James Mark Waugh and Ors v TAFE NSW Western Institute and Anor (No 2)

[2013] NSWSC 1661

Supreme Court

New South Wales

Medium Neutral Citation:	James Mark Waugh & Ors v TAFE NSW Western Institute & Anor (No 2) [2013] NSWSC 1661
Hearing dates:	30/10/13
Decision date:	30 October 2013
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	My ruling is that I will permit the evidence of Ms Harris to be given in the usual way
Catchwords:	EVIDENCE - admissibility - whether purported admission by second defendant to witness should be excluded under s135 Evidence Act 1995 (NSW)
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Ainsworth v Burden [2005] NSWCA 174 Lustre Hosiery v York (1935) 54 CLR 134
Category:	Procedural and other rulings
Parties:	James Mark Waugh (plaintiff) Juliana Waugh (plaintiff) Jonathan Waugh (plaintiff) TAFE NSW Western Institute (first defendant) Glenn Alexander Manton (second defendant)
Representation:	Counsel: J Morris with R Bianchi (plaintiff) M Fordham SC (first defendant) M McCulloch SC with T Berberian (second defendant) Solicitors: Burke Elphick Mead (plaintiffs) Bartier Perry Pty Ltd (first defendant) HWL Ebsworth (second defendant)
File Number(s):	2012/83757; 2012/83775; 2012/91788

EX TEMPORE Judgment

On admissibility of evidence; see transcript p242

1. Mr Morris of counsel who appears with Ms Bianchi, also of counsel, for the plaintiff has called Ms Michelle Harris to give evidence in this case. Ms Harris is a journalist who in February of this year worked for a Fairfax newspaper. She published a story in the Newcastle Herald on 12th February 2013 for the purpose of which she had a telephone conversation with a number of people, including persons at WorkCover, persons at TAFE, and Mr Manton, the second defendant. TAFE, of course, is the first defendant.

1. Ms Harris had a conversation with Mr Manton over the telephone, during which he is said to have made certain admissions, and Mr Morris wishes to introduce evidence of those admissions before me. Mr McCulloch SC who appears with Ms Berberian of counsel for the second defendant objects to the tender.

1. Section 56 of the Evidence Act 1995 (NSW) provides:

(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.

Section 55 defines relevant evidence in the following terms:

The evidence that is relevant in the 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 proceedings [my emphasis].

1. After Mr McCulloch took his objection and made some submissions about it, I asked Mr Morris to what fact in issue this evidence went, and he drew my attention to paragraph 47 of the amended statement of claim which is in the following terms:

The second defendant knew or ought to have known that there was a risk of the horse known as Snakey Thought (aka Dargo) bolting when being ridden by novice riders, including Sarah.

1. The reference to Sarah is a reference to the deceased daughter and sister of the plaintiffs, Sarah Waugh. The particulars of that knowledge provided in accordance with the rules include the following matters:

The second defendant knew or ought to have known that:

(i) Snakey Thought was a racehorse;

...

(iii) this horse had recent racing history in the weeks and months before the supply to the first defendant.

By paragraph 24 of the defence to the amended statement of claim, the second defendant avers as follows:

In relation to para 47 of the plaintiff's claim, the second defendant:

(a) denies that he knew or ought to have known that there was a risk of the horse bolting as alleged or at all;

(b) denies each and every particular of knowledge listed therein.

1. It is unnecessary for me to list the other matters particularised or specified in paragraph 24 of the amended defence.

1. I am more than satisfied that the state of the first defendant's knowledge of the matters averred and particularised in paragraph 47 is a fact in issue in this case, and that evidence of representations to that effect made by him to another could rationally affect directly or indirectly the assessment of the probability of the existence of that fact in these proceedings; ie did the first defendant have the requisite knowledge as alleged by the plaintiffs.

