The rejection of the tender of various documents
26JLL submits that the primary judge erred in rejecting the tender of a number of documents. With the exception of MFI 3 (a Systems Alarm Report), none of the documents was the subject of any evidence saying what the document was or, where applicable, what it recorded. It is convenient first to deal with those other documents (MFI 5 to 9).
27On 21 July 2010 JLL produced a number of documents to the Court purportedly in answer to a subpoena which had been served on JLL in July 2009. The terms of that subpoena were not identified or relied upon before the primary judge as providing a basis for any inference relevant to the authenticity or identity of the documents produced other than that they had been produced from the custody of JLL. The documents included two agreements: between JLL and Group 4 Securitas Pty Ltd dated 1 August 2004 (MFI 5) and between JLL and Reliance Integrated Solutions Pty Ltd dated 1 August 2005 (MFI 6).
28Of the remaining documents, MFI 7 (of three pages) and MFI 8 (of one page) contained the following words at the top of each page:
"AUSTRALIA SQUARE
LEND LEASE PROPERTY MANAGEMENT PTY LTD
PROGRAMMED PREVENTIVE MAINTENANCE SYSTEM"
One page of MFI 7 was headed "Monthly Service Sheet". The other two were headed "Monthly Alarm Test Sheet". MFI 8 was headed "2 Monthly Service Sheet". MFI 9 consisted of three documents titled Reliance Integrated Solutions Pty Ltd "Monthly Report to Jones Lang LaSalle for Australia Square" for January, February and March 2005.
29After those documents were produced to the other parties and before they were tendered, JLL called two witnesses in its case. They were Mr Jose, who in March 2005 was a consultant to Chubb Electronic Security which maintained the building management control system within Australia Square; and Mr Mulcahy, who in March 2005 was employed by JLL as property services supervisor at Australia Square Tower. Mr Mulcahy gave evidence in general terms that in March 2005 an "integrated services provider" was responsible for co-ordinating the maintenance of the grease traps, including that on level two of the car park. He identified that provider as Reliance Integrated Solutions Pty Ltd and said that it "would have" signed off on plant preventive maintenance records and provided those records to JLL. Neither witness gave any evidence concerning the arrangements or systems in place in relation to the testing or service of the grease traps or alarms in the building. Nor was either witness shown any of the documents which had been produced. Specifically, Mr Mulcahy was not shown MFI 7 or MFI 8 or asked to explain, if he was qualified and able to do so, the circumstances in which those documents were completed, by whom and what they purported to record.
30At this point a further matter ought be noted. It is for the party tendering evidence or asking a question to make clear to the trial judge the purpose for which the evidence is tendered and how it becomes relevant and admissible: Potts v Miller [1940] HCA 43; 64 CLR 282 at 292 per Starke J; Dainford Ltd v Yulora Pty Ltd [1984] 1 NSWLR 546 at 553 per Mahoney JA (Moffitt P and Hutley JA agreeing); Bennett & Co v Connors [1953] St R Qd 14 at 24 per Philp J; R v Bryant (No 2) [1956] St R Qd 570 at 575, 585; McLean v Kalanda Constructions Pty Ltd (Supreme Court of Queensland, Court of Appeal, unreported, 20 June 1995) per Davies, McPherson and Pincus JJA at 4-5. As Campbell JA observed in Adamson v Ede [2009] NSWCA 379 at [94] (Giles and Hodgson JJA agreeing), after referring to the passage in Potts v Miller cited above, decisions about admissibility are necessarily made in the course of running a trial and on the basis of such evidence and submissions as the judge has at the time of making the decision.
31The first document tendered by JLL was MFI 5 which was described as "an agreement by which [JLL] engaged Group 4 Securitas to provide various services, including the monitoring of the alarms generated by the BMCS system". There was no further explanation as to how the fact of that agreement was relevant to the question whether JLL as property manager had breached its duty of care in relation to the maintenance of the grease traps. JLL's defence to Mr Taouk's pleading denied the allegation of breach of duty as property manager but made no positive allegation that it had discharged any obligation as property manager to exercise reasonable skill and care by putting in place systems for the monitoring and maintenance of the grease trap and retaining appropriately qualified third parties to implement those systems: see, for example, Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53] per Hodgson JA (Gyles AJA and Nicholas J agreeing).
