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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- Case
- [2014] FCA 625
- Decision Date
CaseChat Overview and Summary
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.
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