Barton Property Partnership No 2 v Foote
[2015] ACTSC 203
•4 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barton Property Partnership No 2 & Anor v Foote & Ors (No 1) |
Citation: | [2015] ACTSC 203 |
Hearing Date: | 18 May 2015 |
DecisionDate: | 4 August 2015 |
Before: | Mossop AsJ |
Decision: | See [26] |
Category: | Ruling on admissibility of evidence |
Catchwords: | EVIDENCE – Admissibility of documents – business records – extracts from web pages – consideration of reliability of extracts – consideration of personal knowledge of authors of extracts |
Legislation Cited: | Evidence Act 2011 (ACT) |
Cases Cited: | Australian Competition and Consumer Commission v Air New Zealand Ltd (No 5) [2012] FCA 1479 Barton Property Partnership No 2 & Anor v Foote & Ors (No 2) [2015] ACTSC 204 Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 |
Parties: | Barton Property Partnership No 2 (First Plaintiff) Barton General Practice Partnership (Second Plaintiff) Andrew John Foote (First Defendant) Andlyn Barton Property Pty Ltd (Second Defendant) Grace (ACT) Pty Ltd t/as Helen King Hearing Solutions (Third Defendant) |
Representation: | Counsel Mr D Robens (First and Second Plaintiffs) Mr M Orlov (First and Second Defendants) Ms S Mulherin (Third Defendant) |
| Solicitors Kamy Saeedi Law (First and Second Plaintiffs) Ken Cush & Associates (First and Second Defendants) Dibbs Barker (Third Defendant) | |
File Number: | SC128 of 2015 |
These are the reasons for my decision on the admissibility of certain evidence sought to be tendered by the plaintiffs in these proceedings. The background to the proceedings is set out in my substantive judgment in the matter: Barton Property Partnership No 2 & Anor v Foote & Ors (No 2) [2015] ACTSC 204.
During the course of the hearing on 18 May 2015 I deferred my ruling on certain parts of the affidavits of Thomas Barrington-Smith affirmed 28 April 2015 and 29 April 2015. Certain paragraphs of those affidavits and the annexures referred to in those paragraphs were objected to on the grounds that the annexures were not admissible as business records to prove the truth of their contents. The annexures were print outs of various web pages.
No party objected to the deferral of my ruling. Subsequent to the deferral of my ruling affidavit evidence was read by the third defendant which greatly reduced the significance of the evidence the subject of the deferred ruling.
The evidence appears to be tendered in order to establish that the conduct of the practice of an audiometrist or audiologist is within the scope of the definition of ‘health facility’ and not within the definition of ‘business agency’ for the purposes of ‘non retail commercial use’ as defined in the purpose clause of the relevant units plan. It was tendered in order to prove the qualifications required to be an audiometrist or audiologist and to demonstrate the activities which would be required to be carried out at the premises of an audiometrist or audiologist. Having regard to the evidence given in the affidavits of Helen King affirmed 11 May 2015 and 15 May 2015 the significance of these annexures to Mr Barrington-Smith’s affidavits is much reduced although it is not possible to say that, if admissible, they are not relevant.
The paragraphs of the affidavits which were objected to simply referred to and annexed various documents obtained from the internet. I will therefore simply deal with the objections on the basis that a ruling upon the admissibility of the relevant annexure will determine the admissibility of the paragraph which refers to it.
Section 69 of the Evidence Act 2011 (ACT) provides:
69 Exception—business records
(1) This section applies to a document that—
(a) either—
(i)is or forms part of a record belonging to or kept by an entity in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of the 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 happening 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 happening 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 the system, of the happening of the event.
(5)For 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).
Note 1Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of proof, and authentication, of business records.
Note 2The Commonwealth Act, s 182 gives the Commonwealth Act, s 69 a wider application in relation to Commonwealth records.
In Roach v Page (No 15) [2003] NSWSC 939 the plaintiff sought to tender an extract (which was characterised as an ‘advertorial’) of the Australian Mushroom Growers’ Association Journal as a business record under s 69. Sperling J rejected the argument that the extract was a business record as follows (at [5]-[8]):
5.The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties.
6.On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business. They are the product of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business.
7.It was submitted that the document was part of the records of the Australian Mushroom Growers’ Association Limited (the publisher), of Campbell’s (it being submitted that they would have retained a copy of it) and / or of the State Library of New South Wales (to be inferred, it was said, from the ISSN number recorded in the publication). For the reasons I have given, the document did not qualify as constituting part of the records of any of these entities within the meaning of the section.
