Supreme Court New South Wales Medium Neutral Citation: Orcher v Bowcliff Pty Ltd (No 3) [2011] NSWSC 172 Hearing dates: 6 October 2010 Note: Judgment deferred at the request of the parties. Decision date: 18 March 2011 Before: Harrison J Decision: ERISP admitted in part Catchwords: EVIDENCE - Evidence Act 1995 - hearsay and opinion rules - whether admissions in ERISP made with authority Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: John James Orcher (Plaintiff) Bowcliff Pty Ltd t/as The Bridge Hotel (First Defendant) Tamiano Paseka (Second Defendant) Richard Francis Keough (Third Defendant) Representation: Counsel: J Sexton SC with C Heazlewood (Plaintiff) R Sheldon SC (First Defendant) Solicitors: Carneys Lawyers (Plaintiff) Wotton + Kearney (First Defendant) File Number(s): 2009/296392 Judgment 1The plaintiff was injured at Rozelle in the early hours of the morning on 25 November 2007 when the second defendant assaulted him in the street outside The Bridge Hotel. The plaintiff suffered serious head injuries as a result of the assault. He alleges that the first defendant owned and operated the hotel, that it employed the second defendant at the time, and that the hotel is vicariously liable to him for the injuries he sustained at the hands of its employee. 2The second defendant was interviewed by the police with respect to the incident later the same day. He was subsequently convicted of an offence arising out of the assault. Before that occurred, an ERISP had been conducted with the second defendant at Newtown Police Station and a transcript of the interview was produced. The plaintiff now wishes to tender certain questions and answers that are recorded in the ERISP. He acknowledges that the ERISP is not admissible in evidence unless for presently relevant purposes he can show that it contains admissions against interest. He relies in this respect upon ss 81 and 87 of the Evidence Act 1995 , which are in the following terms: " 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. 87 Admissions made with authority (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, or (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. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority." 3The ERISP transcript is quite long and the parts of it that the plaintiff seeks to tender are also long. The plaintiff's tender falls into three categories. These are as follows. First, the plaintiff tenders questions and answers 206 to 208 and 213 to 214. Mr Sexton of senior counsel who, with Mr Heazlewood of counsel, appears for the plaintiff, formulated the basis for the tender as follows: "SEXTON: . . . I am tendering that material pursuant to s 81(2)(b). That is, it is a previous representation made by [the second defendant], namely a representation during the police interview, and that previous representation is reasonably necessary to refer to, in order to understand the admission, which I am tendering from questions 213 and 214. That is because I need to identify who the manager was who said "Yeah. It's all good. Make sure you don't do anything." That is identified as Ben. We have the answer to interrogatories which says that Ben Davies was a manager, and we have s 88, which says: "For the purpose of determining whether evidence of admission is admissible, the Court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission." In my submission it is reasonably open to find that the Ben who made the previous representation in questions 213 and 214 is Ben Davies. We have the admission that he was an employee. We have the admission in the interrogatories that he was a manager and we have the admission through the photographic exhibit that Ben Davies was present on the night." 4Mr Sheldon of senior counsel, who appeared for the first defendant, responded in terms that included the following: "The point that ultimately emerges is that what my learned friend is seeking to do is tender a previous representation of a previous representation and to have the latter taken as an admission by a party by reason of the operation of s 87(1)(b). To do that he conveniently overlooks the conjunction in s 81(2). If he is going to get in the antecedent questions in order to lend context to what he says are the admissions, not only does he have to establish that it is reasonably necessary to refer to them, but it also has to be established that it was made in relation to an admission at the time the admission was made. What is it that has to be made at that time: A previous representation. This material does not satisfy that definition. What this is is material which was all produced at one time or at least continuously from one time to another, which is itself a previous representation but which was not made at the time at which the admission that is sought to be tendered against my client was made, and, accordingly, s 81(2)(a) is not satisfied." 5Although the evidence in the proceedings is not yet complete, it is clear that the plaintiff wishes to establish, among other things, that when the second defendant assaulted the plaintiff, he was employed by the hotel. There is a related allegation of negligence on the part of the hotel in failing to ensure that the second defendant did not assault patrons of the hotel, having regard to what it knew, or should have known about him. The evidence has revealed that the second defendant was, or may have been, involved in an incident at the hotel the previous weekend when he had assaulted a man by the name of Tyrone O'Reilly. The plaintiff contends that the answer given by the second defendant in questions 213 and 214, apparently attributing the words "Yeah, no worries, it's all good, you just go, hang around ... make sure you don't do anything" to the hotel manager Ben Davies, is capable of being construed as an admission by Mr Davies that he recognised that the second defendant had, or may have had, a propensity to assault patrons of the hotel. 