Maritime Union of Australia v Geraldton Port Authority [1999] FCA 685
EVIDENCE – admissibility – objections - rulings
MARITIME UNION OF AUSTRALIA, PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN AND STEVE PENNEY v GERALDTON PORT AUTHORITY, ERIC CHARLTON AND MURRAY CRIDDLE
WAG 101 OF 1998
R D NICHOLSON J
21 MAY 1999
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
First Applicant
PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY Second Applicant
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AND: |
First Respondent
ERIC CHARLTON Third Respondent
MURRAY CRIDDLE Fourth Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT – RULINGS ON EVIDENCE
R D NICHOLSON J:
1 These are my rulings and reasons for them in respect of objections to evidence made at the close of the hearing of oral evidence.
Documents admitted by one respondent and objected to by other respondents
2 The preliminary question arises as to whether a document introduced into evidence by one or more of the respondents, or without objection, by one or more respondent can be open to objection by another respondent in respect of its admissibility against that respondent. The issue arises because in the case for the third respondent his affidavit was tendered on the basis that the third respondent did not seek to have certain identified annexures “read so as to be introduced into evidence as against the first or fourth respondents”.
3 On the opening day of trial Mr Martin, counsel for the third respondent, submitted that there would inevitably be circumstances where evidence would be admissible against one respondent and not admissible against others on perfectly legitimate considerations. He considered it inevitable that the documents would be admissible for some limited purpose. In response it was submitted for the applicants that it was difficult to imagine as a matter of principle how any act which is relevant and admissible against one respondent was not going to be evidence which could be used in some sense against the other respondents, subject to matters such as the principle in Ahern v R (1988) 165 CLR 87.
4 On 7 April 1999 Mr Martin made the tender of the third respondents’ affidavits in the following terms:
“If your Honour pleases, subject to a qualification which I have spelled out in writing, I tender both those affidavits. I would just hand the written document to your Honour which makes our position clear. Your Honour, certain objections were taken in relation to annexures that I have identified in paragraph 1, they being objections taken by the first respondent, the GPA, and concurred in I think by the fourth respondent. That being the case, I want to make it plain that I’m not tendering those documents as against those respondents but only as against the applicant. Secondly, I wanted to make it plain, lest there be any doubt, that EJC21 is not introduced into evidence as to the truth of its content. That memorandum, your Honour, is designed to make that plain.”
In respect of the affidavit sworn on 9 February 1999 the memorandum provided to the Court by Mr Martin was in the following terms:
“Re the Affidavit of Eric Charlton sworn on 9 February 1999
1. They being objected to, the third respondent does not seek to have Annexures EJC1, 2, 3, 7, 10, 18A, 20, 21, 24, 25 read so as to be introduced into evidence as against the first or fourth respondents.
2. Whilst it should be obvious from paragraphs 47, 48 and 49 of the affidavit, it is expressly stated for the record and for the avoidance of doubt that EJC21 is not introduced into evidence as to the truth of its contents.”
I refer to these paragraphs as “qualification 1” and “qualification 2” respectively.
5 Mr Redlich senior counsel on behalf of the applicants responded to the tender by saying that he wished the opportunity to consider the qualifications proposed because on the face of them he thought there was a difficulty in principle with them. Accordingly, the affidavits were marked for identification only. Later on the same day the question of the effectiveness of the qualifications sought to be put on the tender by Mr Martin on behalf of the third respondent was, at the request of Mr Redlich, deferred to the conclusion of the case. Mr Martin accepted that course on the basis that the documents were objected to on behalf of the first respondents. This course was acceptable to the counsel for the first respondents.
6 On 19 April 1999 with reference to Exhibit EJC21 exhibited to the affidavit of the third respondent (document P155) counsel for the applicants again submitted that argument on admissibility and whether admissibility could be limited in respect of a particular respondent should be put over to the end of the case. Mr Redlich said that his understanding of Mr Martin’s position was that Mr Martin was not seeking to not have the document admitted – rather he wanted to persist with his position that it was being admitted but only on the limited basis stated in the memorandum.
7 Mr Le Miere senior counsel for the first respondent objected to cross‑examination on the representation by Mr Clarke in document P155. The ground of his objection was that as the document had been tendered on the limited basis in par 2 of Mr Martin’s memorandum, namely, not for the truth of its contents, there was no evidence of a previous representation upon which cross-examination could occur in accordance with subs 44(2)(b) of the Evidence Act 1995 (Cth). In the course of submissions Mr Redlich asserted that the only objection to the admission of the third respondent’s affidavits was the effect of the qualification placed on them by Mr Martin in the memorandum. To assist resolution of the matter he proposed that he withdraw his objection requiring the affidavit to be given an MFI number and argue later that the limited basis of tender proposed by Mr Martin could not be effective.
8 Mr Martin for the third respondent accepted that Mr Redlich had stated the third respondent’s position correctly. He confirmed that the third respondent sought to introduce as against the applicants document P155 and that his position was entirely encapsulated in the memorandum.
9 Mr Tannin on behalf of the fourth respondent referred to submissions prepared primarily raising an objection of relevance in relation to the fourth respondent. In addition, other objections were raised which are subsequently addressed in these reasons in relation to documents P155 and P158. Mr Redlich made submissions in effect stating that these matters would be dealt with at a subsequent stage. He also made it clear that the applicants were not merely relying upon document P155 as to the truth of its contents but as to the effect which it had on the conduct of Mr Durant and the members of the first respondent as a result of the advice given in it.
10 The ruling was that the applicants should be allowed to put the questions relating to the alleged previous representation but without prejudice to full argument on whether the previous representation is admissible in the case against the first respondent or the case against the fourth respondent. As a consequence of the withdrawal of the applicants’ objection to MFI 8 and the preservation of the position referred to in the memorandum, MFI 8 was accordingly marked as Exhibit 8 with the memorandum attached to it and reserved for future argument.
11 The position therefore in relation to the objection raised by Mr Le Miere on behalf of the first respondents was that any evidence taken in relation to the alleged previous representation was to be considered in the light of the ultimate resolution of the argument over the second qualification in Mr Martin’s memorandum – namely, whether the qualification that document P155 was not introduced into evidence as to the truth of its contents was effective.
12 On behalf of the first respondent it is now argued that it is open to a party tendering an affidavit to rely on part only of it in support of that party’s case. Similarly it is submitted that the party is entitled to specify that part of the affidavit not being adduced against certain parties. In support of this reference is made to Barristers Board v Tranter Corporation [1976] WAR 65 at 67.
13 Having examined that reference I accept the submission for the applicants that there is nothing said there to support or deal with the proposition that a party can specify part of the evidence which it leads is not to be used against certain other parties. At best the passage addresses the question as to the right of a party to be selective as to which portion of an affidavit is read into evidence by that party.
