R G & R T Trott Pty Ltd v A & G Engineering Pty Ltd
[2014] SASC 80
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
R G & R T TROTT PTY LTD & ANOR v A & G ENGINEERING PTY LTD & ANOR
[2014] SASC 80
Reasons of Judge Dart a Master of the Supreme Court
24 June 2014
PROCEDURE
Notice to admit - Rule 156 - adequacy of responses - admissibility of documents.
Evidence Act 1929 ss 34C and 45A; Occupational Health, Safety and Welfare Act 1986 ; Supreme Court Civil Rules 2006 (SA) Rules 4, 154, 156 and 160, referred to.
Hydron Pty Ltd v Harous [2005] SASC 74; Rak v Coles Myer Limited (1996) 68 SASR 272, applied.
Burr v Ware Rural District Council [1939] 2 All ER 688; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Hillman v A & G Engineering Pty Ltd & Ors [2010] SAIRC 63; R v Abadom [1983] 1 All ER 364; Southern Equities Corporation Ltd (In Liq) & Ors v Bond & Ors (No 2) (2000) 34 ACSR 660, considered.
R G & R T TROTT PTY LTD & ANOR v A & G ENGINEERING PTY LTD & ANOR
[2014] SASC 80JUDGE DART:
These reasons deal with the plaintiffs’ application FDN49. The application sought to have the defendants provide further and better responses in respect of a Further Notice to Admit Documents (FDN46). The application also sought orders requiring the defendants to make further and better disclosure of a range of specified documents. At the commencement of the argument the Court was advised that the issue of further disclosure had been agreed between the parties. The only matter argued related to responses to the Notice to Admit Documents.
The plaintiffs previously served a Notice to Admit Facts. That also led to an argument in relation to the defendants’ responses. Reasons were delivered in respect of that application on 2 May 2014.[1]
[1] FDN60.
The Notice to Admit Documents annexed 62 documents. The defendants have admitted the authenticity of all of those documents. The current dispute relates to the admissibility of 11 documents.
The background of this dispute was set out in the previous judgment. Simply stated, the defendants fabricated and installed SWAP fermenters at the plaintiffs’ winery. When the fermenters were filled the concrete slab on which they were placed collapsed and brought down both the new and pre-existing fermenters, causing considerable loss and also personal injury to some employees on site.
The plaintiffs claim damages in an amount of approximately $8 million. The defendants’ insurers declined indemnity which led to a number of third parties being joined.
As a result of the incident the first plaintiff and the defendants were each prosecuted in the Magistrate's Court (Industrial Offences Jurisdiction) for breaches of various provisions of the Occupational Health, Safety and Welfare Act 1986. Each pleaded guilty.[2] The documents now in dispute were utilised in the prosecution of the Magistrate's Court proceedings.
[2] Hillman v A & G Engineering Pty Ltd & Ors [2010] SAIRC 63.
The 11 documents break down into the following categories:
1Documents 4, 5, 6, 7, 8 and 9 are experts’ reports.
2Documents 56, 57 and 58 are witness statements taken by SafeWork SA.
3Document 43 is a transcript of the hearing in the Magistrate's Court.
4Document 49 is a bundle of photographs, some of which have hand-written annotations on them.
Approach to answers to notices to admit
The purpose of a notice to admit is to have a party face up to the issues that are truly in dispute between the parties.[3] If a notice to admit is answered correctly, it will allow clutter to be cleared away so that at the trial of an action only those issues genuinely in dispute need trouble the Court.
[3] Southern Equities Corporation Ltd (In Liq) & Ors v Bond & Ors (No 2) (2000) 34 ACSR 660 at 664.
Notices to admit are governed by Rule 156, which provides:
156—Notice to admit facts or documents
(1) A party may give notice to another party (a notice to admit) asking the other party to admit a particular assertion that the party makes for the purposes of the action.
