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. Mr King's evidence 20In an affidavit sworn for the purposes of the voir dire, Mr King said that on 11 January 2006 (that is nine days after the fire) he was instructed by PRI's insurer to commence a factual investigation concerning the fire. 21Mr King said that he arranged to meet Mr Bennett, a director of PRI, on 17 January 2006 (15 days after the fire) and prepared a draft statement from that meeting. 22Mr King continued: - "5. Mr Bennett provided me with a bundle of documents. He did not go through the documents or identify them individually to me. 6. I later reviewed the documents while preparing my first investigative report, which was dated 2 February 2006. I inserted some of those documents as attachments to my report, including a copy of the document entitled 'terms and conditions'. 7. I identified those documents at page 12 of my first investigative report as '8. Copy of UTi's Agreement with the insured company [PRI], dated 1 June 2004'. I did this based on the face of the documents." 23The terms of the affidavit suggested that Mr King had received from Mr Bennett a copy of the document including the STCs, but had simply included that document in his report without comment other than listing it as one of a number of documents provided to him by Mr Bennett. 24However, examination of Mr King's "investigative report" and cross-examination of Mr King revealed that the situation was not so simple. 25During cross-examination, Mr King was shown notes that he had prepared before his meeting with Mr Bennett. He described the notes as points that he had made that he intended to raise with Mr Bennett. Mr King had ticked various items on that list. 26One of those points read "agreement/contract/copy". Mr King had ticked that item. When asked what the tick against those words signified, Mr King said: - "I've covered the topic and asked for the documents." 27In his report Mr King stated that: - "The insured [Mr Bennett] has provided the writer with a full copy of the current agreement between UTi and [PRI]. I enclose same for your perusal." 28The document enclosed was a Warehouse and Distribution Proposal addressed to PRI dated 1 June 2004 that included, as one of its components, the STCs. 29Mr King's report also included a statement that Mr King had taken from Mr Bennett. In cross-examination Mr King explained that he took the statement from Mr Bennett on 17 January 2004 using a dictaphone. 30Mr King gave the following evidence: - "Q: So far as you could tell, Mr Bennett could hear what you were dictating into your dictating machine? A: Yes, your Honour. Q: Were there occasions in the course of that exercise where he asked you to pause and correct something you had said? A: Yes, your Honour." 31Mr Bennett did not sign the statement Mr King had prepared. However, based on the above evidence, I am satisfied that the statement records, accurately, what Mr Bennett told Mr King. 32Included in this statement are the following passages: - "To the best of my knowledge and belief we first commenced an association with [UTI] when we were dealing with a company called 'Greenway'. That company was acquired by UTI in approximately 1998 and we dealt with UTI from the 1998 period through to approximately 2000. At that stage, due to increasing prices and a relationship with the staff member we had been dealing with, we left UTI and used the facilities of Powerhouse. We remained with Powerhouse until approximately 2002/2003 when we then decided to return to UTI and utilise their Hale Street, Botany facilities. We remained with that company until the date of the fire. We were also utilising the facilities of UTI in Melbourne. I've provided Mr King with a copy of the current form of agreement in place with UTI, which is dated 1 June, 2004." 33In regard to that entry, Mr King gave the following evidence: - "Q: Did Mr Bennett provide you, Mr King, with something he called the current form of the agreement? A: Yes. Q: And that was [the document dated 1 June 2004] that I showed you a moment ago, which came from your file produced on subpoena, was it not? A: Yes." 34Mr King's evidence made quite clear that on 17 January 2006, only 15 days after the fire, Mr Bennett had given Mr King a document that he described as being the "current form of the agreement" between PRI and UTI; which document included the STCs. Ms Abdel-Fattah's evidence 35Ms Abdel-Fattah also swore an affidavit in which she described the process that, so far as she could recall, she undertook to prepare the Particulars Letter. 