Australian Competition and Consumer Commission v Air New Zealand (No 7)

In the case of Australian Competition and Consumer Commission v Air New Zealand (No 7), the Australian Competition and Consumer Commission (ACCC) brought proceedings against Air New Zealand in the Federal Court of Australia. The ACCC alleged that Air New Zealand engaged in misleading and deceptive conduct in relation to the sale of air travel services. The dispute involved the admissibility of certain documents and affidavits as evidence in the case.

The legal issues that the court had to address included the application of the business records exception to the hearsay rule under the Evidence Act 1995 (Cth) and the court’s discretion to exclude evidence where the defendant is unable to cross-examine the author of the business record. The court needed to determine whether the documents in question, which were created in contemplation of the proceedings, were admissible under the business records exception and whether the inability to cross-examine the author warranted their exclusion.

The court found that the documents and parts of the affidavits were not admissible. The business records exception under the Evidence Act 1995 (Cth) s 69(3) does not apply to documents created in contemplation of proceedings, and the inability to cross-examine the author of the business record warranted the exclusion of the evidence. The court decided that the Annexures CLSY-4 and CLSY-16 to the affidavit of Ms Christine Liu So Yu sworn on 2 May 2012, as well as specific parts of Ms Liu’s affidavit, were not admissible. The first sentence in paragraph 25 of Ms Liu’s affidavit was received as a submission.

The final orders of the court were that the Annexures CLSY-4 and CLSY-16 to the affidavit of Ms Christine Liu So Yu sworn on 2 May 2012 did not form part of the evidence. Additionally, the third sentence of paragraph 22(f), paragraph 21(a), and paragraph 25(a) of Ms Liu’s affidavit of 2 May 2012 were rejected. The first sentence in paragraph 25 of Ms Liu’s affidavit was received as a submission.