De Bever v M B Marlow Engineering Pty Ltd (Ruling No 2)
[2013] VCC 1924
•6 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-00366
| ADRIAN DE BEVER | Plaintiff |
| v | |
| M B MARLOW ENGINEERING PTY LTD | First Defendant |
| and | |
| MACKIE PTY LIMITED | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 13, 14, 18, 19, 20, 21, 22, 25, 26 and 27 November 2013, 3 and 4 December 2013 | |
DATE OF RULING: | 6 December 2013 | |
CASE MAY BE CITED AS: | De Bever v M B Marlow Engineering Pty Ltd & Anor (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1924 | |
RULING
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Subject:ADMISSION OF EVIDENCE BY WAY OF SECTION 63 EVIDENCE ACT 2008
Catchwords: “Not available” – “asserted fact” and “notice”
Legislation Cited: Evidence Act 2008, s59, s63, s65 and s67; Clause 4(1)(e) and Clause 6 of Part 2 of the Dictionary contained in the Evidence Act 2008; Part 1 of the Dictionary; Occupational Health and Safety Regulations 2007
Cases Cited:ZL v R [2010] VSCA 345; Rossi v R [2012] VSCA 228; Caterpillar Inc v John Deere Ltd & Ors (No 2) (2000) 181 ALR 108; Quintano v BW Rose Pty Ltd [2008] NSWSC 1012
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A N Murdoch SC with Ms A L Wood | Shine Lawyers |
| For the First Defendant | Mr P D Elliott QC with Mr N K Clarke | Wisewould Mahony |
| For the Second Defendant | Ms N Tsikaris | Wotton Kearney |
HIS HONOUR:
Preliminary
1 On 27 November 2013, at the completion of viva voce evidence, counsel for the first and second defendants applied jointly for a ruling that a purported statement of Minh Vu made on 29 April 2008 (“the statement”) should be admitted into evidence pursuant to s63 of the Evidence Act 2008 (“the Act”). Senior Counsel for the plaintiff opposed such application. Argument ensued on 27 November and 28 November 2013. On the latter day, I ruled that the statement was inadmissible and that written reasons would be given at a later date. I now give those reasons.
The proceeding
2 Adrian De Bever, who I shall refer to as “the plaintiff” was at all relevant times employed by M B Marlow Engineering Pty Ltd, which I shall refer to as “the first defendant”, in the capacity as a boilermaker. The first defendant was engaged by Mackie Pty Ltd, which I shall refer to as “the second defendant” to perform steel fabrication work at premises situated at 94 Market Street, South Melbourne (“the premises”).
3 The plaintiff alleges that on or about 12 March 2008, during the course of his employment at the premises, he stood on a window sill which collapsed, causing him to fall into the void below and suffer injury and in particular, a neck injury.
4 The plaintiff alleges against the first defendant that his injuries were caused by its negligence and/or a breach of Part 3.3 of the Occupational Health and Safety Regulations 2007, in that it failed to identify the task required of the plaintiff which involved a “fall hazard” and failed to control the risk of the plaintiff falling by means set out in the Regulations.
5 The plaintiff further alleges that the second defendant was an occupier of the premises and breached a common law duty of care that it owed to the plaintiff to take such care as in all the circumstances as was reasonable to see that the plaintiff, whilst at the premises, was not injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
6 The plaintiff also alleges against the first and/or second defendant a general duty of care, a breach of which was a cause of injuries suffered by the plaintiff.
7 The defendants deny any liability whatsoever and furthermore, if so liable, allege contributory negligence on the part of the plaintiff. Both defendants raised the issue of the credibility of the plaintiff.
The statement
8 The statement is just over one-page long and the maker of such statement identifies himself as Minh Vu, who is employed by the second defendant and working at the premises on 12 March 2008. In particular, the maker of the statement identifies himself performing some work about 3 to 4 metres away from where the plaintiff was working. In particular, it is asserted in the statement:
“I have no memory seeing Adrian fall or have an accident that morning. I did not see him go through the window sill and he never said to me that he had hurt himself. At one stage I turned around and saw him standing near the windows, but he didn’t say anything about having an accident. He seemed normal to me. I was working in that area for two or three hours and then went off to do other jobs. Adrian didn’t say anything to me about having a sore arm later in the day or in later days. …
Adrian has not been in contact with me since he left the company. He never said anything to me about hurting his arm and I have no idea why he would say that I was there or that I saw what happened. I had my back to him and didn’t see anything.”
9 The statement is purportedly signed by Vu and dated 29 April 2008 and witnessed by one Ms Belinda Baxter of Maurice J Kerrigan & Associates.
Background
10 During his evidence-in-chief, the plaintiff asserted that there was another employee “Minh” who was working in the vicinity at the time of the incident.[1] In particular, when asked what happened after the incident, the plaintiff stated:
[1]Transcript (“T”) 115, L1–5
A: “… I swore a little and Minh was working and as I said earlier about 2, 3 metres away from me. He looked around and asked me if I was okay.
Q:What did you say to him?---
A:I said ‘Yeah, I’m fine, I’ve just got a bit of a sore elbow but I'm fine to a certain extent.’
Q:So what happened then?---
A:I then proceeded to climb out of the whole.”[2]
[2]T158, L14-21
11 Later in his evidence-in-chief, the plaintiff was again asked what happened following the incident and he stated:
“ As I indicated earlier, I – I climbed out of the hole and Minh – obviously he asked me if I was okay and then he made a point of saying, ‘I didn’t see anything. I don’t know anything because I don’t want to lose my job.’”[3]
[3]T166, L20-26
12 Under cross-examination by Senior Counsel for the first defendant, the plaintiff accepted that he made a statement and signed it on 24 April 2008.[4]
[4]See Exhibit C
13 In that statement, the plaintiff states, in part:
“Minh, who had his back to me, was about two to three metres away. He heard me swear and turn around, and then came running over and asked if I was okay. I pulled my foot out of the wall and said I thought I was fine. He went back on with his work and I did the same, although my shoulder was still sore … .”
