Day v The Ocean Beach Hotel Shellharbour Pty Ltd - [2011] NSWDC 270

District Court

New South Wales

Medium Neutral Citation: Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2011] NSWDC 270
Decision date: 21 October 2011
Before: Cogswell SC DCJ
Decision:
Evidence admitted.

Catchwords: EVIDENCE - Admissions - extent of admissions - statements taken by police and transcript of evidence given at Magistrate's Court - Procedure - rules of court - effect and construction - whether failure to comply with a Practice Note rendered documents inadmissible - whether admissions should have been specifically pleaded - distinction between facts and evidence.
Legislation Cited: Civil Procedure Act 2005 (NSW) s 56.
Evidence Act 1995 (NSW), ss 87, 135, 192.
Uniform Civil Procedure Rules 2005 (NSW).
Cases Cited: Cassaniti v Paragalli [2006] NSWSC 50.
Kirkpatrick v Kotis (2004) 62 NSWLR 567.
White v Overland [2001] FCA 1333.
Category: Interlocutory applications
Parties: Julia Day (plaintiff)
The Ocean Beach Hotel Shellharbour Pty Ltd (first defendant)
Karma Elliott-Cosmos (second defendant)
Checkmate Security International Pty Ltd (third defendant)
Representation: Counsel:
E Chrysostomou (plaintiff)
W S Reynolds (first and second defendant)

File Number(s): DC 2010/379772

Judgment

Julia Day was at the Ocean Beach Hotel in Shellharbour on a Friday evening, 4 July 2008. She was approached by a person whose job included keeping security in the hotel and asked to leave. I do not need to go into the transaction between Julia Day and the security person, but Julia Day says what happened is that the security person pulled a chair from under her and she fell onto the floor. She injured herself in that fall.

Julia Day commenced a case in the District Court. She sued the hotel, the Ocean Beach Hotel Shellharbour Pty Limited, which is the first defendant, and she sued the licensee of the hotel, Karma Elliott-Cosmos, who is the second defendant. In addition, she sued the company responsible for the security at the hotel as third defendant, Checkmate Security International Pty Limited.

I have heard evidence so far from Julia Day and some exhibits have been tendered and admitted into evidence. There has been no appearance at the hearing on the part of the third defendant, despite being called. Information conveyed to me by counsel suggests that it is unlikely that the third defendant will be taking any part in these proceedings any more.

After his client's evidence had finished, counsel for Julia Day, Mr E Chrysostomou, tendered two bundles of documents. They were admitted on the voir dire as VDB and VDC. In order to understand the significance of these documents, I need to add that the police brought a prosecution against Julia Day in the Local Court at Wollongong for various offences, including refusing to leave licensed premises. For this purpose, the police took statements from the second defendant, Karma Elliott-Cosmos, from another employee of the first defendant hotel, as well as from the security person who, Ms Day alleges, was the one who pulled the chair from under her.

The case went to court and Ms Day was…

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: [2011] NSWDC 270
Decision Date: 21 October 2011

CaseChat Overview and Summary

In the case of Day v The Ocean Beach Hotel Shellharbour Pty Ltd, the dispute involved an incident where the plaintiff alleged injuries resulting from a fall at the defendant's premises. The matter was before the court to determine the admissibility of specific evidence and the extent of admissions made by the parties. The plaintiff sought to rely on statements taken by police and a transcript of evidence given at a previous Magistrate's Court proceeding. The defendant contested the admissibility of this evidence, arguing that it should not be considered due to a failure to comply with a relevant Practice Note and because the admissions were not specifically pleaded.

The court was required to decide whether the non-compliance with the Practice Note rendered the documents inadmissible and whether the admissions should have been specifically pleaded. Additionally, the court needed to distinguish between facts and evidence to ensure a fair assessment of the case. The court examined the relevant rules of court and the purpose of the Practice Notes, considering whether strict adherence was necessary for the evidence to be deemed inadmissible.

The court found that the failure to comply with the Practice Note did not automatically render the documents inadmissible. It determined that the primary focus should be on the fairness and relevance of the evidence rather than procedural technicalities. Furthermore, the court held that the admissions did not need to be specifically pleaded as long as they were clearly identifiable in the documents and did not mislead the opposing party. The court emphasised the importance of distinguishing between facts and evidence, ensuring that the admissions were treated appropriately within the legal proceedings.

As a result, the court admitted the evidence in question, allowing the plaintiff to rely on the statements and transcript. This decision enabled the plaintiff to proceed with their case, providing a comprehensive basis for their claims. The court's ruling highlighted the need for a balanced approach to procedural rules and the importance of substantive fairness in the admissibility of evidence.

Orders

Orders of the court

Evidence admitted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2011] NSWDC 270
Decision date:	21 October 2011
Before:	Cogswell SC DCJ
Decision:	Evidence admitted.
Catchwords:	EVIDENCE - Admissions - extent of admissions - statements taken by police and transcript of evidence given at Magistrate's Court - Procedure - rules of court - effect and construction - whether failure to comply with a Practice Note rendered documents inadmissible - whether admissions should have been specifically pleaded - distinction between facts and evidence.
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 56. Evidence Act 1995 (NSW), ss 87, 135, 192. Uniform Civil Procedure Rules 2005 (NSW).
Cases Cited:	Cassaniti v Paragalli [2006] NSWSC 50. Kirkpatrick v Kotis (2004) 62 NSWLR 567. White v Overland [2001] FCA 1333.
Category:	Interlocutory applications
Parties:	Julia Day (plaintiff) The Ocean Beach Hotel Shellharbour Pty Ltd (first defendant) Karma Elliott-Cosmos (second defendant) Checkmate Security International Pty Ltd (third defendant)
Representation:	Counsel: E Chrysostomou (plaintiff) W S Reynolds (first and second defendant)
File Number(s):	DC 2010/379772