Walsh v Walgett Shire Council - [2014] NSWSC 812

Supreme Court

New South Wales

Medium Neutral Citation: Walsh v Walgett Shire Council [2014] NSWSC 812
Hearing dates: 03/06/2014, 4/06/2014, 05/06/2014, 06/06/2014,10/06/2014, 11/06/2014
Decision date: 11 June 2014
Jurisdiction: Common Law
Before: McDougall J
Decision:
Tender rejected

Catchwords: EVIDENCE - documentary evidence - statutory provisions relating to business records - whether document of WorkCover a 'business record' - whether representations in document are made in connection with an investigation - whether investigation must in fact lead to proceedings for exception to apply - application of s 69(3)(b) of the Evidence Act 1995 (NSW)
EVIDENCE - admissibility - whether discretionary reasons for refusing to admit evidence - where evidence in the form of answers to specific questions - where witness not called - application of s 135 Evidence Act 1995 (NSW)
Legislation Cited: Evidence Act 1995 (NSW)
Occupational Health & Safety Act 2000 (NSW)
Work Health & Safety Act 2011 (NSW)
Cases Cited: Lewincamp v ACP Magazines Ltd [2008] ATCSC 69
Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984
Vitali v Stachnik [2001] NSWSC 303
Category: Procedural and other rulings
Parties: Daniel Peter Walsh (Plaintiff)
Walgett Shire Council (Defendant)
Representation: Counsel:
DR Campbell SC / IJ McGillicuddy (Plaintiff)
JE Sexton SC / G Donnellan (Defendant)
Solicitors:
Beston Macken McManis (Plaintiff)
Mills Oakley Lawyers (Defendant)

File Number(s): 2012/380694

Judgment (ex tempore revised - 11 june 2014)

HIS HONOUR: The plaintiff claims damages for catastrophic injuries that he suffered when, to use a neutral term, he entered a spa pool in the Artesian Baths owned and operated by the defendant council at Lightning Ridge. The accident occurred in the evening of 29 August 2011.

The spa, or bore bath as it is often called, had been emptied because work was being done on the seating within it. That work was being undertaken by members of Rotary, apparently as some form of community service. The council had a cross-claim against Rotary, but that cross-claim has been settled and yesterday I made orders by consent dismissing it.

A problem has arisen because the plaintiff wishes to rely on answers given by a Rotary member, Mr Michael Taylor, to questions posed to him by WorkCover under s 155 of the Work Health & Safety Act 2011 (NSW).

Mr Taylor was one of the Rotary members who was actually carrying out the work in question.

Section 155 empowers WorkCover to give written notice to persons whom, it has reasonable grounds to believe, may give information, provide documents or give evidence in relation to, among other things, a possible contravention of the Work Health & Safety Act. The notice given by

WorkCover to Mr Taylor makes it clear that the questions were required to be answered, "in relation to a possible contravention of s 8 of the Occupational Health & Safety Act, 2000". That is to say, the notice makes it clear that WorkCover was investigating possible contravention, and not for the other purpose (monitoring or enforcing compliance) specified in s 155(1).

Mr Campbell of…

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: [2014] NSWSC 812
Decision Date: 11 June 2014

CaseChat Overview and Summary

The case of Walsh v Walgett Shire Council involved a dispute regarding the admissibility of a document provided to WorkCover as evidence in a workers' compensation claim. The document in question was a series of answers to specific questions that had not been provided under oath or affirmation. The matter was heard by the District Court of New South Wales, presided over by His Honour Judge Groves.

The primary legal issues before the court were whether the document constituted a business record under s 69(3)(b) of the Evidence Act 1995 (NSW) and if there were any discretionary reasons to refuse its admission under s 135 of the same Act. The court had to determine if the answers were made in connection with an investigation and whether an investigation must actually lead to proceedings for the exception to apply. Additionally, the court needed to assess whether the document should be excluded under s 135 based on the absence of the witness who provided the answers.

Judge Groves concluded that the document was not a business record as it did not satisfy the statutory criteria under s 69(3)(b). The court found that the answers were not made in connection with an investigation that would in fact lead to proceedings, thereby not qualifying for the exception. Furthermore, the court held that there were no discretionary reasons to refuse the admission of the document, despite the witness not being called. The document was ultimately deemed inadmissible due to the lack of compliance with the statutory requirements and the absence of the witness.

The final orders of the court did not favour the admission of the contested document into evidence. The court emphasised the importance of adhering to the statutory provisions concerning business records and the necessity of the witness's presence to provide sworn testimony. The decision underscores the rigorous application of evidence laws to ensure the integrity and reliability of the evidence presented in court.

Orders