(2) The assertion may be—
(a) a statement purporting to be a statement of fact; or
(b) an assertion of the authenticity of a particular document; or
(c)an assertion that a particular document is, for stated reasons, relevant to the subject matter of the action; or
(d)an assertion that a particular document is, for stated reasons, admissible in evidence at the trial of the action.
(3) A notice to admit is given by—
(a) filing the notice in the Court; and
(b) serving the notice on the party asked to make the admission.
(4) If a notice to admit asserts the authenticity or relevance of a document, a copy of the document must, unless the Court otherwise directs, be attached to the notice.
(5) A notice to admit cannot be given without the Court's permission under this rule—
(a)more than 28 days after the last party in the action to file a list of documents has done so; or
(b)if the party proposing to give the notice has previously given two or more notices to admit to the same party.
(6) A party to whom a notice to admit is addressed (the respondent) must, within 14 days after the notice is given or a longer time agreed by the parties or allowed by the Court, give a notice (a notice of response) responding to each assertion in the notice to admit—
(a) by admitting the assertion; or
(b) by—
(i)denying the assertion and stating the grounds of the denial; or
(ii)stating that the respondent is not in a position to admit or deny the assertion and explaining why the respondent is not in a position to do so; or
(iii)claiming privilege or some other proper ground for refusing to respond to the assertion.
(7) If the respondent fails to respond to an assertion in a notice to admit as required by subrule (6), the respondent is taken to have admitted the assertion.
(8) A notice of response is given by—
(a) filing the notice in the Court; and
(b) serving the notice on the party who gave the notice to admit.
(9) The Court may, on application made within 21 days after a notice of response is given—
(a)order the respondent to give a further and better notice of response within the time allowed by the Court; or
(b)if satisfied that the respondent has denied or failed to admit an assertion without adequate reasons for doing so—determine the issue raised by the assertion in advance of the trial.
(10) If a party unreasonably denies or fails to admit an assertion, the Court will, unless there are good reasons for not doing so, order the party to pay costs arising from the denial or failure.
(11) If a party unreasonably asks another party for an admission, the Court will, unless there are good reasons for not doing so, order that party to pay the costs arising from the request.
The obligation on a party who is required to answer a notice to admit is to respond to each of the assertions in a way that complies with subrule (6). If a party provides a response that complies with subrule (6), it would be rare for the Court to go behind that. It is not the role of the Court, at an interlocutory stage, to determine whether the response provided is correct. For example, if a party refuses to respond to an assertion because he says the assertion is not relevant, the Court will not go behind that answer.[4]
[4] Rak v Coles Myer Limited (1996) 68 SASR 272 at 281; Hydron Pty Ltd v Harous [2005] SASC 74 at [9].
It would follow that if a party declines to admit the admissibility of a document on an appropriate ground, the Court would not go behind a response to determine whether or not the ground will ultimately be made out. At an interlocutory stage a judge or master is not necessarily well-placed to determine issues of admissibility, other than in a general way. The admissibility of a document at trial is primarily an issue for the trial judge.
It is true that subrule (9) permits the Court on application to determine an issue in advance of trial where a party has denied or failed to admit an assertion without adequate reason. The applicants have not sought such a determination. On questions of admissibility, however, unless the position is very clear, it is unlikely that the Court would embark on the task of determining the admissibility of documents ahead of trial, particularly where the judicial officer hearing the application was not to be the trial judge.
What is a document?
The defendants argued that a number of the annexures to the Notice to Admit were not documents for the purposes of the rule.
“Document” is defined in Rule 4 to be anything that records information. The rule provides some examples, which make clear that a document includes anything which records information in electronic form.
It is difficult to imagine a wider description of the term “document”. The defendants submitted on the argument, faintly perhaps, that an expert’s report is not a document, nor is the transcript of a hearing and nor are witness statements. In my opinion, given the width of the definition of “document” it cannot truly be said that they are not documents.
The experts reports
As mentioned above, documents 4, 5, 6, 7, 8 and 9 are documents in the nature of experts reports. Before considering the defendants’ response, it is necessary to consider the rules that govern the admissibility of experts reports.
