Karaoglu v Fitness First

[2022] NSWSC 1804

Supreme Court

New South Wales

Medium Neutral Citation:

Karaoglu v Fitness First [2022] NSWSC 1804

Hearing dates:

1 - 2 February 2022

Date of orders:

2 February 2022

Decision date:

02 February 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

I reject the whole of paragraph 57;

I reject the whole of paragraph 60.

Catchwords:

EVIDENCE – plaintiff’s evidentiary statement – whether paragraphs offend the hearsay rule.

Legislation Cited:

Evidence Act 1995.

Cases Cited:

Blatch v Archer (1774) 98 ER 969

Jones v Dunkel (1959) 101 CLR 298

Category:

Procedural rulings

Parties:

Deniz Karaoglu (Plaintiff)
Fitness First Australia Pty Ltd (Defendant)

Representation:

Counsel:
J.M. Morris SC with M.J. Davis (Plaintiff);
J. Catsanos SC with R. Perla (Defendant)

Solicitors:
Carters Law Firm (Plaintiff)
Moray and Agnew (Defendant)

File Number(s):

2018/19248

Publication restriction:

Nil

Ex tempore Judgment

1. Yesterday I ruled on objections to the plaintiff's evidentiary statement, dated 11 February 2021.  Two objections remain outstanding.  Mr Catsanos SC, who appears with Mr Perla for the defendant, objects to paras 57 and 60 of the statement; Mr Morris SC, who appears with Mr M Davis for the plaintiff, presses them.  The statements are in the following terms.  Paragraph 57:  "A male patron, who is standing near the leg press, said [to the manager] 'I told you this machine was broken'.  He appeared very angry or upset at Timothy.  I do not know the name of the male patron." 

2. Paragraph 60 is in the following terms:

"[The manager] then left the area again and came back with an incident report form and a pen. [The manager] asked me to complete the form.  I started to fill out the incident report form.  The man who had commented earlier on the machine walked over to me and said 'Take my number down, I reported this machine to the front desk about a week ago because it was faulty'.  The man gave me his mobile number, which I wrote on the form." 

3. The matters referred to in those paragraphs occurred in the immediate aftermath of the plaintiff's injury on which he sues, which he said occurred while he was using a 45-degree incline leg-press machine.  I should also say by way of background that there has been considerable disputation between the parties about the defendant's production of documents and it is evident that many potentially salient documents of a contemporaneous type are not available for production because they have been archived and electronic systems have changed, such that the documents I have referred to in general terms either cannot be accessed or cannot be produced or cannot be found.  These matters were the subject of rulings by Cavanagh J on 27 January 2022.

4. It is in that context that Mr Morris argues that the representations attributed to the unidentified person are admissible. He submits that they are indirectly relevant under s 55 of the Evidence Act1995 (NSW) because they tend to demonstrate that there may have been, at the relevant time, evidence available and within the possession of the defendant which, had it been produced now, may have supported the plaintiff's case. Although the omission to produce evidence can rarely prove any fact in issue, as I understand the thrust of the argument it is said that, to the extent to which a permissible inferential reasoning process of the type discussed in Blatch v Archer (1774) 98 ER 969 or possibly Jones v Dunkel (1959) 101 CLR 298, may be available to assist in the establishment of the plaintiff's case - this evidence, while perhaps not admissible directly, is admissible in that context and for that purpose. Mr Catsanos objects on the basis that the evidence is clearly hearsay and does not fall within any established exception to the hearsay rule permitted by the Evidence Act.  By way of reply, Mr Morris relies upon the res gestae exception known to the common law, rarely utilised these days but not necessarily excluded by the Evidence Act (see s 9).

5. To my mind, the passages clearly offend the hearsay rule.  Really, the representations contained in paras 57 and 60 for their probative value depend entirely on upon the spoken words attributed to the unidentified witness.  They are clearly hearsay, as I have said.  I accept the argument that they do not fall within any of the statutory exceptions, and I am not persuaded that they are part of the res gestae.  As I understand that common law exception, it relates to words spoken out of court during the occurrence of the very transaction that gives rise to the proceedings, and these words do not fall into that category.  The old example that used to be given is that the res gestae must have ended by the time the police officer opens his notebook and takes down the witness' account as to what happened, and to my mind these statements fall on the wrong side of that line of admissibility.

6. So far as the other ground is concerned, of indirect relevance - although I was initially attracted to it, I confess - it seems to me that to use this material to draw inferences about what might have been contained in documents that have not been produced is really to indulge in speculation, rather than a rational assessment of probative value.  That does not mean that the failure or inability of the defendant to produce documents may not have some relevance of itself in the drawing of inferences in due course, but I am not of the view that the obvious difficulty presented by these passages - that is to say, the hearsay rule - has been overcome by the matters put to me by Mr Morris, and accordingly I reject the whole of para 57 and the whole of para 60.

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Decision last updated: 01 June 2023