Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Pty Ltd [2000] NSWIRComm 165 PROSECUTOR WorkCover Authority of New South Wales PARTIES : DEFENDANT Walter Construction Group Ltd FILE NUMBER: 5404 5405 5406 of 1999 CORAM: Marks J CATCHWORDS : "Not available to give evidence" - Requirements of notices under s 67 Evidence Act - "Reasonable notice" Occupational Health & Safety Act 1983 s 15(1) LEGISLATION CITED : Evidence Act 1995 s 65 s 67 Evidence Regulation 2000 regulation 5 Industrial Relations Commission Rules r 189 CASES CITED : Villanueva v State of New South Wales (1999) NSWCA 105 29 April 1999 HEARING DATES: 07/31/2000; 08/01/2000; 08/02/2000; 08/03/2000 DATE OF JUDGMENT: 08/25/2000 PROSECUTOR Mr P M Skinner of Counsel SOLICITORS WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT Mr S J Archer with him Mr R E Dubler of Counsel SOLICITORS Corrs Chambers Westgarth JUDGMENT: INDUSTRIAL RELATIONS COMMISSION IN COURT SESSION CORAM: MARKS J Friday, 25 August 2000 Matters Nos. IRC 5404, 5405 and 5406 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RECH) v WALTER CONSTRUCTION GROUP PTY LTD Prosecutions under s15(1) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT ON APPLICATION UNDER S 65 OF THE EVIDENCE ACT 1995 1 These are three prosecutions brought by the prosecutor Inspector Rick Rech of the WorkCover Authority of New South Wales against the defendant Walter Construction Group Ltd alleging three breaches of s 15(1) of the Occupational Health and Safety Act 1983. Each of the charges arise out of an incident which occurred on 24 October 1997 when the defendant was engaged in constructing an underground facility for the storage of liquid petroleum gas at a site in Botany, New South Wales. A number of employees of the defendant were descending a shaft in order to carry out excavation work below the surface when one of the wire ropes which was attached to and supporting the "manrider" cage in which they were travelling broke. 2 In Matter No 5404 the defendant was charged with failing to provide or maintain systems of work "to ensure that the maximum live load of the Access Shaft Manrider was not exceeded." In Matter No 5405 the defendant was charged with failing to provide "adequate supervision as may be necessary to ensure the health and safety at work of its employees, in that it failed to ensure that the maximum live load of the Access Shaft Manrider was not exceeded." 3 The third charge alleged a failure to maintain the wire rope. 4 One of the issues in the proceedings, especially in connection with Matters 5404 and 5405 was whether the "maximum live load" of the device was exceeded. This potentially involved a consideration of the number of employees who were travelling in the device and their aggregate weight. 5 The prosecution sought to tender a number of documents. The first was a record of interview between an Inspector of the WorkCover Authority and Mr Neil Peter which was signed by Mr Peter. The remainder consisted of a number of hand written documents purported to be signed by a number of employees of the defendant who had been riding in the device at the time that the incident occurred and which contained a reference, inter alia, to their weight. These statements were said to have been created in response to a request made by the WorkCover Authority Inspector to an employee of the respondent. 6 The prosecution sought to tender these statements under s 65 of the Evidence Act. The defendant resisted the tender. I rejected the tender during the course of the proceedings, stating that I would publish my reasons for doing so. This judgment contains those reasons and deals only with the discrete question as to whether the documentation should be received into evidence under s 65 of the Evidence Act. THE STATUTORY BACKGROUND 7 It is first necessary to set out the relevant provisions of the Evidence Act as well as the provisions of a rule of this Commission. A convenient starting point is s 65 of the evidence Act which is in the following terms: (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) oral evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. Note. Clause 4 of Part 2 of the Dictionary is about the availability of persons. 8 It should first be noted that by reason of s 62, the "previous representation" which is the subject of s 65 is confined to first hand hearsay. The representations to which the documentation sought to be admitted into evidence referred were those made by the individual persons and, for present purposes, may be characterised as first hand hearsay. For completeness I note that "representation" and "previous representation" are defined in the dictionary to the Evidence Act in a way which does not impact upon any determination to be made for the purpose of these proceedings. In the same way cl 6 of Pt 2 of that dictionary makes a reference to representations in documents, which is not presently relevant. 