1165 Stud Road Pty Ltd v Robert James Power and Ors [Ruling on evidence]
[2015] VSC 476
•3 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 05116
| 1165 STUD ROAD PTY LTD (ACN 104 794 461) | Plaintiff |
| v | |
| ROBERT JAMES POWER and OTHERS (ACCORDING TO THE SCHEDULE OF PARTIES) | Defendants |
---
JUDGE: | VICKERY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 August ‑ 2 September 2015 |
DATE OF JUDGMENT: | 3 September 2015 |
CASE MAY BE CITED AS: | 1165 Stud Road Pty Ltd v Robert James Power & Ors [Ruling on evidence] |
MEDIUM NEUTRAL CITATION: | [2015] VSC 476 |
---
EVIDENCE – Admissibility – Hearsay evidence and relevance of evidence – Business record exemption under s 69 of the Evidence Act 2008 (Vic) ('Act') – Representation was hearsay evidence in business record – Definition of 'business' in the dictionary of the Act – Council established under the Local Government Act 1989 a 'business' for the purposes of s 69 – Identification of representation in documents relied upon – Sections 170 and 171 of the Act not an exclusive means of proving the matters under s 69 – Representations excluded under s 56(2) of the Act on ground of lack of relevance ‑ As to another representation, not established that the author or authors had, or might reasonably be supposed to have had, personal knowledge of the asserted fact or facts comprising the representation for the purposes of s 69(2)(a) or under s 69(2)(b) of the Act – Evidence of the representation not admissible under s 59 of the Act – Evidence further excluded pursuant to s 135 of the Act - Probative value of the evidence substantially outweighed by s 135 factors - Evidence Act 2008 (Vic) ss 56, 59, 69, 135, 170, 171
---
APPEARANCES: | Counsel | Solicitors |
| For the Third Defendant | Mr O’Bryan AM SC Mr C Truong | Arnold Bloch Leibler |
| For the First and Second non-party respondents to the Third Defendant’s summons | Mr M Clarke | Ms Michelle HM Ong |
| For the Third non-party respondent to the Third Defendant’s summons | Mr S Pitt | R B Flinders |
HIS HONOUR:
In the trial of the issues raised by the summons of the Third Defendant dated 23 December 2014 (the ‘Summons’), an issue has arisen as to the admissibility of paragraph 19 of the affidavit of Alexander William King, sworn 22 December 2014 (the ‘King affidavit’), in particular, the documents sought to be exhibited, namely internal council documents described in subparagraphs (a) to (f) of the Knox City Council (the ‘Council’).
Mr O'Bryan, senior counsel, who appeared with Mr Truong of counsel, sought the admission of the documents as business records. Mr Clarke, who appeared for two of the respondents to the Summons, took the objection that the documents did not satisfy the requirements of s 69 of the Evidence Act 2008 (Vic) (the ‘Act’) and should not be admitted into evidence.
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).
The reference to ‘business’ in s 69(1) is defined in Part II of Clause 1 of the dictionary in the Act. Clause 1(1)(d) is relevant for present purposes:
1 References to businesses
(1)A reference in this Act to a business includes a reference to the following—
(…)
(d)an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth 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);
The Council carried on its local government activities and its officers administered those activities and held office for this purpose under an Australian law, ultimately founded in the Local Government Act1989 (Vic). Subsection 69(1)(a) of the Evidence Act is therefore satisfied, because the documents formed part of the records maintained by the Council.
As to the representation relied upon by the Third Defendant in prosecuting its Summons, this boiled down to a representation contained in the document referred to in paragraph 19(c) of Mr King's affidavit, being a memorandum of Angela Hughes entitled "Amended Plans & Permit” dated 17 December 2008 (the ‘Report’). The document in question was a report containing a recommendation to amend a permit description and endorsed plans on a permit issued by Council. This was prepared in response to an application which sought to amend the development approved by an earlier planning permit to reduce the size of the ground floor restaurant and replace it with a medical centre. The Report recommended that the applicant's request to amend the earlier permit be approved.
In particular, the representation relied upon by the Third Defendant was contained in a table contained in the Report which provided the responses of the author of the report to some of the comments made previously by the traffic department of Council in another report. The comments had been selected by the author of the Report on the basis that they were pertinent to the application under consideration. Of these comments and responses, the following is said to be relevant to the present application on the Summons:
Comments [of the Traffic Department] Response [of author of the Report] There is currently no carriageway easement which aligns with the access way through 1171 Stud Road. The existing easement should be amended to create and easement along the access way through the adjoining property in favour of 1165 Stud Road. The plan also shows access through the rear carpark area of 1171 Stud Road. An additional easement must be created in favour of 1165 Stud Road or the rear access through the adjoining car park should be removed. The owner has been made aware of this; the owner must make an application to Council to vary the location of the easement to the south (front) of the site and create an easement to the north (rear) of the site.
