Barton Property Partnership No 2 v Foote - [2015] ACTSC 203

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 Forbes Engineering (Asia) Pty Ltd v Forbes (No 4) [2009] FCA 675 Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 McMahon v John Fairfax Publications Pty Ltd (No 4) [2012] NSWSC 216 National Telecoms Group Ltd v John Fairfax Publications Pty Ltd (No 1) [2011] NSWSC 455 Roach v Page (No 15) [2003] NSWSC 939 Roach v Page (No 27) [2003] NSWSC 1046 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACTSC 203
Decision Date: 4 August 2015

CaseChat Overview and Summary

In Barton Property Partnership No 2 v Foote, the plaintiff sought damages for breaches of a contract related to the sale of a property. The defendants were the vendors who failed to complete the sale. The case was heard in the Supreme Court of New South Wales, which had to determine the admissibility of certain documentary evidence provided by the plaintiff.

The court was tasked with assessing the reliability of extracts from web pages and other documents presented as evidence. These documents included statements and knowledge attributed to authors who were not available to testify. The court had to consider the hearsay rule and the exceptions available under the Uniform Evidence Acts, particularly focusing on the business records exception and the reliability of the extracted information.

The court found that the extracts from web pages, although not ideal, could be considered under the business records exception if they were reliable. The court scrutinised the personal knowledge of the authors of these extracts and whether their statements could be trusted. Ultimately, the court admitted the evidence, finding it sufficiently reliable to support the plaintiff's claims. The court’s decision hinged on the careful evaluation of the documentary evidence and its relevance to the case.

The court ordered that the defendants pay damages to the plaintiff, reflecting the court's findings on the admissibility and reliability of the documentary evidence presented.

Orders

Orders of the court

See [26]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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