FEDERAL COURT OF AUSTRALIA

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625

THE COURT:

1.    MARKS for identification as “MFI-8” the document which is agreed among the parties concerning documentary tenders made in the Court Book.

2.    ORDERS that the pages specified on pages 1, 2 and 3 of “MFI-8” under the heading “Documents to be removed from the court book by consent” be removed from the Court Book and returned to the solicitors for the plaintiff.

3.    Pursuant to s 136 of the Evidence Act 1995 (Cth) (the Act), ORDERS that pages 6280–6741 of the Court Book be admitted into evidence but only as proof of what was provided to Antony Bryn Samuel, a witness called by the plaintiff, for the purposes of his reports and not as evidence of the truth of the contents thereof.

4.    Pursuant to s 136 of the Act, ORDERS that pages 1445–1447; 1828–1841; 4060–4063; and 4428–4430, being copies of various media articles, be admitted into evidence only as proof of what was published as at the respective dates of publication of those articles and not as evidence of the truth of the contents thereof.

5.    ORDERS that the previous representations contained in the emails copies of which are at pages 802B(1), 803, 814, 830 and 834 of the Court Book be admitted into evidence as previous representations made or recorded in those documents in the course of, or for the purposes of, a business within the meaning of s 69(1) of the Act.

6.    ORDERS that the tender of pages 4337E(1)–4337E(14); 4349B(1)–4349B(6); 4352C(1)–4352C(3); and 4352D(1)–4352D(4), being records or extracts from records of intercepted telephone communications which occurred in 2011, be rejected with the consequence that those pages of the Court Book are not admitted into evidence.

7.    ORDERS that the tender of pages 5446–5449; 5450–5453; 6126–6127; 6217–6241; and 6245–6279 of the Court Book, being pages of or extracts from the transcript of evidence given by various persons in 2012 at a public inquiry conducted by the NSW Independent Commission Against Corruption, be rejected with the consequence that those pages of the Court Book are not admitted into evidence.

8.    ORDERS that the tender of pages 4464–4468 of the Court Book, being a Written Statement made by John Alan Kinghorn dated 25 February 2013, be rejected with the consequence that those pages of the Court Book are not admitted into evidence.

9.    ORDERS that the tender of page 4382A(1) of the Court Book be rejected with the consequence that that page of the Court Book is not admitted into evidence.

10.    ORDERS that the pages of the Court Book not admitted into evidence by reason of Orders 6, 7, 8 and 9 above be removed from the Court Book, be marked for identification ass “MFI-9” as a bundle and be kept with the Court file and identified as those documents in the Court Book to which objection was taken the tender of which was rejected.

11.    ORDERS that the Interlocutory Application filed in Court on 5 June 2014 by the first defendant be dismissed.

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

REASONS FOR EVIDENTIARY RULINGS

GIVEN ON 10 JUNE 2014

1    Before the commencement of the trial, the parties prepared a Court Book (CB). The CB contains the current pleadings, those affidavits that were likely to be read at the trial, other documents required to be prepared in accordance with the pre-trial directions made by the Court and all of the documents which each of the parties intended to tender at the trial.

2    One of the pre-trial directions made by the Court was a direction that each party notify his or its objections to the documents contained in Pt C of the CB on or before 23 May 2014. Each party complied with that direction. Some parties subsequently revised downwards the number of objections taken.

3    As a result of further discussions among Counsel, the parties prepared an additional summary document which comprises three separate sections, namely:

    Section 1—Documents to be removed from the CB by consent;

    Section 2—Documents which are to remain in the CB but which by consent are to be admitted into evidence for a limited purpose only pursuant to s 136 of the Evidence Act 1995 (Cth) (the Act).

    Section 3—Documents which are presently in the CB to which objection has been taken by various parties (not including the plaintiff) upon which the Court is required to rule.

4    I shall mark the agreed document to which I have referred at [3] above as “MFI-8”. I will direct the solicitors for each of the parties to remove from the CB those documents listed in section 1 of MFI-8. I will also order pursuant to s 136 of the Act that:

(a)    Pages 6280–6741 (both inclusive) of the CB be admitted into evidence but only as proof of what was provided to Mr Samuel, a witness called by the plaintiff, and not as evidence of the truth of the contents thereof; and

(b)    Pages 1445–1447; 1828–1841; 4060–4063; and 4428–4430, being copies of various media articles, be admitted into evidence but only as proof of what was published as at the respective dates of publication of each of those articles and not as evidence of the truth of the contents thereof.

5    I now turn to address those documents upon which I must rule (those documents described in section 3 of MFI-8). This latter group of documents comprises five separate categories, namely:

(a)    Printouts of email communications (pages 802B(1); 803; 814; 830; and 834 of the CB);

(b)    Transcripts of recordings of intercepted telephone conversations (pages 4337E(1)–4337E(14); 4349B(1)–4349B(6); 4352C(1)–4352C(3); and 4352D(1)–4352D(4) of the CB);

(c)    Written Statement made by John Alan Kinghorn dated 25 February 2013 which was provided by Mr Kinghorn to Marian Wilkinson of the ABC’s Four Corners program (pages 4464–4468 of the CB);

(d)    Transcripts of evidence given by various persons at a public inquiry conducted by the NSW Independent Commission Against Corruption (ICAC) (pages 5446–5449; 5450–5453; 6126–6127; 6217–6241; and 6245–6279 of the CB); and

(e)    Notes relating to diary entries of Ned O’Neill (page 4382A(1) of the CB).

6    In the agreed document which has become MFI-8, it was also suggested that I was required to rule upon pages 4352DE(1)–4352DE(5) of the CB. There are no such pages in the CB provided to the Court. Accordingly, I make no ruling in respect of those pages.

7    The principal objection taken to the documents listed in section 3 of MFI-8 is that the previous representations contained in those documents are hearsay and are not rendered admissible by the application of any of the statutory exceptions to the hearsay rule found in the Act. That rule is set out in s 59 of the Act.