14 I do not accept the submission for the first respondent that in tendering the third respondent’s affidavit counsel for the third respondent was “provisionally preserving inter alia the right of the first respondent to object to the admission of” document P155. The qualification appears in clear terms in qualification 1. There is no qualification on the introduction of the affidavit (and thereby document P155) into “the proceeding” as evidence against the third respondent save as specified in par 2 of the memorandum. Qualification 1 seeks to qualify the admission only as against the first or fourth respondents. That was Mr Martin’s understanding when he affirmed Mr Redlich’s understanding of the third respondent’s position on this aspect.
15 In my opinion it inevitably must follow that the third respondent’s affidavit, subject to the effect of qualification 2 has been introduced into evidence in “the proceeding”. Qualification 1 of the memorandum therefore is not effective as against the first or fourth respondent to raise a general ground of objection to the admissibility of the affidavit sworn on 9 February 1999 into the proceeding. Having become part of the proceeding, that affidavit may be used in the proceeding and the only principle by which its use may be limited as against another party is where there is in existence a principle, such as the Ahern principle, limiting the use of evidence already admitted in the proceeding.
16 In relation to qualification 2 I consider that it is open to a party to tender evidence on a limited basis. It is for the party to decide what evidence is to be tendered and on what basis it is to be tendered. The tender on behalf of the third respondent of Exhibit EJC21 (document P155) was that it was not introduced into evidence as to the truth of its contents. That is a qualification which in my opinion is effective and it is effective against all parties to the proceeding unless there is some other basis on which the document can be admitted as to the truth of its contents.
17 In my view qualification 2 is in an entirely distinguishable category to qualification 1. Qualification 1 is preceded by the introduction of evidence into the proceeding. The party introducing that evidence seeks to limit the use of that evidence within the proceeding but has no basis for doing so. Specifically, qualification 1 did not preserve the right of the first or fourth respondents to object to admissibility “in the proceeding”. It only sought to qualify the introduction into evidence of the enumerated documents “as against the first or fourth respondents”. Qualification 2 was a qualification placed by the party tendering the evidence and determined the basis on which that party introduced the evidence into the proceeding.
18 In submissions delivered on the 19 May (1) the first respondent reasserted that it had objected to the admission of the documents referred to in qualification 1, (2) that the third respondent’s affidavit had been tendered on the basis the documents were not tendered as against the first respondent, and (3) admission took place on that basis. Each of assertions (1) and (2) is correct. However as to assertion (3), the effect of the tender on behalf of the third respondent was to introduce the affidavit “into the proceeding” and hence to negate the reservation in (2).
19 I accept that the Court, and in my understanding the parties, treated document EJC21 and document P155 as being the same document.
20 In the same submissions reference was made to a statement by the Court (at transcript 1158 line 25) that the Court should give each of the respondents the opportunity to state any objection that they would raise in relation to document P155. Reference to that transcript shows it is a statement by the Court put in the form of a question to counsel for the applicants. Mr Redlich disputed the correctness of the understanding in the question and stated that he took issue with the fact that in admitting the documents into evidence they were only being admitted for one purpose and not for another.
21 The same submissions also make reference to the ruling by the Court (at transcript 1164 line 33) that the position of the first respondent to make full argument on whether the previous representation in document P155 was admissible in the case against the first respondent or the case against the fourth respondent was reserved. That must necessarily be the case because qualification 2 to the memorandum of the third respondent was effective to achieve that result in that the document was not introduced into the proceeding as evidence for the truth of its contents.
22 As reference to the rulings in relation to documents P155 and P158 later in these reasons will disclose, the position reached is that those documents can only be admitted on the basis of the third respondent’s tender – that is not as to the truth of their content. If there is any implicit argument in the first respondent’s final submissions directed to fairness in the proceeding, no such unfairness is established in circumstances where the first respondent is left in the same position as was achieved by the terms of tender made by the third respondent of document P155.
23 It should be added that position is reached only after each of the objections raised on behalf of the first and fourth respondents in relation to documents P155 (and P158) is considered subsequently in these reasons.
24 The only other documents referred to in qualification 1 in relation to which objections by the first respondent were resolved adversely to it are EJC1 (D7), EJC2 (D15 and EJC3 (D26). These reasons have expressly reserved the right of any respondent to argue a document admitted to the proceeding has no weight in respect of it or him whether on grounds that may have supported an objection to relevance to the proceeding or otherwise.
Objections on relevance
25 Objections on the ground of relevance to documents (other than those in the third respondent’s affidavit) require consideration of whether the evidence is relevant ‘in the proceeding”. Subsection 55(1) of the Evidence Act provides that “the evidence that is relevant in a 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 proceeding”. Section 56(1) provides “except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding”.
26 Many of the objections on the ground of relevance are made in relation to the party taking the objection in relation to the interests of that party. That alone, even if correct, would not be sufficient to ensure that the evidence in issue was not relevant in the proceeding. Admission in the proceeding will make the document potentially relevant to all parties but it may have no weight against a particular party precisely because of the reasons which have led to an objection by that party to the relevance of document as against that party.
Objections on hearsay and other grounds
27 Where an objection to document (other than the third respondent’s affidavit) is made on the ground of hearsay the objections have not been related only to the particular party. Hearsay objections have therefore fallen by their nature to be considered in relation to the proceeding as a whole. If, for example, an objection on the ground of hearsay taken by a respondent to evidence (other than that admitted by the third respondent or otherwise) is allowed, it will have the effect of precluding that evidence from the proceeding as a whole and not only as against the objecting respondent. This must follow because if the evidence is hearsay and objectionable, it is objectionable in the proceeding on that ground. In such a case the absence of objection from the respondents other than the respondent objecting cannot have any effect to secure the admissibility of the evidence to which the objection relates.
Document P7 [First Respondent – relevance] [EJC1]
28 Document already admitted into the proceeding as part of the third respondent’s first affidavit. Objection is therefore not allowed. Issues of weight await final submissions.
Document P15 [First Respondent – relevance] [EJC2]
29 This letter was admitted into evidence by the third respondent. The letter being in evidence the objection is not allowed. In any event the objection is partly grounded on lack of relevance to the third respondent’s state of mind and it is the third respondent who has admitted the document.
Document P26 [First Respondent – relevance] [EJC 3]
30 This document is in the same category as Documents P7 and P15 and for the same reason the objection is disallowed.
Document P50 [First Respondent – relevance]
31 I accept the submissions for the first respondent that the relevance of a document for the purposes of discovery is different from its relevance for evidentiary purposes.
32 However the document is relevant to the state of mind of the third respondent at the time the media statement comprising document P50 was made. There was evidence it was sent to all Port Authorities. I therefore would not allow the objection on the ground of relevance. Whether the document can be used in relation to the first respondent will arise as a question of weight.
