FEDERAL COURT OF AUSTRALIA

Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) [2011] FCA 578

THE COURT ORDERS THAT:

The email from Michael Phillips dated 11 October 2007 be admitted as a business record, and marked Exhibit 23(A).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Late on the evening of 17 May 2011 the applicant sought to tender as evidence a document which appeared to be a copy of an email. Following submissions from Counsel and after brief consideration of relevant authorities, I indicated that I considered the document admissible as a business record pursuant to s 69 and s 48(1)(e) of the Evidence Act 1995 (Cth) (the Act). Mr Drew for the respondent requested the opportunity overnight to peruse the authorities to which I referred and to make further submissions the following morning before I formally ruled. The next morning after hearing further submissions from Mr Drew I ruled that the document was admissible, and said that I would give my reasons for this ruling in due course. I now publish those reasons.

The email

2    During the cross-examination of Mr Nick Mitris, who was a witness called by Mr Drew on behalf of the respondent, Mr Peden for the applicant sought to tender a document which appeared to be a copy of an email. The email appeared to be from a Mr Michael Phillips to a Mr Mark Simonis, sent on 11 October 2007 at 9.36 am. In the “subject” line of the document were the words “Pacific Reef Fisheries – 9731209 Aust Cooked Black Tiger Prawns”. The contents of the document suggest that Mr Simonis is associated with Coles Group.

3    On its face, the email also appeared to forward previous correspondence to and from Mr John Dimitriou. Although Mr Dimitriou has not been called as a witness to date, a witness statement signed by Mr Dimitriou was filed by the respondent in these proceedings on 24 January 2011. In the witness statement Mr Dimitriou states that he was employed by the respondent from approximately 2000 to 2008.

4    I note that during cross-examination Mr Mitris identified Mr Dimitriou as the person who had initiated dealings on behalf of the respondent with Coles (TS 17 May 2011 p 221 ll 21-46) and as a manager of the respondent (TS 17 May 2011 p 222 ll 13-14 and p 224 l 21).

5    Mr Peden submitted that this email was a document produced by Coles Group in response to a subpoena issued by the Deputy Registrar on 21 April 2011 to the Proper Officer of Coles Group. That this is the case has not been disputed by the respondent. Further Mr Peden submitted that, accordingly, the document was a business record of Coles Group and admissible as a business record.

Objections of the respondent

6    During the hearing on both 17 and 18 May 2011 Mr Drew objected to the admissibility of the email. Mr Drew’s objections may be summarised as follows:

    There is no evidence that the alleged email was ever sent. No witness has been called who can testify as to the provenance of that document. To that extent, it is no more than a piece of paper with words typed on its face.

    There is no evidence that any material in the document was produced by Mr John Dimitriou.

    For the purposes of s 46(1)(e), “business records” must be records kept by a party to the action. Coles Group is not a party to the proceedings. To that extent the document is not relevant on the pleadings.

Relevant legislation

7    Section 59(1) of the Act summarises the common law hearsay rule for the purposes of the Act – namely:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

8    As is well-known however (and in any event, clear from the note to s 59(3)) “business records” are an exception to that rule. More particularly, s 69 provides as follows:

Exception: business records

(1) This section applies to a document that:

(a) either:

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation:

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

(4) If:

(a) the occurrence of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind;

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

Note 1: Sections 48, 49, 50, 146, 147 and subsection 150(1) are relevant to the mode of proof, and authentication, of business records.

Note 2: Section 182 gives this section a wider application in relation to Commonwealth records.

9    Section 48(1)(e) of the Act in turn provides as follows:

(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:

…

…

(e) tendering a document that:

(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and

(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

Consideration

10    First, it is clear that an email per se may be a “business record” for the purposes of s 69 and s 48(1)(e) of the Act: Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978, Australian Securities and Investments Commission v Rich [2005] NSWSC 471.

11    Second, I do not accept Mr Drew’s submission that the document is not admissible because it is not between the parties to these proceedings. It is not in dispute that neither Mr Michael Phillips nor Mr Mark Simonis are witnesses in proceedings or in any way associated with either the applicant or the respondent. However that in itself does not disqualify the document as a “business record”.

12    In Compafina Bank v Australia & New Zealand Banking Group Ltd [1982] 1 NSWLR 409 an entrepreneur had obtained loans from the plaintiff, relying on letters of reference from an employee of the first defendant. During the proceedings the first defendant sought to tender a copy of a letter written by a company, which was not a party to the proceedings, to another non-party. Hunt J ruled that the document was admissible as a business record of the company, in that it was part of the company’s business to write such letters (at 412).

13    I consider that an analogy may be drawn, in this limited respect, with the facts in Compafina Bank – namely that an inference may be drawn that it is part of the business of Coles Group for its employees to receive emails, including those concerning the respondent and the prawns it supplied.

14    Third, I note that the admissibility of documents as “business records” has been the subject of consideration in a number of recent cases in this Court, namely Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338 and Fig Tree Developments Ltd (formerly Village Life Ltd) v Australian Property Custodian Holdings Ltd as Responsible Entity for the Prime Retirement and Aged Care Property Trust [2009] FCA 390, as well as cases in the Supreme Court of New South Wales, in particular National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 and in particular Australian Securities and Investment Commission v Rich (2005) 216 ALR 320; [2005] NSWSC 417. Principles emerging from these cases include:

•    It is important not to set the bar too high for the authentication of documents, because if too much is demanded, the authentication requirement will fight against the policy underlying the business records provisions. That policy recognises that any significant organisation depends for its efficiency upon the keeping of proper records, to be used and relied upon in the everyday carrying on of the activities of the business and therefore likely to be accurate, and likely to be a far more reliable source of truth than memory (Rich at [116]).

•    The party tendering the document must establish authenticity, which cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance (Rich at [117]).

•    Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves (Rich at [118]).

•    There is a distinction between matters of authenticity going to the adducing of evidence and matters going to the credibility and weight of documentary evidence once it has been authenticated and judged admissible (Rich at [118]).

15    In this case the document purports to be an email, received by Mr Mark Simonis, a person in the Coles Group. Section 69 exempts a document from the application of the hearsay rule where the document, inter alia, “contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business”. To the extent that the document purports to be a communication between Mr Michael Phillips and Mr Mark Simonis, the document appears to satisfy this description. As I have already noted, it is not in dispute that the document was produced by Coles Group in response to the subpoena. Mr Mitris gave evidence during cross-examination that there was communication between Coles Group and employees of the respondent. I accept Mr Peden’s submission that it is unlikely that Coles Group would have fabricated receipt of such a document. I am satisfied at this stage that the document is what it purports to be, namely an email, and is therefore a business record of Coles Group and, accordingly admissible.

16    Of what the document is proof is, however, yet to be determined. Mr Drew’s submissions in relation to the overall admissibility of the document included general objections directed towards that part of the document allegedly forwarding an email communication from Mr John Dimitriou. I note at this stage that there is some evidence, albeit in my view weak, that material forwarded in the email originated from Mr Dimitriou. This evidence was given by Mr Nick Mitris during cross examination. In relation to this evidence however, it was clear that Mr Mitris’ understanding of email communication is very limited. At this stage issues relevant to the ultimate probative value of the document, including that part of the document which purports to originate from Mr Dimitriou, cannot be assessed and remain to be determined. Nonetheless, in my view these unresolved issues do not bear on the authentication of the document as an email received by an employee of Coles Group.

Associate:

Dated:    30 May 2011