32The tender was objected to on the basis that there was no evidence proving its authenticity and that its relevance was not explained. The primary judge rejected the tender without giving reasons. JLL did not thereafter press the primary judge to give any reasons for the rejection of the tender of this or any of the other documents which are the subject of this ground of appeal.
33It is not necessary nor practicable that every ruling about the admissibility of evidence be accompanied by reasons. Nor is it possible to formulate a single criterion by reference to which it can be judged whether reasons should be given. Cases which involve the exercise of a discretion or where admissibility depends on the resolution of some intermediate question of fact or law, may warrant the giving of short reasons. Whether that is so will also depend on the perceived importance of the evidence involved and the likely effect of its rejection or admission on the outcome of the case: see Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 260, 279; Kwan v Kang [2003] NSWCA 336 at [113]-[114]; Evans v The Queen [2007] HCA 59; 235 CLR 521 at [34]. However, if a party wants to preserve fully its rights to challenge a particular ruling on appeal and the basis for rejection or admission is not clear from the argument, it should press for that basis to be stated, however shortly.
34It is not submitted that the primary judge committed an error of law in not giving reasons for his decision to reject the tender of MFI 5. Nor is it shown that his Honour erred in rejecting that tender. The first question which was required to be addressed was whether the document was relevant because it could rationally affect the assessment of the probability of the existence of a fact in issue: ss 55, 56 of the Evidence Act; Smith v The Queen [2001] HCA 50; 206 CLR 650 at [6]-[7]. MFI 5 was tendered as an agreement, although no specific evidence was led to establish its authenticity as such. It can be assumed, for the purposes of this analysis, that the question as to its relevance fell to be determined on the basis that the document was what it purported to be: cf National Australia Bank v Rusu [1999] NSWSC 539; 47 NSWLR 309 which concerned the admissibility of two pages which, although tendered as business records containing representations as to payments made into an account of the second defendant with the Advance Bank, did not on their face identify the bank or customer and were not otherwise proved by admissible evidence to be records of transactions between those parties. It is not necessary in this case to consider the correctness of the observations in that case as to the operation of s 58 of the Evidence Act and the extent to which documents may authenticate themselves: see also Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; 21 NSWCCR 389 at [46]; Australian Securities and Investment Commission v Rich [2005] NSWSC 417; 216 ALR 320; Barescape Pty Ltd v Bacchus Holdings Pty Ltd (No 5) [2011] NSWSC 1307; cf Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305.
35The fact of an agreement between JLL and Group 4 Securitas for the provision of services which included the monitoring of alarms may have been relevant to a defence that JLL exercised reasonable skill and care in engaging others to take steps to keep the car park and grease trap areas, reasonably safe. As Hodgson JA observed in Bevillesta Pty Ltd v Liberty International Insurance Co at [53] discharge of the duty of an occupier in this way "requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps".
36In the absence of any pleaded defence alleging that JLL had exercised reasonable skill and care in this way it was at least incumbent on JLL, if it tendered the document as relevant to such a defence, to explain the argument sufficiently to identify the primary or intermediate facts relied upon which may be in issue. The broad statement as to the agreement being one by which Group 4 Securitas provided services including the monitoring of alarms did not do this. In the absence of any further explanation either in the evidence or from counsel, the primary judge is not shown to have erred in not being satisfied as to its relevance. It remained open to counsel to provide a more detailed explanation as to the relevance of the document in the context of other documents proposed to be tendered or to press the tender at a later stage and in the context of further evidence. These opportunities were not taken up.