9 However, cl 4 of Pt 2 of the dictionary describes the circumstances in which a person is taken not to be available to give evidence and is in the following terms: 4 Unavailability of persons (1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 10 Section 67 requires reasonable notice to be given in writing of an intention to adduce evidence under certain provisions of s 65 unless the requirement is dispensed with by the Court. Section 67 is in the following terms: (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64 (2) is such a provision the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies. 11 The provisions of regulation 5 of the Evidence Regulation 2000 are also important for the purpose of notices given under s 67. Regulation 5 is in the following terms: (1) This clause is made for the purpose of section 67 of the Act. (2) A notice of previous representation must state: (a) subject to subclause (6), the substance of evidence of a previous representation that the notifying party intends to adduce, and (b) the substance of all other relevant representations made by the person who made that previous representation, so far as they are known to the notifying party, and (c) particulars of: (i) the date, time, place and circumstances at or in which each of the representations mentioned in paragraph (a) or (b) was made, and (ii) the names of the persons by whom, and the persons to whom, each of those representations was made, and (iii) in a civil proceeding the address of each person so named, so far as they are known to the notifying party. (3) If a notifying party intends to rely on any of sections 63 (2) (a) or (b) or 65 (2) (a), (b), (c) or (d), (3) (a) or (b) or (8) (a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts on the basis of which it is alleged that the person who made a representation referred to in the notice is not available to testify concerning the fact to be proved by adducing evidence of that representation. (4) If a notifying party intends to rely on section 64 (2) (a) or (b) of the Act, the party's notice of previous representation must state particulars of the facts that the party will rely on to establish the grounds specified in section 64 (2) of the Act. (5) If a notice of previous representation refers to a previous representation that is in writing: (a) a copy of the document, or of the relevant portion of the document, containing the representation must be attached to the notice, and (b) the notice must identify the document unless: (i) a copy of the document is attached to the notice, and (ii) the identity of the document is apparent on the face of the copy. (6) If a copy of a document, or of a portion of a document, is attached to a notice it is a sufficient compliance for the purposes of subclause (2) (a) to specify in the notice, or in the copy of a document or portion of a document attached to the notice, the representation evidence of which the notifying party intends to adduce. (7) On the application of a party in a criminal proceeding, the court may make an order directing the notifying party to disclose the address of any person named in a notice given under this clause by whom, or to whom, a representation referred to in the notice was made. (8) The direction may be given on such terms as the court thinks fit. (9) In this clause: notice of previous representation means a notice given under section 67 (1) of the Act. 12 Part 24 of the Industrial Relations Commission Rules 1996 deals generally with evidence. Rule 189 deals specifically with the provisions of s 67 of the Evidence Act and is in the following terms: (1) Notice for the purposes of section 67 or section 99 of the Evidence Act 1995 must, unless the Commission otherwise orders, be given: (a) in any case where the Commission has by notice to the parties fixed a date for hearing—not later than 21 days before the date fixed by that notice: or (b) in any other case—not later than 21 days before the date on which the Commission determines the date of hearing (2) Rule 179(2), (3) and (5) apply to a statement referred to in regulation 5(5)(a) or (b) of the Evidence Regulation 1995 as if the statement were a statement referred to in Rule 179(1). (3) Rule 179(3) and (5) apply to a document referred to in regulation 5(5)(a) of the Evidence Regulation 1995 as if the document were a statement referred to in Rule 179(1). THE EVIDENTIARY BACKGROUND 13 Certain evidentiary material was adduced by the prosecution in support of the application under s 65 and by the defendant to resist the application. 