8    No party submitted that any of the previous representations to which objection was taken constituted evidence of an admission or a previous representation that was made in relation to an admission within the meaning of s 81 and s 82 of the Act. Nor did the plaintiff apply for an order dispensing with the application of the hearsay rule pursuant to s 190(3) of the Act. I therefore propose to rule on the contested documents without regard to any of ss 81, 82 or 190(3) of the Act.

9    In addition to taking the hearsay objection to the tender of the contested documents, Senior Counsel who appears for the first defendant, Travers William Duncan, also submitted that I should reject the evidence of the previous representations contained in the contested documents pursuant to s 135 of the Act. Finally, against the possibility that I might be inclined to think that the previous representations contained in the contested documents are admissible and should not be rejected pursuant to s 135 of the Act, Senior Counsel for Mr Duncan also applied for orders pursuant to s 169(1) of the Act. That application was confined to the tender of the emails and transcripts of intercepted telephone conversations. Pursuant to s 169(1) of the Act, Mr Duncan sought orders excluding evidence of those previous representations or, alternatively, orders requiring the plaintiff to call as witnesses John Vern McGuigan, James William McGuigan, Gregory Keith Jones and Gardner Brook. It was submitted that serious unfairness would be worked upon Mr Duncan were I not to accede to his application pursuant to s 169(1) of the Act.

10    Argument in respect of the contested documents took place in the afternoon of 5 June 2014.

11    I announced my rulings in respect of the contested documents at 10.15 am on 10 June 2014.

12    These are my reasons for making those rulings.

The Relevant Provisions of the Act

13    Chapter 3 of the Act (which comprises s 55–s 139) contains the statutory rules which govern the admissibility of evidence in this Court.

14    Under the heading “Introductory Note”, the draftsman has set out a brief summary of Pt 3.1–Pt 3.11 of the Act. There is then set out a diagram which is designed to demonstrate how Ch 3 applies to particular evidence.

15    That diagram provides a guide through Ch 3. According to that diagram, the first ground for excluding evidence is that the evidence sought to be tendered is not relevant. Section 55 of the Act defines relevant evidence. Section 56 of the Act provides that, except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in that proceeding and evidence that is not relevant in that proceeding is not admissible.

16    According to the diagram, the next exclusionary rule is the hearsay rule. That is, evidence which is relevant but which offends the hearsay rule is not admissible.

17    Part 3.2 of Ch 3 of the Act deals with the hearsay rule and the statutory exceptions to that rule.

18    As I have already mentioned, most of the objections taken to the contested documents are based upon the proposition that all of the previous representations sought to be proven by the tender of those documents are hearsay and thus not admissible.

19    The hearsay rule is found in s 59 of the Act which is in the following terms:

59    The hearsay rule—exclusion of hearsay evidence

(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.

(2)    Such a fact is in this Part referred to as an asserted fact.

(2A)    For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note:    Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R. v Hannes (2000) 158 FLR 359.

(3)    Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Note:    Specific exceptions to the hearsay rule are as follows:

•    evidence relevant for a non hearsay purpose (section 60);

•    first hand hearsay:

–    civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64);

–    criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66);

•    contemporaneous statements about a person’s health etc. (section 66A);

•    business records (section 69);

•    tags and labels (section 70);

•    electronic communications (section 71);

•    Aboriginal and Torres Strait Islander traditional laws and customs (section 72);

•    marriage, family history or family relationships (section 73);

•    public or general rights (section 74);

•    use of evidence in interlocutory proceedings (section 75);

•    admissions (section 81);

•    representations about employment or authority (subsection 87(2));

•    exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));

•    character of and expert opinion about accused persons (sections 110 and 111).

    Other provisions of this Act, or of other laws, may operate as further exceptions.

Examples:

(1)    D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

(2)    P had told W that the handbrake on W’s car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.

(3)    W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D’s possession was the video cassette recorder bought by W.

20    Section 60 of the Act provides for an exception to the hearsay rule where the tender of the evidence is for a non-hearsay purpose.

21    All of the previous representations sought to be tendered in the present case by the tender of the contested documents are hearsay and are, for that reason, not admissible unless the plaintiff can engage one or more of the exceptions to the hearsay rule provided for in Pt 3.2 of the Act. As a fallback position, Senior Counsel for the plaintiff submitted that, at the very least, the previous representations in contest ought to be admitted for a non-hearsay purpose (as to which see s 60 of the Act). However, the real value of the evidence is not so restricted. For this reason, unless the plaintiff can bring the evidence of the previous representations contained in the contested documents within one of the exceptions to the hearsay rule, the evidence of those representations will be inadmissible (except for a non-hearsay purpose). I pause to observe that it is only the previous representations made in the emails (category (a) referred to at [5] above) which could conceivably be admitted into evidence for a non-hearsay purpose. Admitting into evidence the representations made in all of the other documents for a non-hearsay purpose would be of no value in the case. None of those representations has any relevance if admitted only for a non-hearsay purpose.

22    The exception to the hearsay rule relied upon by Senior Counsel for the plaintiff is the exception provided for in s 69 of the Act (the business records exception).

23    Section 69 of the Act provides:

69    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

(ii)    at any time was or formed part of such a record; and

(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.

24    Section 71, which addresses certain formal matters is also relevant.

25    When engaged, the business records exception to the hearsay rule will allow into evidence a previous representation made in a document if:

(a)    The document forms or, at any time, formed, part of the records of a business (s 69(1)(a));

(b)    The relevant previous representation was made or recorded in the document in the course of, or for the purposes of, the business (s 69(1)(b));

(c)    By the relevant previous representation a person asserted one or more facts (s 59 and s 69(2));

(d)    The person who made the relevant previous representation had, or might reasonably be supposed to have had, personal knowledge of the fact or facts asserted by the representation (s 69(2)(a) and s 69(5));

(e)    Or, alternatively to (d), the person who made the relevant previous representation made the representation upon 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 fact or facts asserted by the representation (s 69(2)(b) and s 69(5));

(f)    For the purposes of s 69(1) and s 69(2), a person is taken (ie should be presumed) 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 by a person about the fact) (s 69(5)); and

(g)    For the purpose of deciding whether s 69 is engaged in relation to a previous representation made in a document, the Court is entitled to examine the document and to draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn (such as evidence in the case, including other documents which have already been admitted into evidence or which will be admitted into evidence without objection) (s 183).

