Craig Riley v Chubb Security Services Ltd (No. 1)

[2008] NSWDC 83

Reported Decision: 7 DCLR (NSW) 35

District Court

CITATION:	Craig Riley v Chubb Security Services Ltd and Anor (No. 1) [2008] NSWDC 83
HEARING DATE(S):	20 February 2007 - 21 February 2007, 3 March 2008 - 7 March 2008
EX TEMPORE JUDGMENT DATE:	3 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	The tender of the document is rejected
CATCHWORDS:	Evidence Act 1995 - Action for damages for personal injury against party which was both employer of the plaintiff and owner of the motor vehicle in which the plaintiff was injured - Oral interview of driver of motor vehicle/fellow employee of the plaintiff recorded on tape by a loss assessor/investigator retained by CTP insurer of this defendant - Transcript of tape made by an unidentified person and not signed, initialled, or marked by the interviewed driver - Plaintiff seeks to tender the transcript - Held: (1) Transcript was not any admission by the defendant as document not adopted by driver as required by Evidence Act 1995, Dictionary Pt 2, cl 6. (2) Transcript was not admissible as a business record of the defendant as: (a) not a record of the business of the defendant - (b) not made by a relevant person as required by s 69(2) and (5) - Comparison of the terms of Pt IIC of Evidence Act 1898 and s 69 of the current Act - Held: authorities under the former Act are applicable to the provisions of the present Act.
LEGISLATION CITED:	Evidence Act 1995 Evidence Act 1898
CASES CITED:	R W Miller and Company Pty Ltd v Krupp (Aust) Pty Ltd and Others (1991) 32 NSWLR 152 Ross McConnell Kitchen & Co Pty Ltd v Ross [No 1] (1985) 1 NSWLR 233
TEXTS CITED:	S. Odgers, Uniform Evidence Law, 7th Ed., 2006
PARTIES:	Craig Riley (Plaintiff) Chubb Security Services Ltd (First Defendant) Allianz Australia Insurance Ltd (Second Defendant)
FILE NUMBER(S):	1434/06
COUNSEL:	L. Grey for the Plaintiff P. Khandhar for the First Defendant A. Stone for the Second Defendant

JUDGMENT - Application to tender document

1 HIS HONOUR: The plaintiff seeks to tender a document which is headed thus:

“Transcript of audio tape recorded interview of Robert Charles Arnold by Gregory Walker, of Eldenfield Pty Ltd, at Chubb Security Services, 702 Mowbray Road, Lane Cove, on 20 July 2005.”

The document purports to say that the interview commenced at 2.24pm, that there was also present one Ian Atkins. The document has twenty-four pages, the last page which indicates that the interview concluded at 3.18pm. The evidence before me discloses that Mr Arnold was the driver of a Chubb Security armoured vehicle in which the plaintiff was a passenger at the time the plaintiff says that he sustained personal injury.

2 The document is tendered, according to the plaintiff, as a business record of the second defendant, Allianz Australia Insurance Ltd, the compulsory motor vehicle third party insurer of the first defendant, Chubb Security Services Ltd. The inference to be drawn from the document is that Mr Arnold was interviewed by Mr Walker who must be either a director of or an employee or an agent of Eldenfield Pty Ltd, and the inference to be drawn is that that company was a loss assessor or accident investigator retained by the second defendant for the purposes of ascertaining how the plaintiff’s injuries may have occurred. I have no doubt that under Pt IIC of the Evidence Act 1898 the document was not a business record of the second defendant. The most recent relevant decision under the former legislation is the decision of Giles J in R W Miller and Company Pty Ltd v Krupp (Aust) Pty Ltd and Others (1991) 32 NSWLR 152. In that case there had been the collapse of a counterweight boom. After the collapse of the boom, a Professor Schwarz had been retained by the defendant to investigate the cause of the collapse of the counterweight boom. The plaintiff in that case sought to tender the Professor’s reports. The reports were sought to be tendered on two bases, the first basis is not presently relevant. The second basis was that they were business records of the defendant and the tender was made pursuant to s 14CE of the former Evidence Act. Commencing at 159, Giles J said:

“There is ample authority for the view that Pt IIC of the Evidence Act is remedial legislation which should be given a liberal interpretation and application: see Atra v Farmers & Graziers Co-op Co Ltd (1986) 5 NSWLR 281 at 286 and the cases there cited. Specifically in relation to a record of a business, the provisions are not confined to records such as accounting records, but extend to (for example) file notes or internal memoranda (Re Marra Developments Ltd and the Companies Act [1979] 2 NSWLR 193) or copies of letters written as part of the conduct of a business: Compafina Bank v Australia & New Zealand Banking Group Ltd [1982] 1 NSWLR 409. But I respectfully agree with the observation of Wood J in Atra v Farmers & Graziers Co-op Co Ltd (at 288):

‘In R v Jones (Benjamin) [1978] 1 WLR 195 at 199; [1978] 2 All ER 718 at 721, a record was given a wide meaning to include “a history of events in some form which is not evanescent”. Even assuming this width, I am satisfied that the term “record of a business” denotes documents which truly might be regarded as the internal records kept by or for that company in respect of its business such as its books of account, ledgers, employment records, stock records, postage books, its own correspondence, internal memoranda, and so on.’