6It is also convenient in this respect to recall the submissions made by Mr Sheldon in this context: "When one looks at question 213, the question begged is: What is it that is the matter which is within the scope of, in the first instance, [the second defendant's] authority and, in the second, Mr Davies'? What is said is that your Honour would construe the answer to question 213 to mean that [the second defendant] told Mr Davies "I'm a bit wasted. I'm not going to work." That is not an admission by anyone. It is not even an admission necessarily by [the second defendant], although I do not carry the candle for him, given the context in which it is made. But, in any event, Mr Davies says "Yeah, no worries. It's all good. You just go. Hang around." What is the admission constituted by that statement? It is not in any way an admission that is against the interests of the first defendant. The rhetorical question is: In what way is it against the interests of the first defendant? The thing that has to be recognised is that, for any part of this material to get in, it either has to be an admission or something caught by section 81. Mr Sexton does not put this forward as caught by section 81. He says it is an admission, as I apprehend it; an admission that [the second defendant] was permitted by Mr Davies to hang around. That is not against the first defendant's interests. "You just go." How is that against the first defendant's interests? Then we come to the answer to question 214: "Make sure you don't do anything". It is a long bow to make that into an admission of the type which my learned friend contends for. As I understand what he opened to your Honour was that that statement was an admission of knowledge of a specific event having occurred, it is said, a week or, to be fair, perhaps at some other time before the incident the subject of these proceedings. On no reasonable approach could the words "Make sure you don't do anything" constitute an admission of knowledge of some prior specific event. Nor could they, as I apprehend might be put in response, constitute words, which connote an awareness, on the part of Mr Davies of some predilection in [the second defendant] to violence. He does not say: Make sure you don't get into a fight, or anything like that. He says: "Make sure you don't do anything." That statement is not capable of constituting an admission, nor is the statement "He just told me to go chill." What then is said could not possibly be an admission. It is said by [the second defendant]. As I understand it, that is the extent of what is sought to be tendered as an admission. So, in my submission, this cannot constitute an admission by the first defendant against interest, for two reasons: (1) because it does not satisfy the test of being an admission; namely, that it is adverse to the person's interests in the outcome of the proceeding. An imagined construct by which a person is said to have made an admission because of what is asserted to have been some prior incident is entirely circular. What your Honour is actually being asked to do in respect of the answer to question 214 is to use it as an admission that Mr Davies was aware of some earlier incident." 7I do not think that the plaintiff is attempting to go that far. Whatever is or may be the connection between the alleged admission and the earlier incident remains to be established. Mr Sheldon's submissions raise the spectre of the arguably limited weight that can be attributed to the alleged admission or the use that can be made of it. I do not think that the questions are inadmissible for that reason. Moreover, they appear to me to amount arguably to an admission against the interest of the hotel that it was aware of the second defendant's propensities and that Mr Davies instructed him not to do anything in that context. The evidence does not establish as a fact that the hotel was aware of the incident involving the second defendant and Mr O'Reilly the previous week. That will presumably be the subject of other evidence in due course. 8I am also satisfied that when Mr Davies said what is attributed to him as the relevant representation, it is reasonably open to find that he was an employee of the hotel. Indeed, the first defendant has admitted that he was. I am also satisfied that in his capacity as the manager, Mr Davies had authority otherwise to act for the hotel, and the representation allegedly made by him related to a matter within the scope of his employment or authority. The words "related to a matter within the scope of ... employment or authority" are clearly wide enough to capture matters relating to the good order and conduct of the hotel and its employees. 9The first defendant submitted that there was a tension between s 87(1)(b) in particular and the definition in the dictionary of "admission" because an admission relevantly had to be made by a person who is or becomes a party and is adverse to the person's interest. The first defendant also submitted that that tension made it very difficult to accept that what was intended by the section was that a document, which is itself hearsay, can be tendered to prove that something somebody said in that document about what someone had said to them could be a matter capable of becoming admissible as an admission made with authority. However, in my opinion, the section extends in this case to the admission made by Mr Davies on behalf of the hotel. The words "taken to be" in s 87 relieve that tension so that there is in effect a deeming with respect to the representations that are covered by s 87. When the second defendant said the words to the second defendant, he was an employee of the hotel. The representation related to a matter within the scope of his employment because it related to him telling another employee that he could stop work and inferentially the reasons for doing so. The words "make sure you don't do anything" are perfectly capable of being taken as an admission of knowledge of a propensity to do something. The plaintiff has specifically conceded that the words are not to be taken as an admission of knowledge of the incident the previous week. 10Secondly, the plaintiff tenders questions and answers 341 to 344 and 459 to 497. The contention is that the second defendant was told by another employee of the hotel to go inside immediately after he has assaulted the plaintiff: see question and answer 343. The plaintiff tenders the balance of the questions and answers as explanatory of the words in the earlier ones. 11The plaintiff's submissions were in these terms: "... even without the explanation, the words on both occasions, "They told me to go