37Ordinarily, such an explanation cannot be given for the first time in argument on appeal because there will not have been any "improper" admission or rejection of evidence and because of the prejudice to the other parties in a party being permitted to justify the tender on grounds not argued or sufficiently argued before the primary judge. That prejudice will arise in relation to rejected material if those parties could possibly have addressed it by further evidence, including through cross-examination: see Rex v Grant (1834) 5 B & Ad 1081 at 1082 110 ER 1092 at 1093; Doe d Kinglake v Beviss (1849) 7 CB 456 at 507, 508, 513; 137 ER 181 at 202, 203, 204; Dun v Macintosh [1906] HCA 24; 3 CLR 1134 at 1152, 1169; National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; 10 CLR 1 at 12; Dainford Ltd v Yulora Pty Ltd at 553; and McLean v Kalanda Constructions Pty Ltd at 4, citing Bennett & Co v Connors at 24-25. This reflects the fundamental principle that a party is bound by the conduct of his or her case and that it is only in exceptional circumstances that after a case has been decided against him or her, a party is allowed to raise a new argument which, whether deliberately or by inadvertence, was not put during the hearing when the opportunity was available: see Metwally (No 2) v University of Wollongong [1985] HCA 28; 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8; Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at [44]. There is contrary authority which suggests that where evidence is tendered on an untenable basis and rejected, an appeal may be brought if the evidence was admissible on an alternative basis (although not argued): see Engebretson v Bartlett [2007] VSC 163; 16 VR 417 which declines to follow the decision of Madden CJ in Honeybone v Glass [1908] VLR 466 which applied the two leading English decisions cited above. The principle enunciated in those early decisions was well entrenched by the time it was applied in Dun v Macintosh, which is not referred to in Engebretson. See, for example, Lush's Practice of the Superior Courts of Law, 3rd ed (1865) Vol 2 at 630; Chitty's Archbold's Practice of the Queen's Bench Division of the High Court of Justice, 14th ed (1885) Vol 1 at 732; Taylor, Law of Evidence, 11th ed (1920) Vol 2 at 1248-1249; Roscoe's Evidence in Civil Actions, 20th ed (1934) Vol 1 at 235; Wigmore on Evidence, 3rd ed (1940) Vol 1 at 320; Phipson on the Law of Evidence, 9th ed (1952) at 711.
38For the same reasons it is not established that the primary judge erred in not being satisfied as to the relevance of MFI 6. That document purports to be an agreement dated 1 August 2005 for the provision of services by Reliance Integrated Solutions Pty Ltd for a period commencing after the date of the relevant accident. The agreement was described as "one of the documents by which [JLL] delegate[s] responsibility for maintenance of the building, including the grease trap". Again there was no further elaboration which would permit a judgment as to whether the fact of the agreement or its terms could rationally affect the probability of the existence of a primary or intermediate fact in issue. The primary judge rejected the tender "at this stage". No subsequent attempt was made to re-tender the document in the light of other evidence or of a further explanation which supported its relevance.
39JLL then tendered the three pages being "MFI 7". No attempt was made to prove the authenticity of the document by other evidence. The pages do not on their face identify the person who prepared them or the business in the course of or for the purposes of which, they were prepared. In support of the tender it was said that "an explanation can be given of this document and it may carry little weight but it will carry some weight to establish that the week before the ... accident the alarm for grease trap number 1 was tested". No submission was addressed to the application of the exception to the hearsay rule in s 69(2) of the Evidence Act. Nor was any attempt made to explain how the document contained or made any representation as to the testing of the alarm. Before this Court reference was made to the first page headed "Monthly Alarm Test Sheet" and an entry for "Grease Trap 1" which contained ticks in columns headed "Received" and "Reset" as making a relevant representation.
40The tender was objected to by counsel for Mr Taouk and for Wilson. It was said that it was not established that the document was a business record, and that in the absence of other evidence it was uncertain what could be made of it; that the authenticity of the document had not been established; that its author had not been identified or called to give evidence; that the ticks and writing on the document had not been explained; and that in the absence of explanation the documents were not relevant or carried such little weight as to be of no assistance whatsoever. The primary judge rejected the tender. He did not give reasons for doing so. Nor was he asked to do so.
41The submissions objecting to the tender identified at least two possible grounds of objection. The first was that the relevance of the document had not been established. Assuming the authenticity of the document (that is that it was a record of an inspection or test of the relevant grease trap alarm by someone), the facts in issue to which the document was said to be relevant were whether the alarm for the grease trap on level two was faulty on 25 February 2005 (being the time it was suspected of being faulty) and whether after 25 February 2005 and before 5 March 2005 that alarm had been tested and found to be operating normally. The second possible ground of objection was that the probative value of the document was substantially outweighed by the danger that it might be "unfairly prejudicial" or "misleading or confusing" so as to be excluded in exercise of the discretion under s 135 of the Evidence Act.
42At the time of the tender, it was not said whether MFI 7 was a business record of JLL or of some other entity. On the basis that it was produced from the custody of JLL and was a document of the kind which Mr Mulcahy said was "signed off" by Reliance Integrated Solutions, provided to JLL and kept by it, it answered the description of a business record of JLL. Its relevance then depended upon it containing a "previous representation" which was made or recorded for the purposes of JLL's business and by which the maker of that representation asserted a fact which was in issue or which made more probable the existence of a fact in issue: s 69(1) of the Evidence Act. For the business records exception to the hearsay rule to apply, it also had to be established that s 69(2) applied and was satisfied in relation to that asserted fact. Neither of these matters was addressed in the submissions to the primary judge.