8.The approach may be tested in a commonsense way. It cannot have been intended that newspapers, magazines and journals (publication of any kind produced and / or received in the course of a business undertaking) would be evidence of whatever was stated in them.
Sperling J revisited the issue in Roach v Page (No 27) [2003] NSWSC 1046, when his Honour rejected the tender of extracts from certain websites operated by Irish and Dutch peat exporters. Once again, it was contended that the extracts were business records. Sperling J said (at [9]-[12]):
9.So far as is presently relevant, it is the recording of business activities in the course of carrying on the business which is critical. The publication of a book by a business providing a history of the business may record details of the business carried on but it is not a “record of business” within the meaning of s 69. Similarly, a flyer or a media advertisement or a website publication, extolling the virtues of the business in the way such publications do, is not a record of a business merely because it purportedly records activities of the business.
10.It is necessary to place such a restrictive construction on s 69 because it cannot have been intended that publications of this kind would qualify, any more than it would have been intended that – in the ordinary course – books, magazines or newspapers published by the business would be covered by that section.
11.The thinking behind the section is clear enough. Things recorded or communicated in the course of the business and constituting or concerning business activities are likely to be correct. There is good reason for the courts to afford to such records the same kind of reliability as those engaged in business operations customarily do. The same is not true of publications made for wider dissemination, for entertainment, for advertising or for public relations purposes. Such publications are justifiably received with healthy scepticism.
12. The publications now tendered are not business records within the meaning of s 69.
These two decisions have been referred to with approval in a significant number of authorities: Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 at [133]; National Telecoms Group Ltd v John Fairfax Publications Pty Ltd (No 1) [2011] NSWSC 455 at [70]-[71]; Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 at [39]; McMahon v John Fairfax Publications Pty Ltd (No 4) [2012] NSWSC 216 at [18]-[33]; Forbes Engineering (Asia) Pty Ltd v Forbes (No 4) [2009] FCA 675 at [101]; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 5) [2012] FCA 1479 at [11]-[15].
In Australian Competition and Consumer Commission v Air New Zealand Ltd (No 5) cited above Perram J concluded (at [15]): ‘In any event, generally speaking, the published output of a business by way of journal, website or other literary form will not be a business record’.
The obvious concern reflected in these authorities is to confine the terms of s 69 to those records which are likely to be reliable having regard to the business purposes for which they have been created and to exclude from admissibility those documents which, while being products of the business, are produced in such circumstances or for such purposes that they are less likely to be reliable sources of evidence of the facts to which they refer. This is done by excluding from the concept of ‘a previous representation made or recorded in the document in the course of, or for the purposes of, the business’ documents generated as one of the products of the business. It also involves excluding other categories of documents such as promotional material which, although produced in the course of the business or for the purposes of the business, are unlikely to have the element of reliability at which s 69 is targeted.
Having regard to the broad words of s 69, how this latter category of documents can be excluded is uncertain. The approach that appears to have been taken in the authorities is to adopt a restrictive construction when the content of the publication and the purposes for which it was produced mean that the document should be received with ‘healthy scepticism’ or at least without the presumption of reliability associated with documents produced and relied upon for business purposes. However, in many cases it will be possible to exclude such material either because it contains statements of opinion which are inadmissible under s 76 or alternatively because the requirements in s 69(2) are not satisfied. Section 69(2) contains a significant qualification on the admissibility of business records. In the case of material from websites it is necessary to identify the asserted fact and to ask whether either of the requirements in s 69(2)(a) or (b) is satisfied. Ultimately under s 69(2) there must be a link to what a person ‘saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)’. In the case of material on websites, the author of which is often not identified, it may be difficult to reach satisfaction that the information had its source in a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
Plainly enough, having regard to the marginal significance of the tendered material to the determination of the issues in the present case, this is not an appropriate occasion in which to fully examine the scope of s 69 in the context of the publication by businesses of material on the internet.
The relevant parts of the affidavits in question and my rulings on them are as follows.
Annexure B to the affidavit of 28 April 2015 is a printout from the website of the Hearing Aid Audiometrist Society of Australia. It includes:
(a)passages describing ‘[w]hat is an [a]udiometrist’;
(b)a page headed ‘Membership’ describing the qualifications required for various categories of membership;
(c)a page entitled ‘About HAASA’ which includes a statement as to what services members of the Society provide.