Document P66 [First Respondent – date] [EJ7]
33 The document is admitted on the basis that the date reference “25/8” is to be understood as a reference to 25 August 1998, for the reasons submitted on behalf of both the applicants and the first respondent.
Document P71 [Third Respondent – relevance; Fourth Respondents – author unknown]
34 The objection for the third respondent is made on grounds of relevance to the third respondent alone. For the reasons advanced on behalf of the applicants with reference to the evidence of Mr Durant in relation to this document I find it relevant to the proceeding. Whether or not the document has any weight against the third respondent or whether the Ahern principle limits its use against the third respondent (or the fourth respondent) is a matter for resolution in final submissions.
35 The identity of the author is identified in the evidence. The hearsay objection is withdrawn so that consideration of the application of s 64(3) of the Evidence Act is not necessary.
Document P80, P80A, P82, P83, [Fourth Respondent – relevance]
36 These objections are now withdrawn.
Document P91[Fourth Respondent – relevance]
37 The applicants seek to admit the letter as relevant to the state of mind of both the first and third respondents at a relevant time about the importance attached by the third respondent to “continuity of service”. The fourth respondent contends that because of absence of oral evidence in relation to it the weight to be attributed to it is “so infinitesimally minimal” that it is irrelevant. In the context of this trial and the course of documentation relied on by the applicants I do not consider it can be found to be insufficiently relevant. The objection is disallowed.
Document 91A [Fourth Respondent]
38 The applicants do not seek to rely on this document.
Document P98 [Third Respondent – relevance; Fourth Respondent – relevance, prior consistent statements]
39 The document is a prior consistent statement by the first‑named second applicant. He gave evidence. No evidence was led from him in relation to this document. Consequently the exception to the hearsay rule in s 64(3) of the Evidence Act 1995 (Cth) has no application. The document cannot be admitted therefore for the truth of anything in it said to have been stated by any of the persons there referred to.
40 There was evidence that a copy of the transcript was provided to all members of the first respondent by Mr Durant. The document therefore is not irrelevant. I accept the submissions for the fourth respondent that the document can only be admitted to prove it was received by members of the first respondent and it is admitted on that limited basis.
41 The objection of the third respondent on the ground of relevance is in relation to relevance to the third respondent only. The document being relevant to the proceeding, any evidentiary effect in relation to the third respondent (if any) falls to be considered as a question of weight.
Document P100A [First Respondent – hearsay; Fourth Respondent – relevance, hearsay]
42 I accept the submissions for the third and fourth respondent that the document is hearsay. It does not fall within the exception contained in subs 69(2) of the Evidence Act. No evidence was led for the applicants to establish that the document formed any part of the business records of the company identified on the face of the document. It is not contended for the applicants that the document was part of the business records of the first respondent.
43 I accept the submissions for each of those parties that the evidence of Mr Durant did not have the effect of confirming the accuracy of the document as a whole.
44 Accordingly, I allow the objections on the ground of hearsay.
Document P102 [Third Respondent (now) – relevance, hearsay;
Fourth Respondents – Ahern]
45 It is accepted that the Ahern objections, with two exceptions of which this is not one, fall to be considered at the time of final submissions.
46 At the commencement of the hearing the third respondent was not an objector to this document. On behalf of the applicants it is submitted that the third respondent having previously assented to the reception of the document cannot now be heard to raise an objection in relation to it. The basis on which the Exhibit P was admitted was that the documents marked on the list handed to the Court as documents in relation to which objections would be raised would not be admitted on the marking of Exhibit P. If the objections were not upheld they would then be admitted into the relevant number in Exhibit P. What was not made expressly clear was whether any party, including a party from whom the objection had not originated, could make an objection in relation to a document so marked. However the list itself did not identify the original objector. Consequently, I consider any party was entitled to regard any document so marked on the list as open to objection by it. I therefore would not exclude this objection of the third respondent on the ground that the third respondent did not make earlier objection. Similarly, any other objection raised by the third respondent now to a document marked on the list handed to the Court at the time of the admission of Exhibit P would not be excluded on the ground that the third respondent had not made earlier objection.
47 The ground of relevance addresses relevance to the case of the third respondent. There is no ground that the document is irrelevant to issues in the proceeding and neither the first nor fourth respondent make any objection on the ground of relevance. Mr Durant gave evidence that he considered document P102 were notes that he had written up after visiting the third respondent. He gave further evidence relating to his understanding of the notes. In my opinion, such evidence demonstrates that in the nature of the case being brought against the respondents document P102 is relevant evidence. The objection by the third respondent is therefore not allowed on the ground of relevance. Whether the evidence carries any weight as against the third respondent is a matter for future argument.
48 As to the third respondent’s objection on the ground of hearsay I consider that the document is, on the evidence of Mr Durant, a business record for the purposes of the application of subs 69(2) of the Act. The document P102 is on Mr Durant’s evidence a document which formed part of records kept by him in the course of, or for the purposes of, the business of the first respondent. “Representation” is defined in the dictionary to the Evidence Act to include “a representation not intended by its maker to be communicated or seen by another person”. Mr Durant’s evidence was also that some of the notes referred to matters raised by the third respondent. Whether the notes reflected his own thoughts or the Minister’s statements I consider they qualify as a “previous representation”. On Mr Durant’s evidence it is clear that he had personal knowledge of the asserted facts: see subs 69(5). The exclusionary effect of subs 69(3) is inapplicable. In my opinion, the subsection is applicable to provide an exception to the hearsay rule, I would disallow the objection on the ground of hearsay.
Document P130 [Objection is to the handwritten words only: Third Respondent – relevance, handwriting unidentified; Fourth Respondent – hearsay, handwriting unidentified]
49 The third respondent objects to the handwritten words on this document reading “no real intention of doing it”. It is submitted the authorship of the words is unknown, they are irrelevant in hearsay and, in accordance with the Ahern principle, no link has been established to the third respondent. That latter aspect awaits final submissions if the document is admitted.
50 The handwriting remains unidentified. It could not be identified by Mr Durant, the third respondent or Ms Calder.
51 For the applicants it is submitted that the document came into existence and was forwarded by the first respondent to the third respondent’s office at the time of the third respondent was the Minister. It is submitted the Court should draw an inference at the author of the words was working in the office of the third respondent. For the fourth respondent it is submitted that whether or not the inference can be drawn of that fact the handwriting is hearsay. I accept that latter submission.