First, the Rules of Court provide for the content of experts reports. Relevantly, Rule 160 provides:
(1)A party must, before the relevant time limit—
(a)obtain all expert reports that the party intends to obtain for the purposes of the trial of the action; and
(b)serve on every other party to the action a copy of each expert report in the party's possession relevant to the subject matter of an action (whether the party intends to rely on it at the trial or not).
Exception—
This rule does not apply to reports obtained, or to be obtained from a shadow expert (see rule 161(1)).
(2)The relevant time limit is the end of a period of 60 days after the time limited for making an initial disclosure of documents.
(3)An expert report should—
(a)set out the expert's qualifications to make the report; and
(b)set out the facts and factual assumptions on which the report is based; and
(c)identify any documentary materials on which the report is based; and
(d)distinguish between objectively verifiable facts and matters of opinion that cannot be (or have not been) objectively verified; and
(e)comply with any requirements imposed by practice direction.
(4)However, if an expert has provided a previous expert report to a party, a report complies with subrule (3) if it refers to material contained in the previous report without repeating it.
In addition to the Rules of Court, the requirements for experts reports are supplemented both by Practice Direction 5.4 and the common law.
At common law there are three rules which must be complied with to ensure expert opinion evidence is admissible. The failure to comply with one or more of the these rules will mean the expert opinion evidence is inadmissible. The rules are as follows:
1The assumption identification rule provides that the facts on which the opinion evidence is based are to be stated by the expert.[5]
2The second is the proof of assumption rule, which has a number of aspects to it. Expert evidence will be inadmissible unless evidence has been or will be admitted which is sufficiently similar to factual assumptions on which the opinion is based to render the opinion of value.[6]
A party seeking to admit expert evidence can do so on an undertaking to provide proof of the factual matters to be relied upon later at trial.[7] If no undertaking to call the evidence is given, the Court should reject tender of the evidence.[8]
In circumstances where an undertaking to call evidence is given, the Court should normally admit the expert evidence conditionally. If in the result sufficient evidence is not adduced in relation to the factual matters relied upon by the expert, it may be the duty of the Court to reject the evidence that was conditionally admitted.[9]
3The third is the statement of reasoning rule. This requires the expert to state in chief the reasoning by which the expert conclusion is arrived at based on the facts proved or assumed by the expert.[10]
[5] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [64].
[6] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [66].
[7] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [81].
[8] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [87].
[9] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [88].
[10] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [91].
In relation to each of the experts reports, other than the last two, the defendants have made multiple objections to their admissibility. Logically, if one of the objections is a response that satisfies the obligations imposed by Rule 154(6), that will be sufficient. There is no utility in having the defendants delete any responses which would not by themselves be adequate.
The first two experts’ reports to consider are documents 4 and 5. They are each reports prepared by Bullock and Partners, consulting engineers. The response to each is the same. The response in relation to document 4 is as follows:[11]
The defendants deny the admissibility of the report of Bullock & Partners Pty Ltd titled “Wirra Wirra – Report on Collapse of Fermenter Tanks – 6 March 2008 – McLaren Vale – South Australia” on, inter alia, the following grounds:
(a) the author was not independent;
(b) hearsay;
(c)the reasoning process (to the extent there is any reasoning) is not exposed in the sense required by Makita v Sprowles (2001) 52 NSWLR 705;
(d)the author failed to recognise the expert code of conduct at the time of the preparation of the report; and
(e)form.
[11] Response to Further Notice to Admit, FDN48.
In my opinion, at least responses (b) and (c) are responses that satisfy the defendants’ obligation in respect of Rule 156(6)(b). They adequately detail why the defendants contend that the expert reports are not admissible.
At trial, the fact that an expert’s report contains hearsay is usually overcome by the giving of an undertaking to call the relevant evidence to establish the facts relied upon by the expert. An undertaking was given by the plaintiffs on the hearing of this application. In my view, there are two difficulties with that course. The first is that at the time the defendants answered the Notice to Admit, they did not have the benefit of that undertaking, so the objection as to hearsay was well taken. It is not appropriate to retrospectively seek to make the response inadequate. The second point is that giving an undertaking to a Master on an interlocutory hearing would not overcome the difficulty in any event. The undertaking is to call certain evidence during the course of a trial. It needs to be given at trial to the trial Judge.