36Based upon the contents of Mr King's report, referred to above, Ms Abdel-Fattah said, in her affidavit: - "I proceeded on the assumption that the terms and conditions in the document attached to Mr King's report formed part of the agreement between PRI and UTI for the storage of the goods destroyed in the 2 January 2006 warehouse fire. I do not remember receiving any instructions or correspondence from Mr Lloyd Bennett, Mr Nicholas Blake, Mr Frank Ruckriegl or Mr Bob King to confirm this assumption." 37Mr King's evidence, as outlined above, showed that Ms Abdel-Fattah was entitled to proceed upon the assumption that she did. 38Ms Abdel-Fattah said that she prepared a draft response to the request for particulars. She sought instructions from the offices of PRI in respect of certain aspects of the matter, but did not seek any instructions about the subject of her assumption concerning the terms and conditions of the contract. She did not send PRI a draft of her proposed response to the request for particulars. 39Mr Bennett made a statement in these proceedings on 12 August 2010. He was not called to give evidence on the voir dire. No explanation was given for his absence from the witness box (although Mr Williams SC did attempt to ask Mr Blake, in re-examination, a question "about Mr Bennett's health"). 40Mr King's evidence reveals that, contrary to PRI's submission, the statement made in the Particulars Letter was not merely "the product of an assumption made by an insurance investigator, which was not checked or confirmed by the solicitor who prepared the letter". 41The true position is that Mr Bennett told Mr King that the 1 June 2004 Warehouse Distribution Proposal (which included the STCs) was the "current" agreement (as at 17 January 2006) between UTI and PRI. It is obvious from the terms of Mr King's evidence that Mr Bennett meant, by this statement, that the document was the agreement "current" at the date of the fire. 42Ms Abdel-Fattah assumed, correctly as it turns out, that the matter stated in Mr King's report, and in the draft statement annexed to it, reflected what Mr Bennett had told Mr King to be the true position on instructions. 43Although Ms Abdel-Fattah did not, at the time, seek confirmation from PRI of the matters Mr Bennett had told Mr King, on 23 November 2007 Ms Abdel-Fattah was present at a conference that took place between her, Mr Van De Poll and Messrs Ruckreigl, Blake and Bennett. 44During that interview the following exchange took place between Mr Van De Poll and Mr Bennett: - "[Van De Poll] Q253. The proceeding is based on two things. Firstly, that there was an agreement between yourselves and UTI. And secondly that they breached that agreement, either by their negligence of by their failure to comply with laws. So that the starting point for it is, you entered into an agreement with UTI around about April 2002? [Bennett] A. Well, you're testing our memories now. [Van De Poll] Q254. Right. Okay? [Bennett] A. Without looking at the documents. [Van De Poll] Q255. I think I got that from somewhere else where you had told us that? [Bennett] A. We sent copies of our agreement I think probably." 45Although Mr Bennett's statement was somewhat tentative, I would read it as confirmation by him of his provision to Mr King of the Warehouse and Distribution Proposal of 1 June 2004 (as the then "current" agreement). 46A solicitor has ostensible authority of his or her clients to make admissions (for example, see Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369; (2008) 167 FCR 314 per Rares J at [18]), although not if the admissions are contrary to the facts (see Frederic T Horne, Cordery's Law relating to Solicitors, 8th ed (1988) at 78, citing Scott LK in Groom v Crocker [1939] 1 KB 194 at 222-224; not repeated in Cordery's on Legal Services, 9th ed, but see [3255] in vol 1). 47Although Ms Abdel-Fattah did not, in terms, seek instructions from PRI to make the relevant statement in the Particulars Letter, what she, and Mr Van De Poll, did say in the Particulars Letter was in accordance with the instructions Mr Bennett gave Mr King. It was not contrary to the facts. 48It is "open to find" that Ms Abdel-Fattah had authority to make the admission within the meaning of s 87(1)(a) of the Evidence Act. 49In my opinion, the combination of these circumstances is sufficient to characterise the statements made in the Particulars Letter concerning the incorporation of the STCs into the contract between UTI and PRI as an admission by PRI. 50Accordingly, I admitted the Particulars Letter as Exhibit 12. ********** 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: 12 September 2012