David Jones Ltd v BI (Contracting) P/L (No 3) - [2013] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DAVID JONES LTD v BI (CONTRACTING) P/L (No 3)
[2013] SADC 92
Ruling of His Honour Judge Jennings
9 July 2013
PROCEDURE
Application for admissibility of documents and for further and better responses to Notice to Admit – Ruling made in relation to ss 34C(3) and 45B(3) of the Evidence Act – Consideration of ss 45A(2)(a) and 59J adjourned to enable parties to place relevant evidence before the Court.
Southern Equities Corporation Ltd (In Liquidation) & Ors v Bond & Ors (No 2) (2001) 78 SASR 554; Ramsay v Watson [1961] HCA 65, considered.

DAVID JONES LTD v BI (CONTRACTING) P/L (No 3)
[2013] SADC 92
Introduction

This is an application that seeks an order for the admission of certain documents and an order that further and better responses be provided to a notice to admit.
The background to the application is as follows.
Mr Philip Murphy was employed by the plaintiff as a display artist at its David Jones Rundle Street store between 1967 and 1978. On 19 April 2007 Mr Murphy instituted proceedings in the Dust Diseases Tribunal of New South Wales against the plaintiff claiming damages for personal injury. He alleged that he was suffering from mesothelioma as a result of exposure to asbestos whilst working for the plaintiff.
On 7 October 2010 the plaintiff issued the within proceedings against the defendant. It did so pursuant to the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (the Law Reform Act).
In statement of particulars he lodged in connection with his damages claim, which was verified on oath, Mr Murphy made certain assertions about his exposure to asbestos. He also gave a history of that exposure to two medical experts, Dr Burns and Dr Pang. I was informed that Dr Burns resides in New South Wales and is in ill health. I was informed that Dr Pang resides in Hong Kong.
Mr Murphy has since passed away.
The plaintiff contends that it is legally permissible for it to rely upon Mr Murphy’s statement of particulars in the within proceedings as proof of the facts alleged therein. It also contends that it is able to rely upon the histories Mr Murphy provided to Dr Burns and Dr Pang, as recorded by them in medical reports, without them being called to give evidence.
In support of its first contention it relies upon ss 34C and 45B of the Evidence Act 1929.
In support of its second contention it relies upon ss 45A and 59J of the Evidence Act.
I set out these provisions as follows:
34C—Admissibility of documentary evidence as to facts in issue
(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] SADC 92
Decision Date: 9 July 2013

CaseChat Overview and Summary

In the matter of David Jones Ltd v BI (Contracting) P/L (No 3), the Federal Circuit and Family Court was presented with an application by David Jones Ltd for the admissibility of certain documents and for further and better responses to a Notice to Admit. The case involves a contractual dispute between the parties, with David Jones Ltd seeking to enforce a contract for the construction of a shopping centre. BI (Contracting) P/L has resisted the application on the basis that the documents are inadmissible and that the responses to the Notice to Admit are insufficient. The court was required to determine whether the documents were admissible under the Evidence Act and whether the responses to the Notice to Admit were adequate.

The court considered whether the documents were relevant and whether their probative value outweighed any prejudicial effect they may have. The court also considered whether the documents had been obtained in a manner that was fair and did not contravene any law. In relation to the Notice to Admit, the court had to consider whether the responses were sufficient to establish the facts in issue. The court noted that the parties had not placed before it any evidence that would assist in determining whether the documents were relevant and whether their probative value outweighed any prejudicial effect they may have. The court therefore adjourned the consideration of these issues to enable the parties to place relevant evidence before the Court.

In light of the above, the court ruled that the application for the admissibility of the documents was premature and that further evidence was required to determine whether the documents were admissible. The court also ruled that the responses to the Notice to Admit were insufficient and that further and better responses were required. The court adjourned the matter to enable the parties to place relevant evidence before the Court. No final orders were made at this stage of the proceedings.

Orders