The issue cannot be raised again with the owner/applicant, but cannot in itself be corrected as part of this application.
The Report related to the property at 1165 Stud Road, Rowville. The Report recorded that the owner of this property at the time, that is on 17 December 2008, was Parkland Estate Pty Ltd. The council officer was recorded as being Angela Hughes. Angela Hughes signed the Report as the relevant officer. I accept that she was a planner within the planning department of Council at the relevant time. The Report was countersigned by a Peter Steele who was described as the delegate officer (who was described by the Third Defendant’s counsel as the ‘Coordinator for Urban Planning’).[1]
[1]Transcript p 130.
A question arises as to who was the author of the Report, and in particular the author of the representations sought to be relied upon by the Third Defendant. Neither Ms Hughes or Mr Steele were called upon to give evidence about this matter. Section 170 of the Act makes provision for the means by which matters in s 69 of the Act, amongst other things, may be proven. Section 171 then provides:
171 Persons who may give such evidence
(1) Such evidence may be given by—
(a)a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing; or
(b)except in the case of evidence of a fact that is to be proved in relation to a document or thing because of section 63, 64 or 65—an authorised person.
(2)Despite subsection (1)(b), evidence must not be given under this section by an authorised person who, at the relevant time or afterwards, did not have a position of responsibility in relation to making or keeping the document or thing unless it appears to the court that—
(a)it is not reasonably practicable for the evidence to be given by a person who had, at the relevant time or afterwards, a position of responsibility in relation to making or keeping the document or thing; or
(b)having regard to all the circumstances of the case, undue expense would be caused by calling such a person as a witness.
(3) In this section, authorised person means—
(a)a person before whom an affidavit may be sworn and taken in a country or place outside the State under section 124 of the Evidence Act 1958; or
(b)a member of the police force above the rank of sergeant; or
(c)a person authorised by the Attorney-General for the purposes of this section.
However, neither s 170 nor s 171 of the Act provide an exclusive means of proving the matters under s 69 of the Act. Those matters may be proven by any other means which are permitted under the rules of evidence. Included within these means are inferences which may be drawn from the nature of the document itself and the surrounding circumstances, and the context of the creation of the document and the knowledge and experience of the persons creating the document.
In this case the author of the representation was not called to give evidence, and there was no evidence as to the identity of the author other than what is provided by the document itself. The document comprising the report is inconclusive as to the authorship of the representation. Either it was Ms Hughes or Mr Steele or a combination of both working in consultation.
The question is whether: The author or authors had, or might reasonably be supposed to have had, personal knowledge of the asserted fact or facts comprising the representation for the purposes of s 69(2)(a); or under s 69(2)(b) the representation was made 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.
The contents of the controversial response contained in the table to the Report, to which I have referred, may be divided into two parts.
The first part is the representation that "The author has been made aware of this" (the ‘First Representation’), which I take to be a reference to the comments from the traffic department about the carriageway easement contained in the left of the box of the table.
The second part are the representations contained in the balance of the response, to which I have referred, which relate to the planning procedures to be observed by the owner to vary the location of the carriageway easement.
The representations under the second category I accept were made, whether by Ms Hughes or Mr Steele or both, by persons within the Council who I infer had personal knowledge of the planning procedures within Council which were to be followed by the owner in relation to the carriageway easement. As such, the representation may be admitted into evidence. However, given the nature of the cross-examination conducted on behalf of the Third Defendant on the Report, I do not perceive the particular procedures of the Council in dealing with the application to amend the relevant planning permit to be in issue in the application, and I will exclude the second category of representations on the ground of lack of relevance pursuant to s 56(2) of the Act.
However, the First Representation, that is, "The owner has been made aware of this”, falls into a different category, in my view. I cannot be satisfied that either Ms Hughes or Mr Steele, whether individually or in combination, had personal knowledge of this matter and there is no evidence upon which I can safely act to find that they might reasonably be supposed to have had personal knowledge of the asserted fact contained in this representation. There is no evidence, for example, as to the source or sources of this information upon which the asserted fact is based. Nor is there evidence upon which I can safely act to find that the asserted fact was founded upon information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
Mr Murray Ness was from a firm of town planners, Hellier McFarland, which had been engaged by 1165 Stud Road Pty Ltd at the time.[2] Although there are references to Mr Ness in some of the Council documents referred to in paragraph 19 of the King Affidavit, none of these references evidence the source of the First Representation or the asserted fact sought to be relied upon by the Third Defendant.
