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[2012] NSWSC 1083
defendant. The court admitted the Particulars Letter dated 17 June 2008 as an admission by the plaintiff (Exhibit 12), finding the solicitor had ostensible authority to make the statement and that the...
PRI sued UTI for loss of goods in a warehouse fire. A key question was whether UTI's terms and conditions were part of the contract. PRI's solicitors sent a particulars letter stating the contract included UTI's terms. UTI tendered that letter as an admission. The court examined evidence showing an investigator had obtained a document from PRI's director shortly after the fire identifying it as the 'current' agreement (which included the STCs). The court held the solicitor's letter reflected the client's position as communicated to the investigator, that the solicitor had ostensible authority to make the admission, and admitted the letter into evidence.
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1,697 words · generated 17/09/2026
This is an interlocutory evidentiary ruling delivered by Stevenson J on 5 September 2012 in Pacific Resources International Pty Ltd v UTI (Aust) Pty Ltd [2012] NSWSC 1083. The principal contested item was a particulars letter dated 17 June 2008 sent by solicitors for the plaintiff, Pacific Resources International Pty Ltd (PRI), to solicitors for the defendant UTI (Aust) Pty Ltd (UTI). The Particulars Letter stated that the agreement between PRI and UTI was partly oral and partly in writing and, in so far as in writing, comprised UTI's Terms and Conditions (STCs) and a PowerPoint presentation (para 12). UTI sought to tender that letter as an admission by PRI that the STCs formed part of the contract (para 14).
No linked legislation citations have been extracted yet.
The plaintiff resisted, contending the statement was merely the product of an unchecked assumption by an insurance investigator, Mr Robert King, which had not been confirmed by the solicitor who drafted the letter (para 15). The plaintiff also argued limited probative value and sought exclusion under Evidence Act ss 135 or 136 (para 17). The court heard a voir dire and took evidence from Mr King, Ms Nada Abdel-Fattah (the solicitor employee who drafted the letter), and Mr Nicholas Blake (a director of PRI) (para 19).
Stevenson J admitted the Particulars Letter as Exhibit 12, concluding that on the evidence it was open to find the solicitor had authority to make the statement and that the statement was not contrary to the facts (paras 48–50).
Key factual dots:
Two linked lines of reasoning are decisive.
First, the factual foundation: the court accepted Mr King's contemporaneous investigative materials and testimony (paras 22–34). Mr King recorded that Mr Bennett provided a copy of what he described as the 'current form of the agreement' and that Mr King enclosed that document with his report (paras 26–29, 32–34). The judge found it "quite clear" Mr Bennett had given Mr King that document shortly after the fire and that Mr King's report faithfully recorded what Mr Bennett told him (paras 31–34, 40–42). This removed the core factual substrate of the plaintiff's submission that the solicitor merely made an unchecked assumption.
Second, the legal principle of solicitor ostensible authority and admissions: Stevenson J relied on the established proposition that a solicitor has ostensible authority to make admissions on behalf of a client. He cited Hoy Mobile v Allphones (per Rares J) as an example and referenced solicitor texts and older authority to state the caveat that such authority does not extend to admissions contrary to fact (para 46). Given the investigator's evidence, the solicitor's statement in the Particulars Letter was shown to be in accordance with the instructions Mr Bennett had given Mr King. The statement therefore was not contrary to the facts and it was "open to find" the solicitor had authority within s 87(1)(a) of the Evidence Act (paras 46, 48).
Taken together, the factual foundation plus the doctrine of ostensible authority supported treating the Particulars Letter as an admission by PRI and thus admissible evidence (paras 47–50).
Before this decision, the principle was established that a solicitor may, by ostensible authority, make admissions that bind a client; the court cited Hoy Mobile v Allphones (2008) to this effect (para 46). Textbooks (Cordery, Horne) and older authority (Groom v Crocker) were referenced for the limitation that admissions contrary to the facts will not bind the client (para 46).
