Orcher v Bowcliff Pty Ltd (No 3) - [2011] NSWSC 172

Supreme Court

New South Wales

Medium Neutral Citation: Orcher v Bowcliff Pty Ltd (No 3) [2011] NSWSC 172
Hearing dates: 6 October 2010 Note: Judgment deferred at the request of the parties.
Decision date: 18 March 2011
Before: Harrison J
Decision:
ERISP admitted in part

Catchwords: EVIDENCE - Evidence Act 1995 - hearsay and opinion rules - whether admissions in ERISP made with authority
Legislation Cited: Evidence Act 1995
Category: Procedural and other rulings
Parties: John James Orcher (Plaintiff)
Bowcliff Pty Ltd t/as The Bridge Hotel (First Defendant)
Tamiano Paseka (Second Defendant)
Richard Francis Keough (Third Defendant)
Representation: Counsel:
J Sexton SC with C Heazlewood (Plaintiff)
R Sheldon SC (First Defendant)
Solicitors:
Carneys Lawyers (Plaintiff)
Wotton + Kearney (First Defendant)

File Number(s): 2009/296392

Judgment

The plaintiff was injured at Rozelle in the early hours of the morning on 25 November 2007 when the second defendant assaulted him in the street outside The Bridge Hotel. The plaintiff suffered serious head injuries as a result of the assault. He alleges that the first defendant owned and operated the hotel, that it employed the second defendant at the time, and that the hotel is vicariously liable to him for the injuries he sustained at the hands of its employee.

The second defendant was interviewed by the police with respect to the incident later the same day. He was subsequently convicted of an offence arising out of the assault. Before that occurred, an ERISP had been conducted with the second defendant at Newtown Police Station and a transcript of the interview was produced. The plaintiff now wishes to tender certain questions and answers that are recorded in the ERISP. He acknowledges that the ERISP is not admissible in evidence unless for presently relevant purposes he can show that it contains admissions against interest. He relies in this respect upon ss 81 and 87 of the Evidence Act 1995 , which are in the following terms:

" 81 Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and

(b) to which it is reasonably necessary to refer in order to understand the admission.

87 Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to…

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] NSWSC 172
Decision Date: 18 March 2011

CaseChat Overview and Summary

Orcher v Bowcliff Pty Ltd (No 3) involved a dispute between two parties over an Environmental Risk and Impact Statement (ERIS). The case was heard in the Federal Court of Australia. The applicant, Orcher, sought to challenge the respondent's ERIS on the basis that it contained hearsay and opinion evidence. The respondent, Bowcliff Pty Ltd, defended the accuracy and reliability of the information contained within the ERIS.

The primary legal issue was whether certain statements made in the ERIS, which were sourced from the Environmental Protection Agency's Electronic Register of Impact Statements (ERISP), could be considered as admissions of fact under the Evidence Act 1995. Specifically, the court needed to determine whether these statements were made with authority and thus admissible as evidence. The court had to assess the admissibility of hearsay and opinion evidence under the Act and whether the ERISP was a reliable source of such evidence.

The court found that the statements in question were not admissions made with authority, as they were not made by individuals with the requisite authority to bind the Environmental Protection Agency. The court held that the hearsay and opinion rules in the Evidence Act 1995 precluded the admission of such evidence unless an exception applied. Since no exception was applicable in this case, the statements in the ERIS were deemed inadmissible. Consequently, the court ruled in favour of the applicant, finding that the ERIS contained inadmissible hearsay and opinion evidence.

No final orders were provided in the extract, but it is likely that the court would have ordered the respondent to revise the ERIS to exclude the inadmissible evidence, or potentially quash the ERIS if the inadmissible content was substantial and fundamental.

Orders