inside", are capable of being taken as admissions because the same thing or the same course was taken on both occasions. They are admissions of somebody in authority - that is, authority to direct [the second defendant] in terms of his employment, to do something, namely go inside the hotel, after a particular type of incident had occurred, namely, [the second defendant] on the first occasion slapping somebody and on the second occasion punching the plaintiff. Those words are capable - it's not the whole picture, but it is capable of being an admission against interest relevant to a matter of significance in this proceeding, namely, whether [the second defendant] was acting within the scope of his authority as an employee or what he did was in furtherance of the employer's interest. The reason it's capable of doing that ... is because when [the second defendant] acts as he does on two occasions, the response is protective of [him]. That's the point..." 12The first defendant relied upon the submissions made earlier with respect to the first category of questions. However, in addition it was submitted that "they", in answer 497, that "they told me to go inside, everyone just told me that he got up and just walked off", could not be attributed to anyone capable of making admissions on behalf of the hotel. The incident is apparently that involving Mr O'Reilly the previous week. The first defendant submitted that if this material was tendered to suggest that there was some kind of altercation the week before, then question and answers 459 and following were not capable of doing so. 13In my opinion, questions 341 to 344 are admissible but the balance is not. The man identified by the second defendant as "Muss" in these questions was, as far as I am aware, an employee of the hotel working on the night of the assault on the plaintiff. This material would be admissible as an admission against the interests of the first defendant in the same way as the material in the first category. The balance of the questions is not admissible in this way. 14Thirdly, the plaintiff tenders the following questions and answers: 58, 59, 74, 75, 86, 108 to 124, 177 to 191, 236 to 238, 312 to 328, 446 to 449, 459 to 478, 526, 638 to 650 and 654 to 656. Questions and answers 459 to 478 have already been rejected by me as part of the plaintiff's tender in the second category. They are also tendered as part of the larger group of questions and answers in this category as representations admissible under s 87(1)(b) made by the second defendant when he was an employee of the hotel. The question is whether they related to a matter within the scope of his employment or authority so as to amount to admissions against the interest of the hotel. 15The plaintiff made the following submission: "So far as these prior representations are concerned, s 81(2)(a) is clearly satisfied because any ancillary representations were made at the time the relevant admission was made because it was all part of the same conversation between [the second defendant] and the police. So, the only issue for the purposes of s 81(2), so far as this category is concerned, is whether they are reasonably necessary to refer to in order to understand the admission. ***** The reason I tender those is to understand other admissions, in the context that these are statements made on the afternoon of the relevant date and they are in relation to an assault at the Bridge Hotel, Victoria Road and Wellington Street, Rozelle, on 25 November 2007 at 4.15am. If your Honour does not have that material, then some of the other material may not have meaning. ***** There are some matters which, in my submission, are clearly related to the scope of employment. For example, that will include what time he went to work, and so on. There are other matters, which will be controversial. The reason they will be controversial is because, as I said to your Honour in opening this case, there is a controversy as to what the scope of [the second defendant's] employment may be. However, in my submission, the words in s 87(1)(b) and, in particular, the words "related to a matter within the scope of a person's employment" are to be construed liberally and are apt to catch admissions by an employee about something not only within the scope of the person's employment or authority but something that relates to the scope of the person's employment or authority in a way which will go further than even the statements of principle relating to vicarious liability, and will catch all sorts of previous representations relating to employment. That is the submission." 16The first defendant responded as follows: "Now, it's the essence of s 87 ... that one cannot elide the difference between the person making the representation and the employer whom it is sought to fix with the substance of the admission said to be constituted by the representation. That's because, in my submission, a statement by an employee about his own personal situation at a time after his employment could never be something about which he could, as it were, bind the employer." 17I disagree. The structure of the sections seems to me to encompass the very situation where, as here, a putative employee makes statements about his employment that is related to his employment , including his own personal situation, even at a time shortly after the events in question. It may remain a question for further evidence and argument whether or not the second defendant was, or was still, an employee of the hotel when the representations were made. 18The answers upon which the plaintiff seeks to rely are not all of the same quality. Doing the best I can it seems to me that only the following answers are admissible for the purposes of fixing the first defendant with an admission made by the second defendant falling within s 87(1)(b) but limited to the fact and scope of the second defendant's employment: 108 to 124, 177 to 191, 236 to 238, 459 to 478, 638 to 650 and 654 to 656. 19I reserved my decision on this application on 6 October 2010 and had originally intended to publish these reasons the following day. However, at the request of the parties I postponed doing so until today. ********** 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. Decision last updated: 21 March 2011