14 Later in that statement, the plaintiff states:
“Michael … [Michael Marlow, director of the first defendant] had spoken with Minh and that Minh had denied knowing anything about my accident. I think Minh might be concerned about his position with the company and does not want to say anything to support me.”
15 Vu had not given viva voce evidence and there had been no cross-examination of any witness, in particular, no cross-examination of Marlow (the director of the first defendant) as to the availability and/or whereabouts of Vu.
Relevant legal principles
16 The following parts of the Act are relevant:
“EVIDENCE ACT 2008 - SECT 63
Exception—civil proceedings if maker not available
(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to—
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b)a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.”
“EVIDENCE ACT 2008 - SECT 67
Notice to be given
(1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.
(2) …
(3) …
(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.
(5) The direction—
(a)is subject to such conditions (if any) as the court thinks fit; and
(b)in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.”
17 Clause 4(1)(e) of Part 2 of the Dictionary contained in the Act states:
“(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if –
(a)…
(b)…
(c)…
(d)…
(e)…
(f)all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or
(g)… .
(2) In all other cases the person is taken to be available to give evidence about the fact.”
18 Clause 6 of Part 2 of the Dictionary states:
“For the purposes of this Act, a representation contained in a document is taken to have been made by a person if—
(a) the document was written, made or otherwise produced by the person; or
(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.”
19 Part 1 of the Dictionary states that the term “asserted fact” is defined in s59 of the Act. Section 59 of the Act states:
“(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.”
Submissions
20 Those acting on behalf of the defendants submitted that either notice had been given to the solicitors for the plaintiff consistent with s67(2) of the Act,[5] or alternatively, failing that, the Court should direct pursuant to s67(4) of the Act that s63(2) applied despite a failure to give notice.
[5]Notice was given approximately two weeks prior to the subject application
21 Furthermore, those acting on behalf of the defendants submitted that the evidence established that all reasonable steps had been taken by the parties to prove that Vu was not available consistent with Clause 4 of Part 2 of the Dictionary.
22 In this respect, the defendants relied on an affidavit from Graeme Worcester, sworn on 12 November 2013. Mr Worcester deposes that he is a licensed investigator and a director of Lindalow Pty Ltd, which is a private detective agency based in Melbourne. Such company has been in operation since 1986 and Mr Worcester has been a member of the Victorian Police Force and also an intelligence analyst with the Department of Defence. He deposes to making a variety of enquiries through various databases to try to ascertain the whereabouts of Vu – all to no avail.
23 Senior Counsel for the plaintiff took no issue that Clause 6 of Part 2 of the Dictionary had been complied with in that the representation contained in the document was a statement of Vu and did not require the attendance of any further witness to prove that he made a statement on that date. However, Senior Counsel for the plaintiff disputed whether all reasonable steps had been taken by the defendants to secure the attendance of Vu. In this respect, it was submitted that the extent of such search for Vu was not reasonable, and, furthermore, it was not reasonable that such attempts had been made only a short time prior to the trial.
24 More particularly, Senior Counsel for the plaintiff submitted that when analysed, the only assertion in the statement which could have any particular relevance was whether the plaintiff had a conversation with Vu on the day that he allegedly suffered injury. In this respect, it was to be noted that there was no dispute that the plaintiff did step under the windowsill and fall to some extent, and that such event was a cause of the need to have neck surgery resulting in a fusion.
25 In such circumstances, it was submitted that the only reason such document was to be tendered was to attack the credit of the plaintiff and that such evidence would be inadmissible pursuant to s102 of the Act which states:
“Credibility evidence about a witness is not admissible.”
26 Section 101A of the Act effectively defines what is “credibility evidence”, and, further, the tendering of the document would not comply with any of the exceptions pertaining to the credibility of a witness.
Disposition of the matter
27 After a consideration of the competing submissions, I ruled that the statement was inadmissible. I did find that there had been compliance with Clause 4 of Part 2 of the Dictionary, in that the matters referred to by Worcester in his affidavit did constitute all reasonable steps being taken to ascertain the whereabouts of Wu.
28 Some assistance was given to me by the cases of ZL v R[6] and Rossi v R,[7] both of which deal with s65 of the Act (that is, admission of statements in criminal proceedings if maker not available) but the requirement within s65(1) is the same as required in s64, that the person who made a previous application “is not available to give evidence about an asserted fact”.
[6][2010] VSCA 345
[7][2012] VSCA 228
29 Furthermore, given the concession by Senior Counsel for the plaintiff, I accepted that the document complied with Clause 6 of Part 2 of the Dictionary.[8] No issue was taken as to appropriate notice, and if indeed there had been, I consider s67(4) was operative and that direction could have been given that s63(2) was inapplicable. Authority would suggest that the main purpose of giving notice was not to prejudice the other party to make its own efforts to locate the missing witness.[9]
[8]See Caterpillar Inc v John Deere Ltd & Ors (No 2) (2000) 181 ALR 108, paragraphs [3]-[9]
[9]See Quintano v BW Rose Pty Ltd [2008] NSWSC 1012
30 However, ultimately, I came to the view that the only asserted fact of any relevance given that the defendants accepted that the plaintiff stepped onto the windowsill and that such fall gave rise to at least a neck injury requiring surgery would be to attack the credit of the plaintiff which was impermissible.
Conclusion
31 Accordingly, I rule that such document could not be tendered.
32 For completeness, I should state that when the ruling was made the jury was still empanelled but, subsequently, I discharged the jury.
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