52 For the applicants reliance is then placed on subs 69(2) of the Evidence Act to provide an exception to the hearsay rule on the basis the document is a business record. For the applicants it is submitted that given the circumstances of the document and the relationship between the Ministry and the first respondent it is likely that the information supplied was provided by a person who might reasonably be supposed to have had personal knowledge of the asserted fact. In my opinion that inference is not open when the identity of the person is unknown. The requirements of subs 69(5) and of subs 69(2)(a) cannot be met on the present state of the evidence. In my view the application of the exception of subs 69(2) is therefore not established.
53 Accordingly, the objections to the unidentified handwriting are allowed.
Document P132 [First Respondent – handwriting unidentified; Third Respondent (now) – handwriting unidentified; Fourth Respondent – handwriting unidentified]
54 For the reasons previously given I consider that because the document was marked on the list handed to the court that it is open to the third respondent to now object to it.
55 The handwriting on the document is hearsay and inadmissible. No foundation was laid during the course of the trial to establish the identity of the author of the handwritten comments. It was not put to relevant witnesses. The subs 69(1)(b) does not apply to it for the same reasons that subsection did not apply to the handwriting on document P130.
Document P134 [First Respondent – Ahern; Fourth Respondent – Ahern] [EJC 18]
56 For the reasons given earlier the document is in evidence as part of the evidence of the third respondent. The application of the Ahern principles to this document in relation to the first and fourth respondent awaits final submissions.
Document P137 [First Respondent – relevance, Ahern; Fourth Respondent – Ahern]
57 There is evidence in Exhibit P/137A that a copy of this exhibit was provided to the members of the first respondent. Exhibit P/137A itself concludes a copy of Exhibit P137. Consequently, it could be contended that P137 is already in evidence as part of Exhibit P137A. However the list of documents upon which the parties have relied lists the fax (P137A) separately from the newspaper clipping (P137) and I approach the matter on that basis which has been the common factual assumption of the parties at the trial.
58 In relation to the first respondent there is no basis for objections on the ground of relevance. The evidence in Exhibit P/137A is that Mr Durant provided it to the members of the first respondent. The understanding of the members of the first respondent of the policies and wishes of the third respondent is a central issue at trial. The document is relevant.
59 The document can only apply to the case against the fourth respondent by the application of the Ahern principle.
Document P143 [Fourth Respondent – relevance]
60 Objection by the fourth respondent is no longer maintained.
Document P148 [First Respondent – Ahern] [EJC 20]
61 This objection is no longer pressed by the first respondent.
Documents P155 and P158 [First Respondent – relevance, hearsay; Third Respondent – hearsay, not tendered against other respondents; Fourth Respondent – relevance, opinion, hearsay] [EJC 21]
(a) Document in evidence from tender by Third Respondent
62 It is contended for the applicants that the document P155 was tendered by the third respondent as to the question of the truth of its contents and for no other purpose. It is said that follows from the third respondent’s affidavit and his evidence and that consequently the evidence should be so admitted notwithstanding the purported limitation in qualification 2 of the memorandum on the tender.
63 Paragraph 47 contains evidence in which the third respondent identifies document P155 and the attached uncorrected copy of Hansard (P156). The circumstances of the latter are explained. None of that is inconsistent with a tender of the Exhibited document P155 on the basis that it is not introduced into evidence as to the truth of its contents. The denials in pars 48 and 49 of the truth of aspects in document P155 is consistent with the evidence given by the third respondent in relation to the document. In my opinion, there is consistency between the utilisation in evidence and the reservation on tender. In any event I regard the reservation in qualification 2 as a fundamental to the tender so to be overriding in its specification as to how the tender of that exhibit was to be received by the Court.
64 It is correct that the document is in evidence as a consequence of the tender by the third respondent. However it is in evidence on the basis that it is not introduced into evidence as to the truth of its contents.
(b) Agency
65 For the applicants it is contended that both documents were prepared by agents of the first respondent within the scope of their agency and proved not only the agents but their principal’s state of mind.
66 The starting point is the assertion on behalf of the applicants that the evidence establishes the documents were prepared by servants or agents of the first respondent. There is evidence that at the meeting of the first respondent on 29 January 1998 it had been resolved that the “appointment of a HR Manager be approved on a monthly review and renewable contract”. Mr Clarke was appointed by the first respondent at its meeting on 27 February 1998 as “a temporary HR Manager”. The evidence of Mr Burrows was that Mr Clarke was a consultant to management although he agreed he had the position and authority of human relations manager. Mr Ramage testified in cross-examination that Mr Clarke had been appointed as human relations manager on a contract basis to assist with human resources across the whole range of activities concerning them including the work practices and the out sourcing of stevedoring.
67 Mr Halbert testified in cross-examination that Mr Clarke was the human resources manager appointed on the basis stated in the minutes of 29 January 1998.
68 Mr Anderson testified also in cross-examination that Mr Clarke’s job was to try and assist with the implementation of the restructure and was mainly concerned with industrial relations, dealing with human resources and structure. Mr Anderson also testified that Mr Clarke had been supplied as temporary human resources manager by Strategic Human Resources. His role included a range of matters relating to human resources in the Port including negotiations for a certified agreement. It also included matters relating to the decision to exit stevedoring and the implementation of the plan to do.
69 On the basis of this evidence I find that Mr Clarke was an agent of the first respondent and that in carrying out his duties he was acting within the scope of his agency.
70 It is accepted for the first respondent there was evidence that both Mr Clarke and Mr Scott were employed by an agent of the first respondent. In my opinion the evidence does not enable any finding to be made in relation to Mr Scott. Furthermore, it supports only a finding that Mr Clarke was himself an engaged consultant of the first respondent and not that his firm had been engaged as the consultant.
71 For the applicants it is contended that on ordinary agency principles the actions of the agents are actions of the principal. For the first respondent it is contended that the law of agency does not render admissible statements or representations by an agent that would not otherwise be admissible and that admissibility in such circumstances can only be determined by consideration of the agent’s authority and the nature of the statements. I agree with the submissions for the first respondent. Statements made by an agent within the scope of an agent’s authority and during the continuance of the agency may be admitted where they are in the nature of admissions against the principal. The representations in document P155 do not have that character. Nor were the statements made to a third party or in the course of a conversation or other communication made with the authority which the agent was authorised to have with that third party: see Cross on Evidence (5th Australian Edition) at p 947, par 33540.
72 A further submission is that s 72 of the Evidence Act applies so as to excuse from the application of the hearsay rule the representations made by Mr Clarke and Mr Scott (presumably in the place of the principal) in the documents. This is on the ground that those representations are to be seen as a contemporaneous representation concerning the first respondents’ intention or state of mind.
73 In my opinion s 72 cannot apply to admit the evidence even if Mr Clarke and Mr Scott are to be seen as agents of the first respondent. Its application would be dependent upon some foundation having been laid that Mr Clarke or Mr Scott had knowledge of the intention or state of mind of the first respondent. There was no evidence of any representations in that regard having been made to Mr Clarke or Mr Scott by members of the first respondent. All members of the first respondent testified they had made no such representations to Mr Clarke. The knowledge of state of mind was by its nature known only to each member of the Board in the absence of evidence of communication elsewhere.
