WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd

WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd - [2000] NSWIRComm 214 - NSWIRComm 1992 case summary — Zoe

SECOND DEFENDANT: Adam Jamie Hemsworth FILE NUMBER: IRC4087, 4088, 4089, 4090, 4091 & 4092 of 1999 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecutions brought against a corporation and individual director - Application by prosecutor to have matters heard separately - Application based on admissibility of evidence - Statement given by individual director not admissible on basis of privilege against self-incrimination - Reference of questions to Full Bench pursuant to s5AE of the Criminal Appeal Act 1912 and s196 of the Industrial Relations Act 1996 - Questions as to admissibility of statement against corporation considered Criminal Appeal Act 1912 s5AE Industrial Relations Act 1996 s196 LEGISLATION CITED : Occupational Health and Safety Act 1983 Evidence Act 1995 s187 WorkCover Legislation Amendment Act 1996 Taxation Administration Act 1953 (Cth) Controlled Consultants Proprietary Limited v Commissioner for Corporate Affairs (1984) 156 CLR 385 Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 Farrell and Cotton (1990) 48 A Crim R 311 Hookham v The Queen (1994) 181 CLR 450 Inspector Mackintosh v Phillips (unreported, Case No 91/491, 5 May 1992) Madeleine Mackintosh v Colin Stanley Phillips (unreported, Miller CIM, 5 May 1992, No. 91/49 Pallante v Stadiums Pty Ltd (No 2) [1976] VR 363 CASES CITED : R v Darby (1982) 148 CLR 668 R v Dellapatrona and Duffield (1993) 31 NSWLR 123 R v Fernando [1999] NSWCCA 66 Rech v F M Hire Pty Limited (1998) 83 IR 293 Romer v HJ & J Wilson Carriers Pty Ltd (unreported, Supreme Court, 9 August 1996) WorkCover Authority of New South Wales v Seccombe (1998) 43 NSWLR 390 WorkCover Authority of NSW (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 2 WorkCover Authority of NSW (Inspector Mackenzie) v Filrose Pty Ltd t/as Black Stump Restaurant and Char Grill (unreported, Marks J, IRC 6139-6143 of 1997, 31 August 1999) HEARING DATES: 04/06/2000 DATE OF JUDGMENT: 12/15/2000

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1 This matter is a reference to the Full Bench pursuant to s5AE(1) of the Criminal Appeal Act 1912 and s196 of the Industrial Relations Act 1996. The initial proceedings involved three summonses issued against Australian Winch & Haulage Co Pty Limited ("the first defendant") alleging breaches of s15(1) of the Occupational Health and Safety Act 1983 ("the Act") as well as three summonses issued against Adam Jamie Hemsworth ("the second defendant"), a director of the first defendant, alleging breaches of s50(1) of the Act. The prosecutions arose from an incident which took place on 12 August 1997 which resulted in the death of an employee of the first defendant. The employee was killed when part of a twin head vertical boring machine fell on him whilst he and another employee were dismantling the machine. 2 On 26 October 1999, the prosecutor filed a notice of motion seeking an order that the proceedings against the first defendant be heard separately from those against the second defendant. The ground advanced in support of this application was that, in accordance with the decision of this Court in WorkCover Authority of New South Wales v Seccombe (1998) 43 NSWLR 390 at 403, a statement made by the second defendant would not be admissible against the first defendant if the proceedings were heard jointly. A number of other issues also arose in relation to the notice of motion. In particular, if the proceedings were heard separately a question would be raised as to whether the prosecution could tender the certificate of conviction against the first defendant in subsequent proceedings against the second defendant. 3 The matter was listed before the President who, in a decision given on 10 February 2000 (see WorkCover Authority of NSW (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd [2000] NSWIRComm 2 at [18]), referred the following questions pursuant to s5AE(1) of the Criminal Appeal Act to a Full Bench of the Commission in Court Session: 1. Whether a record of interview dated 28 August 1997 of the second defendant which is inadmissible against the second defendant on the basis that:

