Pacific Resources International Pty Ltd v UTI (Aust) Pty Ltd [2012] NSWSC 1083

Supreme Court New South Wales

Medium Neutral Citation: Pacific Resources International Pty Ltd v UTI (Aust) Pty Ltd [2012] NSWSC 1083 Hearing dates: 5 September 2012 Decision date: 05 September 2012 Jurisdiction: Equity Division - Commercial List Before: Stevenson J Decision: The Particulars Letter is admitted Catchwords: EVIDENCE - particulars - admission - solicitor's ostensible authority to make admissions Legislation Cited: Evidence Act 1995 Cases Cited: Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369; (2008) 167 FCR 314 Groom v Crocker [1939] 1 KB 194 Pacific Resources International Pty Ltd v UTI (Australia) Pty Ltd [2012] NSWSC 893 Texts Cited: Cordery's on Legal Services, 9th ed, vol 1 Frederic T Horne, Cordery's Law relating to Solicitors, 8th ed (1988) Category: Interlocutory applications Parties: Pacific Resources International Pty Ltd (plaintiff) UTI (Aust) Pty Ltd (defendant) Representation: Counsel: M L Williams SC with H Chiu (plaintiff) I G B Roberts SC with A C Casselden (defendant) Solicitors: Holman Webb (plaintiff) Norton Rose (defendant) File Number(s): SC 2008/290394 Publication restriction: Nil

Judgment 1On 5 September 2012 I ruled that a letter dated 17 June 2008 from the solicitors for the plaintiff, Pacific Resources International Pty Ltd ("PRI") to the solicitors for the defendant, UTI (Aust) Pty Ltd ("UTI") providing particulars ("the Particulars Letter") was admissible against PRI as an admission. 2These are my reasons. 3These proceedings commenced before me on 28 August 2012. 4PRI has opened, and closed its case (without calling any witnesses). This application arises in the course of UTI's case. 5The general background to the proceedings is set forth in my judgment in this matter on 31 July 2012; Pacific Resources International Pty Ltd v UTI (Australia) Pty Ltd [2012] NSWSC 893. 6The proceedings concern goods destroyed in a fire at a warehouse in Botany on 2 January 2006. 7UTI was the bailee for reward of goods belonging to a number of parties, including PRI, that were destroyed in the fire. 8PRI brings these proceedings against UTI seeking damages in respect of the destruction of those goods. 9A central issue in the proceedings is whether UTI's Standard Terms and Conditions ("the STCs") were part of the contract between UTI and PRI. 10On 20 May 2008 UTI's solicitors sought particulars of the allegation made by PRI in its Commercial List Statement concerning the agreement between PRI and UTI. 11On 17 June 2008, PRI's solicitors sent the Particulars Letter. The Particulars Letter was sent under the hand of the partner dealing with the matter, Mr John Van De Poll ("Mr Van De Poll"). Its author was an employee of Mr Van De Poll, Ms Nada Abdel-Fattah ("Ms Abdel-Fattah"). 12The Particulars Letter stated that the agreement was said to be partly oral and partly in writing and, in so far as it was in writing, comprised: - "UTI Terms and Conditions, a copy of which is enclosed for your attention and the Power Point presentation presented to [PRI] by [UTI] at [UTI's] premises, prior to entering into the Agreement". 13The Particulars Letter stated that this presentation had occurred "on or about April 2002" at UTI's premises at Botany, and that those present included Messrs Lloyd Bennett ("Mr Bennett"), Nicholas Blake ("Mr Blake") and Frank Ruckriegl ("Mr Ruckriegl") on behalf of PRI, and Ms Kym Caruthers on behalf of UTI. 14UTI tendered the Particulars Letter as an admission by PRI that the agreement between PRI and UTI included the STCs. 15PRI resisted the tender upon the basis that the Particulars Letter did not constitute an admission as it was "the product of an assumption made by an insurance investigator, which was not checked or confirmed by the solicitor who prepared the letter". 16The investigator referred to was Mr Robert King ("Mr King"). The solicitor referred to was Ms Abdel-Fattah. 17PRI submitted that, for that reason, the Particulars Letter was of no probative value, and should be excluded or limited under s 135 or s 136 of the Evidence Act 1995. 18PRI also submitted that Ms Abdel-Fattah neither sought nor obtained instructions from PRI in relation to the relevant passage in the Particulars Letter and that, accordingly, she did not have authority to make the relevant statement. 19Mr King, Ms Abdel-Fattah, and Mr Blake (a director of PRI) gave evidence on the voir dire during argument in respect of the tender of the Particulars Letter.