This judgment applies those principles in a straightforward evidentiary context: it confirms that where a solicitor's representation in a particulars letter follows from contemporaneous client-sourced material elicited by an investigator (and the investigator's account is accepted), a court may treat the solicitor's statement as an admission. The decision does not expand the principle materially but reinforces that courts will look to the factual circumstances which underpin the solicitor's representation and will not treat a solicitor's omission to seek specific confirmation as fatal if the solicitor proceeded on a reasonable foundation (paras 36–43, 47–49).
Paragraph 46: "A solicitor has ostensible authority of his or her clients to make admissions ... although not if the admissions are contrary to the facts."
Paragraph 34: "Mr King's evidence made quite clear that on 17 January 2006 ... Mr Bennett had given Mr King a document ... which included the STCs."
Paragraph 47: "Although Ms Abdel-Fattah did not, in terms, seek instructions ... what she ... did say ... was in accordance with the instructions Mr Bennett gave Mr King. It was not contrary to the facts."
Paragraph 48: "It is 'open to find' that Ms Abdel-Fattah had authority ... within the meaning of s 87(1)(a) of the Evidence Act."
Paragraph 49: "The combination of these circumstances is sufficient to characterise the statements ... as an admission by PRI."
This decision is engaged where:
In short, where the solicitor's statements can be traced to a reasonable factual basis communicated by the client, omission to seek separate instructions will not necessarily prevent a court finding ostensible authority and admitting the statement as an admission.
This decision is a trial/interlocutory ruling at first instance and applies the cited authorities (Hoy Mobile; Groom v Crocker) rather than overruling or distinguishing them. The judgment itself cites prior NSWSC reasons in the same litigation (Pacific Resources v UTI [2012] NSWSC 893) for background (para 5). Because this is a relatively narrow application of established principles, later courts will likely treat it as consistent authority on the evidentiary approach to solicitor-made admissions where a factual foundation exists. The judgment emphasises the court's focus on contemporaneous investigator material and on whether the solicitor's statement was contrary to the facts. That evidential, fact-intensive approach is likely to be followed rather than treated as a broad doctrinal shift.
(Practitioners should look for later appellate authority if they seek an authoritative change in the law of solicitor admissions; this decision is useful for factual scenarios where investigator materials can be marshalled to support the solicitor's representation.)
Degree of required communication direct to solicitor: The judgment accepts that a solicitor who does not expressly seek instructions on a discrete point can still have authority to make admissions if the information was conveyed to the solicitor via an investigator and the statement aligns with the client's instructions as communicated. It leaves open precise boundaries about how direct the solicitor's own reliance must be. Would a more attenuated chain of communication be sufficient? The decision suggests "open to find" but does not set strict thresholds (paras 36–48).
Interaction with Evidence Act ss 135/136: The court considered and rejected exclusion arguments based on probative value and prejudicial effect (paras 17, 40–50). The reasoning turned on a positive finding of probative value from contemporaneous materials. Where the investigator's notes are less clear or where the client later denies the investigator's account, further evidentiary contests would arise. The judgment does not produce a broad rule on when s 135/136 will exclude solicitor admissions derived from third-party reports; it is fact-sensitive.
Admissions contrary to facts: The judgment reiterates the limitation that a solicitor cannot bind a client by making admissions contrary to fact (para 46). It remains an open question in marginal cases how the court will determine 'contrariness' where facts are in dispute and where the solicitor's statement anticipates contentious issues.
Scope of ostensible authority vis-à-vis formal instructions: Practitioners will want clarity about whether ostensible authority is satisfied by an employee solicitor drafting correspondence from investigator reports without express partner sign-off. Stevenson J accepted that Ms Abdel-Fattah, an employee preparing the draft under the partner's hand, could be within ostensible authority on these facts (paras 11, 36–38, 47–49). How courts will treat lesser levels of formality remains to be tested.