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Prosecutor's submissions 8 The prosecutor submitted that the privilege against self-incrimination was unavailable to a corporation (citing s187 of the Evidence Act 1995 and the judgment of the High Court in Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477), but is available to a natural person (s128 of the Evidence Act, Controlled Consultants Proprietary Limited v Commissioner for Corporate Affairs (1984) 156 CLR 385). 9 Where an incomplete caution under the Act is administered, any statement obtained as a result of that incomplete caution is not admissible in proceedings (see ss31M and 31N(d) of the Act; WorkCover Authority v Seccombe at 402). The prosecutor submits that such a statement would nevertheless be admissible against a corporation (ss87 and 187 of the Evidence Act, s31M of the Act and Environment Protection Authority v Caltex). 10 However, the prosecutor noted that there is a qualification on the admissibility against a corporation of a privileged statement of a director of the corporation where the proceedings against a corporation and a director of that corporation (from whom the statement has been obtained) are heard together (see WorkCover Authority v Seccombe at 403). 11 The prosecutor acknowledged that the Court in WorkCover Authority v Seccombe did not make it clear why an inadmissible statement against a director was also inadmissible against a corporation. However, the prosecutor submitted that "the basis for the dictum contained in the passage was that the proceedings were heard jointly" (see also WorkCover Authority of NSW (Inspector Mackenzie) v Filrose Pty Ltd t/as Black Stump Restaurant and Char Grill (unreported, Marks J, Matter Nos. IRC6139 - 6143 of 1997, 31 August 1999 at 13 - 14)). 12 Finally, the prosecutor submitted that if the proceedings were to be held separately, the statement of the natural defendant would, in accordance with ordinary legal principles, be admissible against the corporate defendant (see ss87and 187 of the Evidence Act, s31M(3) of the Act, WorkCover Authority v Filrose at 16 and Environment Protection Authority v Caltex).

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(2) However, any statement, information, document or evidence obtained from a person pursuant to a requirement under this Division is not admissible in evidence against the person in criminal proceedings (other than proceedings for an offence under section 31N) if: a) the person claims before making the statement or giving, furnishing or producing the information, document or evidence that it might tend to incriminate the person, or b) the person's entitlement to make a claim of the kind referred to in paragraph (a) was not drawn to the person's attention before the statement was made or the information, document or evidence was given, furnished or produced. (3) Subsection (2) does not prevent the admission in evidence in proceedings against a body corporate of any statement, information, document or evidence obtained pursuant to a requirement under this Division from a person as a competent officer of the body corporate. 20 As a result of s31M, a person is not excused from answering questions simply because to do so may tend to incriminate that person (s31M(1)). However, any information given may not be admissible if the person claims privilege against self-incrimination or was entitled to do so but not informed of that entitlement (s31M(2)). 21 Of particular relevance to this matter, s31M(3) provides that s31M(2) does not prevent the admission in proceedings against a corporation of any statement made by a person who is a competent officer of the corporation. 22 Section 31M did not contain subsection (3) at the time relevant to the proceedings in WorkCover Authority v Seccombe. The entirety of s31M was repealed by the WorkCover Legislation Amendment Act 1996 (Act No 120 of 1996) and replaced by a new section. Whilst subsections (1) and (2) are in similar form to those in the former section, subsection (3) is entirely new. The new section commenced operation on 12 January 1997 (see NSW Government Gazette No. 4, 10 January 1997, at 49). 23 It is also appropriate to refer to the terms of s31N of the Act which creates a series of offences involving obstruction of an inspector. Section 31N provides: 31N. Offence: obstruction and compliance

