Maritime Union of Australia v Geraldton Port Authority [1999] FCA 685

FEDERAL COURT OF AUSTRALIA

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 101 OF 1998

BETWEEN: MARITIME UNION OF AUSTRALIA

First Applicant

PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVE PENNEY

Second Applicant

AND: GERALDTON PORT AUTHORITY

First Respondent

ERIC CHARLTON

Third Respondent

MURRAY CRIDDLE

Fourth Respondent

JUDGE: R D NICHOLSON J

DATE: 21 MAY 1999

PLACE: PERTH

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.