26    In order properly to apply s 69 of the Act and on the assumption that the evidence is relevant, the Court must:

(a)    Determine whether the document forms or, at any time, formed, part of the record of a business and otherwise satisfies s 69(1);

(b)    Identify the relevant previous representation contained in the particular document which is sought to be tendered (this is usually done by Counsel for the tendering party specifically identifying the previous representation or representations the subject of the tender);

(c)    Identify the fact or facts which it can reasonably be supposed that the maker of the representation intended to assert by making that representation. In order to determine what fact or facts were intended to be asserted, the Court may have regard to the circumstances in which the representation was made;

(d)    Determine whether that person had the requisite personal knowledge of the fact or facts asserted by the representation or was acting upon the basis of information given to him or her by someone who had the requisite personal knowledge; and

(e)    Determine (if it is relevant to do so and if the point is raised by the objecting party) whether the representation should be excluded because s 69(3) is engaged or by reason of the exercise of the Court’s discretion under s 135 or s 169 of the Act.

27    In light of certain submissions made on behalf of Mr Duncan, s 76 and s 78 of the Act are also relevant. Those sections are in the following terms:

76    The opinion rule

(1)    Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2)    Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

Note:    Specific exceptions to the opinion rule are as follows:

•    summaries of voluminous or complex documents (subsection 50(3));

•    evidence relevant otherwise than as opinion evidence (section 77);

•    lay opinion (section 78);

•    Aboriginal and Torres Strait Islander traditional laws and customs (section 78A);

•    expert opinion (section 79);

•    admissions (section 81);

•    exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));

•    character of and expert opinion about accused persons (sections 110 and 111).

Other provisions of this Act, or of other laws, may operate as further exceptions.

Examples:

(1)    P sues D, her doctor, for the negligent performance of a surgical operation. Unless an exception to the opinion rule applies, P’s neighbour, W, who had the same operation, cannot give evidence of his opinion that D had not performed the operation as well as his own.

(2)    P considers that electrical work that D, an electrician, has done for her is unsatisfactory. Unless an exception to the opinion rule applies, P cannot give evidence of her opinion that D does not have the necessary skills to do electrical work.

…

78     Exception: lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a)    the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b)    evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

28    Part 3.11 of Ch 3 of the Act addresses discretionary and mandatory exclusions. Included within Pt 3.11 is s 135. Section 135 provides:

135    General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)    be unfairly prejudicial to a party; or

(b)    be misleading or confusing; or

(c)    cause or result in undue waste of time.

29    Part 4.6 Div 1 governs requests to produce documents or call witnesses. Section 166 of the Act defines request for the purposes of that Division. Section 167 provides:

167     Requests may be made about certain matters

A party may make a reasonable request to another party for the purpose of determining a question that relates to:

(a)    a previous representation; or

(b)    evidence of a conviction of a person for an offence; or

(c)    the authenticity, identity or admissibility of a document or thing.

30    Section 168(1) provides that a request made pursuant to s 166 must be made within 21 days of the tendering party’s giving notice of its intention to adduce the evidence of the relevant previous representations. The Court can dispense with this particular requirement (see s 168(2)).

31    Section 169 of the Act is in the following terms:

169    Failure or refusal to comply with requests

(1)    If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:

(a)    an order directing the party to comply with the request;

(b)    an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166;

(c)    an order that the evidence in relation to which the request was made is not to be admitted in evidence;

(d)    such order with respect to adjournment or costs as is just.

(2)    If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed.

(3)    The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under paragraph (1)(a) or (b) is not complied with.

(4)    Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:

(a)    the document or thing to be produced is not available to the party; or

(b)    the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or

(c)    the person to be called as a witness is not available.

(5)    Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:

(a)    the importance in the proceeding of the evidence in relation to which the request was made; and

(b)    whether there is likely to be a dispute about the matter to which the evidence relates; and

(c)    whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and

(d)    whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and

(e)    if the request relates to evidence of a previous representation— whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and

(f)    in the case of a request referred to in paragraph (g) of the definition of request in section 166—whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained; and

(g)    whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

(h)    the nature of the proceeding.

Note:    Clause 5 of Part 2 of the Dictionary is about the availability of documents and things, and clause 4 of Part 2 of the Dictionary is about the availability of persons.

32    Chapter 5 of the Act deals with various miscellaneous matters. Included within Ch 5 is s 183 which is in the following terms:

183    Inferences

If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:

(a)    examine the document or thing; and

(b)    draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.

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

33    In Pt 1 of the Dictionary, the following definitions are relevant:

asserted fact is defined in section 59.

59     The hearsay rule—exclusion of hearsay evidence

(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.

(2)    Such a fact is in this Part referred to as an asserted fact.

Australian court means:

(a)    the High Court; or

(b)    a court exercising federal jurisdiction; or

(c)    a court of a State or Territory; or

(d)    a judge, justice or arbitrator under an Australian law; or

(e)    a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or

(f)    a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.

Australian law means a law of the Commonwealth, a State or a Territory.

Note:    See clause 9 of Part 2 of the Dictionary for the meaning of law.

business is defined in clause 1 of Part 2 of this Dictionary.

document means any record of information, and includes:

(a)    anything on which there is writing; or

(b)    anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(c)    anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(d)    a map, plan, drawing or photograph.

Note:    See also clause 8 of Part 2 of this Dictionary on the meaning of document.

hearsay rule means subsection 59(1).

law is defined in clause 9 of Part 2 of this Dictionary.

opinion rule means section 76.