The reasoning process response is a complaint that the third common law rule, that is the statement of reasoning rule, has not been complied with. The case referred to in the answer was an earlier case dealing with the common law rules. The position has now been clarified by the High Court in Dasreef Pty Ltd v Hawchar.[12] The fact that the common law rule has not been complied with is an adequate reason to deny the admissibility of the expert reports. Whether the argument will ultimately succeed is a trial issue. The defendants are entitled to the opportunity to have the trial Judge decide that issue.
[12] (2011) 243 CLR 588.
Documents 6 and 7 are further engineers’ reports and the same objections are taken. Again, I think the issue of hearsay and the failure to comply with the statement of reasoning rule are appropriate responses. An additional response to those two experts reports was that the reports contained opinions on matters beyond the author’s expertise. That is also an adequate response.
Document 8 is an expert report of Wallbridge & Gilbert, who are also consulting engineers. The sole objection to this report is that it contains hearsay. The report relies on a report provided by Coffey Geotechnics, who undertook geotechnical investigation of the subsurface under the concrete slab. The Coffey Geotechnics report itself relies on testing on concrete cores carried out by another party called Engtest. There is hearsay upon hearsay, therefore, because each expert relies on the facts provided by a prior expert. It will be necessary for the plaintiffs to call the later two experts, in the absence of an agreement, if the Wallbridge & Gilbert report is to be admitted.[13]
[13] R v Abadom [1983] 1 All ER 364.
As mentioned, the proof of assumption rule permits expert evidence containing hearsay to be provisionally admitted at a trial upon the undertaking to call evidence in relation to the facts relied upon. The defendants are entitled to take the hearsay point prior to trial. It will be a matter for the trial Judge as to how the matter is to be dealt with. It cannot be said at the moment that the defendants’ answer is not an adequate response to the assertion that the document is admissible.
Document 9 is a further Wallbridge & Gilbert report. The only objection taken to that is that it does not comply with the statement of reasoning rule and is, for that reason, inadmissible. Again, that is an adequate response.
The defendants’ responses in relation to experts reports contain, in each case, at least one, and in some cases more than one, appropriate response. In the circumstances, there is no need for the defendants to provide any further responses in relation to their objections to the admissibility of the experts’ reports.
Witness statements
Documents 56, 57 and 58 are witness statements taken by SafeWork SA when they were investigating the incident on site. The witness statements are of employees of the second defendant. It is accepted by the plaintiffs that any admissions in the statements bind only the employer of the person making the statement.
The answer contained in the Further Notice to Admit is as follows:[14]
56.The defendants deny the admissibility of the document at 56 on, inter alia, the following grounds:
(a) form;
(b) admission(s) are not identified; and
(c) any admission does not bind the first defendant as the author was not employed by the first defendant.
The same answers are given in relation to the witness statements (documents 57 and 58).
[14] Response to Further Notice to Admit, FDN48.
The plaintiffs are required to set out in the notice to admit documents that a particular document is, for stated reasons, admissible in evidence at trial of the action.[15] In relation to each of the witness statements, the plaintiffs say:
1The document is admissible as an admission of a servant or agent of the defendants, or one of them, within the scope of his knowledge and authority.
2In the alternative, the document is admissible as it contains a statement of fact pursuant to s 34C of the Evidence Act 1929.
[15] Rule 156(2)(d).
A statement containing admissions and made by an agent is binding upon a principal when the statement is made within the scope of the agent’s authority. The same principle applies to the making of admissions by employees. An employee’s admission is usually inadmissible in cases in which it is sought to make an employee vicariously liable in tort.[16] The plaintiff says that the document is admissible because the employees were acting within the scope of their authority when making the admission.
