Andonovski v Park-Tec Engineering Pty Ltd; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd (No 3)

[2013] NSWSC 1959

Supreme Court

New South Wales

Medium Neutral Citation:	Andonovski v Park-Tec Engineering Pty Ltd & Anor; Andonovski v East Realisations Pty Limited Formerly t/as Westbus Pty Ltd (No 3) [2013] NSWSC 1959
Hearing dates:	16/12/2013
Decision date:	16 December 2013
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	I admit MFI 7 as exhibit 1D16
Catchwords:	EVIDENCE - admissibility of document - relevance
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Connelly v Wells (1994) 10 NSWCCR 396 Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 Pitcher v Langford (1991) 23 NSWLR 142 Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197
Category:	Procedural and other rulings
Parties:	Vlado Andonovski (plaintiff in both matters) Park-Tec Engineering Pty Ltd (first defendant in matter 2007/292845) Barbeques Galore Pty Ltd (second defendant in matter 2007/292845) East Realisations Pty Ltd (first defendant in matter 2008/316044) RD Transport Services Pty Ltd (second defendant in matter 2008/316044)
Representation:	Counsel: AJ Lidden SC with E Welsh and VM Sciglitano (plaintiff in both matters) TA Berberian (first defendant in matter 2007/292845) NJ Polin (second defendant in matter 2007/292845) RA O'Keefe (first and second defendants in matter 2008/316044) Solicitors: Brydens (plaintiff in both matters) HWL Ebsworth (first defendant in matter 2007/292845) Stiles Lawyers Pty Ltd (second defendant in matter 2007/292845) Vardanega Roberts (first and second defendants in matter 2008/316044)
File Number(s):	2007/292845 2008/316044

EX TEMPore Judgment

1. Ms Berberian, counsel for the first defendant, tenders a document which has been previously marked MFI 7. It is the form of an application for employment made by a Mr Vanthavong, who gave evidence before me on Friday. Mr Vanthavong is a leading hand who was working at the first defendant's premises at the time the plaintiff suffered his injury in March of 2004.

1. Ms Berberian says the relevance of the document is that it goes to the establishment of the identity of the witness's employer, which she says is not her corporate client. As I understand the argument, if it can be established that supervisors working at the site at the time of the plaintiff's injury were not employees of the first defendant then that consideration may be relevant to the nature, scope and content of any duty owed by the first defendant and more pertinently to the question of apportionment between the defendant and the plaintiff's direct employer, the second defendant.

1. Mr Lidden of senior counsel, appearing for the plaintiff, objects and joins issue with the relevant issue. He points out that in the statement that was tendered in evidence Mr Vanthavong described his employer as being the first defendant and that no application was made to cross-examine him about that matter under s 38 of the Evidence Act 1995 (NSW). He also points out, so far as any weight that might be attached to the document is concerned, that it was signed in the early to mid 1990's, a long time before the events with which we are concerned in this case.

1. Mr Polin, counsel who appears for the second defendant, adopts Mr Lidden's submission but also points out that it will be shown in due course - and he has documentation by way of company searches to establish it - that the entity that Mr Vanthavong applied to for employment was not his client, but a separate company. He says that, therefore, it is simply not relevant to any fact in issue in the present case.

1. Acknowledging the force of the submissions made by those counsel who oppose the admission of the document it does seem to me, given that in deciding the second defendant employed the plaintiff, the Court of Appeal expressly left open the question of the identity of the employer of the other persons working at Park-Tec on the day of the plaintiff's accident, that this document is capable of establishing, or at least assisting to establish directly or indirectly the identity of that employer.

1. Although Mr Vanthavong was not challenged, or otherwise questioned, about who he thought his employer was, in my judgment that matter is neither here nor there for the purposes of determining the admissibility of this document.

1. I am conscious that in Pitcher v Langford (1991) 23 NSWLR 142 and Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197, Handley JA expressed the view that what an employee says about his or her employment status and the identity of his or her employer might be entitled to considerable weight. Those observations of his Honour, as I understand them, were made in the context of workers compensation cases. The worker's evidence was admissible as admissions. Although not expressly disapproved of by Gummow J in Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317, it seems to me that the approach is, with very great respect, inconsistent with the general approach, as Gummow J explained in that case, that lay witnesses ought not be asked to make admissions about questions of fact which depend upon the application of a legal standard. That is to say admissions, or so-called admissions about mixed questions of fact and law are of no weight. I understand that Gleeson CJ and Kirby J agreed with his Honour's judgment in that regard. (Pitcher v Langford is referred to in a footnote.) In Connelly v Wells (1994) 10 NSWCCR 396 Gleeson CJ, when Chief Justice of New South Wales, observed that the question of employment is indeed a question of mixed fact and law.

1. In the circumstances, I do not think it was to the point to challenge Mr Vanthavong, a relatively junior person in the hierarchy notwithstanding his status as a leading hand, about who he believed his employer was.

1. For those reasons I admit MFI 7 as exhibit 1D16.

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