Charles Parsons and Co Pty Ltd v Express Publications Pty Ltd; Express Publications Pty Ltd v Charles Parsons and Co Pty Ltd
[2017] NSWSC 1031
•3 August 2017
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New South Wales |
Case Name: | Charles Parsons & Co Pty Ltd v Express Publications Pty Ltd; Express Publications Pty Ltd v Charles Parsons & Co Pty Ltd |
Medium Neutral Citation: | [2017] NSWSC 1031 |
Hearing Date(s): | 3 August 2017 |
Decision Date: | 3 August 2017 |
Jurisdiction: | Equity - Commercial List |
Before: | Stevenson J |
Decision: | Tender of summaries rejected |
Catchwords: | EVIDENCE –– proof of voluminous or complex documents – whether summaries receivable under s 50 of the Evidence Act 1995 (NSW) – where evidence did not establish document did summarise underlying documents – where document substituted figures in underlying document to advance a contention – where document did not identify underling documents purportedly summarised |
Legislation Cited: | Evidence Act 1995 (NSW) |
Cases Cited: | Re Idylic Solutions Pty Ltd [2012] NSWSC 568 |
Category: | Procedural and other rulings |
Parties: | Charles Parsons & Co Pty Ltd (Plaintiff/Cross-Defendant) |
Representation: | Counsel: |
File Number(s): | SC 2015/134468 |
EX TEMPORE JUDGMENT (REVISED)
The defendants/cross-claimants seek to adduce evidence of “spreadsheets” prepared by their CEO, Ms Diana Screpis.
The spreadsheets are annexed to affidavits sworn by Ms Screpis. In her affidavits, Ms Screpis does not say that the summaries that she prepared were ones that were prepared by the defendants/cross-claimants in the ordinary course of its business. Absent evidence to the contrary from Ms Screpis, I would infer that the spreadsheets were prepared for the purpose of her affidavit and thus for these proceedings. If that be the right conclusion, then the spreadsheets are not receivable as business records.
Consistent with that preliminary conclusion, Mr Katekar, who appears with Ms Tringali for the defendants/cross-claimants, seeks to have these spreadsheets received under s 50, as opposed to s 69, of the Evidence Act 1995 (NSW).
Section 50 is in the following terms:
“(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has:
(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and
(b) given each other party a reasonable opportunity to examine or copy the documents in question.
(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.”
In par 42 of her affidavit of 10 December 2015, Ms Screpis says that she created the "spreadsheet" there referred to "from" a series of documents sent to the defendants/cross-claimants by the plaintiff/cross-defendant, called "EMG stock on hand and purchase order master reports". I will refer to those documents as the “Master Reports”.
There is no objection to the admission into evidence of the Master Reports themselves.
Ms Screpis says in par 45 of her affidavit that she reviewed the Master Reports and used the information in them to prepare the spreadsheet to which I have referred. The spreadsheet contains headings such as “invoice”, “invoice date”, “item number” and so on. However, there is no reference in any of the Master Reports to items such as invoice or invoice date.
In argument, Mr Katekar said that in fact, Ms Screpis had prepared another spreadsheet and that the spreadsheet in question is an extract from that "bigger spreadsheet". However that is not something that Ms Screpis explains in her affidavit.
Further, in par 46 of her affidavit dated 10 December 2015, Ms Screpis says that in order to "determine if stock was in excess of 6 months old" (which is an issue in the proceedings), she "identified items that had been delivered [in the relevant month] but which had no future orders placed" and then "determined those items to be stock in excess of 6 months old". That evidence suggests that Ms Screpis has done more than just simply summarise what is in the Master Reports; she has exercised judgment or made some assumption about those matters in order to make a contention.
The authorities make clear that s 50 is not enlivened if that is what the person preparing the relevant “summary” has done. In Re Idylic Solutions Pty Ltd [2012] NSWSC 568 Ward J (as her Honour then was) said that the summary must not “interpret the contents of the underlying documents” (at [83]), or involve “an application or exercise of judgment” (at [85]), or be a “submission” (at [91] and [97]).
For that reason, I am not satisfied that the defendants/cross-claimants have made out a basis to have the spreadsheet referred to at par 42 of Ms Screpis's affidavit received under s 50 of the Evidence Act and I reject it.
It follows that I reject from Ms Screpis's affidavit the first two sentences of par 42, the third and following sentences in pars 45, and all of par 46.
In par 75 of her affidavit of 10 December 2015, Ms Screpis purports to prove how many rooftop tents were ordered and how many rooftop tents were delivered by reference to what she describes as a spreadsheet which she says she "derived from the records of Charles Parsons provided to us". She adopts a similar means to seek to establish how many swags were ordered and delivered.
However, Ms Screpis does not explain from what records she has derived the material.
It is true that the authorities suggest that s 50 should not be construed restrictively and that the summary does not have to include "every detail or fact or feature of the documents purported to be summarised" (for example see Davies J in Thackray v Gunns Plantation Ltd [2011] VSC 380 at [67] there citing Einstein J in Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding [2004] NSWSC 768 at [19]).
However, in my opinion, at the very least, the evidence in support of a summary which is sought to be received under s 50 must explain what, with some degree of precision, it purports to be a summary of.
In an affidavit that Ms Screpis swore later, on 30 January 2017, she reveals that "underpinning" the summary in the spreadsheets to which I have referred were other spreadsheets dealing with the quantity of rooftop tents and swags delivered. In that affidavit she simply annexes the further "underpinning" spreadsheets without any further explanation.
In those circumstances, I am not satisfied that I should receive the spreadsheets referred to in par 75 and 76 of Ms Screpis's affidavit of 10 December 2015, or the "underpinning" spreadsheets to which she referred in par 7 of her 30 January 2017 affidavit.
Accordingly, I reject pars 75 and 76 of the first affidavit and pars 7(b) and (c) of the second affidavit.
However I will grant Mr Katekar leave to seek to adduce such further evidence from Ms Screpis in chief as he can with a view to curing those difficulties.
If he proposes to do so, he should let Ms Glover, who appears for the plaintiff/cross-defendant, know precisely and in writing what evidence he expects that Ms Screpis would give were such questions to be put to her.
In par 79 of her affidavit of 10 December 2015 Ms Screpis attaches a document she described as being a “summary of my calculation" of various payroll records of the defendants/cross-claimants. There is no objection to the tender of the payroll records themselves. Although Ms Screpis describes her document as a “summary of my calculation" it does appear to be a summary of the documents themselves.
Accordingly, assuming that Ms Screpis is able to give evidence as to what the document is, I would be prepared to admit it under s 50 of the Evidence Act. I expect that issue to be resolved between counsel once Ms Screpis gives Mr Katekar whatever instructions are available.
In par 8(e) of Ms Screpis's affidavit of 30 January 2017 she refers to a spreadsheet that she prepared in which she has made what she describes as a series of “adjustments” to a spreadsheet evidently prepared by Mr Lee Spouse, a witness to be called for the plaintiff/cross-defendant.
I will receive that spreadsheet as evidence only of the effect on Mr Spouse's spreadsheet that would be achieved by making the adjustments that she describes, but not as evidence of the truth of what is in the spreadsheet.
Subject to the matters referred to earlier in these reasons, my rulings in respect of the objections made by the plaintiff/cross-defendant to the defendants/cross-claimants’ affidavits will be in accordance with the document called "Preliminary Rulings on Objections", which is MFI 4.
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