Federal Court of Australia

Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 7) [2023] FCA 1648

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 50 of the Evidence Act 1995 (Cth), the data set out in the summary tables listed in Annexure A to the affidavit of Mr Matthew Whittle affirmed 15 December 2023 and contained in, or annexed to, the affidavit of Mr Salvatore Algeri sworn 25 November 2023 (the Summary Tables), is to be adduced as a summary in the form of the Summary Tables.

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

REASONS FOR JUDGMENT

MCEVOY J:

1    The plaintiff (Royal Express) seeks an order pursuant to s 50 of the Evidence Act 1995 (Cth) that certain parts of its evidence at the trial of the proceeding be adduced in the form of summary tables.

2    In support of the application, Royal Express relies on the affidavits of Mr Matthew Whittle affirmed 15 December 2023 (the Whittle Affidavit) and Mr Salvatore Algeri sworn 25 October 2023 (the Algeri Affidavit).

3    The relevant summary tables are listed in Annexure A to the Whittle Affidavit. The tables themselves are to be found at Annexure SA-92 of the Algeri Affidavit.

4    For the reasons that follow there will be an order in the form sought by Royal Express.

the Application

5    Royal Express seeks to tender summaries of the relevant parts of bank and financial statements and records that are exhibited to the Algeri Affidavit, as prepared by its solicitors and officers of the receivers at Deloitte, and set out in a letter dated 3 November 2023 to the defendants (the Allens Notice Letter), as a summary of voluminous and complex documents pursuant to s 50 of the Act. A copy of the Allens Notice Letter is to be found at pages 11 to 29 of Annexure MCW-04 of the Whittle Affidavit.

the statutory regime and the relvant principles

6    Section 50 of the Act provides:

Proof of voluminous or complex documents

(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has:

(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and

(b) given each other party a reasonable opportunity to examine or copy the documents in question.

(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

7    Section 50 is a facultative section and should be construed accordingly: R v Connors [2016] ACTSC 137, [10] (Refshauge J). The section should not be given a restrictive or narrow interpretation, bearing in mind its intended purpose, which is to permit the court conveniently to hear summary evidence of voluminous or complex documents in the prescribed circumstances: Thackray v Gunns Plantations Ltd [2011] VSC 380 at [66] (Davies J).

8    In Re Idylic Solutions Pty Ltd; ASIC v Hobbs [2012] NSWSC 568 at [63], Ward J (as her Honour then was) noted that there are three matters to be determined by the Court for the purposes of a s 50 application:

(a)    whether the relevant summaries are summaries of information contained in the underlying documents (as opposed to conclusions or statements of opinion);

(b)    whether the volume and/or complexity of the underlying documents are such that it would not otherwise be possible to conveniently examine the evidence; and

(c)    whether a reasonable opportunity has been given to the other parties to the litigation to examine or copy the underlying documents.

9    A summary within the meaning of s 50 of the Act is a summary of the evidence sought to be extracted from the voluminous or complex documents: Thackray at [67]. A summary may properly be limited to the specific primary facts sought to be adduced from the underlying documents: Idylic Solutions at [66]. It is not necessary to summarise each document individually nor every detail, fact, or feature of a document: Idylic Solutions at [66]; Thackray at [67].

10    It follows that “the evidence in support of a summary which is sought to be received under s 50 of the Act must explain what, with some degree of precision, it purports to be a summary of”: Charles Parsons & Co Pty Ltd v Express Publications Pty Ltd [2017] NSWSC 1031 at [16] (Stevenson J).

11    Because “[b]y definition, a summary cannot contain everything in the underlying document or documents”, the selection of what to include in the summary inevitably involves some exercise of judgment and/or opinion: Connors at [22]-[23]. Section 50(3) of the Act provides that the opinion rule does not apply to evidence adduced in accordance with a direction under the section: see, for example, Connors at [24].

12    The requirements of s 50(2) of the Act are mandatory pre-conditions for the exercise of the Court’s power to give such a direction: see ACCC v World Netsafe Pty Ltd [2002] FCA 519 at [3] (Spender J). Section 50(2) affords procedural fairness to the other party by enabling any concerns about selectivity to be tested and, if necessary, objected to by the other party: Connors at [30].

13    There is no single way to satisfy the requirement in s 50(2)(b) of the Act: Thackray at [70]. In Idylic Solutions, Ward J held that the focus of s 50(2)(b) was on the party having the opportunity to copy or examine the documents, not to analyse them in detail over the relevant period: Idylic Solutions, [108].

THE royal express submissions

14    Royal Express submits that an order should be made allowing it to adduce the summaries prepared by Allens (as listed in Annexure A to the Whittle Affidavit and exhibited to the Algeri Affidavit) as evidence of the underlying documents, pursuant to s 50 of the Act, for the following reasons:

(a)    first, the summaries are derived from information contained in the underlying documents thereby satisfying the first criteria in Idylic Solutions. The specific primary facts that are sought to be adduced from each of the underlying documents are the date and amount of specific bank transfers and/or invoices;

(b)    secondly, the factual allegations to which this evidence is directed (primarily being the dates and amounts of transfers made to and from Royal Express and the relevant debtor companies during the relevant time) are central to the allegations raised in the Amended Statement of Claim dated 5 December 2022 (the ASOC) regarding the creation and orchestration of what is alleged to be a fraudulent and dishonest scheme that amounted to equitable fraud (see the ASOC at [46I]);

(c)    thirdly, the underlying documents are voluminous. The tables relate to and summarise over 5,000 pages of financial data. The banking and financial statements and records are also complex, comprising numerous different types of banking and financial statements and records, including data extracted from a Xero bookkeeping software system;

(d)    fourthly, the evidence of Mr Whittle clearly sets out “what the summary purports to be a summary of”. The process of compiling each summary did not involve an exercise of “interpretation” of the underlying source documents;

(e)    fifthly, procedural fairness has been afforded to the defendants. The defendants have been provided with notice and access to the documents, including those used to prepare each summary since at least 3 November 2023 and have had sufficient opportunity to examine or copy the documents;

(f)    sixthly, no responses or objections were received, save from those from the first defendant. The summaries relating to the CJ Financial Books and Records and Chang Jiang Books and Records, which were the subject of that objection, do not form part of this application and the issues raised by the first defendant will be addressed at the time for objections to evidence in April 2024 in accordance with the orders made on 22 November 2023; and

(g)    seventhly, there is no prejudice (let alone substantial prejudice) to the defendants or to the administration of justice in allowing the application.

determination

15    I accept, for the reasons advanced in the above paragraph by Royal Express and in accordance with the relevant principles, that there should be an order pursuant to s 50 of the Act that certain parts of the Royal Express evidence at the trial of this proceeding can be adduced in the form of summary tables.

16    There will be an order to this effect as set out at the commencement of these reasons.

Associate:

Dated:    21 December 2023

SCHEDULE OF PARTIES