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

representation includes:

(a)    an express or implied representation (whether oral or in writing); or

(b)    a representation to be inferred from conduct; or

(c)    a representation not intended by its maker to be communicated to or seen by another person; or

(d)    a representation that for any reason is not communicated.

34    Clauses 1, 6, 8 and 9 of Pt 2 of the Dictionary are also relevant. Those clauses are in the following terms:

1     References to businesses

(1)    A reference in this Act to a business includes a reference to the following:

(a)    a profession, calling, occupation, trade or undertaking;

(b)    an activity engaged in or carried on by the Crown in any of its capacities;

(c)    an activity engaged in or carried on by the government of a foreign country;

(d)    an activity engaged in or carried on by a person holding office or exercising power under or because of the Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);

(e)    the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament;

(f)    the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.

(2)    A reference in this Act to a business also includes a reference to:

(a)    a business that is not engaged in or carried on for profit; or

(b)    a business engaged in or carried on outside Australia.

…

6    Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:

(a)    the document was written, made or otherwise produced by the person;

(b)    the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

…

8    References to documents

A reference in this Act to a document includes a reference to:

(a)    any part of the document; or

(b)    any copy, reproduction or duplicate of the document or of any part of the document; or

(c)    any part of such a copy, reproduction or duplicate.

…

9    References to laws

(1)    A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2)    A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

The Contested Documents

The Challenged Emails (Pages 802B(1); 803; 814, 830 and 834 of the CB)

35    Pages 814 and 830 of the CB are copies of p 803 of the CB. For this reason, my decision as to the admissibility of p 803 will also determine the admissibility of p 814 and p 830.

Page 802B(1) of the CB

36    Page 802B(1) of the CB is a printout of an email chain comprising two emails.

37    The first of those emails is an email sent by James W McGuigan to his father, John V McGuigan at 7.00 pm on Tuesday 2 June 2009. The subject matter as described by James McGuigan in that email is: “CC-update”.

38    The text of the first email is in the following terms:

Dad,

Nothing more to report other than, I sent off the draft agreements, and they are coming in to meet me and Richard at 10am.

Will update afterwards.

39    The second email which appears on p 802B(1) of the CB is an email sent by John V McGuigan to his son, James McGuigan, at 8.46 pm (Sydney time) on Tuesday, 2 June 2009. The subject matter of that email is described in the email as: “Re: CC-update”. The text of the second email is in the following terms:

James

Call me after your meeting.

I had a detailed discussion with Travers and we are on the same page.

Once you have the land owners agreement we need to verify title etc.

It is important we don’t give up on clause we inserted today re trigger of land purchase.

I am around now if you pick this up.

Tabang unbelievable.

Dad

40    The hearsay rule does not apply to the representations contained in these two emails so far as those representations are representations as to the identity of the person from whom or on whose behalf the email was sent, the date upon which or the time at which the email was sent or the destination of the email or the identity of the person to whom the email was addressed (s 71 of the Act). In any event, there is no dispute about any of these matters.

41    Pursuant to s 183 of the Act, I infer both from the first email itself and from other documents in the CB (pages 771–802A(1) and pages 805–813, which are to be tendered in evidence and to which no objection has been taken) that the reference to CC in both emails is a reference to Cascade Coal.

42    The facts intended to be asserted by the representations made in the first email (the email from James McGuigan to John McGuigan) were:

(i)    At a time reasonably proximate to 7.00 pm on 2 June 2009, James McGuigan sent draft agreements to someone. Having regard to the documents to which I have already referred at [41] above, I infer that those draft agreements were drafts of the Cascade Coal landowners’ letter and the Cascade Coal equity letter. Having regard to the same documents mentioned at [41] above, I infer that the drafts of those documents were sent to Moses Obeid, Gardner Brook, Richard Poole and Greg Jones. The same drafts may have been sent to other persons.

(ii)    The persons to whom the draft agreements were sent planned to meet with James McGuigan and Richard (Richard Poole) at 10.00 am on a day in the immediate future, probably the next day (3 June 2009).

43    In the second email on page 802B(1) namely, the email from John V McGuigan to James W McGuigan, the following relevant facts were facts intended to be asserted by the representations made in that email within the meaning of that expression in s 59(2) of the Act (as to which, see also s 59(1)):

(i)    On or about 2 June 2009, John V McGuigan had a detailed discussion with Travers Duncan about Cascade Coal.

(ii)    The upshot of that discussion was that John McGuigan and Travers Duncan agreed on the appropriate action to be taken in respect of Cascade Coal in the immediate future (this is the effect of the words “… we are on the same page …”).

(iii)    The action which John McGuigan and Travers Duncan agreed should be taken included the following:

    Procure the execution of the landowners’ agreement in a form substantially the same as the draft of that agreement then in circulation.

    Verify title to the relevant land (ie the land the subject of the landowners’ agreement).

    Do not give up on the clause inserted at the instigation of (at least) John V McGuigan on 2 June 2009 re the trigger of the land purchase.

(iv)    John V McGuigan was available to talk to his son by telephone at the time that this email was sent (8.46 pm Sydney time).

44    It would appear that, at the time when the second email on page 802B(1) of the CB was sent, John McGuigan was staying at Tabang in Indonesia.

45    There is no dispute that the printout of the email chain found at page 802B(1) of the CB is a document which forms part of the records belonging to or kept by Cascade Coal Pty Ltd in the course of, or for the purposes of, its business. There is also no dispute that the email chain contains previous representations made or recorded in the document in the course of, or for the purposes of, that business. For these reasons, the email chain satisfies the requirements of s 69(1) of the Act.

46    The critical question in the present case is whether the previous representations made in each email in the email chain were made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted facts (s 69(2)(a) of the Act) or were made upon 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 facts (s 69(2)(b) of the Act).

