New South Wales Supreme Court CITATION : Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1247 HEARING DATE(S) : 16/06/08. 17/06/08. 18/06/08, 19/06/08, 20/06/08, 23/06/08. 24/06/08, 25/06/08, 26/06/08, 27/07/08, 30/06/08, 04/07/08, 28/07/08, 29/07/08, 27/08/08, 28/08/08, 24/11/08 JUDGMENT DATE : 24 November 2008 JURISDICTION : Equity Division JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 24 November 2008 DECISION : Questions and answers plaintiffs wish to tender admitted. CATCHWORDS : EVIDENCE - admissibility and relevance - admissions - hearsay statements - whether it is reasonably open to find that the statements were made with the authority of the defendant - whether it is reasonably open to find that statements were made in furtherance of a common purpose of the maker and the defendant - whether discretion against admitting should be exercised - where defendant can remedy position by resort to s 81(2) LEGISLATION CITED : Evidence Act 1995, ss 81, 87, 135 CATEGORY : Procedural and other rulings CASES CITED : Director of Public Prosecutions v Brownlee [1999] NSWCCA 57 Tim Barr Pty Limited - First Plaintiff PARTIES : Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant FILE NUMBER(S) : SC 2762/02 Mr RG McHugh SC/Mr J E Lazarus (to 4 July 2008) - Plaintiffs Mr I M Barker QC/Mr RG McHugh SC/Mr J E Lazarus (from 28 July 2008) - Plaintiffs COUNSEL : Mr M L Einfeld QC/Mr R E Dubler SC/Mr A C Harding (to 27 June 2008) - Defendant Mr A C Harding (30 June 2008) - Defendant Mr I M Neil SC/Mr AC Harding (from 28 July 2008) - Defendant SOLICITORS : Corrs Chambers Westgarth - Plaintiffs Verekers - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J MONDAY 24 NOVEMBER 2008 2762/02 TIM BARR PTY LIMITED & ANOR v NARUI GOLD COAST PTY LIMITED JUDGMENT 1 The plaintiffs seek to tender certain of the questions and answers in a document signed by Hiroyuki Narui on 21 January 2004. The relevant questions and answers are among those numbered 58 to 108 which, it is accepted, were created after 10 September 2003, being the day on which the police interview that produced the questions and answers numbered 1 to 57 occurred. 2 The questions and answers from among numbers 58 to 108 that the plaintiffs wish to tender contain hearsay representations made by Hiroyuki Narui. It is submitted on behalf of the plaintiffs that they are admissible under a combination of ss 81 and 87 of the Evidence Act 1995 as admissions of the defendant Narui Gold Coast. For that submission to be made good, it must be shown that "it is reasonably open to find" that one of paragraphs (a) to (c) of s 87(1) is satisfied. 3 The plaintiffs rely first on s 87(1)(a) and the proposition that at the time each representation was made, that is on 21 January 2004, Hiroyuki Narui had authority to make statements on behalf of Narui Gold Coast. 4 I do not accept that submission. Hiroyuki Narui had been a director of Narui Gold Coast up to the afternoon of 10 September 2003, the day of the morning of which was the occasion of the orally generated questions and answers 1 to 57 in the document before me. 5 Later that day Narui Gold Coast became a wholly owned subsidiary of Leda, and Hiroyuki Narui ceased to be an officer of it. It is not shown that Narui Gold Coast authorised Hiroyuki Narui to sign the document of 21 January 2004, or that he held any form of authority at all from that company at that time. The fact that he was assisted in doing what he did by Hickeys, the solicitors for Narui Gold Coast, does not imply any authority on his part to act for Hickeys' client in any way. 6 The plaintiffs next say that it is, in terms of s 87(1)(c) of the Evidence Act, "reasonably open to find" that, in January 2004, Hiroyuki Narui made the representations concerned in furtherance of a common purpose that he had with Narui Gold Coast, or one or more persons including Narui Gold Coast. 7 The plaintiffs point in that connection to a joint venture arrangement that by January 2004 existed - although perhaps not in finally documented form - among Narui Gold Coast (by then, as I have said, a wholly owned subsidiary of Leda) and Mt Warning, the trustee of a trust under which Hiroyuki Narui was the principal beneficiary. Under that arrangement, the parties agreed to take certain steps to develop the Kings Forest land. 8 There were specific promises of Mt Warning to cause both Hiroyuki Narui and Shigeo Narui to give evidence in Australian litigation involving Tim Barr and his companies, and Charles Harrison and his companies. Victory for Narui Gold Coast in those proceedings was highly relevant to the successful outcome of the joint venture, since the litigation was concerned with claims in relation to the land adverse to the interests of Narui Gold Coast and therefore adverse to the interests of Mt Warning as a joint venturer in relation to the land. 9 The provisions of the joint venture arrangement are I think a reflection of a broader reality that the discrediting of Tim Barr and the exacerbation of problems he had with the police were likely to be advantageous to Narui Gold Coast and to Mt Warning, and therefore to Hiroyuki Narui. It is therefore "reasonably open to find" that Narui Gold Coast, Mt Warning and Hiroyuki Narui had a common purpose of assisting the police in an investigation which, as it ultimately did, caused criminal charges to be laid against Mr Barr. 10 It is significant, I think, that Hiroyuki Narui had not seen fit to speak to the police for some two years after the relevant events involving Mr Barr, but did so soon after the joint venture arrangement was in place or at least settled by an umbrella deed dated 8 August 2003. 11 I do not pause to dwell on the words "it is reasonably open to find" in s 87(1.) They make it clear that the court does not have to make a finding as to the relevant matter. The court merely has to see that there is a reasonable basis upon which the finding might ultimately be made. The thing to be determined on the balance of probabilities is the existence of the reasonable basis, not the existence of the ultimate conclusion as to authority, scope of employment or furtherance of a common purpose. This approach is, I think, consistent with what was said at paragraph 20 of the judgment of Adams J in Director of Public Prosecutions v Brownlee [1999] NSWCCA 57 with the concurrence of the Chief Justice and Abadee J. 12 I am satisfied that s 87(1)(c) makes admissible the particularly extracted questions and answers that the plaintiffs wish to introduce into evidence. 13 It is then argued on behalf of Narui Gold Coast, however, that the discretion in s 135 should be exercised so as to exclude this material. The basic proposition is that the particularly extracted questions and answers cannot be fully understood unless other questions and answers are also admitted or, indeed, unless the whole is admitted. The absence of the other material, it is said, is productive of prejudice of the kind relevant to the operation of s 135. 14 In the particular circumstances of this case where the additional material said to be necessary to a proper understanding is in the same questionnaire document, I do not consider it appropriate to contemplate resort to s 135 and discretionary exclusion under it. This is because any such additional material is itself rendered admissible by s 81(2) and the defendant has it in its own hands to remedy any deficiency by itself tendering that material. 15 In the result, therefore, the ruling is that the particularly extracted questions and answers that the plaintiffs wish to tender will be admitted. ********** 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.