JUDGMENT
1 HIS HONOUR: The document marked for identification 15 is dated 18 February 1997 and is signed by Alan Oxford who at the relevant time was, and apparently still is, the maintenance manager of the third defendant, National Hire Pty Limited ("National Hire"). It was produced from the third defendant's documents.
2 Mr Cavanagh on behalf of the second defendant, Lynden Constructions Pty Limited ("Lynden Constructions") has tendered the first three quarters of the document as an exhibit. Mr Fitzsimmons, on behalf of the third defendant objects to that part of the document being admitted into evidence unless the whole of the document is admitted, or alternatively he wishes to tender the balance of the document (the second part) as a separate exhibit.
3 In the first part of the document Mr Oxford describes a visit by him to the workshop of Snorkel Elevating Work Platforms Pty Limited ("Snorkel") on 5 May 1996 to check on the ten-year service and other work then being carried out by Snorkel on a scissor lift of identical model to the one involved in the accident the subject of these proceedings.
4 On one view of the matter, it could be claimed to contain material advantageous to the second defendant, Lynden Constructions, in its cross-claim against National Hire, in that it is suggested that National Hire, through Mr Oxford, had knowledge from that visit of an improvement in the braking system on the relevant model scissor lift. I express no opinion at this stage as to whether such an inference should be drawn.
5 The second part of the statement contains an assertion by Mr Oxford that at no time did the person he spoke to at Snorkel mention that any of the work carried out should already have been done to the scissor lift being serviced et cetera at that time. It also contains a further assertion by Mr Oxford that neither before nor since that inspection had any service or safety bulletin been received by him concerning the relevant model of scissor lift.
6 These statements in the second part of the document, could assist the case of National Hire as tending to negative or lessen the impact of the inference referred to in relation to the first part of the document, whilst the last passage goes to a related issue, namely, whether a copy of the service bulletin had been received by National Hire from Snorkel prior to the subject accident on 6 December 1996.
7 Mr Fitzsimmons submitted initially that the document was admissible pursuant to s 48(1)(b)(i) of the Evidence Act 1995; but s 48 is in Chapter 2 of the Act which deals with the adducing of evidence and provides how the contents of the document may be proved. The section does not deal with admissibility, which is governed by Chapter 3.
8 The document consists of a number of representations by Mr Oxford and it is sought by the document to prove the existence of the facts asserted therein. Such facts are therefore "asserted facts" within the meaning of s 59(2) and because such representations are made in the document, and not in the course of giving evidence in the proceedings, they are "previous representations" as defined in the Dictionary to the Act. They are therefore not admissible to prove the facts asserted therein by reason of the Hearsay Rule (s 59), unless one of the exceptions to such Rule applies.
9 It is agreed that the exception provided by s 69 relating to business records does not apply because the document was made in contemplation of possible proceedings such as the present (s 69(3)).
10 Mr Cavanagh on behalf of the second defendant relies on s 81 relating to admissions. It is conceded that Mr Oxford had the necessary authority to make admissions on behalf of the third defendant relating to the matters in the document s 87(1)(b).
11 I am satisfied that the statements in the first part of the document constitute previous representations adverse to the third defendant's interest in the outcome of the proceedings. They are therefore "admissions" as defined in the Act (see Dictionary) and come within s 81(1) as an exception to the Hearsay Rule.
12 The statements in the second part of the document are previous representations adverse to, but could be supportive of, the third defendant's interest in the outcome of the proceedings, and so are not admissions within s 81(1).
13 Subs (2) of that section however also excludes from the operation of the Hearsay Rule,
"a previous representation:
(a) that was made in relation to an admission at the time the admission was made or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission."
14 In relation to this subsection the Law Reform Commission said at ALRC 26, vol 1, para 755:
"A party may make a series of assertions of fact, some against his interest at trial, some in his interest, some neutral. Only the former assertions would fall into the proposed definition of admission. Existing law, nevertheless, permits the self-serving portions of a statement to be admitted as evidence. It is not proposed to recommend any changes to the law. An assertion against interest should be considered in context - to assess its probative value it is necessary to consider assertions which qualify or modify it. Fairness to the party requires that his statements not be taken out of context."
15 The previous law was discussed by McGregor J in Gardner v Duve (1978) 19 ALR 695 at 701-704 and in Cross On Evidence 4th Aust ed at para [33455].
16 It follows that so much of the second part of the statement, which contains previous representations made in relation to the "admissions" contained in the first part thereof, but which it is reasonably necessary to refer to in order to understand the admissions in such first part, are admissible, even though self-serving, notwithstanding the Hearsay Rule; in other words, any self-serving representations which relate to or qualify or explain the "admissions" in the first part of the statement are admissible in order to put the admissions in context, to provide for completeness and to avoid distortion, although the tribunal of fact is not bound to give the same weight to the self-serving portions as to the adverse portions.
17 On this basis I am satisfied that the passage,
"At this point I left Snorkel. At no time did Stuart Sainsbury mention that any of the work carried out should have already been done to the scissor 2581 or that any parts or service was lacking."
is admissible because what was not said or done on the visit by Mr Oxford to Snorkel is just as relevant as what was said and done, and completeness and the need to avoid distortion requires its inclusion.
18 The balance of the statement however, commencing with the words "And since or before …" falls into a different category. It does not relate to the visit of Mr Oxford to the Snorkel premises, but to a different subject matter, namely, to the supply or non-supply of the service bulletin. It is therefore not a previous representation made in relation to the admission in the first part of the statement, and it is not reasonably necessary to refer to it in order to understand the admissions contained in such first part.
19 That last passage is therefore subject to the Hearsay Rule and, the maker of the statement apparently being available, it can only be admissible if the provisions of s 64 are complied with.
20 It follows that I will admit the part of MFI 15 tendered by Mr Cavanagh if he also tenders the passage I have indicated down to and including the words "… was lacking". I do not require him to tender the balance of the statement.
21 I admit the document MFI 15 down to and including the words "was lacking" in the third last line of the text and it will be exhibit Y12.
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