Pacific Resources International Pty Ltd v UTI

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.

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.

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