General Jones Pty Ltd v Wildridge & Sinclair Pty Ltd and Burnie Port Authority; Olympic General v Burnie Port Authority and Wildridge & Sinclair; Burnie Port Authority v Wildridge & Sinclair Pty Ltd and Olympic General

[1988] TASSC 25

[1988] TASSC 25

CITATION: General Jones Pty Ltd v Wildridge & Sinclair Pty Ltd and Burnie Port Authority; Olympic General v Burnie Port Authority and Wildridge & Sinclair; Burnie Port Authority v Wildridge & Sinclair Pty Ltd and Olympic General [1988] TASSC 25; A11/1988

PARTIES:  GENERAL JONES PTY LTD

v
WILDRIDGE & SINCLAIR PTY LTD
BURNIE PORT AUTHORITY

OLYMPIC GENERAL
v
BURNIE PORT AUTHORITY
WILDRIDGE & SINCLAIR PTY LTD

BURNIE PORT AUTHORITY
v
WILDRIDG & SINCLAIR PTY LTD
OLYMPIC GENERAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  694/1981

2913/1981
2860A/1982

DELIVERED ON:  12 April 1988
JUDGMENT OF:  Neasey J

Judgment Number:  A11/1988
Number of paragraphs:  18

Serial No 11/1988
List "A"
File Nos   694/1981
              2913/1981
              2860A/1982

GENERAL JONES PTY LTD v WILDRIDGE & SINCLAIR PTY LTD
and BURNIE PORT AUTHORITY
OLYMPIC GENERAL v BURNIE PORT AUTHORITY
and WILDRIDGE & SINCLAIR
BURNIE PORT AUTHORITY v WILDRIDGE & SINCLAIR PTY LTD
and OLYMPIC GENERAL

REASONS FOR JUDGMENT  NEASEY J

(Ruling During Trial)  12 April 1988

1. The principal factual issue concerning liability in this case is, how the fire was started at the Burnie Port Authority's building. The plaintiff, Burnie Port Authority (hereinafter, "BPA"), seeks to call a witness to whom certain statements were made, and in whose presence certain statements were made on the telephone, by a foreman welder, Mr Whyman, who was employed on the site by the defendant, Wildridge and Sinclair Pty Ltd (hereinafter, "W and S"). It is objected by counsel for W and S that the statements are inadmissible. The plaintiff (indeed, all the plaintiffs) submit that the statements are admissible on any of three bases; namely, under the common law res gestae rule, under s81F of the Evidence Act 1910, and as admissions by an employee of W and S which are admissible against that defendant under the appropriate rules governing such admissibility.

1. The evidence was put before me on a voire dire, and a summary account of it is as follows. About half an hour after the fire commenced, the witness, a Mr Martin, who was then employed by the party, Olympic General Products Pty Ltd, went to an office at the Port site to make a phone call. At that stage, the fire was "practically over". In that office he saw Mr Whyman. He asked Mr Whyman what had happened, and Whyman said "I was oxy cutting in the roof and a spark went in the cartons and they caught the building alight". He asked where Whyman was during the fire, and he said, "Up in the roof". There was some conversation about how Whyman had come down from the roof, and then Whyman asked the girl in the office if he could use the phone. Then he said to Martin that he had to phone his boss in Devonport. He spoke to someone on the phone. He said "The building's alight. I was welding up in the roof and a spark went into a carton and caught the building alight." Whyman then, according to the evidence, made some mention of a name, and said, "You had better get up here fast".

1. I shall deal with each of the suggested grounds of admissibility in turn.

1. The common law res gestae rule

1. I have no doubt that this evidence is not admissible under the common law res gestae rule. The statement to which the evidence relates was not part of the act, the act being the starting of the fire; it did not accompany it. It was not so closely proximate to the act as virtually to be an accompaniment to it. This is a case to which Adelaide Chemical and Fertilizer Co v Carlyle (1940) 64 CLR 515, and Vocisano v Vocisano (1974) 130 CLR 267, most aptly relate. It is narrative or description of a past event; an event which occurred upwards of half an hour before the alleged statement concerning the way in which the fire was caused to be lit.

1. It is true that there is no indication in the statement itself that the speaker had in any way been enabled by the interval of time which had passed since the event to modify his account, either to his own advantage or otherwise. The content of the statement in fact tends to suggest that there was no such modification, since if taken at face value it is against the interest of its maker. However, none of the statements is admissible under this rule.

1. Section 81F of the Evidence Act 1910

1. Section 81F provides as follows:

"81F–  (1)       Subject to subsection (2), a representation previously made by a person that is offered to prove the truth of the matter represented is admissible in any proceeding if it purports to narrate, describe, or explain an act, condition, or event perceived by that person and if it was made –

(a)       while that person was perceiving; or

(b)spontaneously while that person was under the stress of excitement caused by perceiving,

the act, condition, or event.

