Refina Pty Ltd v Binnie

[2009] NSWSC 311

CITATION:	Refina Pty Ltd v Binnie [2009] NSWSC 311
HEARING DATE(S):	20 March 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	20 March 2009
DECISION:	Tender rejected.
CATCHWORDS:	PROCEDURE - Application to have parts of affidavit previously rejected on the grounds of hearsay admitted (following cross-examination) on grounds that they contained admissions made with authority - Evidence Act s 87 - Statements made by contractor of defendant - Statement beyond scope of authority - Statement not admissible
LEGISLATION CITED:	(NSW) Evidence Act 1995, s 87
CATEGORY:	Procedural and other rulings
CASES CITED:	Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90
PARTIES:	Refina Pty Ltd (plaintiff) Kevin Douglas Binnie (first defendant) Registrar General of NSW, Dept of Lands (second defendant)
FILE NUMBER(S):	SC 1437/08
COUNSEL:	Mr P Tomasetti SC w Mr J Atkin (plaintiff) Mr M K Meek w Ms R Kako (first defendant)
SOLICITORS:	Gregory J Halpin (plaintiff) Diamond Conway (first defendant) Registrar General of NSW, Dept of Lands (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 20 March 2009

1437/08 Refina Pty Ltd v Kevin Douglas Binnie & anor

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff applies to have certain parts of the affidavit of Gregory John Halpin sworn 14 April 2008, which were previously rejected on the basis that they were hearsay – being conversations between Mr Halpin and one Mr Garry Whiffen – admitted into evidence on the basis of admissions said to have been made in the course of the defendant's cross-examination, which are said to establish that it is sufficiently arguable that Mr Whiffen had the requisite authority to make his statements admissible as admissions on behalf of the defendant, for the purposes of (NSW) Evidence Act 1995, s 87.

2 Although there are numerous conversations in this category, the issue can be refined to focus on a conversation said to have taken place between Mr Halpin and Mr Whiffen on 14 June 2007, referred to in paragraph 24 of the subject affidavit. In the course of that conversation, Mr Whiffen and Mr Halpin discussed arrangements for the relocation of the fence from the eastern to the western side of the disputed strip, pursuant to an agreement that had apparently been reached between the parties.

3 Mr Halpin claims that he said, in the course of the conversation, “Garry, tell Kevin to place the fence on the boundary by 18 July 2007 or I will pursue the possessory title claim." He says that Mr Whiffen replied, “You can't do that any more." Mr Halpin allegedly responded, “If the fence is not relocated on the boundary by 18 July 2007 I can.” Mr Whiffen is said to have rejoined, “Kevin received legal advice. He changed the boundaries so you can't make any claim”. The plaintiff wishes to rely on this as an admission, on behalf of the defendant, that the registration of the plan of re-subdivision was a deliberate step to defeat the potential possessory application previously said to have been foreshadowed on behalf of the plaintiff.

4 Evidence Act s 87 provides as follows:

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 act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:


(a) that the person had authority to make statements on behalf of another person in relation to a matter, or

(b) that the person was an employee of another person or had authority otherwise to act for another person, or

(c) the scope of the person’s employment or authority.

5 For present purposes, the essential question is whether it is reasonably open to find that as at 14 June 2007, Mr Whiffen had authority to make statements on behalf of Mr Binnie in relation to the matter with respect to which the part of the conversation I have set out above related or that Mr Whiffen had authority to act for Mr Binnie and the relevant conversation related to a matter in the scope of his authority.

6 In the course of Mr Binnie's cross-examination it can, I think, be said that it was established that Mr Whiffen is a contract farm manager retained by Mr Binnie for the purposes of managing his property Iveton. Mr Whiffen has responsibility for fencing, for attending to stock, for purchasing farm materials for use on the farm (and for that purpose, to incur credit on behalf of Mr Binnie), and I would accept also to make arrangements with neighbours so far as is necessary for the purposes of carrying out fencing work. I would therefore accept that statements made by Mr Whiffen in relation to fencing work, including arrangements for access to adjoining properties for the purpose of fencing, were within the scope of his authority.

7 Mr Tomasetti has referred me to the observations of McDougall J in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 [19], where his Honour said:

In this context, as I have said, I regard paras (a) and (b) of s 87(1) as focusing on the time at which the relevant representation is made, not (as might be the case under s 15) on the means by which it is made (or, in this case, obtained or extracted). I think that this is deliberate. What the legislation requires is that the court consider, at the time that the relevant representation was made, the authority of the person making it. But it is apparent that the authority to be considered is not authority to make the particular representation but authority "to make statements … in relation to the matter with respect to which the representation was made" (para (a)) or "authority otherwise to act for the party" in relation to that matter.

Thus, I think, the legislation is looking at the general authority of the person whose previous representation is sought to be tendered to make statements of the kind embodied in the particular representation, and not at the authority to make the particular representation (including in the circumstances in which it was made and having regard to the means by which it was made).

8 Consistent with what his Honour said, I accept that the section looks to the general authority of the person whose authority is in question, and not the authority to make the particular representation in question. This means that if Mr Whiffen made statements in connection with the carrying out of fencing works, or the purchase of farm materials and the like, even though the statements were contrary to Mr Binnie's directions, or not within what Mr Binnie had authorised, they would still be admissible. But this does not render admissible statements in relation to a matter other than the matter with respect to which Mr Whiffen had authority to make statements.

9 The concept of a contract farm manager, part-time or full-time, for a city dweller who has a rural property is a familiar one. Such a person tends to the farm on a daily or more irregular basis. Typically, he or she attends to the fences and the weeds, and looks after the stock. But to my mind, there is a world of difference between authority to make statements and arrangements concerning fencing, and authority to make statements with respect to title to the property, or compromise of a boundary dispute with a neighbour. Indeed, it seems to me almost incredible that a contract farm manager would be thought in the ordinary course to have authority to make statements about his principal's title, or to compromise a boundary dispute with a neighbour.

10 Much of the conversations between Mr Whiffen and Mr Halpin which are sought to be tendered related to fencing work, and indeed the first portion of the subject conversation of 14 June 2007 in paragraph 24, like the conversation in November of 2005 referred to in paragraph 9, were I now think unquestionably within Mr Whiffen's authority. But when the conversation shifted from arrangements about fencing to the dispute as to the disputed strip and legal advice said to have been received by Mr Binnie, in the critical passage which I have set out above, it departed from the territory of matters in respect to which Mr Whiffen had authority to make statements, to embark on other matters outside that territory.

11 In my view, therefore, what I have described as the critical part of the 14 June 2007 conversation – which, as I understand it, is the underlying purpose of the whole tender – is not admissible, because it is not reasonably open to find that Mr Whiffen had authority to make statements on behalf of Mr Binnie in relation to the matters referred to in it.

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