14 With respect to the statement of Mr Peter, an affidavit of attempted service on him of a summons to give evidence was filed. It was sworn 24 July 2000 and deposed to an attendance at an address at 9.40am on 1 July 2000. The process server said that he had a conversation with a female person at the address nominated. He deposed "I said to her words to the effect 'Is Neil Peter home?' She replied, 'No, he no longer lives here.' I then said 'Do you have a forwarding address?' She replied, 'No. My husband and I had bought the house from the Peter family in April of 1999. Neil I believe had a job offer in New Zealand.' " 15 A solicitor with the WorkCover Authority of New South Wales gave evidence. He said that he became aware on about 4 July 2000 of the inability to serve the summons. There was subsequently some suggestion that an attempt could be made to ascertain Mr Peter's address through a union, the Construction, Forestry, Mining & Energy Union. He was told on about 19 July that the process server had been unable to ascertain Mr Peter's address from that source. 16 With respect to the hand written statements of the employees, the solicitor gave evidence there were no addresses of the employees contained on the documents and he was concerned in any event as to whether the hand written documents "really constituted formal proofs" in the sense that he was used to such documentation having been properly signed and witnessed whilst employed as a solicitor with the Office of the Director of Public Prosecutions, New South Wales. The solicitor made no attempt to have any investigations conducted to find the addresses of these persons because "I didn't have an investigating inspector who was still with the service so I was unable to turn to anyone in that regard and so, no, I didn't really know what to do next." 17 The solicitor prepared notices which purported to be given pursuant to s 67 of the Evidence Act. With respect to the statement of Mr Peter the notice said "It is the present intention of the prosecution on behalf of the Informant in these proceedings to rely upon the provisions of s 65(2) of the Evidence Act 1995 (NSW) in relation to the representations made to Walter Hes by Neil Peter, and contained in the record of interview of Mr Neil Peter dated 30 October 1997." That notice was signed by the solicitor but not dated. With respect to the hand written documents signed by the employees, each of the notices was in the same form, to the following effect: "It is the present intention of the prosecution on behalf of the Informant in these proceedings to rely upon the provisions of s 65(2) of the Evidence Act 1995 (NSW) in relation to the representations made by (a named person) and contained in the attached document dated (relevant date inserted)." These notices were also signed by the solicitor but, again, not dated. 18 Correspondence between the defendant's solicitors and the prosecution solicitor was tendered. This indicated that the notice issued by the prosecution with respect to the evidence of Mr Peter was forwarded to the defendants' solicitors by letter dated 18 July 2000. A letter of 20 July 2000 from the defendant's solicitors asserted that the notice failed to comply with regulation 5 of the Evidence Regulation 2000 and was therefore invalid. In particular the letter said: Contrary to regulation 5 the notice fails to, 1. state the substance of those representations that WorkCover intends to adduce; 2. state the substance of all other relevant representations made by Mr Peter as far as they are known to WorkCover and particulars of: (a) the date, time, place and circumstances at or in which each of the representations mentioned in paragraphs 1 and 2 above were made; and (b) the names of the persons by whom, and the persons to whom, each of those representations were made. 3. adequately set out the relevant provision of section 65(2) upon which it intends to rely for the purposes of the Notice. 4. provide particulars of the facts on the basis of which it is alleged that Mr Peter is unavailable to testify at the hearing of the above matters. 5. attach to the Notice a copy of the documents or of the relevant portion of the document containing the representation. 6. specify what the representations are which WorkCover intends to adduce. 7. provide Walter with reasonable notice in writing of its intention to adduce evidence of Mr Peter's representations. 19 By letter dated 25 July 2000 the prosecutor's solicitor wrote to the defendant's solicitors stating, inter alia, that the Informant relied upon s 65(2)(a); (b) and (c) of the Evidence Act. In connection with the circumstances relating to the service of a summons on Mr Peter, that letter stated that a process server "was unable to locate Mr Peters (sic) and was informed that Mr Peters (sic) may have emigrated to New Zealand. An affidavit has been requested from the person that endeavoured to effect service and will be served upon you as soon as it has been received." 20 By letter dated 28 July 2000 the solicitor for the prosecution forwarded ten notices pursuant to s 67 of the Evidence act with respect to the hand written documents of the employees. By letter dated the same day the defendant's solicitors gave notice of an intention to object to the tender on the basis that the notices failed to comply with regulation 5 and were invalid. 