(c) The application of the Workplace Relations Act 1996 s 349
74 Section 349 of the Workplace Relations Act 1996 provides:
“349 Conduct by officers, directors employees or agents
(1) Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the officer, director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by:
(a) an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) any other person at the direction or within the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority f the officer, director, employee or agent;
shall be taken, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.”
For the applicants it is submitted that the documents are to be seen as having been written by agents of the first respondent acting within the scope of their authority so that the state of mind of the authors of the documents shows the state of mind of the first respondent.
75 It is said the relevant conduct for the purposes of the application of the section is the making of the documents and the giving of advice.
76 When in document P155 Mr Clarke attributes certain motives to the members of the first respondent he is not saying that he has those motives. That is, the conduct engaged in by Mr Clarke as the author of document P155 was to attribute motives to the members of the first respondent: it was not aside from that, conduct of Mr Clarke himself. Mr Clarke was not an agent who himself “engaged in” the particular conduct. There is therefore no appropriate basis for the application of s 349 in respect of him.
77 The section cannot apply to Mr Scott in respect of document P158 because the agency relationship between him and the first respondent has not been established.
(d) Non-application of hearsay rule
78 Next it is said for the applicants that both of the documents constituted advice given by Mr Clarke or Mr Scott to Mr Durant. Therefore it is said they are admissible on the basis that they were advice given, considered and acted upon and so relevant to the course of conduct leading to the restructuring. On this basis it is submitted the documents should be admitted not for the truth of the content of the document but upon the fact that the advice was given.
79 For the first respondent it is contended that there is no evidence that the document P155 was considered much less acted upon. The evidence established Mr Durant saw the document although he considered it was in part wrong. Mr Altham was asked whether he had received the document in the ordinary course and he responded that he had read it. He also testified he had read document P158 and that he had received both documents before the case commenced. He denied taking into account the content of Mr Scott’s document P158 in consideration of the decision to exit stevedoring but on further cross-examination said that he had not ignored it totally and it had been something to think about but it was not taken in as a major consideration.
80 On the basis of this evidence I consider the applicants are correct in their submission that the document P155 is relevant to the course of conduct leading to the restructuring.
81 For the third respondent it is submitted that each of the documents should be seen as completely baseless speculations of Mr Clarke and Mr Scott as to the first respondent’s state of mind and that they cannot be characterised as constituting “advice”. I do not accept this submission. In my opinion, each of the documents is appropriately characterised as in the nature of advice. So far as they contain speculation as to the state of mind of the first respondent, the documents would not be admitted as evidence of the truth of such assertions or indeed of any other matters contained in them. They would be admitted only as to the fact that such advice was given.
82 For these reasons I consider that the applicants would be entitled to tender the documents P155 and P158 as relevant documents on the basis that they are not tendered for the truth of their contents but only for the fact advice was given. Document P155 is already in evidence on that basis – see par (a) above.
(e) The statements made in the documents were made in furtherance of a common purpose and thus admissible under the Evidence Act s 87
83 Subsection 87(1) relevantly provides:
“87(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(a) …
(b) …
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party."
For the applicants it is contended that the relevant common purpose is the purpose of the conspiracy. That of course is a central issue in the proceeding. It cannot be assumed to enable the application of the paragraph nor can it be said, at this stage of the proceeding, to be “reasonably open” in that it is an unproven central fact. In any event I do not consider there is appropriate evidence to support a finding that either document P155 or P158 was given in furtherance of the alleged conspiratorial purpose. The paragraph requires for it to be reasonably open that Mr Clarke or Mr Scott shared a common purpose with the first respondent. That has not been established as reasonably open. Nor has it been shown how the representation was in furtherance of the common purpose.
84 Furthermore neither of the authors of the documents, Mr Clarke and Mr Scott nor the recipient Mr Durant is alleged by the applicants to be a conspirator. There is therefore no foundation to which the allegation of common purpose can attach for the purposes of the application of the paragraph apart (arguably) from the agency of Mr Clarke. No agency has been established in respect of Mr Scott.
(f) The documents will be admissible under the Ahern principle against the third and fourth respondents
85 I consider the final ruling in relation to the application of the Ahern principle should be dealt with the ruling on all evidence to which that principle will be applied.
(g) Admissions
86 The applicants then turned to subs 81(1) of the Evidence Act which provides that the hearsay rule and the opinion rule do not apply to evidence of an admission. “Admission” is defined in the dictionary to mean a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding…; and
(b) adverse to the person’s interest in the outcome of the proceeding”
Previous representation is defined in the dictionary to mean a representation made otherwise than in the course of giving evidence in the proceeding in which the evidence of the representation is sought to be adduced.
87 Mr Clarke is not a party to the proceedings. As a consequence the first limb of the definition of definition of ‘admission’ is not satisfied in respect of him. However, s 87 of the Act sets out circumstances in which admissions made by agents of parties can be treated as having been made by the parties themselves. Relevantly, it provides:
“87(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(a) When the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b) When the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority;
(c) …”.
There is no evidence that Mr Clarke had authority to make statements on behalf of the first respondent as to its motives in taking the proposed action in relation to the bulk handling facility. Nor is there any evidence that Mr Clarke had any authority to act for the first respondent in relation to negotiating or entering the proposed contract in relation to the bulk handling facility. Accordingly, it is not reasonably open to the Court to make either of the findings required by s 87.
88 As to the document P158 there is likewise no evidence of the requisite authority for the application of s 87 been given in relation to Mr Scott.
(h) Business records
89 For the applicants it is next contended that each of the documents P155 and P158 constitutes a business record admissible under s 69 of the Evidence Act. The contentions for the applicants proceed in the following steps:
“· The GPA is a business (clause 1 of Part 2 of the dictionary);
· The documents both clearly form part of the records belonging to or kept by the GPA (see Atra v Farmers and Graziers Co-op Ltd (1986) 5 NSWLR 281)
· Clarke is a person who had or might reasonably be supposed to have had personal knowledge of the facts asserted in document P/155. This is notwithstanding Durant’s denial of this. The evidence clearly establishes that Clarke was intimately involved in all aspects of the Board’s industrial relations activities.
· Clarke is a person who had or might reasonably be supposed to have had personal knowledge of the facts asserted in the first part of document P/158.
· Scott made statements in the second part of document P/158 on the basis of information directly or indirectly supplied by Clarke. (Evidence Act s. 69(2)(b)).”