(2)       Notwithstanding subsection (1), unless a person is unavailable as a witness, evidence by him of such a representation as is referred to in that subsection is not admissible in any proceeding unless the person is called to testify as a witness in the proceeding or, in a proceeding where evidence is given by affidavit, makes an affidavit.

(3)       The provisions of this section are in addition to, and not in derogation of, the common law exception to the hearsay rule known as res gestae."

1. There is a clear reason why, in my view, the relevant evidence is not admissible under s81F. That is, the statements do not satisfy the requirements of the first subsection of that provision. The witness Martin said that Mr Whyman appeared to be "a bit shaken up", but nevertheless, none of the relevant statements can be said to have been made spontaneously. Section 81F was designed to extend to some extent and to clarify the common law res gestae rule, but it is so framed as to require a substantial degree of contemporaneity with the event in question, and, unless made whilst the person was perceiving the event, to have been made spontaneously, and while the person was under the stress of excitement caused by his perception of it. Furthermore, it is made clear that where such a representation is admissible, it may be received as tending to prove the matter represented; and so the doubt as to the precise purpose for which res gestae evidence may be received at common law, engendered by, for example, the Adelaide Chemical and Fertilizer Co case, and perhaps resolved by Ratten v R. [1972] AC 378, have been settled by it. Thus, while doubts and difficulties arising from the inception of the common law rule and manifested throughout its history have been resolved to a substantial degree, and there has been some extension of the ambit of the rule, the extension has not been great. The rule in its statutory form remains a substantially restrictive rule; though it would seem that its wording is wide enough to permit evidence being admitted of a statement made after the event being narrated, described or explained has concluded, provided the other conditions are satisfied.

1. The ordinary meaning of spontaneity is exemplified by the first definition of "spontaneous", which is the appropriate one for the present purpose, given by the Shorter OED; "arising, proceeding, or acting entirely from natural impulse, without any external stimulus or constraint; voluntary". In the 5th edition of Black's Law Dictionary, an American publication (St Paul, Minnesota, 1979), it is said under "spontaneous declarations", that:–

"A statement is admissible as a 'spontaneous declaration' if there was an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, if there was an absence of time to fabricate, and if the statement related to the circumstances of the occurrence".

1. The reference given is People v Was 22 Ill App 3d 859, 318 NE 2d 309, 313. Under "spontaneous exclamation", this is said:–

"Within res gestae rule, a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him, is admissible as a spontaneous and sincere response to actual perceptions produced by shock. State v.Kendrick, 239 Or 512, 398 P 2d 471, 473. One exception to the Hearsay Rule is the exclamation made by one under the stress of excitement or at the very moment of an event before the mind has an opportunity to contrive a false statement; cf Fed Evid Rule 803(2)."

1. The provisions of the California Evidence Code upon which s81F and the other associated provisions were substantially based did include a reference to a statement being made spontaneously while the declarant was under the stress of excitement, but the later provision in r803 of the Federal Rules of Evidence of the United States does not. The latter permits exceptions to the hearsay rule for "Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter", and "Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition". Notwithstanding these syntactical differences, however, the same connotation of spontaneousness and contemporaneity are preserved. A comprehensive account of the law regarding spontaneous declarations in the United States is given in the second edition of McCormick on Evidence (1972), chapter 29.

1. In the present case it is clear that the relevant statements were not made while the maker was perceiving the act or event, and so they are only admissible if made spontaneously while under the stress of excitement caused by that act or event, which is the beginning of the fire. I think it is clear that any statement made about half an hour after that event, when the fire was nearly over, and after the formation of an intention to make a telephone call relating to the event and its manner of starting, can in no way qualify as being spontaneous. Nor has it been shown that Mr Whyman was subject to the stress of excitement caused by his perception of the beginning of the fire, at the time he made the statements; even though it appeared that, quite naturally, he was "a bit shaken up". Therefore, none of the statements qualifies for admission under the basic criteria laid down by the subsection.