His Honour held that the working papers compiled by an accountant from the primary records of the business, or from information supplied by its owner or servants, in order to prepare annual accounts or a taxation return were not part of a record of the client's business, saying that documents relating to the client's affairs made by bankers, accountants, solicitors and the like, even though they might be carrying out services for the client and recorded facts concerning the operation of the client's business, did not form part of a record of the business.

In Abouraad v Strachan (Hunt J, 1 September 1983, unreported), it was said that a medical report obtained from the file of a workers compensation insurer was a business record within s 14CE. The underlying facts are not stated and no doubt were appropriate for that conclusion, but I do not think that the report of a third person obtained by a businessman in the course of and for the purposes of the conduct of his business is necessarily part of a record of the business: for example, an insurer which engages a loss assessor to report upon a loss and places the report in its files cannot prove the facts stated in the report by tendering it as part of a record of the insurer's business. The loss assessor's file copy would probably be part of a record of the loss assessor's business, like the valuer's report in Supetina Pty Ltd v Lombok Pty Ltd (1984) 5 FCR 439; 59 ALR 581. Although in a sense technical, the distinction seems to be required by the provisions of Pt IIC: see also Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 659-660.”

The reason that documents such as the present one were not admissible under the older law is because they were not made by a qualified person for the purpose of the business whose records they were said to be, or alternatively, that they were not business records themselves. For example in Ross McConnell Kitchen & Co Pty Ltd v Ross [No 1] (1985) 1 NSWLR 233, Young J said at 236:

“As to s 14CD(1)(a)(iv), it is obvious that the word ‘associated’ cannot be read widely because, if it were, it would virtually take away the whole purpose of the definition which is to ensure that only documents prepared by insiders in the business are eligible for admission under Pt IIC.”

Later at p 236, his Honour said:

“Although there is nothing to guide one in construing the word ‘engaged’ in s 14CD(1)(a)(ii) of the definition of ‘qualified person’, I think the submission is right that it is ejusdem generis with employee and must connote the sort of situation where a person is doing some service for the business under a contract for services or the like not as an actual employee.”

3 The question is to what extent do such authorities still bring to bear on s 69 of the Evidence Act 1995?

4 At page 250 of Odgers’ Uniform Evidence Law, 7th Edition 2006, the author quotes the Australian Law Reform Commission Report which led to the enactment of the Evidence Act 1995. The first part of the Commission Report on the relevant section is this:

“The Commonwealth business records provisions are used as the basis for the proposal for public and private records kept by computer and other means. They are derived from, and very similar, to the New South Wales business records provisions which have also been adopted in Tasmania.”

5 The question is, to what extent are the provisions similar?

6 Section 69(1)(a) requires that a document forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business. Section 14CE(4) of the former Act required this:

“The statement must be in a document which forms part of a record of a business, but the business need not be in existence at the time when the question of admissibility arises.”

Section 69(1)(b) requires that a document contain a previous representation made or recorded in the document in the course of, or for the purposes of, the business. Section 14CE(5) required:

“The statement must have been made in the course of, or for the purposes of, the business.”

Section 69(2) provides thus:

“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.”

If one looks at the texts of Pt IIC of the former Evidence Act, one can see that subs (2) para (a) mirrors the provisions of s 14CE(6); and subs (2) para (b) mirrors matter contained in a definition in s 14CD(1). Similarly, subs (3) of s 69 has its counterpart in s 14CF of the Evidence Act 1898; and s 69(4) has its counterpart in s 14CH of the former Act.

7 In my view, there is no relevant difference on the current issue between the current business records provision, s 69 of the 1995 Act, compared with the provisions of Pt IIC of the 1898 Act. That is not a view that I have reached independently. I am well aware that my colleague, Judge Bishop has come to the same view on similar matters, but his Honour having now retired and my being unable to find his judgment, I have not been able to cite it.

8 The document is not a business record of the second defendant, Allianz Australia Insurance Ltd, it is in exactly the same category as the loss assessor’s report referred to by Giles J in his judgment which I have quoted; furthermore, neither Mr Walker nor Mr Arnold were relevant persons to make entries in the business records of the second defendant. The tender is accordingly rejected.

9 Now did you want reasons on the first basis, Mr Grey?

GREY: The admissions?

HIS HONOUR: Yes.

GREY: Yes. Short reasons, your Honour, I don’t--

10 HIS HONOUR: Yes. The plaintiff seeks also to tender the transcript on the basis that it contains admissions by an employee of the first defendant. The plaintiff seeks to tender the document under s 87. However, the document in question is not a document made by Mr Walker, it is a transcript made by a person, whose identity is unknown, from listening to an audio tape of a conversation between Mr Arnold and Mr Walker. There is no way that the document has been adopted by Mr Walker, nor has it been directly adopted by the first defendant. The dictionary to the Evidence Act 1995, Pt 2 contains in cl 6 the following matter:

“For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:

(a) the document was written, made or otherwise produced by the person; or

(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.”

The admission sought is in a document, the document does not purport to be the document of Mr Walker, merely a transcript of a conversation with him and he has not recognised it by signing, initialing or otherwise marking the document; the tender of the document is therefore rejected on that basis as well. The document will be MFI 4.

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