Final note: This write-up explains the judgment and its reasoning. It is not legal advice. Before acting on, relying on, or using any document or argument based on this material, get a qualified Australian lawyer to check it. Zoe can make mistakes and this is general legal information, not legal advice.
Judgment 1On 5 September 2012 I ruled that a letter dated 17 June 2008 from the solicitors for the plaintiff, Pacific Resources International Pty Ltd ("PRI") to the solicitors for the defendant, UTI (Aust) Pty Ltd ("UTI") providing particulars ("the Particulars Letter") was admissible against PRI as an admission. 2These are my reasons. 3These proceedings commenced before me on 28 August 2012. 4PRI has opened, and closed its case (without calling any witnesses). This application arises in the course of UTI's case. 5The general background to the proceedings is set forth in my judgment in this matter on 31 July 2012; Pacific Resources International Pty Ltd v UTI (Australia) Pty Ltd [2012] NSWSC 893. 6The proceedings concern goods destroyed in a fire at a warehouse in Botany on 2 January 2006. 7UTI was the bailee for reward of goods belonging to a number of parties, including PRI, that were destroyed in the fire. 8PRI brings these proceedings against UTI seeking damages in respect of the destruction of those goods. 9A central issue in the proceedings is whether UTI's Standard Terms and Conditions ("the STCs") were part of the contract between UTI and PRI. 10On 20 May 2008 UTI's solicitors sought particulars of the allegation made by PRI in its Commercial List Statement concerning the agreement between PRI and UTI. 11On 17 June 2008, PRI's solicitors sent the Particulars Letter. The Particulars Letter was sent under the hand of the partner dealing with the matter, Mr John Van De Poll ("Mr Van De Poll"). Its author was an employee of Mr Van De Poll, Ms Nada Abdel-Fattah ("Ms Abdel-Fattah"). 12The Particulars Letter stated that the agreement was said to be partly oral and partly in writing and, in so far as it was in writing, comprised: - "UTI Terms and Conditions, a copy of which is enclosed for your attention and the Power Point presentation presented to [PRI] by [UTI] at [UTI's] premises, prior to entering into the Agreement". 13The Particulars Letter stated that this presentation had occurred "on or about April 2002" at UTI's premises at Botany, and that those present included Messrs Lloyd Bennett ("Mr Bennett"), Nicholas Blake ("Mr Blake") and Frank Ruckriegl ("Mr Ruckriegl") on behalf of PRI, and Ms Kym Caruthers on behalf of UTI. 14UTI tendered the Particulars Letter as an admission by PRI that the agreement between PRI and UTI included the STCs. 15PRI resisted the tender upon the basis that the Particulars Letter did not constitute an admission as it was "the product of an assumption made by an insurance investigator, which was not checked or confirmed by the solicitor who prepared the letter". 16The investigator referred to was Mr Robert King ("Mr King"). The solicitor referred to was Ms Abdel-Fattah. 17PRI submitted that, for that reason, the Particulars Letter was of no probative value, and should be excluded or limited under s 135 or s 136 of the Evidence Act 1995. 18PRI also submitted that Ms Abdel-Fattah neither sought nor obtained instructions from PRI in relation to the relevant passage in the Particulars Letter and that, accordingly, she did not have authority to make the relevant statement. 19Mr King, Ms Abdel-Fattah, and Mr Blake (a director of PRI) gave evidence on the voir dire during argument in respect of the tender of the Particulars Letter.
