Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd

[2008] NSWSC 657

CITATION:	Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 657
HEARING DATE(S):	16/06/08, 17/06/08, 18/06.08, 19/06/08, 20/06/08, 23/06/08, 24/06/08, 25/06/08, 26/6/08, 27/06/08
JUDGMENT DATE :	27 June 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Tendered paragraphs of police statement of Mr van Rij rejected.
CATCHWORDS:	EVIDENCE - admissibility - hearsay - whether hearsay representation nevertheless admissible as admission by defendant - representation made by individual - whether pursuant to Evidence Act s 87 representation to be taken to be representation of defendant - where individual was company secretary of defendant - whether company secretary may be taken to be "employee" of company - nature of implied authority of company secretary
LEGISLATION CITED:	Evidence Act 1995, ss 81, 87
CATEGORY:	Procedural and other rulings
CASES CITED:	George Whitechurch Ltd v Cavanagh [1902] AC 117 Minilabs Pty Ltd v Assaycorp Pty Ltd [2001] WASC 88; (2001) 37 ACSR 509 Panorama Developments Ltd v Fidelis Fabrics Ltd [1971] 3 WLR 440
PARTIES:	Tim Barr Pty Limited - First Plaintiff Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant
FILE NUMBER(S):	SC 2762/02
COUNSEL:	Mr R G McHugh SC/Mr J E Lazarus - Plaintiffs Mr M L D Einfeld QC/Mr R E Dubler SC/Mr A C Harding - Defendant
SOLICITORS:	Corrs Chambers Westgarth - Plaintiffs Verekers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 27 JUNE 2008

2762/02 TIM BARR PTY LIMITED v NARUI GOLD COAST PTY LIMITED

JUDGMENT - On admissibility of certain paragraphs of police statement of Mr van Rij; see p 592

1 The plaintiffs seek to tender on this voir dire (as to the admissibility of H Narui’s statement in the Harrison proceedings), the police statement of Mr van Rij of 15 September 2003, or more particularly, I should say, paragraphs 1 to 6 and paragraphs 23 to 31 of that document.

2 The defendant takes a hearsay objection and a relevance objection, the latter on the basis that the statement is a statement by Mr van Rij personally in his capacity as a potential witness in the proceedings that the police then had in contemplation.

3 Mr McHugh SC submitted on behalf of the plaintiffs that both these objections are overcome by a combination of ss 81 and 87 of the Evidence Act 1995.

4 The argument is that the relevant material constitutes an admission of the defendant, Narui Gold Coast, so that by force of s 81(1) the hearsay rule does not apply to it. The status of the material as an admission of Narui Gold Coast is said to come from s 87 on the footing that the material constitutes previous representations made by Mr van Rij and that he was at the time of the making of the representations in a position in relation to Narui Gold Coast of a kind bringing him within either paragraph (a) or paragraph (b) of s 87(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.”

5 The tendered paragraphs themselves refer to Mr van Rij's being employed by Leda Holdings Pty Ltd and the fact that he is based at the Gold Coast office of Leda Developments Pty Ltd, which is a subsidiary of Leda Holdings Pty Ltd. It is not in dispute that, at the time the police statement was made by Mr van Rij, Narui Gold Coast was a wholly owned subsidiary of Leda Holdings Pty Ltd and that Mr van Rij was the secretary of Narui Gold Coast.

6 For the propositions on which the plaintiffs rely to be made good, it would have to be shown that Mr van Rij had authority to make statements on behalf of Narui Gold Coast in relation to the matters appearing in the tendered paragraphs (s 87(1)(a)) or that he was an employee of Narui Gold Coast or had authority otherwise to act for Narui Gold Coast and the tendered paragraphs related to a matter within the scope of his employment or authority (s 87(1)(b)).

7 Nothing is shown about Mr van Rij's connection with Narui Gold Coast, except that he held the office of secretary.

8 A company secretary is not, by reason only of that office, an employee of the company of which he is secretary. I am proceeding here on the basis that the reference in s 87(1)(b) to “employee” is a reference to an employee in the general law sense according to what would today unfashionably be called the law of master and servant. There is no evidence that Mr van Rij had that kind of relationship with Narui Gold Coast.

9 In terms of both s 87(1)(a) and (b), therefore, that leaves the question of Mr van Rij's authority being, on the material before me, authority confined to the authority that comes from the office of secretary.

10 The corporations legislation envisages certain functions for company secretaries. One would readily infer that any company secretary had authority commensurate with those functions. Beyond that, however, one cannot make any assumptions about the authority of a particular company secretary in a particular context.

11 There are statements in the case law that equate a company secretary with a mere clerk: George Whitechurch Ltd v Cavanagh [1902] AC 117. There are also statements that a company secretary is the chief administrative officer (Panorama Developments Ltd v Fidelis Fabrics Ltd [1971] 3 WLR 440 or a senior executive officer: Minilabs Pty Ltd v Assaycorp Pty Ltd [2001] WASC 88; (2001) 37 ACSR 509.

12 But everything depends on context and factual surroundings. I have no context or factual surroundings here to help me and therefore no basis on which to find that Mr van Rij, as secretary of Narui Gold Coast, had any authority from that company going beyond the authority to be inferred from the statutory functions of a company secretary.

13 The making of the statements in the paragraphs sought to be tendered are not within the scope of the authority thus implied. I therefore cannot find that s 87 applies in the way for which the plaintiffs contend so as to make good the plaintiff’s submissions.

14 The tendered paragraphs of Mr van Rij's statement are rejected.

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