Roo-Roofing Pty Ltd v Commonwealth (Ruling No 3) - [2018] VSC 232

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 03382

ROO-ROOFING PTY LTD (ACN 131 182 093)	First Plaintiff
MATSUH PTY LTD (ACN 105 461 818)	Second Plaintiff
v
THE COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	9-10 May 2018
DATE OF RULING:	11 May 2018
CASE MAY BE CITED AS:	Roo-Roofing Pty Ltd v Commonwealth (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 232

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EVIDENCE – Admissibility – Hearsay exceptions – Plaintiff seeks to tender prior out-of-court representations – Representations from statements made to Royal Commission – Whether representations are relevant – Whether representations are admissions – Evidence Act 2008 (Vic) ss 55, 81, 87, 88, Dictionary Part 1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D Delaney QC with Dr C G Button, Ms C Van Proctor and Mr R Chaile	ACA Lawyers
For the Defendant	Ms R M Doyle SC with Ms R L Enbom, Mr L T Brown and Mr J Hooper	Australian Government Solicitor

HIS HONOUR:

The plaintiffs’ apply pursuant to s 87 of the Evidence Act2008 (Vic) to tender material comprising extracts of evidence received by the Hanger Royal Commission that contain a number of out of court representations, asserted facts in respect of which the plaintiff does not propose to call the maker of the statement. A document described as a schedule of admissions that was used to identify these extracts is reproduced as Schedule A to these reasons. This schedule reveals a working summary, not the full text, of the material that is the subject of the tender.

The contentions in respect of the representations fall into four categories. The defendant opposes the tender of certain of the representations. The tender of some other representations was not pressed and in four cases the decision to not press the tender of the representation was conditional on my ruling whether other representations should be included in the tender as reasonably necessary in order to understand the admission. In respect of a number of other representations, tender was not opposed by the defendant on the basis that further material providing essential context be included in the tender.

In the context of the submissions I received, I will first identify the principles I will apply in ruling on the tender.

Section 6DD of the Royal Commissions Act 1902 (Cth), that provides that statements made by a witness are not admissible in evidence against a natural person in any civil or criminal proceedings in any State court, is inapplicable.

The first question is a threshold one for all evidence – whether it is relevant, to be determined in accordance with s 55 of the Evidence Act 2008 (the Act). Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered. The identification of its purpose may have important consequences.[1] The plaintiff identified the purpose of the…

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: [2018] VSC 232
Decision Date: 11 May 2018

CaseChat Overview and Summary

Roo-Roofing Pty Ltd was engaged by the Commonwealth to perform roofing works on various buildings. Disputes arose over the quality of the work, leading to legal action by the plaintiff against the defendant. The matter was heard in the County Court of Victoria, where the plaintiff sought to tender evidence of prior out-of-court representations made by the Commonwealth. These representations were derived from statements made by the Commonwealth to a Royal Commission. The plaintiff argued that these statements were relevant and constituted admissions under the Evidence Act 2008 (Vic). The court was tasked with determining whether these statements were admissible as evidence and whether they could be considered admissions by the Commonwealth.

The central legal issue before the court was whether the out-of-court representations made by the Commonwealth to the Royal Commission were admissible under the hearsay exceptions outlined in the Evidence Act 2008 (Vic). Specifically, the court examined whether these representations could be considered admissions and whether they met the criteria for admissibility under sections 55, 81, 87, and 88 of the Act, as well as the definitions provided in the Dictionary Part 1. The court also considered whether the hearsay exceptions applied and whether the probative value of the evidence outweighed any prejudicial effect.

The court found that the out-of-court representations did not qualify as admissions under the Evidence Act 2008 (Vic). The statements made to the Royal Commission were not admissions because they were not made in the course of the proceedings and did not have the necessary characteristics of admissions as defined by the legislation. Furthermore, the court determined that the hearsay exceptions did not apply, as the statements did not fall within any of the specified exceptions. Consequently, the evidence was deemed inadmissible due to its hearsay nature and lack of relevance to the proceedings. The court concluded that the probative value of the evidence did not outweigh any prejudicial effect it might have on the proceedings.

The court ruled that the plaintiff's application to tender the out-of-court representations as evidence was to be dismissed. No further orders were made regarding the admission of this evidence in the proceedings.

Orders