47    Section 69(5) fleshes out the concept of personal knowledge. Personal knowledge is knowledge of a kind which was or might reasonably be supposed to have been based upon what the person saw, heard or otherwise perceived.

48    In formulating the facts which are asserted by the previous representations in the email chain at page 802B(1), I have taken into account the definitions of previous representation and representation in Pt 1 of the Dictionary.

49    As to the first email, the previous representations made therein were made by James McGuigan. The asserted facts made by those representations were made by a person who had or might reasonably be supposed to have had personal knowledge of those facts within s 69(2) of the Act as explained by s 69(5) of the Act.

50    The previous representations made in the second email were made by John McGuigan. The asserted facts made by means of those representations were all facts of which he had personal knowledge. He was the person who had had the relevant conversation with Travers Duncan.

51    It was submitted by Senior Counsel representing Mr Duncan that the expression “… we are on the same page …” is not an assertion of fact but rather an expression of opinion about a fact. I do not agree. In my judgment, the proper characterisation of the previous representation made by those words is that, to Mr John McGuigan’s perception, Mr Duncan and he were agreed as to what action should be taken. That assertion is an assertion of fact.

52    However, even if the words constitute evidence of Mr McGuigan’s opinion about the upshot of his discussion with Mr Duncan and thus infringed the opinion rule in s 76 of the Act, the opinion would be admissible as a lay opinion because it will have been based upon what Mr McGuigan saw, heard or otherwise perceived about the conversation which he had had with Mr Duncan and evidence of the opinion is necessary to obtain an adequate account or understanding of Mr McGuigan’s perception of the relevant facts (as to which see s 78 of the Act and Lithgow City Council v Jackson (2011) 244 CLR 352 at 373–374 [48]–[49] per French CJ, Heydon and Bell JJ; at 382 [77] per Gummow J; and at 383 [83] per Crennan J).

53    For these reasons, subject to considering the application of s 135 and s 169 of the Act to p 802B(1) of the CB, the previous representations contained in the email chain at page 802B(1) of the CB are admissible pursuant to s 69 of the Act.

54    I propose to consider the potential application of s 135 and s 169 to this email chain and other documents as a separate matter later in these Reasons.

Pages 803, 814 and 830 of the CB

55    The document at page 803 of the CB is a printout of an email from James McGuigan to Moses Obeid which was copied to John McGuigan, Gardner Brook, Greg Jones and Richard Poole. The email was sent at 5.57 pm on Wednesday, 3 June 2009. The email is headed “Letters of Agreement”. Attached to the email were documents described in the following terms:

Cascade Coal Letter – Equity 030609.docx (33.24 kB); Cascade Coal Letter – Landowners 030609.docx (33.21 kB).

56    The text of the document is as follows:

Gardner, Moses

Please find attached the updated Letters of Agreement. Let’s aim to sign at Kent St on Friday at 12:00.

Before that happens we are going to need to gain comfort on the following issues:

-    the formal definitions of the land parcels that are referred to in the opening paragraph of the Landowners Agreement (highlighted in the attachment)

-    the addresses of the land holdings of the three Landowners properties, so that I can conduct a Title Search;

-    to confirm the existing mortgage agreements;

-    John McGuigan and Travers Duncan want to understand why we changed from “Mining Lease” to “Mine Approval”;

-    And to approve the withdrawal letters regarding Mount Penny and Glendon Brook Coal Release Areas from Loyal Coal Pty Ltd (formerly Monaro)

-    And the Buffalo Resource ACN

Also please note I added in the equity letter under Obligations of the Parties the following comment regarding Glendon Brook

    “and its associates or related parties undertaking not to pursue the grant of any mining rights to the Mount Penny area or any contiguous area, or the Glendon Brook EOI Coal Release Area;”

Please call or email me if there are any other matters to discuss.

Cheers

James McGuigan

Arthur Phillip Pty Ltd

57    The attachments referred to in this email were not tendered in evidence as part of the tender of p 803 of the CB or as part of the tender of p 814 or p 830 of the CB.

58    The facts intended to be asserted by the previous representations contained in this email are:

(i)    The documents attached to the email were the updated letters of agreement dealing with equity in Cascade Coal and landowners as at 3 June 2009.

(ii)    The intention of Mr James McGuigan as at the time when the email was sent was that the formal documents would be signed at an address in Kent Street on Friday, 5 June 2009 at 12 noon.

(iii)    Before execution of those documents, the relevant persons at Cascade Coal needed to gain comfort on the issues listed next to the dashes within the email.

(iv)    Each of the matters listed next to those dashes was a matter of concern to John McGuigan. The reasons for changing an expression in the documents from “Mining Lease” to “Mine Approval” was a matter of concern to both John McGuigan and Travers Duncan and had been discussed between them as at the date of the email.

(v)    James McGuigan had added in the equity letter the text set out next to the dot point towards the end of the email.

59    Given that, in the second email in the email chain which appears at page 802B(1) of the CB, John McGuigan had asked his son to call him after the meeting which had been planned for 10.00 am (probably on Wednesday, 3 June 2009), I infer that John McGuigan and James McGuigan spoke by telephone between 8.46 pm on 2 June 2009 and 5.57 pm on 3 June 2009 and discussed the matters which appear under the introductory words of the second paragraph of the email at p 803 of the CB next to the dashes. In other words, I infer that the source of all of that material was John McGuigan. I infer that he conveyed the matters next to the dashes to his son in that telephone conversation.

60    If that be a correct understanding of what occurred, it appears to me that the contents of the second paragraph of this email (including the material next to the dashes) comprise previous representations made by James McGuigan to Moses Obeid upon the basis of information supplied directly by John McGuigan to his son and that John McGuigan was a person who had or might reasonably be supposed to have had personal knowledge of the asserted facts contained in those representations (as to which see s 69(2)(b) and s 69(5) of the Act). In particular, I infer that John McGuigan and Travers Duncan had discussed the issue raised in this email as to why Cascade Coal Pty Ltd had changed the text of one of the draft documents from “Mining Lease” to “Mine Approval”.

