Supreme Court New South Wales Medium Neutral Citation: Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 4) [2015] NSWSC 1183 Hearing dates: 4, 5 August (Evidence on Commission); 7, 10 – 14, 17 – 18 August 2015 Date of orders: 18 August 2015 Decision date: 18 August 2015 Jurisdiction: Common Law Before: Campbell J Decision: I refuse to admit question and answer 168; I refuse to admit question and answer 249; I admit questions and answers 307 to 311 as Exhibit 1D11 Catchwords: PROCEDURE – civil – admission of certain questions and answers from a record of interview – application of s 87(1)(b) Evidence Act 1995 (NSW) – whether prejudicial value outweighs probative value Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Benjamin Kuypers (Plaintiff); Ashton Coal Operations Pty Ltd (First defendant); Silver City Drilling (NSW) Pty Ltd (Second defendant) Representation: Counsel: B. Dooley SC with M. Perry (Plaintiff); R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant); A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant) Solicitors: Taylor & Scott Lawyers (Plaintiff); Curwoods Lawyers (First defendant); Lee Legal Group (Second defendant) File Number(s): 2012/393861 revised extempore judgment 1. Mr Cavanagh of senior counsel has tendered three short passages from the record of interview of Thomas Lawson which took place on 8 October 2012. The interview was conducted by investigators from the Mine Safety Investigation Unit. There is no issue that Mr Lawson was, at the material time, an employee of the second defendant, the drilling contractor involved in the work the subject of this case. As a drilling assistant, his task, on evidence I have heard, was obviously to operate as a trade's assistant to the drilling rig operator. That involved, from time to time, collecting samples of the subsurface ground that was expelled from the drill hole during drilling operations and to assist in tasks such as setting up the drill rig, checking on the compressors, assisting in constructing the conductor aspect of the borehole, consisting of a steel casing and grout, and other matters of a like nature. 2. The passages tendered by Mr Cavanagh are question and answer 168, question and answer 249 and questions and answers 307 to 311. Mr Cavanagh relies upon the provisions of s 87(1)(b) Evidence Act 1995 (NSW). Mr Harris QC objects to the reception of each of the statements. He says that none are admissions in the sense of being statements against interest. Specifically he says question and answer 249 are not relevant to any issue and, given the circumstances in which the statements were made, that is to say, as part of a compulsory process, I should either exclude the evidence or limit its use under s 135 and 136 Evidence Act on the ground that the probative value of the admissions, if they be such, is greatly outweighed by the unfair prejudice the second defendant might suffer by reason of their admission. 3. Section 87(1)(b) considerably, in my view, extends the scope of representations that will be considered admissions beyond the scope of the previous common law. The section is in the following terms: 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: (b) when the representation was made, the person was an employee of the party, and the representation related to a matter within the scope of the person's employment... 1. In the case of an employee it is clear from the express language of the section that it is not necessary for the party tendering the statement, or the representation rather, to prove that the representation was made within authority. There is a question in the case about whether the conductor, as I have referred to, was properly seated in bedrock. The question and answer at question 168 is a statement that Mr Lawson remembers gravel at 10 to 19 metres (there is a misstatement in the record of interview). That could be relevant because it is common ground, I think, that the conductor was less than 19 metres in length and doubtless the first defendant will submit that the statement that there was gravel to 19 metres is an admission by the second defendant, through Mr Lawson, that the conductor was not seated in bedrock. 2. I acknowledge, as I have heard other evidence, that a gravel‑like appearance can be produced by other conditions in the substrata of a borehole and that the appearance of gravel can be produced when a conglomerate is drilled, and I think also there is evidence that sometimes a gravelly appearance can be produced by the chipping away by the drill bit at solid sandstone. However, Mr Cavanagh in argument stresses that we are dealing with the question of admissibility, not reliability, and it is sufficient for admissibility if it is reasonably open to find that the representation is an admission made within the scope of Mr Lawson's employment. 3. The greater passage being dealt with in the passage of the record of interview, in which question 168 is found, is really an interrogation on the basis of a drilling log completed by Mr Maude on 9 August 2012. Mr Maude was a drill rig operator employed by the second defendant. That log is in evidence before me. It is important to set out, I think, what Mr Lawson says. Before doing that, I will record that Mr Maude's drill log, after referring to gravel at 10 to 19 metres, makes the comment, "Hole collaring badly". That is a reference to the alluvial stratum, as it were, collapsing into the hole. The question he was asked is: Q. Well, how was the job going as far as [collaring], can you recollect how it was going? A. I don't know collaring, but it was drilling. Yeah, I think when we hit the gravels, yeah, I remember hitting the gravels now, that's about it really. I remember there was a lot of clean‑up, but that was about it, and it was slow. 1. He later referred to "that gravelly band that they talk about". He also said that he had not experienced that before. I suppose to the extent to which Mr Lawson confirms that there was gravel that could be a statement against interest suggesting that the conductor was installed in other than consolidated ground. However, looking at the statement in context, notwithstanding that this is a judge alone trial, I am rather of the view that the probative value of that statement is so slight that it is substantially outweighed by the danger that the evidence could be misleading or confusing, taken out of context or cause or result in an undue waste of time in as much as could generate false issues that might need to be further explored in evidence which, in the light of the evidence I have already received, would hardly be, may I put it this way, decisive of the issues I have to decide in the case. Accordingly I refuse to admit question and answer 168. 2. Dealing with question and answer 249 that material is in this form, again it forms part of a longer passage dealing with the circumstances of pouring the grout into the annulus of the upper reach of the borehole, the annulus created by the outer diameter of the steel casing and the excavated hole: Question: "Did you see if there was a sample of the grout taken anywhere?" Answer: "Not to my knowledge." 1. Firstly it must be said that it is not clear to me on the evidence I have heard over the last two and a half weeks that there is any suggestion that the grout that was actually used was in some way defective or deficient. 2. That is quite a different question of course from the question of whether the conductor was properly seated and so I am not satisfied question and answer 249 are relevant. Moreover a statement "not to my knowledge" is hardly a statement against the interests of the second defendant. It does no more than say that he does not know one way or the other. I reject the tender of that question and answer. 3. Turning to questions and answers 307 to 311 the gravamen of that material is that, as is established by other evidence, the end of the blooie or discharge line of the drill rig was held in place over the edge of the sump hole by two star picket fences tied together over the blooie line with steel. Mr Lawson says that he installed that arrangement and that he did so because, I infer, he noticed that there was movement in the blooie line during discharge of the cuttings and water from the drill hole. He added "So they were there to hold the blooie line down." 4. The plaintiff was injured upon the explosive release of compressed air. The blooie line reared up in a vertical plane dislodging his workstation and landing on him causing catastrophic injury. It is unnecessary to go into what I understand the expert evidence will be about how that came to pass, but it seems to me that prior movement of the blooie line is a relevant fact in the case because, as Mr Dooley submitted, it really goes to the question of foreseeability of vertical movement in the blooie line in accordance with the arrangement that had been adopted for its configuration on the particular borehole. It may not be without significance, these matters have to be determined in light of all the evidence in due course, that Mr Lawson said that the arrangement he put in place was to hold down the blooie line. I emphasise the word "down." 5. It seems to me that, in accordance with s 87, it is reasonably open to find that that is a statement against interest made by Mr Lawson within the scope of his employment and I admit questions and answers 307 to 311 as Exhibit 1D11. ********* 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 August 2015