The page headed ‘What is an Audiometrist?’ is in the nature of promotional or educational material published by the Society. It either falls foul of the qualification on the scope of s 69 referred to in the authorities set out above, or alternatively it contains statements of opinion which are not admissible under s 76 or fails to satisfy the requirements of s 69(2). I will therefore not admit it.
In my view the page describing the membership of the Society and the qualifications required for membership is a business record. The membership page, which includes various forms which may be downloaded, is a page kept by the organisation for the purposes of its business. The representations in it as to the conditions of membership are representations which might reasonably be supposed to have been made by a person with personal knowledge of those asserted facts.
The page ‘About HAASA’ describes in promotional terms the qualifications of members of the Society and the activities which they perform and the professional standards to which they are subject. I will not admit that page because either, consistently with the authorities referred to above, it forms promotional material which is outside the scope of s 69 or alternatively, insofar as it goes beyond stating conditions for membership of the Society, it contains material which involves statements of opinion about the conduct of members of the Society which are inadmissible under s 76 or contains material which does not comply with the requirement in s 69(2) in that it has not been demonstrated that it 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 facts.
Annexure C to the affidavit of 28 April 2015 provides extracts from a page of the website of ‘Audiology Australia Ltd’ headed ‘What is an Audiologist?’ and another page headed ‘Training and Qualifications’.
The page headed ‘What is an Audiologist?’ appears to be a promotional description of the nature of the work of audiologists and includes as an example a description of the activities of a particular audiologist. This appears to me to be promotional material generated by the author of the website which appears to be an organisation known as Audiology Australia Ltd. I will not admit this material on the basis that it falls into the category of promotional material subject to the implied qualification on the scope of s 69 referred to in the authorities above.
The page headed ‘Training and Qualifications’ includes a statement of the requirements imposed on members of Audiology Australia and contact details for the Masters of Audiology program said to be offered at five universities in Australia. It also refers to the award of Certificate of Clinical Practice and the Code of Ethics and Code of Conduct. I will not admit this document because it contains representations which I am not satisfied comply with s 69(2), namely the requirement for a link to information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted facts as explained by s 69(5).
Annexure D to the affidavit of 28 April 2015 is an extract from a website identified as ‘optometrist.com.au’ entitled ‘Optometrists, Opticians, Optical Dispensers, Orthoptists and Ophthalmologists – What’s the Difference?’.
There is no evidence disclosing whether this document forms part of the records of any business, whether it was produced for the purposes of that business or whether the person who prepared it had knowledge or was provided with information within the scope of s 69(2). Therefore it is not admissible.
Annexure F to the affidavit of 29 April 2015 is an extract from the ‘Allied Health Professionals Australia’ website describing what that entity is and describing the conditions for eligibility for membership of it. The pages list the organisation’s membership as including ‘Audiology Australia’.
This appears to be tendered to demonstrate the qualifications required of an organisation to become a member of ‘Allied Health Professionals Australia’. Given that ‘Audiology Australia’ and various other allied health associations are members of the body, the membership requirements may be relevant to the issue of whether or not the conduct of that allied health profession falls within the scope of the use of premises for a ‘health facility’ within the meaning of the units plan. While the extract from the website is in some sense a promotional publication, the tendered pages are likely to be reliable insofar as they state the qualifications for membership of the organisation and list the existing members of the organisation. In my view the tendered pages satisfy the requirement that they form part of the records kept by the body for the purposes of its business, and also satisfy the requirement that the representations as to the members of the organisation and qualifications for membership are likely to be representations made by a person who might reasonably be supposed to have had personal knowledge of those asserted facts. Therefore I consider that the documents are admissible under s 69.
Ruling
My ruling is as follows:
(a)Affidavit of 28 April 2015:
(i)Annexure B:
a.Page headed ‘What is an Audiometrist?’ – not admitted;
b.Page headed ‘Membership’ – admitted;
c.Page headed ‘About HAASA’ – not admitted;
(ii)Annexure C:
a.Pages headed ‘What is an Audiologist?’ – not admitted;
b.Pages headed ‘Training and Qualifications’– not admitted;
(iii)Annexure D – not admitted;
(b)Affidavit of 29 April 2015 Annexure F – admitted.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 4 August 2015 |
0
9
1