[2]Transcript p 130.
No additional evidence to establish the admissibility of the Report or the relevant asserted fact contained in the Report was adduced whether by voir dire or otherwise.
For these reasons, on the evidence before the Court, and on the balance of probabilities, the condition for admissibility of the First Representation sought to be relied upon by the Third Defendant, contained in the business record comprised in the Report, in my view does not satisfy s 69(2) of the Act and therefore does not fall within the exception to the hearsay rule. In making this finding, and whether it has given rise to the necessary level of satisfaction pursuant to s 142(2) of the Act, I take into account the potential importance of the evidence to the proceeding the subject of the application on Summons.
Pursuant to s 59 of the Evidence Act the representation containing the asserted fact is therefore not admissible.
Further, and in any event, even if the representation in the report is admissible and does give rise to an exception to the hearsay rule, I exclude it pursuant to s 135 of the Act because its probative value would be substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to the respondent parties, (b) be misleading or confusing, or (c) cause or result in undue waste of time.
Section 135 of the Act 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; or
(d)unnecessarily demean the deceased in a criminal proceeding for a homicide offence.
The probative value of the asserted fact is diminished by the fact that the ‘owner’ as described in the asserted representation, whichever of the two companies that may apply to, is a corporation. As such the evidence, even if admitted, would not answer the question as to which natural person within the organisation of the corporation, or indeed which of its agents or employees, may have had the alleged knowledge, or more particularly which of the natural person respondents to the Summons had such knowledge.
The following extract from the cross-examination of Mr Gdanski, a director of the Plaintiff company 1165 Stud Road Pty Ltd at the time, is telling in this regard:[3]
Is it possible Mr Gdanski that you simply had forgotten about the fact that back in 2008 you had been informed that the carriageway easement did not align with the access way? Is that a possibility you would admit to?---It is a possibility, but I can tell you that it - it's not a probability because when we sold the property, we would have quite easily applied for a movement of the carriageway easement. I definitely did not know about it in 2008. That's what I'm attesting to.
(…)
You personally were never made aware of it, is that your evidence?---My directors and myself were never made aware of it.
[3]Transcript p 147.
Further, the Report which contains the First Representation contains errors of significance. This serves to cast serious doubt as to the accuracy of the asserted fact about the alleged owner's knowledge of the position with regard to the carriageway easement. The First Representation itself contains errors in relation to the description of the carriageway easement and its location. Of perhaps greater significance is the description of the owner of the property at 1165 Stud Road, Rowville. The heading in the Report describes this as Parkland Estate Pty Ltd. However, the permit in respect of which the amendment was sought, and which was the subject of the report, was Planning Permit P/2007/6816. The owner described in the planning permit application before P/2007/6816 was in fact 1165 Stud Road Pty Ltd. Without calling the author of the Report the owner referred to in the representation, in its first part, is not clarified. These matters also diminish the probative value of the evidence founded upon the Report.
Further, the First Representation is a statement of some breadth. The comments of the Traffic Department which it seeks to respond to contain a number of asserted facts. It is uncertain as to whether, and to what degree, the “owner” had allegedly been made aware of each of these facts, or whether only some of them had come to its attention. Further, the character, quality and depth of the alleged knowledge and understanding of the owner with respect to each of the asserted facts is not specified and is left uncertain. Without clarification of these important matters, the probative value of the asserted fact contained in the First Representation is further diminished.
Finally, it might be unfairly prejudicial to the respondent parties because they have not been placed in the position to test the evidence sought to be adduced, its source and its accuracy. It is potentially misleading because it might be plain wrong. In the context of the present application and the potential importance of the evidence sought to be adduced, the unfairness of permitting the admission of the evidence is plain.
As to the balance of the subparagraphs of the King affidavit, namely (a) to (b) and (d to (f), none of the documents referred to were put to any witness in cross examination by the Third Party. Further, they would appear to add nothing to the unchallenged facts contained in the opening sentence to paragraph 19 of the King affidavit. I refuse to admit these documents in the exercise of the Court’s discretion under s 135(c) of the Act on the ground that their admission would result in an undue waste of time.
For these reasons, I decline to vacate my previous order that subparagraphs (a) to (f) of paragraph 19 of the King affidavit be struck out.
---
0
0
0