21 Finally, I should add that I conducted a pre hearing directions hearing of these matters on 11 April 2000. On that occasion hearing dates were set commencing 31 July 2000. On 4 July 2000 my Associate made contact with the parties including a solicitor representing the prosecution to ensure that the matters were ready to proceed on 31 July 2000. CONSIDERATION Section 65 "not available to give evidence" 22 Dealing firstly with the provisions of s 65, no question was raised that these were criminal proceedings. The prosecution relied on s 65(2)(b) and (c). The statement of Mr Peter was made in question and answer form to a WorkCover Inspector and signed by him. It was taken some six days after the incident occurred and I am satisfied that in all the circumstances s 65(2)(b) and (c) applied. With respect to the hand written statements of each of the employees concerned, such evidence as is available surrounding the circumstances in which they were crated would, in my opinion, come within s 65(2)(b). 23 I have some concern, however, as to whether s 65(2)(c) would apply to these hand written statements. In each of them the persons concerned either state a weight or give an approximate or estimated weight. However there is nothing in and of the statements which indicates whether the weight was taken clothed or unclothed and, if clothed, wearing all of the clothing and equipment which seems to have been worn by some employees at least, on the evidence, when using the manrider device when the incident occurred. For example one employee who was in the device at the time of the incident, Mr Ngawati, gave evidence that at the time he was wearing wet weather gear and some tools and that although he would normally weigh about 85kg he though that he would have weighed about 90kg with his gear. To the extent that each of the statements fails to address this issue I have some doubt whether they could be said to have been made in circumstances that make it highly "probable" that the representation as to weight is reliable. I appreciate that in reaching such a conclusion with respect to the requirements of s 65(2)(c), in circumstances where I have indicated a readiness to find that all of the documentation comes within s 65(2)(b) there are created circumstances where representations may become admissible even though I would not be satisfied that it is highly probable that they were reliable. The parties made no submissions on this issue and for reasons which will shortly appear, it is not necessary that I pursue this difficulty further. 24 The substantive issue between the parties in terms of the application of s 65 revolved around whether or not the persons who made the relevant representations were available to give evidence. This involves a consideration of the provisions of cl 4 of Pt 2 of the dictionary, which I have previously set out. The relevant Parts are (e) and (f) of sub cl (1). 25 A difficulty which I have in dealing with these provisions is that a determination as to whether all reasonable steps have been taken has to be made in the context of what reasonable steps may be taken, which arguably leads to a determination of what steps are reasonably available to a party seeking to find a person or to secure the attendance of that person. I acknowledge that in most cases this will be a greater problem for a consideration of matters under para (e) than in para (f). 26 No submissions were addressed to me about the availability of access to motor vehicle licence information and like information kept by Government instrumentalities and I shall assume that there is no or limited access; although I confess to some hesitation about the extent to which I might take judicial notice of any such situation. However it seems to me that attempts may have been made to locate Mr Peter by making inquiries of neighbours, the real estate agent who sold the property, the solicitor who acted on the sale of the property and even the defendant as a previous employer of Mr Peter to inquire as to his whereabouts. No doubt there are other avenues of inquiry which may have been available, but in the absence of any evidence of any kind with respect to them, I could not take them into account. However, by whatever standard and by whatever measures one ascertains the steps that were available to find Mr Peter, I do not regard those steps taken by the process server as referred to earlier as constituting all reasonable steps to find Mr Peter or to secure his attendance. 