For the third and fourth respondents it is contended that neither of the documents contains a previous representation made or recorded in those documents in the course of, or for the purposes of, the business of the first respondent. Such a finding is a pre‑condition of the operation of s 69 of the Evidence Act: see par 69(1)(b). It is not enough that the document may form part of the first respondents’ records. There is, however, evidence that the document P155 was given by way of advice to the first respondent in the course of its business and as the consequence of a contract into which it had entered with Mr Clarke.
90 In document P155 the relevant previous representation was that Mr Clarke had stated:
“I have discussed previously with you my concern that the Board does not fully understand the path it is going down or the long term ramifications of the proposed action it intends to take, in trying to meet the Minister’s Reform Programme. I have also stressed the need to ensure the Minister signs off on the Geraldton Port Authority’s proposed course of action, which has primarily been developed to rid the Port of MUA influence and costly penalty rates rather than for strict business or economical reasons.”
In the document P158 Mr Scott wrote that as far as he was aware “it is not now the intention of the GPA to negotiate a Certified Agreement but rather outsource a number of nominated services which would result in the re-deployment or redundancy of those employees affected by this activity.” He continued by saying “if this is the case, the opportunity to bargain in good faith for an agreement that will not be made cannot exist”
91 For the first respondent it is contended that Mr Clarke was not a person who had or might reasonably be supposed to have had personal knowledge of the first respondent’s motives in taking the proposed action in relation to the bulk handling facility. Mr Durant both in his affidavit and oral evidence accepted that Mr Clarke had expressed concerns to him but he considered that Mr Clarke did not understand what the first respondent was or was not doing.
92 Mr Burrows testified in cross-examination that he recalled the comments that Mr Clarke thought the board did not fully understand the path it was going down. He could not recall when he had heard that comment but he considered it had been given at the board by Mr Durant. He did not recall Mr Durant saying that the proposed course of action that Mr Clarke’s comment extended to the characterising of the reasons for the first respondent’s actions. He disagreed that the reasons given by Mr Clarke were in fact the first respondent’s reasons.
93 Mr Ramage testified in cross-examination that Mr Clarke’s memorandum was discussed with him although he could not recall the context in which that had occurred. He considered that the matters in documents P155 and P158 were within Mr Clarke’s and Mr Durant’s field of operations rather than his.
94 Mr Halbert in cross-examination testified that there had been no debate about whether or not to implement the proposal to exit stevedoring although there had been discussion and/or debate about how it best should be done.
95 Mr Anderson in cross-examination said that no-one had ever said to him there was a statement made at the Port that the first respondent’s decision to exit stevedoring was developed to rid the Port of MUA influence and costly penalty rates rather than restrict business or economical reasons. He disagreed with that statement and had not heard it said.
96 There is therefore no direct evidence from any of the members of the first respondents that any of them had told Mr Clarke that their motives were as suggested in document P155.
97 In my opinion in these evidentiary circumstances it is not established that Mr Clarke was in fact in a position where he had “personal knowledge” of the first respondent’s motives in taking the proposed course of action referred to in document P155. It is important that par 69(2)(a) requires reference to “knowledge” that is personal. It is more than “opportunity to be informed”. What is required is “personal knowledge of the asserted fact”. There is no evidence that the asserted fact of the state of mind of the members constituting the first respondent was within the knowledge of Mr Clarke.
98 Even less is it the case that Mr Scott is shown to be in the requisite position of personal knowledge. Indeed the language which he adopts is confined to the circumstances of his own awareness. There is no evidence of him having been made aware of the intentions of the first respondent.
99 It was also submitted for the applicants that the documents P155 and P158 should be regarded as speaking for themselves. Furthermore, it is said that the Court in due course will be asked to make findings of credibility in relation to the members of the first respondent and Mr Durant, the submission being that they should not be believed in relation to this and a number of other issues. Even if each of those witnesses is disbelieved I do not consider that the documents themselves would support the conclusion that either Mr Clarke or Mr Scott had spoken from “personal knowledge” of the first respondent’s motives. The state of mind of members of the first respondent was peculiarly known only to each of them. In the absence of evidence of communication of that state of mind or manifestation of acts from which the state of mind could be inferred, there is no basis upon which it could be further inferred that Mr Clarke or Mr Scott had such personal knowledge. There would be an evident danger in making the inference purely from the documents and the scope of the authority of the agency of Mr Clarke in that the imputed motives referred to by him could have been suggested to him by others in the course of his duties.
100 For these reasons I consider that neither document P155 nor P158 qualify pursuant to the exception in relation to business records in s 69 of the Evidence Act so as to be admissible as to the truth of their contents.
(i) Opinion
101 For the fourth respondent with the agreement of the other respondents it is contended that the documents P155 and P158 contain statements of speculative opinion by Mr Clarke and Mr Scott so that the tender of those documents to prove the truth of those opinions infringes s 76 of the Evidence Act. That section provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
102 The exception in s 77 of evidence relevant otherwise than as opinion evidence is not applicable because the applicants are seeking to have each document admitted as evidence of the truth of the facts about which the opinion is expressed.
103 The exception in s 78 in respect of lay opinions cannot apply in the favour of the applicants because there is no evidence that either Mr Clarke or Mr Scott saw or heard anything about the matters contained in their memoranda. Accordingly, their advice was in the realm of “mere uninformed speculation”: S Odgers, Uniform Evidence Law (The Federation Press, 1995) p.126, par 78.2 citing the Australian Law Reform Commission Report.
104 Subsection 81(1) of the Evidence Act provides that the opinion rule does not apply to evidence of an admission. For reasons previously given I do not consider the documents P155 or P158 can be characterised as containing an admission so that that subsection has no application.
(aa) Receipt of documents
105 Evidence that the documents were received by members of the first respondent in their capacity as such, that is that they are relevant, does not provide a basis of admission in the face of the above objections to them or the limited basis of tender by the third respondent.
Document P156 [Fourth Respondent – Parliamentary Privileges Act 1891 (WA)]
106 In his affidavit the third respondent annexed document P155 together with a copy of a document which he said it appeared was attached to P155. The attached document (P156) was labelled “uncorrected copy of Hansard 4/6/98”. The third respondent’s evidence was that the document P156 appeared to relate to questions asked of him by The Honourable Kim Chance, a member of the Legislative Council concerning the operation of the bulk handling facility at No 4 berth at Geraldton and the question of whether or not he had given a formal directive to the first respondent on that or any other matter since 1 July 1995. The third respondent testified he had answered that he had not given any such formal directive.