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Self-incrimination generally 25 A person is not bound to answer any question or produce any document if the answer or the document would have the tendency to expose that person to the imposition of a civil penalty or conviction for a crime. Section 128 of the Evidence Act now provides that a person may not be required to give evidence on the ground that the evidence may tend to prove that the witness committed an offence against or arising under an Australian law, a law of a foreign country, or is liable for a civil penalty. However, the privilege against self-incrimination also applies in the case of non-judicial proceedings and law enforcement investigations. 26 A corporation is not entitled to claim privilege against self-incrimination. Under s187 of the Evidence Act, a body corporate is not entitled to refuse or fail to answer a question or give information as required by a law of the State on the grounds that doing so might tend to incriminate the corporation. Section 187 provides: 187. No privilege against self-incrimination for bodies corporate (1) This section applies if, under a law of the State or in a proceeding, a body corporate is required to: (a) answer a question or give information; or (b) produce a document or any other thing; or (c) do any other act whatever. (2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate or make the body liable to a penalty. 27 This provision reflects the common law position that a corporation may not claim the privilege against self-incrimination. In Environment Protection Authority v Caltex, Mason CJ and Toohey J stated (at 504): … the availability of the privilege to corporations has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence. In the case of corporations, their books and documents constitute the best evidence of their business transactions and activities. It makes no sense at all to make the privilege available to a corporation in respect of these books and documents when officers of the corporation are bound to testify against the corporation unless they are able to claim the privilege personally. Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation ( Smorgon v. Australia and New Zealand Banking Group Ltd. (1976) 134 CLR 475, per Stephen J at pp.481, 483-485; Penn-Texas Corporation v. Murat Anstalt [1964] 1 QB 40, at pp.56, 67, 68-69.). Not all the considerations that we have discussed require that the privilege be completely denied to corporations. Hence, it can be argued that the privilege should not apply to the production of documents or documents of a particular class, such as "required records", a doctrine to which we shall refer in a moment. But, when all the considerations are taken into account, they compel the conclusion that the privilege against self-incrimination in its entirety is not available to corporations. 28 It should also be noted that oral evidence given by an officer of a corporation is evidence of the officer not that of the corporation. The consequence is that the individual officer is entitled to claim the privilege on the basis that the evidence may incriminate the individual personally, but not on the basis that the evidence may incriminate the corporation. 29 In the context of the Act, a director or manager of a company would be entitled to claim the privilege against self-incrimination when asked questions about an offence which may have been committed by the company on the ground that it may tend to prove the director or manager had personally committed an offence under s50. However, in the case of investigations by an inspector, s31M removes the right of the director or manager to claim the privilege subject to the protection that, if the privilege is claimed, any statement will not be admissible "against the person" in criminal proceedings (see s31M(2)).