1. Whether statements admissible as admissions by an agent, receivable against the principal

1. For the purpose of considering this aspect, the evidence falls into two parts. The first is the statement allegedly made by Mr Whyman to Mr Martin, in answer to a question by the latter, that he was oxy cutting in the roof and a spark went in the cartons and they set the building alight. The second was his alleged statement on the telephone to a similar effect. The first of these admissions, to a third party, is inadmissible for reasons similar to those which I gave previously concerning a statement by Mr Whyman heard by Mr Cooper; namely that any admission made by Mr Whyman to Mr Martin was not made as part of any communication which he was authorised to have with Mr Martin or any third party. It is said that the second part of the statements in this instance comes within a different category because it can be taken as having been made by the employee to the employer in the course of the employee’s duty as foreman of the welding gang employed by W and S. on the site, and that it was therefore a statement made wholly within the employee‘s authority to carry on the work, and to inform the employer of the progress of it and of any untoward occurrences while he was carrying it on. Mr Gee, for the defendant W and S., however, relied upon the rule that a communication in the nature of a report from an employee to an employer, ie an agent to a principal, is not admissible against the principal as an admission affecting him. The basis of this rule lies in the restricted ambit of an agent's ability to bind his principal by admissions made by the agent. That is to say, he may only bind the principal by an admission made by him in the course of a transaction with a third party in which he is acting as agent for the principal and his admissional statement is within the scope of his agency. See per Fry J in In re Devala Provident Gold Mining Co (1883) 32 Ch D 593. In that case, it was held that a statement made by a chairman of a company in a speech made to a meeting of shareholders was not admissible evidence against the company because the chairman was not acting in a transaction between himself as an agent for the company and a third party. A different view was taken in The Solway (1885) 10 P D 137, in a short judgment which makes little reference to previous authority; it being held that the owners of a ship were affected by statements written by the Master in the log book stating various facts relating to loss of the ship. However, The Solway was doubted in an Irish case, Swan v Miller, Son and Torrance Ltd [1919] 1 Ir 151, and I think with respect the criticisms are persuasive. They are set out in some detail by Gowans J in Guarnaccia v Rocla Concrete Pipes Ltd [1976] VR 302 at 304 to 306. I respectfully agree with the treatment by his Honour in that case of this area of the law.

1. Of course, if the principal adopts the admissional statement made by the agent, then the admission becomes the principal's, and is admissible against him; as, for example, Re Djambi (Sumatra) Rubber Estates Ltd (1912) WN 192; 107 LJ 631. A similar position arises where the agent makes records in the course of his duty, and the records are treated by the principal, usually by a course of conduct over a period, as being true and correct. There again, the records made by the agent having been adopted, acted on and accepted by the principal are treated as the principal's, as in Warner v Women's Hospital [1954] VLR 410. See Guarnaccia's case (supra) at pp 306–7.

1. Several decisions were cited by Mr McAlary for the plaintiff General Jones Pty Ltd, as supporting admissibility of the agent's statement to the principal, assuming that it is reasonably open to be inferred that the telephone call was made by Mr Whyman to a senior employee in his company, which I think on the whole is reasonably open. One is Trade Practices Commission v Allied Mills Industries Pty Ltd & Ors (1981) 55 FLR 174. As I understand the case, it does not trespass on the principle which I have cited from Devala's case. In this case, a subsidiary company, which was one of a group of companies, was a respondent to proceedings taken against it and other companies by the Trades Practices Commission. There was a communication between a State Manager of the subsidiary company and a director who was admittedly a director of the parent company and of the respondent company. The director's reply to the communication showed that he had knowledge of certain activities carried on by the subsidiary company, which the Trade Practices Commission was seeking to prove.

1. The question was whether the director, in making his allegedly incriminating reply, was acting in his capacity as a director of the subsidiary company, within the scope of his authority as such director, so as to make his knowledge that of the respondent (subsidiary) company. The judge gave an affirmative answer to those questions. Thus, the case focuses, not on the communication between agent (State manager) and principal (director), which would involve the Devala rule, but on the scope of the director's authority to reveal the state of knowledge of the respondent company. That being so, the case does not infringe on the Devala principle, which Sheppard J said was not in doubt. The question involved was whether the principal (ie the respondent company) had approved or assented to an admissional statement made to it by the State manager so as to show that it had the same knowledge; and the Court held that the evidence was admissible as tending to show that it had.

1. Sheppard J in TPC v Allied Mills (supra) referred to Devala's case, and to the fact that Owen J had doubted it in Finance and Guarantee Co Ltd v Federal Commissioner of Taxation (1970) 44 ALJR 368. However, his Honour said that the doubts expressed by Owen J were not about the principle for which Devala's case is authority, but about its application to the particular facts of the case. In the Finance and Guarantee case, Owen J said that at least in modern times, when it is common practice for a chairman's address to shareholders to be supplied to the stock exchange and the press and so to become available to the public generally, it would be contrary to common sense to hold that the address could not be used in evidence in proceedings by a third party if it was relevant to an issue. By that I take it his Honour meant that the chairman's address in those circumstances would be taken to be a communication to third parties which the chairman was authorised by his principal, the company, to make on its behalf. If that is a correct view of the case, then it does not affect the principle expressed in Devala.

1. The other case cited by Mr McAlary was Trade Practices Commission v TNT Ltd (1984) 56 ALR 660. There, in a brief oral decision, Franki J followed the effect of the Allied Mills' case, and on the facts of the case I think it is to be understood in a similar way. It is interesting to note that in Trade Practices Commission v Allied Mills, Sheppard J said that Guarnaccia's case, in which the facts are similar to those presently under consideration, was very different from Allied Mills, and was a plain case for the application of the principle in Devala.

1. For the above reasons I rule that none of the evidence by Mr Martin concerning statements made by Mr Whyman is admissible.