107 On behalf of the fourth respondent it is submitted that it is impermissible to use any evidence of statements made in Hansard to inquire into the motives or intentions of the maker or for the purpose of impugning the makers’ conduct outside the House: Cross on Evidence (5th Australian Edition) 1996) par 27095 and the authorities there referred to. It is further submitted for the fourth respondent that the tender of the extract or its use by reference in the contents of Mr Clarke’s memorandum (document P155) would trespass on the privileges of immunities of the Legislative Council of the Parliament of Western Australia: Parliamentary Privileges Act 1891 s 1 and see also Halden v Marks (1995) 17 WAR 447 at 461-462.
108 It is established that Hansard may be tendered to prove, as a fact, that certain things had been said in the course of a debate in the Legislative Assembly: Mundey v Askin [1982] 2 NSWLR 369 at 373. It is also established that it is not open to a party to go directly or indirectly into any question of the motives or intentions of a member of Parliament in anything said or done in the House: Church of Scientology of California v Johnson‑Smith [1972] 1QB 522 at 531. However here the applicants do not seek to rely on the Hansard extract to show the third respondent’s motives or intention. The tender is sought in order to explain par 47 of the third respondent’s affidavit. That being the case no question arises of intrusion into the privileges of Parliament as they are protected by s 1 of the Parliamentary Privileges Act. Accordingly the basis on which document P156 is tendered would be only for a use “in the limited circumstances and for the limited purposes” which have been developed by the courts “to avoid conflict between Parliament and the courts”: Halden v Marks at 463.
109 I do not think that these principles have any different application because document P156 is marked “uncorrected copy” of Hansard. Cross at par 27095 recognises that not only may Hansard be tendered but that other evidence may be led from a member or otherwise as to facts that occurred the sitting. If the “uncorrected copy” does not qualify as Hansard, then it qualifies within the supplementary categories.
Document P182 [Fourth Respondent – hearsay]
110 The objection by the fourth respondent on the ground of hearsay is allowed. There is no evidence of the person who made the representation in the document and the basis for personal knowledge by that person. Accordingly, s 69(2) of the Evidence Act is not shown to be applicable.
Document P187 [First Respondent – relevance, hearsay, opinion; Third Respondent (now) – hearsay; Fourth Respondent - hearsay]
111 The third respondents objection is not disqualified by any issue of timeliness, for the reasons previously given.
112 The objections on the ground of hearsay are allowed. No foundation is laid to enable it to be found that the author of the letter, who was not called, could reasonably be supposed to have had personal knowledge of the asserted facts. Accordingly s 69(2) of the Evidence Act is not satisfied.
Document P193 [Fourth Respondent – hearsay]
113 The objection on the ground of hearsay is allowed. No evidence was led by the applicants to establish that this document formed any part of the business records of the Geraldton Port Users Advisory Group or of any “business” as that term is defined in s 69 of the Evidence Act. Additionally there is no evidence that the author could reasonably be supposed to have the requisite knowledge of the asserted facts. The previous representation sought to be relied upon has not been identified.
Document P194 [Third Respondent (now) – hearsay; Fourth Respondent - hearsay]
114 The objections on the ground of hearsay fall away on the basis that the applicants do not tender the document for the truth of its contents.
Document P197A [First Respondent – relevance, hearsay, opinion; Third Respondent (now) – relevance; Fourth Respondent – hearsay]
115 The objections on the ground of hearsay are allowed. No case is made for bringing the document within any of the exceptions to the application of s 69 of the Evidence Act. On its face the document cannot show the state of knowledge of the first respondent. Accordingly, it is not material that the third respondent did not previously raise his objection.
Document P198 [First Respondent – hearsay, opinion]
116 The objections on the ground of hearsay and opinion are allowed. The authorship of the attachment is not established nor is it established who received it at the first respondent. The attachment contains matters clearly of opinion.
Document P204A [First Respondent – handwriting unidentified, Ahern; Third Respondent (now) – handwriting unidentified; Fourth Respondent – handwriting unidentified, hearsay]
117 The document is admitted subject to the exclusion from evidence from the unidentified handwritten reference to “Tony Clarke”. No foundation has been laid in the evidence to bring about the application of s 69(1)(b) of the Evidence Act in respect of the unidentified handwriting.
Documents P206 – P209
118 These documents are not now relied upon by the applicants.
Document P212A [First Respondent – relevance, author unidentified, hearsay]
119 The document is notes of a meeting at which Mr Durant was present. The author of the notes was not called. No specific representations in the notes are relied on by the applicants. The notes as a whole are not a business record for the purposes of s 69 of the Evidence Act because they do not contain a previous representation made or recorded in the course of, or for the purposes of, the fourth respondent’s business. An inadequate foundation has been laid for the application of s 69 to this document as a business record. The objection on the ground of hearsay is therefore allowed.
Document P215, P218, P219, P221 and P 226
120 These documents are not now relied on by the applicants.
Document P230C [Third respondent (now) – relevance; Fourth Respondent – relevance]
121 The document is relevant to the proceeding in that it relates to issues raised as against the first respondent. The objections on the ground of relevance must therefore be disallowed. In the proceeding there is no issue which would make the document weigh against any issue relevant to the third or fourth respondents. That however, cannot preclude its admission to the proceeding.
Document P242 [Third Respondent (now) – relevance, hearsay; Fourth Respondent – relevance, hearsay]
122 The objections on the ground of hearsay are allowed. No foundation has been laid for the application of the exception to the hearsay rule provided in s69 of the Evidence Act: see ruling on document 193. Without more than the evidence in denial of Mr Durant that he put certain matters to the Geraldton Port Users Advisory Committee, the relevance of the document is not established.
Document P245 [Third Respondent (now) – relevance, hearsay; Fourth Respondent – relevance, hearsay]
123 The ruling on the objections to this document are the same as in relation to document P242.
Document P250A
124 This document is not relied upon by the applicants.
Document P262 [Third Respondent (now) – relevance, hearsay; Fourth Respondent – relevance, hearsay]
125 This document is admitted on the basis that it is an undated newspaper article published and directed only to the awareness of the assertions in it by the first respondent and consequently not as evidence of the truth of its contents.
Document P267 [Third Respondent (now) – relevance, hearsay; Fourth Respondent – hearsay, handwriting unidentified]
126 The objections have been withdrawn.
Objections as to Bundle of Documents tendered on Friday 30 April 1999 by Applicants (Exhibit ‘GG’)
(a) Document 1 [Third Respondent – object only if tendered as to truth of contents]
127 The tender is not directed as to the truth of its contents.
(b) Document 2 [First Respondent – identification, hearsay irrelevant; Third Respondent – date, relevance, weight]
The notes do not qualify for admission as business records. The author is unknown. Mr Durant’s evidence was not to the effect that he had considered the notes. What he testified was:
“what I can say is that I’m sure they are responses to questions that I have asked of individuals, a group of people, or I’ve asked for thoughts or something and I’ve obviously given some basis upon which those questions have been asked for some kind of a response, and it would be in that subject area somewhere”.