Mr King's evidence 20In an affidavit sworn for the purposes of the voir dire, Mr King said that on 11 January 2006 (that is nine days after the fire) he was instructed by PRI's insurer to commence a factual investigation concerning the fire. 21Mr King said that he arranged to meet Mr Bennett, a director of PRI, on 17 January 2006 (15 days after the fire) and prepared a draft statement from that meeting. 22Mr King continued: - "5. Mr Bennett provided me with a bundle of documents. He did not go through the documents or identify them individually to me. 6. I later reviewed the documents while preparing my first investigative report, which was dated 2 February 2006. I inserted some of those documents as attachments to my report, including a copy of the document entitled 'terms and conditions'. 7. I identified those documents at page 12 of my first investigative report as '8. Copy of UTi's Agreement with the insured company [PRI], dated 1 June 2004'. I did this based on the face of the documents." 23The terms of the affidavit suggested that Mr King had received from Mr Bennett a copy of the document including the STCs, but had simply included that document in his report without comment other than listing it as one of a number of documents provided to him by Mr Bennett. 24However, examination of Mr King's "investigative report" and cross-examination of Mr King revealed that the situation was not so simple. 25During cross-examination, Mr King was shown notes that he had prepared before his meeting with Mr Bennett. He described the notes as points that he had made that he intended to raise with Mr Bennett. Mr King had ticked various items on that list. 26One of those points read "agreement/contract/copy". Mr King had ticked that item. When asked what the tick against those words signified, Mr King said: - "I've covered the topic and asked for the documents." 27In his report Mr King stated that: - "The insured [Mr Bennett] has provided the writer with a full copy of the current agreement between UTi and [PRI]. I enclose same for your perusal." 28The document enclosed was a Warehouse and Distribution Proposal addressed to PRI dated 1 June 2004 that included, as one of its components, the STCs. 29Mr King's report also included a statement that Mr King had taken from Mr Bennett. In cross-examination Mr King explained that he took the statement from Mr Bennett on 17 January 2004 using a dictaphone. 30Mr King gave the following evidence: - "Q: So far as you could tell, Mr Bennett could hear what you were dictating into your dictating machine? A: Yes, your Honour. Q: Were there occasions in the course of that exercise where he asked you to pause and correct something you had said? A: Yes, your Honour." 31Mr Bennett did not sign the statement Mr King had prepared. However, based on the above evidence, I am satisfied that the statement records, accurately, what Mr Bennett told Mr King. 32Included in this statement are the following passages: - "To the best of my knowledge and belief we first commenced an association with [UTI] when we were dealing with a company called 'Greenway'. That company was acquired by UTI in approximately 1998 and we dealt with UTI from the 1998 period through to approximately 2000. At that stage, due to increasing prices and a relationship with the staff member we had been dealing with, we left UTI and used the facilities of Powerhouse. We remained with Powerhouse until approximately 2002/2003 when we then decided to return to UTI and utilise their Hale Street, Botany facilities. We remained with that company until the date of the fire. We were also utilising the facilities of UTI in Melbourne. I've provided Mr King with a copy of the current form of agreement in place with UTI, which is dated 1 June, 2004." 33In regard to that entry, Mr King gave the following evidence: - "Q: Did Mr Bennett provide you, Mr King, with something he called the current form of the agreement? A: Yes. Q: And that was [the document dated 1 June 2004] that I showed you a moment ago, which came from your file produced on subpoena, was it not? A: Yes." 34Mr King's evidence made quite clear that on 17 January 2006, only 15 days after the fire, Mr Bennett had given Mr King a document that he described as being the "current form of the agreement" between PRI and UTI; which document included the STCs.