27 I have reached the same conclusion with respect to the employees who gave the handwritten statements. The fact that an investigating officer was unavailable to the solicitor does not constitute any excuse in my opinion for having failed to retain a process server or investigator to at least make some inquiries concerning the whereabouts of the persons concerned. No doubt some may still be employed by the defendant and in any event a reasonable step would have involved an inquiry of the defendant as a present or past employer to ascertain the whereabouts of the persons concerned. A refusal to disclose any information would not have been fatal in a sense that it would have provided one element in the chain necessary to be established to fall within s 65 of the Evidence Act. In circumstances where the solicitor concerned took no steps to find the relevant persons, it seems to me that it could not possibly be established that all reasonable steps had been taken to find them. 28 It seems to me that the provisions of para (f) are confined to compulsion to give evidence by reason of attempts to serve a summons to give evidence and to enforce any such summons. If compulsion also comprehended the location of persons and the securing of their attendance through these processes, there would be an overlap between paras (e) and (f) which would militate against the inclusion of both provisions within this clause. In any event, I regard the one attempt to serve Mr Peter with a summons to give evidence in the absence of the taking of reasonable steps to locate his whereabouts for the purpose of serving the summons to give evidence as not complying with the requirement to take all reasonable steps contemplated by para (f). In circumstances where no attempt was made to compel any of the other employees to give evidence, it follows, again, that the provisions of para (f) have not been complied with. 29 In reaching these conclusions concerning the applications of paras (e) and (f) I have not thus far taken into account the time frame within which such steps as were taken occurred. The hearing was due to commence on 31 July. The summons to give evidence directed to Mr Peter was not forwarded to the process server until shortly before 1 July. Nothing more seems to have occurred with respect to any further attempt to locate Mr Peter until 19 July. In the case of Mr Peter, this must surely have precluded the taking of other steps which might be seen to be reasonable in all the circumstances to locate his whereabouts. Section 67 notices 30 The defendant also attacked the form of the notices purported to be given under s 67 and the time at which those notices were given. 31 By s 67(3)(a) a requirement is imposed on the notifier to state "the particular provisions" on which the party intends to rely. Each of the notices given by the prosecution relied on s 65(2) without greater specification. This raises the first question as to whether or not that was sufficient particularity for the purpose of s 67(3)(a) or whether greater particularity is necessary by reference to one of the four paragraphs contained within that subsection. 32 Whilst I acknowledge that s 67(3)(b) is capable of being construed so as to refer to a "particular provision", without specifying whether para (a) or para (b) of s 64(2) applies, it seems to me that the circumstances contained in s 65(2) are sufficiently different to require a different result. Section 64(2) refers to two different situations which are sufficiently dissimilar to be obvious, namely oral evidence and a document. However the four paragraphs of s 65(2) are capable of applying to both oral and documentary evidence, and traverse circumstances which are quite different. As the notice which is required to be given must of necessity be intended to convey information, and as a notice under s 67 is directed to the establishment of an exception to a general rule of evidence embodied in the Evidence Act, it seems to me that it is more appropriate to construe s 67(3)(a) as requiring greater rather than lesser particularity. 33 Regulation 5(3) requires the giving of certain particulars of the facts on the basis of which it is alleged that the relevant person is not available to testify. Obviously, compliance with the provisions of regulation 5(3) will assist in identifying the particular paragraphs of s 65(2), but may not in all cases be conclusive as to which of the paragraphs are to be relied upon. Despite the requirement imposed by regulation 5(3), it seems to me more appropriate in the circumstances of these proceedings that in order to comply with s 67(3)(a), the particular paragraph contained within s 65(2) should be stated. 34 It is arguable that any defect in a notice is subject to the overriding discretion of a court provided for in s 67(4) which would assist in rectifying any failure to comply with s 67 on a technical basis depending on the circumstances of the particular proceedings. The basis for this argument is that the content of the notice is governed by the provisions of s 67(3) and, by the operation of s 67(2), the provisions of regulation 5. A failure to comply with those provisions would result in any notice purporting to have been given under s 67(1) being invalid. To the extent that the notice were invalid then it would be regarded as not having been given. Accordingly, s 67(4) could then be applied on the application of a party to the proceedings 35 The effect of s 67(4) was the subject of brief comment in the NSW Court of Appeal in Villanueva v State of New South Wales (1999) NSW CA 105 (29 April 1999). Those appeal proceedings considered the admission of hearsay evidence in civil proceedings. Sheller JA (with whom Beazley and Giles JJA agreed), in considering s 67 of the Evidence Act said that it is "undoubtedly intended to protect parties, to some extent, against the consequences of a document going into evidence even though the maker of the document is not available to give evidence about the facts asserted in the document and hence not available to be cross examined. As in this case, the admission of the document in those circumstances is prejudicial to the other party. The statutory provision designed to ameliorate that prejudice has by the exercise of the Judge's discretion not so operated. The failure to give notice should not lightly be excused. However that may be, the Evidence Act permits documents, in which facts are asserted, to be admitted in evidence as evidence of those facts even though the party making the statement is not called, and permits a trial Judge in the exercise of that Judge's discretion to direct that s 63(2) applies despite the defendant's failure to give notice." (at par 12). It is obvious that the discretion to excuse a failure to give notice, or adequate notice, must be exercised on some basis which is justifiable in all the circumstances, and the party seeking to have the representation admitted into evidence should not, as Sheller JA said, "lightly be excused," from the failure to give notice. I am unable to detect any reason why, in the circumstances of these proceedings as I have outlined them, the prosecution should have the benefit of the exercise of any discretion under s 67(4) so as to correct any defect in the notices, nor to correct the failure to give notice as required within the time limits specified by the relevant legislation and rules of this Court. This conclusion is reached without considering whether the prosecution had made an application as required by s 67(4). 36 For the reasons given I conclude that the notices purported to be given under s 67 do not comply with the provisions of subsection (3)(a). 37 In that the representations made by each of the persons concerned were contained within documentation, which was served with the notices purported to be given under s 67 it seems to me that the provisions of regulation 5 (2)(a) have been complied with. However regulation 5 (2)(b) requires that the substance of "all other relevant representations" made by the person so far as they are made to the notifying party must be stated within the notice. The regulation is silent as to what is a relevant representation, but presumably it is a representation which is relevant to the proceedings as a whole in some way, and could not be confined to the particular representation which was made with respect to the particular issue about which evidence was sought to be adduced. There is no evidence before me that the prosecution was aware of any other relevant representations made by any of the persons referred to and in these circumstances it might be assumed that there were no other relevant representations known to the prosecutor. This begs the question as to whether as a matter of practice the notifying party ought to state that no other relevant representations are known to it or whether this is a matter which the notified party may challenge in some way at the time that the evidence is sought to be adduced. Fortunately, it is not necessary that I deal with this aspect further in the context of these proceedings. 38 The final requirement contained within regulation 5(2) is the giving of particulars as described within the three sub paragraphs of para (c). In the case of the statement given by Mr Peter to the WorkCover Inspector, there is a reference to the date on which the statement was made but no reference to the time, place and circumstances. Accordingly, not all of the provisions of regulation 5 (2)(i) have been complied with. There is, however, compliance with regulation 5 (2)(c)(ii) because it is clear that the statement was given to the named WorkCover Inspector. 39 However in the case of the handwritten statements made by each of employees, most, but not all are dated but none of them contains particulars of the time, place and circumstances at or in which each of them was made and the names of the persons to whom each of the statements was given in the first instance. Accordingly, the purported notices given under s 67 with respect to these persons which do no more than append the statements do not comply with the provisions of regulation 5 (2)(c). 