Objection was taken to that response and counsel for the Applicants did not press the matter.
It cannot be inferred either from the notes or the evidence of Mr Durant that the notes were prepared by a servant or agent of the first respondent. As the submissions for the first respondent state, even if the inference could be made, there would be no way of knowing the scope of that person’s authority.
It follows that there is no basis upon which the requirements of either section 69 (1)(b) or section 69 (2) can be satisfied.
I therefore allow the objection on the ground of hearsay and also on the grounds of identification and opinion.
(c) Document 3 [Third Respondent – relevance; weight]
128 This objection is not allowed. The document is relevant as against the first respondent and hence to the proceeding. The objection on the ground of weight is not a proper basis of objection. The document is relevant. The weight to be attributed to those documents and whether it is negligible is properly to be considered in the context of this trial in final submissions, as is the application of the Ahern principle to it.
(d) Document 5 [Third Respondent – relevance; Fourth Respondent (only final page) – relevance]
129 I do not accept the submission for the fourth respondent that in respect of the final page the author has not been identified. Mr Durant testified that the final page on which a list of headings appeared was related to the previous two pages although he could not say whether it was part of the same group. He identified the handwriting on the final page as his. The final page is therefore not excluded on the ground that it is unidentified.
130 The third respondent casts his objection in relation to the whole of the document in any event saying that it is irrelevant in the absence of any explanation as to its content and context. I consider that submission is correct so that the objection on the ground of relevance is allowed.
(e) Document 6 [Third Respondent – irrelevant]
131 The issue of operational agreements and overmanning was an issue in the trial. The fax cover sheet identifies the documents which follow as “relevant references” to operational agreements from the Award. This provides the explanation and identification of the documents. The objection is not allowed.
(f) Document 7 [Third Respondent – irrelevant unless document 8 admitted]
132 See ruling on document 8.
(g) Document 8 [Formerly documents 8 and 9) [All Respondents – irrelevant, hearsay]
133 The applicants do not seek to tender the document as to the truth of its contents and so the objections in relation to hearsay fall away. The tender is sought to show that the assertions in the documents were drawn to the attention of the recipients Mr Criddle and Mr Durant. I do not accept that it is established that Mr Criddle was a recipient of the document. On the face of the document it was received by Mr Criddle.
134 I agree with the applicants’ submission that the characterisation of the document as containing inflammatory opinion evidence is not to the point.
135 The real question is whether the document is relevant. In my opinion it is not shown to be relevant to any matter in issue in the proceeding. I therefore allow the objections on the ground of relevance.
136 It follows that document 7 is also not admitted on the basis that it is also not relevant.
(h) Document 9 (Formerly 10) [Third Respondent - irrelevant]
137 The objection on the ground of relevance is made generally and not only as against the case of the third respondent. There is no explanation of the context, content or date of the document. Its relevance is not established.
(i) Document 10 (Formerly 11) [Third Respondent – only if tendered as t truth]
138 I do not accept the submission for the applicants that in writing to the author of the newspaper article and making comments on it without taking issue with those contents Mr Durant adopted the content of the article. Accordingly the objection to Document 10(b) should be allowed and the document admitted except to the extent to which it is sought to be admitted as to the truth of its contents.
139 The third respondent does not object to the admission to the facsimiles referred to and identified as Documents 10(a) and (c).
(i) Document 11 (Formerly 12) [First Respondent – identified, Third Respondent – irrelevant, weight]
140 No foundations have been laid for the application of subs 69(2) of the Evidence Act to allow the admission of this document. Reference to the document does not support the requisite inferences. The objection on the ground of hearsay is allowed.
141 In any event the absence of that foundation results in the document being insufficiently relevant in the context of the trial. It is a heavily notated draft and there is no evidence linking the document to any member of the first respondent.
RULINGS ON OBJECTIONS
(Ahern objections reserved for final submissions)
|
Documents |
Objection Allowed |
Objection Disallowed |
|
7 |
|
X |
|
15 |
|
X |
|
26 |
|
X |
|
50 |
|
X |
|
66 |
AD AS “25/8/98” |
|
|
71 |
|
X |
|
80 |
|
WITHDRAWN |
|
80A |
|
WITHDRAWN |
|
82 |
|
WITHDRAWN |
|
83 |
|
WITHDRAWN |
|
91 |
|
X |
|
91A |
NO RELIANCE |
|
|
98 |
X LIMITED |
|
|
100A |
X |
|
|
102 |
|
X |
|
130 |
X HANDWRITING |
|
|
132 |
X |
|
|
134 |
|
N/A |
|
137 |
|
X |
|
143 |
|
WITHDRAWN |
|
148 |
|
WITHDRAWN |
|
155 |
X LIMITED |
|
|
156 |
|
X |
|
158 |
X LIMITED |
|
|
182 |
X |
|
|
187 |
X |
|
|
193 |
X |
|
|
194 |
|
WITHDRAWN LIMITED |
|
197A |
X |
|
|
198 |
X |
|
|
204A |
X HANDWRITING |
|
|
206 – 209 |
|
N/A |
|
212A |
X |
|
|
215 |
|
N/A |
|
218 – 219 |
|
N/A |
|
221 |
|
N/A |
|
226 |
|
N/A |
|
230C |
|
X |
|
242 |
X |
|
|
245 |
X |
|
|
250A |
|
N/A |
|
262 |
|
LIMITED |
|
267 |
|
WITHDRAWN |
|
GG1 |
|
LIMITED |
|
GG2 |
X |
|
|
GG3 |
|
X |
|
GG5 |
X |
|
|
GG6 |
|
X |
|
GG7 |
X |
|
|
GG8 |
X |
|
|
GG9 |
X |
|
|
GG10 |
X LIMITED |
|
|
GG11 |
X |
|
I certify that the preceding one hundred
and forty one (141) numbered paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice R.D. Nicholson.
Associate:
Date: 21 May 1999
Counsel for the Applicants: Mr R. Redlich QC with Mr W. Friend
And Mr P. Rozen
Solicitors for the Applicants: Maurice Blackburn & Co.
Counsel for the First Respondents: Mr R. Le Miere QC with Mr J.B. Ley
Solicitors for the First Respondents: Freehill Hollingdale & Page
Counsel for the Third Respondents: Mr K. Martin QC with Mr C. Sweeney
Solicitors for the Third Respondents: McCallum Donovan Sweeney
Counsel for the Fourth Respondent: Mr G. Tannin with Mr M. Lundberg
Solicitors for the Fourth Respondent: Crown Solicitor for the State of
Western Australia
Dates of Hearing: 10-12, 15-19, 22-26, 29 March 1999
1 April, 7-9 April, 19-30 April 1999
Date of Rulings: 21 May 1999