Ms Abdel-Fattah's evidence 35Ms Abdel-Fattah also swore an affidavit in which she described the process that, so far as she could recall, she undertook to prepare the Particulars Letter. 36Based upon the contents of Mr King's report, referred to above, Ms Abdel-Fattah said, in her affidavit: - "I proceeded on the assumption that the terms and conditions in the document attached to Mr King's report formed part of the agreement between PRI and UTI for the storage of the goods destroyed in the 2 January 2006 warehouse fire. I do not remember receiving any instructions or correspondence from Mr Lloyd Bennett, Mr Nicholas Blake, Mr Frank Ruckriegl or Mr Bob King to confirm this assumption." 37Mr King's evidence, as outlined above, showed that Ms Abdel-Fattah was entitled to proceed upon the assumption that she did. 38Ms Abdel-Fattah said that she prepared a draft response to the request for particulars. She sought instructions from the offices of PRI in respect of certain aspects of the matter, but did not seek any instructions about the subject of her assumption concerning the terms and conditions of the contract. She did not send PRI a draft of her proposed response to the request for particulars. 39Mr Bennett made a statement in these proceedings on 12 August 2010. He was not called to give evidence on the voir dire. No explanation was given for his absence from the witness box (although Mr Williams SC did attempt to ask Mr Blake, in re-examination, a question "about Mr Bennett's health"). 40Mr King's evidence reveals that, contrary to PRI's submission, the statement made in the Particulars Letter was not merely "the product of an assumption made by an insurance investigator, which was not checked or confirmed by the solicitor who prepared the letter". 41The true position is that Mr Bennett told Mr King that the 1 June 2004 Warehouse Distribution Proposal (which included the STCs) was the "current" agreement (as at 17 January 2006) between UTI and PRI. It is obvious from the terms of Mr King's evidence that Mr Bennett meant, by this statement, that the document was the agreement "current" at the date of the fire. 42Ms Abdel-Fattah assumed, correctly as it turns out, that the matter stated in Mr King's report, and in the draft statement annexed to it, reflected what Mr Bennett had told Mr King to be the true position on instructions. 43Although Ms Abdel-Fattah did not, at the time, seek confirmation from PRI of the matters Mr Bennett had told Mr King, on 23 November 2007 Ms Abdel-Fattah was present at a conference that took place between her, Mr Van De Poll and Messrs Ruckreigl, Blake and Bennett. 44During that interview the following exchange took place between Mr Van De Poll and Mr Bennett: - "[Van De Poll] Q253. The proceeding is based on two things. Firstly, that there was an agreement between yourselves and UTI. And secondly that they breached that agreement, either by their negligence of by their failure to comply with laws. So that the starting point for it is, you entered into an agreement with UTI around about April 2002? [Bennett] A. Well, you're testing our memories now. [Van De Poll] Q254. Right. Okay? [Bennett] A. Without looking at the documents. [Van De Poll] Q255. I think I got that from somewhere else where you had told us that? [Bennett] A. We sent copies of our agreement I think probably." 45Although Mr Bennett's statement was somewhat tentative, I would read it as confirmation by him of his provision to Mr King of the Warehouse and Distribution Proposal of 1 June 2004 (as the then "current" agreement). 46A solicitor has ostensible authority of his or her clients to make admissions (for example, see Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369; (2008) 167 FCR 314 per Rares J at [18]), although not if the admissions are contrary to the facts (see Frederic T Horne, Cordery's Law relating to Solicitors, 8th ed (1988) at 78, citing Scott LK in Groom v Crocker [1939] 1 KB 194 at 222-224; not repeated in Cordery's on Legal Services, 9th ed, but see [3255] in vol 1). 47Although Ms Abdel-Fattah did not, in terms, seek instructions from PRI to make the relevant statement in the Particulars Letter, what she, and Mr Van De Poll, did say in the Particulars Letter was in accordance with the instructions Mr Bennett gave Mr King. It was not contrary to the facts. 48It is "open to find" that Ms Abdel-Fattah had authority to make the admission within the meaning of s 87(1)(a) of the Evidence Act. 49In my opinion, the combination of these circumstances is sufficient to characterise the statements made in the Particulars Letter concerning the incorporation of the STCs into the contract between UTI and PRI as an admission by PRI. 50Accordingly, I admitted the Particulars Letter as Exhibit 12.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2012
Pacific Resources International Pty Ltd
UTI
The court admitted the Particulars Letter dated 17 June 2008 as an admission by the plaintiff (Exhibit 12), finding the solicitor had ostensible authority to make the statement and that the investigator's evidence provided a factual foundation (paras 1, 48–50).