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Authorities 30 Consideration as to the admissibility of the statement of the second defendant against the first defendant (in joint or separate proceedings) should commence with the decision of the Full Bench in WorkCover Authority v Seccombe. In that case, Glynn J referred to the Full Bench certain questions relating to the form of caution to be used by an inspector when questioning persons as empowered under the Act and whether the form of caution used in that case resulted in the statement given being inadmissible in the proceedings. 31 The Full Bench determined that the form of caution given in that case was inadequate as a result of the failure to disclose that a person must not refuse or fail to answer a question "without reasonable excuse". The Full Bench also considered whether, if the statement was inadmissible against the individual defendant, it may be admissible against the corporate defendant. The Full Bench concluded (at 402-403): It only remains to deal with Mr Wright's submission that should the statements be held inadmissible against the defendant (Mr Seccombe) as a natural person there was no basis to rule them inadmissible against the corporate defendant as the privilege against self-incrimination did not apply to corporations. All we need say about that submission is that if the statements be inadmissible in the proceedings for the reasons we have given, either as a matter of law or of discretion, then the statements are not in evidence. Whilst it is true that s.31M(2) says that the statements are not admissible in criminal proceedings against the person making them, the sub-section is concerned with protecting a natural person from self-incrimination by excluding a relevant statement from evidence but is not concerned with authorising the admission into evidence against another person, whether a natural person or a corporation, of the statement otherwise obtained contrary to its terms. Whether the statement should be admitted against the corporate defendant here is to be determined according to the ordinary rules of evidence, including s90 of the Evidence Act, and the nature of a corporation. As Stephen J. said in Smorgon v. Australia and New Zealand Banking Group Ltd. (1976) 134 CLR 475 at 481: ... A corporation cannot, of course, itself "give evidence". It may authorise an individual to depose to facts on its behalf and is obliged to do so in the course of litigation when required to make discovery of documents, answer interrogatories and the like. But it is not then itself giving evidence, the oath remains that of the individual, upon whom alone the sanctions which are designed to deter perjury may operate. The corporation may be bound by admissions contained in the evidence of such a duly authorised individual but the evidence will remain that of the individual witness. Mason C.J. and Toohey J. in Environment Protection Authority v Caltex Refining Pty Ltd , as relied upon by Mr. Wright, referred to with approval the above comments by Stephen J in Smorgon v Australia and New Zealand Banking Group Ltd and, in holding that the privilege against self-incrimination was unavailable to a corporation, commented (at 504) that "... officers of the corporation are bound to testify against the corporation unless they are able to claim the privilege personally. Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation" . In the present case, in which the charges against both defendants were being heard jointly, the statements sought to be admitted constituted the evidence of Mr. Seccombe and, as such, remained the evidence of an individual witness and not that of the corporation by a person duly authorised to testify on its behalf. As Mr. Seccombe was properly able to claim the privilege against self-incrimination by not having the statements admitted into evidence, it must follow, in our view, that the statements could not otherwise be admitted as evidence against the corporate defendant. Apart from that, as we have held, it was properly open in her Honour's discretion to exclude the statements against both defendants as a matter of fairness pursuant to s90 of the Evidence Act. 32 The view of the Court in WorkCover Authority v Seccombe appears to have been that s31M does not, of itself, preclude the admission in proceedings against a corporation of a statement made by an individual even if the individual is able to claim privilege against self-incrimination. Rather, the Court held that the question of whether the statement should be admitted against the corporate defendant should be determined according to the ordinary rules of evidence, including s90 of the Evidence Act, and the nature of a corporation. 33 However, the Full Bench concluded that since the proceedings were being heard jointly, and Mr Seccombe was properly able to claim the privilege against self-incrimination and thereby prevent the statements being admitted into evidence, it must follow that the statements could not otherwise be admitted as evidence against the corporate defendant. It was observed by both parties that the Court in WorkCover Authority v Seccombe did not make clear why it should follow that because the statement was inadmissible against Mr Seccombe, it was also not able to be admitted against the corporate defendant. We should comment that to us the reason is plain from what the Full Bench said by reference to the observation by Mason CJ and Toohey J in Environment Protection Authority v Caltex, namely, that natural persons are bound to testify against the corporation "unless they are able to claim the privilege personally" because such a person's evidence "is that of the witness, not that of the corporation". 34 Nevertheless, and as earlier mentioned, the provisions of s31M have altered since the decision in WorkCover Authority v Seccombe. Section 31M(3) is a relevantly new provision and was reviewed in the only other decision which appears to have considered this section, that is, WorkCover Authority of New South Wales (Inspector MacKenzie) v Filrose Pty Ltd. In that case, Marks J considered the admissibility of records of interview with the general manager of the defendant company. The defendant objected to the admission of the records of interview on the ground that no warning was given to the effect that he was entitled to the protection of s31M. Proceedings were initially commenced against the managing director personally, but these were subsequently withdrawn. The proceedings before Marks J involved prosecutions against a single corporate defendant only. 35 Marks J considered the decision in WorkCover Authority v Seccombe and made a number of comments in relation to s31M. His Honour first observed that s31M(3) had been inserted into the Act following the decision in WorkCover Authority v Seccombe and continued (at 10 - 11): At the time that the Full Bench in Seccombe considers s31M subsection (3) had not been enacted. However, it is arguable that subsection (3) does no more than reflect the common law position as laid down by the High Court of Australia in Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. Certainly, the Full Bench was referred to this decision and cognisant of it. 36 In his Honour's view, the insertion of subsection (3) into s31M may have had little or no impact upon the relevant principles. We do not agree; it represents statutory intervention in a particular context which expressly precludes the rejection of evidence otherwise potentially inadmissible so as to avoid a claim of personal privilege in proceedings against a body corporate. The view stated by Mason CJ and Toohey J in Environment Protection Authority v Caltex must now be seen in that context in proceedings under the Occupational Health and Safety Act. 37 Further, his Honour commented that, according to the Full Bench in WorkCover Authority v Seccombe, s31M(2) protects the maker of a statement from self-incrimination but is not concerned with the admission of a statement into evidence against another person. The admissibility of the statement against a corporate defendant will be determined according to the ordinary rules of evidence. His Honour summarised the position of the Full Bench as follows (at 13 - 14): As I read the decision of the Full Bench in Seccombe the critical portion for present purposes is that contained within the last paragraph on p369 which I have extracted above. This emphasises the fact that the trial judge was dealing with charges against both a corporate defendant and a natural person defendant which were being heard jointly. Presumably evidence in the one was to be evidence in the other. On this basis as the statements made by the director could not be admitted into evidence against him they could not otherwise be admitted as evidence against the corporate defendant because of the manner in which the evidentiary matrix had been established by the nature of the proceedings. In addition, of course, the Full Bench determined that it was within the discretion of the trial judge to exclude the statements made against both defendants pursuant to s90 of the Evidence Act . This could only have been because of the failure of the inspector to properly forewarn the person from whom the statement was taken about the proper effect of the relevant provisions of Div 4. 38 His Honour expressed the view that in a joint trial a statement will not be admissible against either defendant if the individual defendant can claim privilege against self-incrimination. This view appears to be based upon the presumption that "evidence in the one (matter) was to be evidence in the other (matter)." Since WorkCover Authority v Filrose involved the prosecution of one corporate defendant, his Honour concluded that nothing in the decision of the Full Bench in WorkCover Authority v Seccombe precluded the admission of the statement in that case.

