of events, to a criminal proceeding, then s 69(3)(b), would be satisfied. His Honour referred, by way of example, to investigations undertaken by the police.

18 On the view expressed by Besanko J of s 69(3)(b), it applies where the representation is made in connection with an investigation (and as I have said, that seems to be the case in relation to Mr Taylor's document) which is of a kind that, ordinarily, would relate or lead to a criminal proceeding. It does not seem to me that this is stretching the language of the exclusion too far. On the contrary, it seems to me, it is a purposive construction of the sub-section which seeks to effect the purpose embodied in it, and which does so without doing any undue violence to the language actually used. Conversely, to confine the sub-section to one view of its literal application - namely that it must be shown that the investigation has in fact related to or led to a criminal proceeding that has actually taken place - would be to permit the admission into evidence of material, as to which there might be significant reason to think it was motivated by self serving considerations.

19 I accept that in the latter case, resort could be had to the discretion contained in s 135 of the Evidence Act (and I will return to this). Nonetheless, the construction of two categories of exclusion, in two paragraphs of the one sub-section, which creates an extremely wide disparity as to the degree of connection between the purpose of the inquiry and the asserted fact, seems to me to be unduly restrictive.

20 Of course, there are many investigations that do not lead to a criminal proceeding; and, a fortiori, that do not in that sense relate to a criminal proceeding. But it seems to me that where an investigation is carried out to see whether there has been a contravention of a legislative provision, which contravention (if it occurred) would be attended by criminal consequences, the investigation is one that could be said, in the ordinary use of the English language, to be one at least relating to a criminal proceeding in relation to that contravention.

21 Accordingly, it seems to me, the document ought not be admitted by reason of s 69(3)(b) of the Evidence Act.

22 In any event, and returning (as I said I would do) to s 135, it seems to me that there are very strong discretionary reasons for refusing to admit the evidence. First, and foremost, the circumstances in which the document was prepared (namely, seeking information in relation to a possible contravention, amounting to a criminal offence, of the specified legislation) are such as to create a significant motive to give self-serving, if not actually incorrect, answers.

23 More generally, having regard to the structure of the document (namely that it is not a narrative statement but a series of questions, obviously prepared on the basis of other material not in evidence, to which questions specific answers are required), there is a very real risk that the picture given by it is incomplete. It would be otherwise, perhaps, if Mr Taylor had been asked to make a statement setting out in its entirety his recollection of the relevant events, and had then been asked to answer further questions. But that does not appear to be what has happened in this case. Thus, it seems to me, there are reasons to think that the evidence contained in the statement might not be a complete account of what Mr Taylor can say, and that to admit it, without his being called, might be both unfairly prejudicial to the council and, more generally, might mislead or confuse.

24 Secondly, and harking back to what I said earlier about ss 64 and 67, it seems to me that the circumstance where, for whatever reason, the plaintiff chose not to issue a subpoena to Mr Taylor, but to hope that he might be called by Rotary, makes it now unfairly prejudicial to the council to be confronted not by his oral evidence (which of course could be tested by cross-examination) but by information apparently emanating from him in the form of the document to which I have referred.

25 For that reason also, I would, were it necessary to do so, exercise the s 135 discretion and reject the tender.

26 The result is that I reject the tender of the document in question. That document, together with the notice to answer it and the letter under cover of which that notice was given, will be marked for identification C and returned to Mr Campbell.

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Decision last updated: 18 June 2014