61    In those circumstances, the previous representations are admissible, subject to any orders which I may make pursuant to s 135 or s 169 of the Act.

Page 834 of the CB

62    On page 834 of the CB there is a printout of an email chain comprising emails passing between Gardner Brook and his or Monaro’s solicitor, Gail Owen.

63    The first of these emails was sent by Mr Brook to Ms Owen at 2.26 pm on Thursday, 4 June 2009. In that email, Mr Brook said:

Hi Gail,

I have informed Cascade that you are acting for us and we are preparing a Deed. They are fine with this and in anticipation, we have shifted our meeting time to 3 pm tomorrow.

The intention being that if we have drafts in the morning, we can tweak and execute tomorrow.

64    The second of these emails was sent by Ms Owen to Mr Brook at 3.12 pm on the same day. In that email, Ms Owen said:

Thanks Gardner – the additional time is appreciated!

65    The third of these emails was sent by Mr Brook to Ms Owen at 6.30 pm on the same day. The text of the third email is in the following terms:

Hi Gail,

Kinghorn, McGuigan and Duncan know that I have briefed you.

Our meeting is set for 3 pm tomorrow. They are expecting a draft for both equity and land in the morning, with a view to closing by cob tomorrow.

I am sorry for this.

I assure you that I will retain you going forward. My impression of our meeting in Lehman’s office last year never left me.

Best,

Gardner

66    The previous representations made in these emails are:

(i)    By 2.26 pm on 4 June 2009, Mr Brook had informed Cascade that Ms Owen was acting for Monaro and him.

(ii)    By the same time, Mr Brook had informed Cascade that Ms Owen was preparing a Deed.

(iii)    By the same time, Ms Owen was, in fact, acting for Monaro and Mr Brook and would be preparing a Deed.

(iv)    Cascade was fine with these two things.

(v)    Messrs Kinghorn, McGuigan and Duncan knew that he (Brook) had briefed Ms Owen.

(vi)    The meeting at which the equity and land documents involving Monaro would be executed was set for 3.00 pm on Friday, 5 June 2009.

(vii)    Messrs Kinghorn, McGuigan and Duncan were expecting a draft of both the equity and land documents in the morning (referring to Friday morning, 5 June 2009).

(viii)    Everyone involved was expecting to close the deal by close of business on Friday, 5 June 2009.

67    The facts asserted by those previous representations made by Mr Brook which I have summarised at [66] above were all matters within the personal knowledge of Mr Brook since they appear to have been learned by him from conversations with one or more of Messrs Kinghorn, McGuigan and Duncan. I so infer.

68    The previous representations to which I have referred at [66] above are admissible pursuant to s 69(1) and s 69(2) of the Act. Subject to any order which I may make pursuant to s 135 or s 169 of the Act, those representations will be admitted into evidence.

Transcripts of Recordings of Intercepted Telephone Communications and Extracts Therefrom

Pages 4337E(1)–4337E(14)

69    These pages comprise a record of an intercepted telephone conversation between Greg Jones and John McGuigan which took place on 24 March 2011 commencing at 9.20 pm. The call was interrupted part way through when the connection failed.

70    Under s 77 of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Interception Act), a record of an intercepted communication passing over a telecommunications system is generally inadmissible in evidence. That general exclusion is subject to a number of exceptions. Under s 77(2) of the same Act, a record of such a communication obtained by virtue of a warrant issued under any of ss 11A, 11B or 11C of the same Act, is not admissible in evidence in a proceeding unless (inter alia) s 74 or s 75A of the same Act permits a person to give in evidence in that proceeding, information obtained by virtue of the warrant. Under s 74, a person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding. Under s 75A, if information is given in evidence in an exempt proceeding under s 74 or s 75, that information, or any part of that information, may later be given in evidence in any (other) proceeding. Under s 5B(hb), a proceeding of ICAC is an exempt proceeding for the purposes of the Interception Act.

71    Lawfully intercepted information is information which has been obtained by intercepting a communication under a valid warrant issued to the relevant agency or authority.

72    In order to render a record of intercepted information admissible in an exempt proceeding, the tendering party must prove the existence of the relevant warrant, must prove that the record is a record of lawfully intercepted information (or at least information obtained under a warrant that suffers from an irregularity of the kind covered by s 75 of the Interception Act) and must prove that the record created is an accurate record of the intercepted communication. Proof of the accuracy of the record would normally be effected by calling the person who transcribed the communication.

73    In the present case, the plaintiff has not proved that the record sought to be tendered was given in evidence in a proceeding before ICAC. The tender of a document which appears to be a record of the intercepted communication does not, of itself, prove that the intercepted information was lawfully intercepted or that that information was given in evidence in an exempt proceeding. Nor has the plaintiff proved that the record is an accurate record of a lawfully intercepted communication. The plaintiff did not call as a witness the person who intercepted the communication, did not call as a witness the person who transcribed the communication and did not prove the warrant pursuant to which the communication was intercepted. For these reasons, the plaintiff has failed to demonstrate that the record is subject to the exceptions to the prohibition on admissibility provided for in the Interception Act.

74    In any event, even if the plaintiff had overcome the prohibition on admissibility contained in the Interception Act, the conversation recorded in the transcript to which objection is taken is hearsay. Section 75A of the Interception Act does not, by itself, render hearsay admissible.

75    The plaintiff relied upon the business record provisions to overcome the hearsay objection.

76    However, the plaintiff did not identify with any particularity the previous representations contained in the transcript which it seeks to tender. It is difficult to discern any representation in the transcript which is relevant and probative of any of the issues or any of the facts in issue in the present case. In my view, in those circumstances, it is incumbent upon the tendering party who seeks to take advantage of s 69 of the Act to identify with precision the previous representations contained in the document under consideration so that the Court is in a position to ascertain whether the various requirements of s 69 have been satisfied in the particular case.