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Consideration 39 Whilst available to a natural person, the privilege against self incrimination is not available to a corporation. Hence, as a matter of general principle, a statement which is otherwise inadmissible against an individual defendant may be admissible against a corporation: Environment Protection Authority v Caltex Refining. This is given statutory recognition in its particular context by the operation of s31M(3) (see also ss87 and 187 of the Evidence Act 1995). 40 It follows, in our view, that in so far as the first question concerns separate trials, the question must be answered affirmatively, although we would note that the admissibility of such a statement would be determined according to ordinary rules of evidence: WorkCover Authority v Seccombe (at 403) 41 The further question is whether, in the case of a joint trial of individual and corporate defendants, a statement which is inadmissible against an individual defendant may be admitted (subject to ordinary rules of evidence) against a corporate defendant. Thus, the question raises the issue as to whether the approach adopted in WorkCover Authority v Seccombe should be applied, particularly in the light of the passage of s31M(3) of the Act. 42 The provisions of s31M(3) make clear on their face that, as a matter of general application, a statement otherwise inadmissible against an individual person will not be inadmissible against a corporate defendant in a joint trial. To find otherwise would be to render s31M(3) nugatory. The question then arises as to whether some other rule or principle may be identified which would have the effect of otherwise excluding the admission of a statement made by an individual officer of a corporation (which is inadmissible against that person) against the corporation in a joint trial. We find no such principle or rule stated in WorkCover Authority v Seccombe or in the common law. None has been pointed to by the prosecutor or the defendant. In our view, the question of admissibility should be determined in accordance with the ordinary rules of evidence. 43 The first question, in so far as it relates to joint trials, is thus also answered in the affirmative. 44 However, we should also note there is no doubt that, in cases involving a joint trial, the evidence admissible against one defendant will not necessarily be admissible against the other defendant. For example, in Farrell and Cotton (1990) 48 A Crim R 311, Hunt J considered an application for separate trials by one of the accused. In doing so, his Honour considered circumstances in which the evidence admissible against one defendant may be different from the evidence admissible against the other. His Honour commented (at 313 - 314): It is because any statements made by an accused to the police are made subsequently to the crimes alleged against them, and because they are no more than mere narrative accounts of past events, that the statement of each accused out of court is inadmissible against the other: Tripodi (1961) 104 CLR 1 at 7. I have no doubt from what was said during the course of the argument before me that each accused in the present case will take advantage of the right to make an unsworn statement at the trial, so that such statement of each accused in court will accordingly also be inadmissible against the other: Attard (1969) 91 WN (NSW) 824 at 829.

