FEDERAL COURT OF AUSTRALIA

Camm v Linke Nominees Pty Ltd (No 3) [2012] FCA 1133

THE COURT ORDERS THAT:

1.     Rulings on the respondent’s objections to the admissibility of documents A236, A239, A240, A241 and A251 be deferred.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    On 2 December 2011 the hearing of this proceeding was fixed to commence on 8 October 2012. Pre-trial discovery and inspection was to have been completed by 21 October 2011. Sometime shortly before 7 September 2012, four boxes of documents appeared in the applicant’s premises in Brisbane. I say “appeared” because no evidence has been called which explains when the documents arrived at the offices, by whom and to whom they were delivered or the means of delivery. After this had happened the applicant’s solicitors gave notice to the respondent’s solicitors that the documents had been received and appeared to be relevant. I directed that a list of the documents be drawn up and provided to the respondent’s solicitors.

2    I had earlier directed that bundles of documents which each party proposed to rely on at trial should be exchanged on or before 28 September 2012. The applicants filed a bundle of documents which were identified as “Documents A1 to A233” in accordance with that direction. On 4 October 2012 the applicants, without leave of the Court, delivered two additional volumes of documents which were identified as “Documents A234 to A279” (“the additional documents”). These documents were drawn from the boxes which had been received in the applicant’s offices.

3    Before the trial commenced, senior counsel for the applicant advised that he proposed to refer to some of the additional documents in opening the applicant’s case. Counsel for the respondent objected to any reliance being placed on most of the additional documents on a variety of grounds. One ground was common to all of the documents to which objections were directed. It was that they should not be admitted in evidence because of the circumstances in which they had been obtained. Reliance was placed on s 138(1)(b) of the Evidence Act 1995 (Cth) (“the Act”).

4    Section 138, insofar as it is relevant, provides:

“(1)    Evidence that was obtained:

(a)    improperly or in contravention of an Australia law; or

(b)    in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained …

(2)    …

(3)    Without limiting the matters that the court may take into account under sub-section (1), it is to take into account:

(a)    the probative value of the evidence; and

(b)    the importance of the evidence in the proceeding; and

(c)    the nature of the relevant offence … and the nature of the subject-matter of the proceeding; and

(d)    the gravity of the impropriety or contravention; and

(e)    whether the impropriety or contravention was deliberate or reckless; and

(f)    whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)    whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)    the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australia law.”

5    The operation of s 138 was explained by French CJ in Parker v Comptroller–General of Customs (2009) 252 ALR 619 at 626 [28]. His Honour said:

“The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the Court that it should be admitted. There is thus a two-stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.”

6    The burden that falls on the respective parties is to be satisfied at the civil standard.

7    The only evidence called in support of the respondent’s objection to the admissibility of the evidence was given by Mr Robert Linke. Mr Linke has been, at relevant times, a director of the respondent. He said that the additional documents had come into his possession in the course of earlier litigation between the parties. That litigation had taken place in the Queensland Magistrates Court and the Queensland Supreme Court. He filed the documents and they had been stored in a room in the terminal building at the Noosa Airfield (“the airfield”), which was owned by the respondent or an associated company. Mr Linke had last seen the documents when he visited the airfield in mid-2011. He did not return until 5 October 2012 when he discovered them to be missing. Neither he nor, to his knowledge, any directors of the respondent, had authorised the removal of the documents or their delivery to the applicants.

8    The respondent contended that this evidence was sufficient to enable the Court to conclude, on the balance of probabilities, that the documents had been obtained by the applicants in consequence of a breach or breaches of the Criminal Code Act 1899 (Qld) or, at least, in consequence of an impropriety.

9    The applicants contended that Mr Linke’s evidence was not sufficient to establish that s 138(1)(b) had been engaged. They stressed the necessity for identifying a “definite article”, contending that a particular contravention of the law or act of impropriety had to be identified. In doing so they invoked the well known principles expounded in Briginshaw v Briginshaw (1938) 60 CLR 336.

10    I do not find it necessary to determine whether the additional documents were stolen. The evidence satisfies me, on the balance of probabilities, that they were obtained as a result of impropriety. That word is not defined in the Act. In Parker (at 626-7 [29]) French CJ construed it in accordance with its ordinary meanings which included “abnormal”, “irregular” and “wrong”. The additional documents were removed from the airfield terminal without the authority of the custodian of those documents. The circumstances in which this occurred are unknown. What is known is that they were conveyed by a person or persons unknown to the offices of the applicants in Brisbane. They were thereby obtained by the applicants. These circumstances justify the conclusion that the additional documents were “irregularly” obtained. I note, in the context of the applicants’ submission relating to Briginshaw v Briginshaw, that no allegation of improper or illegal conduct has been directed at any named individual and, in particular, to the applicants or their servants or agents.

11    It is therefore necessary to proceed to the second stage of the analysis. In the course of argument it became apparent that many of the documents, in respect of which a claim was made under s 138, were available to the applicants from sources other than the aforementioned boxes which had been delivered to the applicants.

12    It is not therefore necessary that I rule on the admissibility of these documents at this stage. If the applicants wish to tender them they will, subject to any other proper objections, be admissible in evidence, notwithstanding the fact that other copies of them were found amongst the additional documents.

13    Section 138(3) of the Act requires that a range of matters be considered in respect of each of the remaining documents which the applicants wish to tender, to which objection is taken under s 138(1)(b) and which are not otherwise available to the applicants. The documents falling into this category are five in number. They are: A236, A239, A240, A241 and A251. It is not possible, at this stage, for the required balancing exercise to take place. If and when the applicants seeks to tender any of the remaining documents the respondent will be able to make “second-stage” submissions in relation to the documents and the applicants will have the opportunity to respond. I will then make the necessary ruling in respect of each particular document.

Associate:

Dated:    12 October 2012