43The only fact which JLL identified to the primary judge as possibly asserted by MFI 7 was that on 28 February 2005 "the alarm for grease trap number 1 was tested". No explanation was given to his Honour as to how a statement in those terms was made by the entries on one or more of the three pages. Nor was there any evidence explaining those entries. In the absence of any such explanation there remained a number of uncertainties. The page headed "Monthly Alarm Test Sheet" (page 1) refers to 26 items of equipment including grease trap 1. In relation to that and a number of the other items, there are ticks in the columns headed "Received" and "Reset". However, it is not known what those ticks signify and as to what checks or tests, if any, were undertaken.
44The page of MFI 7 headed "Monthly Service Sheet" appears to record a check list of work or other servicing to be undertaken in relation to various alarms. It could be interpreted as describing checks to be undertaken to what is referred to as the "supervisory alarm panels - level 5" or, possibly, to specific checks to be done on each of the 26 items of equipment referred to on the first page headed "Monthly Alarm Test Sheet" or on the further 16 items of equipment referred to on the other page with that heading. That check list includes the following descriptions:
● Use 'Alarm Test Sheet' in conjunction with service.
● Inform Security there will be an alarm test.
● Obtain a radio from Security.
● Generally check each line at source of alarm.
● Ensure that each alarm is received at Nexus Terminal and confirm each test with Security via radio.
● Check all float switch components for deterioration, lubricate.
● Record the time each alarm is received (use 'Alarm Test Sheet').
The page recording that check list also contains three columns under the heading "Equipment Numbers" and to the right of each of these descriptions. There are ticks in each of those three columns for each of the descriptions set out above. However, those columns do not indicate to which, if any, of the 26 items or the further 16 items, they relate. For that reason, it is uncertain whether any, and if so which, of those items was the subject of any of those checks.
45In the face of those uncertainties, in the absence of any explanation as to how the asserted fact was said to arise, in the absence of any reference to or explanation as to how s 69(2) was satisfied in relation to that asserted fact, and in the absence of any indication that there would be further evidence called or tendered which would establish the authenticity of the document, the primary judge did not err in not being satisfied as to its relevance. In particular, his Honour could not be satisfied that it could reasonably be supposed that the unidentified person or persons who completed the document intended to assert by doing so that any particular test was carried out on the alarm for grease trap number 1 on 28 February 2005: s 59(1), (2A) of the Evidence Act. For that reason, there was no "asserted fact" which could rationally affect the assessment of the probability of the existence of any fact in issue: s 55(1).
46MFI 8 is headed "2 Monthly Service Sheet" and bears a date "Jan 05". When tendering this document JLL did not identify any prior representation said to be made by the document or the fact in issue to which it was said to be relevant. As the document is dated January 2005 its relevance to the condition of the grease trap alarm in late February 2005 is not established in the absence of some other evidence which does so. For that reason his Honour was entitled to reject the tender of this document on the ground that it was not relevant to any fact in issue.
47JLL also tendered the three monthly reports which became MFI 9. These consist of 211 pages. The particular pages relied upon and the representations which they were said to contain were not identified. Nor were the issues to which the document was said to be relevant formulated. The primary judge was entitled to reject this tender on the basis that he was not satisfied as to the relevance of the three documents.
48Finally, JLL challenges the rejection of the tender of MFI 3 which was a 700 page Systems Alarm Report covering the period from 4 to 6 March 2005. The document was tendered to prove that there was no record of the grease trap alarm going off on the evening of 5 March 2005. Mr Jose gave evidence that he printed this report. He gave no evidence as to what the document recorded or as to how it should be interpreted. On its face it does not contain a statement that the alarm did not go off on 5 March 2005. No submission was made explaining how that fact was established by the document alone. In the circumstances, the primary judge did not err in rejecting the document on the basis that its relevance was not established. One further matter must be said about JLL's position in relation to this document. It could not possibly have suffered any prejudice by its rejection. Nor could that rejection possibly lead to a different outcome to the claim against JLL because Mr Jose was eventually permitted to give oral evidence that the relevant alarm did not register on the evening of 5 March 2005 and the primary judge found that it apparently "failed" on that day: [119].