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Consideration 54 In Uniform Evidence Law (3rd Edition, Sydney, LBC, 1998), Odgers summarises the operation of s91 and s178 of the Evidence Act in the following terms (at 537): This provision [s178] … merely describes ways in which evidence may be given. Where the conviction or acquittal is a fact in issue, evidence in the above form will be relevant and therefore admissible to prove that conviction or acquittal. Where, however, it is tendered to prove a fact in issue in the earlier proceeding, s91 establishes a prima facie rule that evidence of a decision or judgment, or a finding of fact, in other proceedings is not admissible to prove some fact that was in issue in those proceedings. 55 The question which would appear to arise from these sections, therefore, is whether the fact of the conviction of a corporation for an offence under the Act is a fact in issue in separate proceedings against a director or manager of the corporation under s50 of the Act. If the conviction is a fact in issue then the certificate of conviction may be admissible under s178 of the Evidence Act. If it is not, the conviction could not be tendered as proof of any fact in the proceedings against the individual by virtue of s91. 56 In the decision of Wright J, President, referring the questions in this matter, his Honour made reference to the decision of the Chief Industrial Magistrate in Inspector Mackintosh v Phillips and, in particular, this passage from his Worship's judgment: Although a Certificate of Conviction was tendered the prosecutor chose to call evidence to establish again a breach of section 15 of the Act by the corporation in relation to the accident. I found this surprising given the wording of the section. The tender of the depositions of the original hearing together with the Certificate of Conviction would have sufficed without embarking in effect on a new trial against the company. 57 In the course of the reference, the President commented at [11]: During the course of submissions in this matter, I raised some doubts as to whether the approach suggested by his Worship in Inspector Mackintosh v Phillips was correct. The relevant aspect of his Worship's decision does not appear to have arisen from any detailed submissions or argument on the point. It is to be observed that the relevant words in s50(1) refer to a situation where a corporation "contravenes" a provision of the Act. They do not refer to a situation where the corporation has been convicted of a contravention. Further, proceedings may be taken against a director whether or not the corporation has been the subject of proceedings or has been convicted under the relevant provision - see s50(2). This at least raises the possibility that the proper construction of the section requires, in proceedings against directors of corporations, actual proof of the contravention and that it is not open to the prosecutor to rely upon mere tender of the conviction pursuant to a relevant evidentiary provision as sufficient to make out the offence. The situation the prosecution contemplates here is that a conviction might be obtained against a corporation under s15 of the Act based upon evidence that would not have been admissible against the individual defendant and then, having obtained such a conviction, proceeding in a quasi-automatic way against the individual against whom that evidence would not have been admissible. This highlights the significance of the construction issue to these proceedings. 58 In the prosecutor's submissions in reply (and perhaps assumed by the Chief Industrial Magistrate in Mackintosh) it was submitted that the effect of s50 is to deem a director of a corporation to have contravened the same provision as the corporation: see Hookham at 458 - 459 and 462 - 463. Once the contravention of the first defendant was established by conviction, the onus of proof is reversed and the second defendant would be deemed to have contravened the same provision. This submission would appear to rest on the proposition that the certification of conviction is sufficient to prove the contravention of the corporation, whether or not a conviction is necessary to prove an offence under s50 (see s50(2)). 59 However, in our view the essential element of an offence under s50 is the contravention of the Act by the corporation not the conviction of the corporation: s50(1). An offence under s50 does not require that a corporation has been proceeded against or convicted: s50(2). As such, the conviction of the corporate defendant is not a fact in issue in proceedings under s50 and therefore the certificate of conviction could not be tendered under s178 of the Evidence Act; s91(1) operates to preclude it. 60 We answer the second question in the negative.

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That being the case, the court has a discretion pursuant to the section, in effect, to make an order that the materials may be tendered, thereby dispensing with the provisions requiring more formal proof which are contained in those parts of the statute referred to in s190(1). If such an order were made, the defendant could allow the evidence to stand as it may be at the conclusion of the plaintiff's case and argue that the evidence is insufficient to persuade the court as to liability or is sufficient to persuade the court as to contributory negligence. Alternatively the defendant could adduce evidence in its own case of facts additional to those which are the subject of the materials in question, either on the issue of liability or on the issue of contributory negligence or both. That might involve the defendant calling as witnesses, some one or more of the persons whose prior evidence is the subject of the materials in question. In the circumstances that have arisen, I do not see anything discordant with the proper conduct of the proceedings for that to occur. 66 It appears that the proceedings before Sperling J had a number of distinctive features. In particular, his Honour determined that the evidence was not genuinely in dispute within the meaning of s190(3) because the defendant had sent the transcript to the plaintiff as part of its evidence pursuant to directions given by the judge. Section 190(3)(a) allows a court, in civil proceedings, to dispense with certain provisions of the Act in relation to evidence if the matter to which the evidence relates is not genuinely in dispute. This case emphasises that s157 is concerned with the mode of proof of previous proceedings rather than the admissibility of the transcript. 67 There is some authority at common law that evidence given in previous proceedings between the same parties or their privies may be read or recited at a subsequent trial provided the issues are the same, the witness who gave the evidence is incapable of being called and the party against whom the evidence is tendered had the opportunity of cross-examining the witness. In Pallante v Stadiums Pty Ltd (No 2) [1976] VR 363, for example, McInerney J held admissible, in a second trial, a transcript of evidence of a witness given in an earlier trial; the witness being absent from the jurisdiction. This approach would suggest that the transcript of earlier proceedings may be admissible, but only so long as there is an exception found to the hearsay rule which would permit the evidence given by a witness in previous proceedings to be admissible. 68 On balance, it appears to us that this question should be resolved by applying the ordinary rules of evidence. This matter does not present any of the special considerations arising in Romer or Pallante, and there does not appear any other basis upon which an exception to the rule against hearsay might be found. In the result, we would answer the third question in the negative. 69 We therefore remit the matter to the trial judge with the following answers to the questions referred:

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