40 The provisions of regulation 5 (5) are also relevant. In the case of the representations made by Mr Peter, the copy of the document was not attached to the notice. Accordingly regulation 5 (5)(a) was not complied with. As the notice with respect to Mr Peter did not contain the substance of evidence of the representation, it follows that it did not comply with regulation 5 (2) in any way. 41 In the case of the statements signed by each of the employees, a copy of those statements were attached to the notice, although the notice did not identify the document. In those circumstances the identity of the document must be apparent on the face of the copy in order to comply with regulation 5 (5)(b). Whilst it is clear from each of the statements that they set out in brief terms what happened to each of the givers of the statement at the time of the incident and their weight at the time, the notices did not set out the identity of the document being a document presumably prepared as a result of a request communicated in some way by a WorkCover Inspector. In fact, the evidence of the Inspector given in these proceedings is that he did not speak to any of the persons directly but to a person in the employ of the defendant to obtain the documentation for him. It is arguable, therefore, that the identity of the document not being apparent on its face, each of the purported notices given fails to comply with regulation 5 (5). 42 Although a copy of the handwritten statements was attached to the purported notices given under s 67, neither the purported notices, nor the copies given specified the representation evidence which the prosecutor intended to adduce. Presumably the notices as framed were intended to relate to all of the representations contained within each of the handwritten statements, although this was not stated specifically in order to comply with regulation 5 (6). Accordingly it is arguable that regulation 5 (6) not having been complied with the prosecutor is required to comply with regulation 5 (2)(a) by stating in the notice the substance of the evidence which was intended to be adduced. 43 For all of the above reasons I am of the opinion that none of the notices complied wholly with the provisions of regulation 5. Accordingly it follows that the provisions of s 67(2) have not been complied with in terms of the content of the purported notices. 44 Section 67(1) requires that there be "reasonable" notice given. In that sub section (3) deals specifically with the content of notices it is arguable that "reasonable" is intended to qualify the time within which the notice is to be given rather than the content of the notice. 45 Whatever one might say about the time within which each of the notices was given in these proceedings it is my opinion that the defendant was not given reasonable notice. I have previously indicated the proceedings were set down for hearing on 11 April 2000, the hearing to commence on 31 July 2000. Notice was first given with respect to the evidence of Mr Peter by letter dated 18 July 2000 some thirteen days before the hearing was to commence and more than three months after the date fixed for the hearing. It matters not, in my opinion, that the prosecution solicitor did not ascertain until about 4 July that Mr Peter had moved address. This was a product of having issued a summons to give evidence shortly before 1 July. (I should not be taken to be at all critical personally of the solicitor concerned. He said in evidence that he joined the WorkCover Authority in May 2000 and it may well be that he inherited a large practice in circumstances which created difficulties in terms of preparation of cases.) Given that the proceedings were to be contested, as the prosecution well knew and given the short period of time, given further the fact that the whereabouts of Mr Peter were unknown I do not regard this notice as having been given within a reasonable time. 46 With respect to the purported notices covering the handwritten documents of the employees, these were delivered on 28 July 2000. Under no circumstances could it be said that reasonable notice was given. 47 Accordingly, it follows that reasonable notice not having been given with respect to any of the purported notices, the prosecution is not entitled to rely on s 65. Rule 189 48 Finally, I refer to the provisions of r189. These require service of a notice under s 67 of the Evidence Act to be effected not later than 21 days before the date fixed for hearing. There can be no question that the provisions of r189 were not complied with. Although this Court is given a discretion to relieve the prosecutor of compliance with r189, no evidence has been adduced in these proceedings which in my opinion militates towards the exercise of any such discretion. This is particularly so having regard to the circumstances in which and the time at which the purported notices were given, and the failure of those notices to comply with the relevant statutory provisions, in the manner in which I have previously outlined. 49 I have previously given reasons why in my opinion s 67(4) cannot operate in favour of the prosecution. ORDER 50 For all of the above reasons the applications brought by the prosecution to adduce evidence under the provisions of s 65 of the evidence Act are refused. _________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.