Australian Securities and Investments Commission v Flugge and Geary (Ruling No 4)

[2015] VSC 793

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS’ LIST

S CI 2007 10077

IN THE MATTER OF AWB LIMITED (ACN 081 890 459)

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Plaintiff
v
TREVOR JAMES FLUGGE	Defendant

- AND -

S CI 2007 10081

IN THE MATTER OF AWB LIMITED (ACN 081 890 459)

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Plaintiff
v
PETER ANTHONY GEARY	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2015
DATE OF RULING:	5 November 2015
CASE MAY BE CITED AS:	ASIC v Flugge & Geary (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2015] VSC 793

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EVIDENCE – Tender of hearsay evidence under Part 3.2 of the Evidence Act 2008 (Vic) (the Act) – Whether document a business record within the meaning of s 69 of the Act – s 58 of the Act – Inferences as to relevance.

EVIDENCE – Whether discretion to refuse to admit hearsay evidence under s 135 of the Act enlivened – Consideration of whether evidence unfairly prejudicial to a party – Consideration of probative value of evidence sought to be tendered – Section 135 of the Act not enlivened.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J O’Bryan AM SC with Mr J P Moore QC, Mr C H Truong and Ms C E Klemis	Australian Securities and Investments Commission
For the Defendant in S CI 2007 10077	Mr S K Dharmananda SC, with Mr R F R Pintos-Lopez	Corrs Chambers Westgarth
For the Defendant in S CI 2007 10081	Mr I D Hill QC with Mr A Tragardh	Galbally Rolfe

HIS HONOUR:

1. In examination-in-chief of Ms Lyons, ASIC sought to put to her a handwritten document. It was apparent that the document was not written by Ms Lyons. Objection was made to that being done by counsel for Mr Geary. Mr Flugge’s counsel joined in that objection. Mr Moore subsequently sought to tender the document under the business records exception to the hearsay rule under s 69 of the Evidence Act 2008 (Vic) (the Act). It was submitted on behalf of ASIC that the court was entitled to draw inferences from the document, including as to its authenticity and identity under s 58 of the Act.

1. Section 58 of the Act provides as follows:

Inferences as to relevance

(1)If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

(2)Subsection (1) does not limit the matters from which inferences may properly be drawn.

1. Mr Moore conceded that the document was not discovered to Mr Geary when it ought to have been and Mr Moore informed me that it was not until yesterday that its relevance to Ms Lyons’ evidence was appreciated.

1. I have been informed that Mr Geary’s counsel was sent a copy of the document last night, advising him that ASIC would seek to rely on the document.  Mr Tragardh submitted on behalf of Mr Geary that his client had not had the opportunity to identify the author of the document.  During the end of ASIC’s submissions, Mr Moore mentioned the name of the author of the document as a Ms Rosemary Peavey. 

1. Mr Tragardh also said his client had not had the opportunity to investigate the circumstances in which the document was made and had not had an opportunity to speak to Ms Lyons about it.  It was submitted that, in these circumstances, the document ought not to be put to Ms Lyons or tendered in light of the prejudice that would be visited on Mr Geary.

1. Section 135 of the Act provides as follows:

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.

1. In my opinion, Mr Geary would be the victim of prejudice if this document were admitted into evidence.  It was not discovered to him when it ought to have been; he has not had the opportunity to verify the author; he has not had the opportunity to ascertain the circumstances in which the document was raised.

1. Further, although it is asserted that it is a business record, for my part, I am not prepared to draw the inference from the face of the document that it is a business record.  It seems to me it has been in a two-ring binder document.  Although we have got eight volumes of business documents in this case I do not think I have seen one business record which has come out of a spiral binder such as this document.   

1. In my opinion, in the circumstances where the document has been produced at the last moment, that if it is to be admitted into evidence as a business record, at the very least it will need to be proved in some other way that it is a business record.  Even then I may not agree to admit it into evidence in view of its late discovery.

1. ASIC has had this document since 2007, and it is now 2015.  The burden on the defendants in perusing the large amount of documents that were discovered was great.  I think, in the circumstances, it is not fair on them to produce a document at the last moment which, on its face, could be prejudicial to their client.  Therefore, I am not prepared to allow it to be shown to Ms Lyons.

1. If at some later date ASIC seeks to tender it as a business record then I will hear submissions on it.  I am not prepared to draw the inference that it is a business record from its face and from the evidence of an ASIC officer as to its origins.