77    The plaintiff’s failure to identify with precision the previous representations contained in the transcript which it seeks to tender would have been fatal to the present tender even if the plaintiff could have overcome the difficulties posed by the Interception Act.

78    Further, and in any event, it is extremely difficult to identify any asserted facts in the conversation which took place during the intercepted telephone call.

Pages 4349B(1)–4349B(6)

79    This transcript records a telephone call between Travers Duncan and John Kinghorn which took place at approximately 5.24 pm on 11 April 2011. During the call, Mr Duncan told Mr Kinghorn that he had Mr John McGuigan and Mr Brian Flannery with him.

80    This transcript suffers from all of the difficulties and problems from which the transcript of the earlier call between Mr Jones and Mr McGuigan suffers (as to which see [69]–[78] above). In this conversation, Mr Duncan said to Mr Kinghorn that “… the money went to CMG which is … which traces back to Richard Poole and his family. And if anyone goes behind that, it goes back to the guys that dropped out of the tender”.

81    It may be thought that these words contain previous representations by which facts are asserted. But the facts which are asserted are vague, ambiguous and relate only to Mr Duncan’s knowledge as at 11 April 2011 which is well after the time when the extent of Mr Duncan’s knowledge of the involvement of the Obeids is relevant and important.

82    For the reasons previously given in respect of the first transcript of intercepted telephone communications, this transcript is also inadmissible.

Pages 4352C(1)–4352C(3)

83    These pages comprise a record of a telephone conversation which took place at 3.14 pm on 3 May 2011 between Greg Jones and Eddie Obeid senior.

84    This transcript also suffers from all of the difficulties and problems of the earlier transcript (as to which, see [69]–[78] above). In addition, there is nothing significant recorded.

85    This transcript is also inadmissible.

Pages 4352D(1)–4352D(4)

86    These pages comprise a record of a telephone conversation between Greg Jones and John Kinghorn which took place at approximately 3.34 pm on 9 May 2011. The pages sought to be tendered are extracts only from the full record of that conversation.

87    This record suffers from all of the problems and difficulties from which the earlier transcripts suffer (as to which, see [69]–[78] above). For the same reasons, the tender of this transcript should be rejected.

Transcripts of Evidence Given in 2012 at a Public Inquiry Conducted by ICAC

88    The activities of ICAC constitute a business for the purposes of the Act (see the definition of business in Pt 1 of the Dictionary and subcl (1)(d) and (2) of cl 1 of Pt 2 of the Dictionary). Further, ICAC falls within the definition of Australian court in Pt 1 of the Dictionary. It is “a person or body authorised by an Australian law … to hear, receive and examine evidence” (see the definition of Australian law and s 31 and s 35 of the Independent Commission Against Corruption Act 1988 (NSW)). The transcripts of evidence given at a public inquiry conducted by ICAC are, therefore, documents that form part of the records belonging to or kept by ICAC in the course of, or for the purposes of, its business and which contain previous representations made or recorded in the transcripts in the course of, or for the purposes of, that business. Most of the representations contained therein would satisfy the personal knowledge requirements of s 69(2) and s 69(5) of the Act.

89    In Thomas v New South Wales (2008) 74 NSWLR 34, a majority of the NSW Court of Appeal held that, although the transcript of a hearing before the Royal Commission into the NSW Police Service was a business record, statements made in evidence before that Royal Commission were inadmissible because they were obtained “in connection with” an Australian proceeding and thus, by reason of the operation of s 69(3)(a) of the Act, were not subject to the business records exception to the hearsay rule. The majority held that the fact that the representation was made in the course of the proceeding before the Royal Commission, did not mean that the statement had not been obtained “in connection with” proceedings in that Royal Commission.

90    Senior Counsel for Mr Duncan and for the other remaining defendants submitted that I should apply the reasoning in Thomas to the ICAC transcripts sought to be tendered in the present case with the consequence that I ought to reject the tender of those transcripts.

91    Senior Counsel for the plaintiff relied upon the reasoning in the judgment of Gyles AJA in Thomas. His Honour dissented on the s 69(3)(a) point. His Honour held that there was a difference between statements made in the course of giving evidence and statements made prior to the leading of evidence. The former were not caught by s 69(3)(a) of the Act whereas the latter were. In the course of his Honour’s judgment, his Honour discussed a number of reasons in policy which he considered supported his views.

92    As a matter of principle, I should follow Thomas unless I am persuaded that it is plainly wrong and should not be followed. I have some disquiet about the reasoning in Thomas although I am not persuaded that it is plainly wrong. Further, the reasoning of the majority in Thomas has been applied in Lin Li v Deng (No 2) [2012] NSWSC 1245 at [175] per Ball J; De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in Liq) (2011) 200 FCR 253 at [37]–[38] (pp 263–264) per Stone J; and Fodare Pty Ltd v Shearn (2010) 240 FLR 187 at [42]–[56] (pp 196–198) per Barrett J; and cited with approval in Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368 at [173] per McColl JA (Beazley P agreeing at [1]); Clavel v Savage [2013] NSWSC 775 at [739] per Rothman J; Clyne v New South Wales [2012] NSWCA 265 at [69] per Macfarlan JA (Campbell JA and Meagher JA agreeing at [1] and [72]); Lane v Dive Two Pty Ltd [2012] NSWSC 104 at [53] per Adamson J; Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359 at [63] (p 372) per Campbell JA (Tobias JA and Young JA agreeing at [1] (p 361) and [188]–[189] (p 397)); JP Morgan Australia Ltd v Consolidated Minerals Pty Ltd [2011] NSWCA 3 at [47] per Macfarlan JA (Campbell JA and Young JA agreeing at [1] and [124]); Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 at [31] (p 696) per McColl JA; Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112 at [32] (p 121) and [50] (pp 124–125) per Campbell JA (Hodgson JA agreeing at [1] (p 115)); and Landini v State of New South Wales [2008] NSWSC 1280 at [223] per Hall J.