1. An admission, of course, is a statement against interest, and one would understand that to mean against the position that one has adopted in one's pleadings for the purpose of the litigation. Section 81 of the Evidence Act provides that the hearsay rule and the opinion rule do not apply to evidence of an admission. That exception is also extended to incorporate representations surrounding the admission, to put it in context.

1. None of the other provisions of Pt 3.4 of the Evidence Act seem to me to relate to the question I have to decide. On my analysis so far, the evidence tendered is admissible, and I am bound to admit it.

1. The evidence is relevant in the sense of being probative of a fact in issue, and calling evidence of Ms Harris to prove the representation made by Mr Manton, whether in due course I accept it or not, is a permissible means of proof given that s 81 of the Act creates that exception to the hearsay rule.

1. Learned senior counsel relies upon the provisions of s 135 Evidence Act, which is in the following terms:

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.

1. Naturally, if in due course the evidence were accepted, it would be prejudicial to the second defendant in the sense that it would be adverse to the case he wishes to make because it may damage his case. That is not what prejudice means in this context: Ainsworth v Burden [2005] NSWCA 174.

1. However, Mr McCulloch points to two factors, I think, in substance. First, the evidence is likely to be inherently unreliable, given that the admission was made in February 2013, four years after the tragic events with which this case is concerned. And after Mr Manton had, in common with the other parties to the case, been through the process of a WorkCover investigation and the long inquest, and, no doubt, this litigation's early stages, all of which is likely to have, as I understand the submission, affected the reliability of anything he might have said, informed as it was by all of that extraneous information so long after the event.

1. The second matter that is put is that no proper notice in the form of a witness statement from Ms Harris was provided to the first defendant in accordance with the modern practice under the rules of court, and perhaps with some directions that may have been made by the list judge during the course of judicial case management of these proceedings.

1. So far as the first objection is concerned, there is no doubt force in senior counsel's argument. It seems to me, however, that those considerations to which he has referred fundamentally go to the question of weight which in my judgment can only be decided at the end of the day, when all of the evidence is in, including any evidence Mr Manton may wish to give about the matters, and the time comes for me to consider my decision in the case.

1. Naturally, admissions do not operate as conclusive evidence of the representations they contain. It is long established in Australian law, at least since the decision of the High Court of Australia in Lustre Hosiery v York (1935) 54 CLR 134, that admissions are always susceptible to explanation in the evidence. And it seems to me that, should the second defendant wish to take the course that is open to him to explain from his point of view, if he accepts the statements attributed to him, the circumstances in which they were made may lay a foundation for counsel's submission that I should not accept them as reliable, or if I do accept them, that I should not accord them any significant weight.

1. I am not persuaded by Mr McCulloch's first point. So far as the second point is concerned, exhibit N consists of a notice to admit facts and authenticity of documents, and a notice disputing facts and authenticity of documents.

1. In short, as long ago as February 2013 when the matter was still in the District Court of New South Wales, the plaintiffs sought the defendants' admission of the content of the representations said to be made to Ms Harris and the authenticity of the account she wrote and published in the paper. As he was entitled to do under the rules, the admissions sought and the authenticity of the document were disputed by Mr Manton. It seems to me that this familiar process gave ample notice to the second defendant that if he persisted in disputing those matters, the plaintiff would seek to lead evidence at this trial to prove them. Not only that, but the substance of the evidence was fully disclosed because Ms Harris's article sets out exactly, in a quote, what she says that Mr Manton said on the occasion of her conversation with him. I stress I am not determining now whether the evidence which I am yet to hear from Ms Harris is acceptable. The only question for me is whether it admissible. For the reasons I have given, I am of the view that it is and I am not persuaded, having regard to the provisions of s 192 of the Evidence Act, which I need not go into in detail as I was not addressed about any particular aspect of them, that I should exercise the discretion the Court has under s 135 of the Act to exclude the evidence.

1. My ruling is that I will permit the evidence of Ms Harris to be given in the usual way.

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