FEDERAL COURT OF AUSTRALIA
Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625
Citation: Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 Parties: ADDENBROOKE PTY LIMITED (ACN 055 973 576) v TRAVERS WILLIAM DUNCAN, PETER GRAY and SOUTHERN CROSS EQUITIES PTY LTD (ACN 071 935 441);
SOUTHERN CROSS EQUITIES PTY LTD (ACN 071 935 441) v CASCADE COAL PTY LTD (ACN 119 180 620), ARTHUR PHILLIP PTY LTD (ACN 100 908 101) and RICHARD JONATHON POOLE;
PETER GRAY v CASCADE COAL PTY LTD (ACN 119 180 620)File number: NSD 2243 of 2012 Judge: FOSTER J Date of Orders: 10 June 2014 Date of Publication of Reasons: 16 June 2014 Catchwords: EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible Legislation: Evidence Act 1995 (Cth), ss 55, 56, 59, 60, 69, 71, 76, 78, 81, 82, 135, 136, 139, 166, 167, 168, 169, 183, 190(3) and the Dictionary
Independent Commission Against Corruption Act 1988 (NSW), s 31 and s 35
Telecommunications (Interception and Access) Act 1979 (Cth), ss 5B(hb), 11A, 11B, 11C, 74, 75, 75A and 77Cases cited: Clavel v Savage [2013] NSWSC 775
Clyne v New South Wales [2012] NSWCA 265
De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in Liq) (2011) 200 FCR 253
Fodare Pty Ltd v Shearn (2010) 240 FLR 187
Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368
JP Morgan Australia Ltd v Consolidated Minerals Pty Ltd [2011] NSWCA 3
Landini v State of New South Wales [2008] NSWSC 1280
Lane v Dive Two Pty Ltd [2012] NSWSC 104
Lin Li v Deng (No 2) [2012] NSWSC 1245
Lithgow City Council v Jackson (2011) 244 CLR 352
Nau v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687
Ordukaya v Hicks [2000] NSWCA 180
Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359
Thomas v New South Wales (2008) 74 NSWLR 34
Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112Date of hearing: 2– 6 and 10 June 2014 Date of last submissions: 5 June 2014
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Details
- Case
- [2014] FCA 625
- Decision Date
CaseChat Overview and Summary
Addenbrooke Pty Ltd v Duncan (No 5) involved a complex dispute concerning the admissibility of various documents as evidence in the Federal Court of Australia. The primary issue was whether certain printouts of emails, transcripts of intercepted telephone calls, transcripts of evidence from a public inquiry, and a written statement made by a potential witness could be admitted as evidence. The plaintiff, Addenbrooke Pty Ltd, sought to introduce these documents, while the defendant, Duncan, objected to their admissibility.
The court had to decide if the printouts of emails could be admitted as business records under section 69 of the Evidence Act 1995 (Cth). Additionally, the court needed to determine whether the emails should be excluded under sections 135 or 169 of the Evidence Act. Furthermore, the court had to consider whether it should compel the plaintiff to call the authors of the emails. The admissibility of the transcripts of intercepted telephone calls was also in question, considering the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth). The court also had to decide on the admissibility of transcripts from a public inquiry conducted by the NSW Independent Commission Against Corruption. Lastly, the court needed to assess the admissibility of a written statement made by a potential witness that was created for a television journalist.
The court ruled that only the printouts of certain emails were admissible as exceptions to the hearsay rule under section 69(1) of the Evidence Act. These emails were identified as being at specific pages in the case bundle. The court declined to exercise its discretion under sections 135 and 169 of the Evidence Act to exclude the admissible emails. Regarding the transcripts of intercepted telephone calls, the court found that the provisions of the Telecommunications (Interception and Access) Act did not prohibit their tender, thus they were admissible as business records. Transcripts of evidence from the public inquiry and the written statement made by the potential witness were deemed inadmissible. The court ordered that the inadmissible documents be removed from the case bundle.
The court had to decide if the printouts of emails could be admitted as business records under section 69 of the Evidence Act 1995 (Cth). Additionally, the court needed to determine whether the emails should be excluded under sections 135 or 169 of the Evidence Act. Furthermore, the court had to consider whether it should compel the plaintiff to call the authors of the emails. The admissibility of the transcripts of intercepted telephone calls was also in question, considering the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth). The court also had to decide on the admissibility of transcripts from a public inquiry conducted by the NSW Independent Commission Against Corruption. Lastly, the court needed to assess the admissibility of a written statement made by a potential witness that was created for a television journalist.
The court ruled that only the printouts of certain emails were admissible as exceptions to the hearsay rule under section 69(1) of the Evidence Act. These emails were identified as being at specific pages in the case bundle. The court declined to exercise its discretion under sections 135 and 169 of the Evidence Act to exclude the admissible emails. Regarding the transcripts of intercepted telephone calls, the court found that the provisions of the Telecommunications (Interception and Access) Act did not prohibit their tender, thus they were admissible as business records. Transcripts of evidence from the public inquiry and the written statement made by the potential witness were deemed inadmissible. The court ordered that the inadmissible documents be removed from the case bundle.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 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. 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. There will be orders accordingly.
Ratio Decidendi
Legal Principle Established
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