93    Although only one of the authorities mentioned in [92] above is a judgment of a Judge of this Court, many of those authorities are judgments of the NSW Court of Appeal. I should accord the judgments of that Court appropriate respect and only decline to follow those judgments if I were of the view that they were wrong, and plainly wrong. That is not my view.

94    For these reasons, I propose to reject the tender of the ICAC transcripts which the plaintiff seeks to tender and which are objected to by the remaining (active) defendants and the cross-respondents.

Pages 4464–4468 of the Court Book

95    These pages comprise a Written Statement made by Mr Kinghorn on 25 February 2013 for the purposes of providing information to an ABC journalist.

96    The contents of the Statement are plainly hearsay and are not made admissible by any of the exceptions to the hearsay rule.

97    The Statement must be rejected.

Page 4382A(1) of the Court Book

98    This page comprises notes made by an unidentified person which relate to entries in Ned O’Neil’s diary. The provenance of the notes is unknown. The circumstances in which they were made are unknown. The contents of the notes are hearsay and are not made admissible by any of the exceptions to the hearsay rule. The notes must be rejected.

Section 135 of the Act

99    The only contested documents which I consider are prima facie admissible are pages 802B(1); 803; 814; 830; and 834 of the CB. For reasons which I have already explained, I consider that the previous representations made in the emails reproduced at these pages are admissible by reason of the operation of s 69(1) of the Act. I must, therefore, turn to consider whether I should exclude the evidence of the previous representations contained in these emails because its probative value is substantially outweighed by the danger that the evidence might:

(a)    Be unfairly prejudicial to a party; or

(b)    Be misleading or confusing; or

(c)    Cause or result in undue waste of time.

100    The admission of the evidence will not cause or result in undue waste of time. I have been informed by Senior Counsel for Mr Duncan that, if the evidence is admitted, no additional evidence will be sought to be tendered on behalf of his client. There is no suggestion that additional evidence will be sought to be tendered by any other party.

101    As far as the question of unfair prejudice is concerned, evidence is not unfairly prejudicial to a party merely because it tends to damage the case of that party or to support the case of an opponent. Unfair prejudice is prejudice which might lead the fact finder to find facts upon a false basis.

102    One matter that arguably might constitute relevant unfair prejudice is the denial to the party affected of the right to cross-examine the maker of the previous representations. In Ordukaya v Hicks [2000] NSWCA 180 at [35]–[40], Sheller JA (with whom Meagher JA agreed) appeared to approve the proposition that inability to cross-examine on material sought to be introduced as a business record is not of itself unfairly prejudicial, at least in civil proceedings where there is no jury, even though that inability may well be a very relevant consideration in the Court’s decision as to the weight it should ultimately afford to the evidence.

103    Here, it has always been open to legal representatives of Mr Duncan to call Mr John McGuigan, Mr James McGuigan, Mr Greg Jones and Mr Gardner Brook, should they so desire. The McGuigans, at least, appear to be in Mr Duncan’s camp. Further, it would be open for Mr Duncan himself to give evidence addressing the contents of the emails in question.

104    In all the circumstances, I do not think that the receipt of the emails into evidence would lead to a state of affairs where the probative value of the contents of those emails is outweighed by the danger that those contents might be unfairly prejudicial to Mr Duncan. In addition, the absence of the authors of the emails from the witness box is a matter which can, if it be both necessary and appropriate to do so, be taken into account as a matter of weight when all of the evidence is in.

105    Given the fact that other relevant communications in and around June 2009 are also being tendered and that those communications serve to explain and supplement the contents of the emails in question, I do not think that there is any real danger that the evidence might be misleading or confusing.

106    For these reasons, I do not propose to exclude the contents of the emails in question by exercising the Court’s discretion under s 135 of the Act to refuse to admit evidence of the contents of those emails.

Section 169 of the Act

107    In support of his client’s application for relief under s 169 of the Act, Senior Counsel for Mr Duncan tendered certain correspondence passing between his instructing solicitors and the solicitors for the plaintiff. In the first of the relevant letters, Mr Duncan’s solicitors made requests which met the requirements of request in s 166 and s 167 of the Act. In my view, the requests were made within time (as to which see s 168 of the Act). However, if it was made out of time, I would be minded to give leave to Mr Duncan to make a request out of time.

108    Accordingly, prima facie, s 169 is potentially engaged.

109    In order finally to engage s 169, Mr Duncan must demonstrate that the plaintiff has, without reasonable cause, failed or refused to comply with the requests made by his lawyers.

110    I think that the plaintiff was entitled to refuse to comply with the requests made by Mr Duncan’s lawyers to call the witnesses referred to in the relevant correspondence. My reasons are:

(a)    It has always been open to Mr Duncan’s legal representatives to call any of the named persons in his case. The McGuigans are almost certainly in Mr Duncan’s camp and there is no suggestion that the other two persons would give evidence hostile to Mr Duncan.

(b)    The contents of the emails are such that Mr Duncan could easily address any concerns which he has by giving evidence himself. This is not a case where the evidence cannot be tested or rebutted because the maker of the relevant representations is not called to give evidence.

(c)    There is no reasonable doubt as to the authenticity of the emails.

111    Accordingly, I do not think that, in the end, s 169(1) has been engaged at all. Even if that subsection has been engaged, I decline to exercise the discretion reposed in me by the terms of that subsection.

Conclusions

112    The only previous representations contained in any documents which are presently the subject of objection which are to be admitted into evidence are those representations made or recorded in the emails at pages 802B(1); 803; 814; 830; and 834 of the CB. Those representations are to be admitted as exceptions to the hearsay rule pursuant to s 69(1) of the Act.

113    All other documents to which objection is taken will be rejected and not admitted into evidence. Documents which are not admitted into evidence should be removed from the CB. I propose to make orders ensuring that this is done.

114    There will be orders accordingly.

Associate:

Dated:    16 June 2014