[16] Burr v Ware Rural District Council [1939] 2 All ER 688.
The plaintiffs also say each of the statements is a document which is admissible pursuant to s 34C of the Evidence Act, which relevantly provides:
34C—Admissibility of documentary evidence as to facts in issue
(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—
(a)if the maker of the statement either—
(i)had personal knowledge of the matters dealt with by the statement; or
(ii)where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
(b)if the maker of the statement is called as a witness in the proceedings.
The section requires that the maker of the statement had personal knowledge of the matters in the statement and the maker of the statement is called as a witness in the proceedings.
At the moment we are not directly concerned with the niceties of whether the witness statements contain admissions or are admissible under s 34C of the Evidence Act. That is the plaintiffs’ position. What we are dealing with is whether the responses given by the defendants comply with their obligations under the Rules.
The objection “form” is not a response which complies with the Rules and nor is the fact that the admissions are not identified. It might be that providing an adequate response disputing the admissibility of the witness statements is not difficult to formulate but, at the moment, in my view, such a response has not been provided. The defendants are to provide further responses in relation to the assertion that Documents 56, 57 and 58 are admissible.
Transcript of the hearing in the Magistrate's Court
The plaintiffs seek to have admitted transcript of the hearing in the Magistrate's Court (document 43).
The response given by the defendants was as follows:[17]
43.The defendants deny the admissibility of document 43 of the Notice, on, inter alia, the following grounds:
(a) form;
(b) hearsay;
(c) the so-called admissions within approximately 100 pages of transcript, let alone those relied on by the plaintiffs which are said to make it relevant are not identified.
(d) the evidence is not binding on defendants;
(e) the evidence was given under compulsion of law; and
(f) the evidence cannot bind both defendants.
[17] Response to Further Notice to Admit, FDN48.
The plaintiffs say the transcript is admissible as admissions of the defendants. It is no doubt hearsay. The question becomes, then, whether it falls within one of the exceptions to hearsay. It may be because the relevant evidence was evidence of employees of the second defendant that it falls within that exception to the hearsay rule, if the evidence was within the scope of the employee’s authority.
However, there are some authorities which hold that the transcript of evidence of witnesses called by a party cannot be tendered in subsequent proceedings involving that party. In an English decision Atkin LJ rejected the argument that transcript of evidence of witnesses called by a party could be tendered as evidence against it in subsequent litigation.[18] The decision has been followed in Australia.[19]
[18] British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160 at 180.
[19] Shears v Chisholm & Ors [1994] 2 VR 535.
One of the answers of the defendants in opposition to admissibility is that transcript contains hearsay. Given the authorities just mentioned, it is at least arguable that the transcript does not fall within an exception of the hearsay rule. For that reason, the response is adequate and no further response is required.
Bundle of photographs
The document 49 is a bundle of photographs taken by a SafeWork SA inspector. The defendants do not object to the photographs themselves, however several of the photographs have hand-written notations. It is the notations that the defendants object to.
The response of the defendants is as follows:[20]
49.The defendants admit the admissibility of the photographs at 49 of the Notice but deny the admissibility of the written comments (958-961) on the ground of hearsay.
[20] Response to Further Notice to Admit, FDN48.
The plaintiffs’ reasons for admissibility are that the photographs are admissible pursuant to s 34C as direct evidence, and as a business record of SafeWork SA pursuant to s 45A of the Evidence Act.
The defendants admit that all of the photographs are admissible, but deny that the written comments on a limited number of the photographs are admissible, as the written comments are hearsay. As discussed, a response that a document is inadmissible because it contains hearsay is an adequate response. Further, s 45A of the Evidence Act provides discretionary consideration for excluding the evidence on certain grounds. That discretion cannot be exercised on an interlocutory basis. It is a trial issue.
Accordingly, the orders of the Court will be:
1The defendants are to provide further responses in respect of Documents 56, 57 and 58.
2Application FDN49 is otherwise dismissed.
3I certify fit for counsel.
I will hear the parties as to consequential orders.
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