David Jones Ltd v BI (Contracting) P/L (No 3) - [2013] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DAVID JONES LTD v BI (CONTRACTING) P/L (No 3)
[2013] SADC 92
Ruling of His Honour Judge Jennings
9 July 2013
PROCEDURE
Application for admissibility of documents and for further and better responses to Notice to Admit – Ruling made in relation to ss 34C(3) and 45B(3) of the Evidence Act – Consideration of ss 45A(2)(a) and 59J adjourned to enable parties to place relevant evidence before the Court.
Southern Equities Corporation Ltd (In Liquidation) & Ors v Bond & Ors (No 2) (2001) 78 SASR 554; Ramsay v Watson [1961] HCA 65, considered.

DAVID JONES LTD v BI (CONTRACTING) P/L (No 3)
[2013] SADC 92
Introduction

This is an application that seeks an order for the admission of certain documents and an order that further and better responses be provided to a notice to admit.
The background to the application is as follows.
Mr Philip Murphy was employed by the plaintiff as a display artist at its David Jones Rundle Street store between 1967 and 1978. On 19 April 2007 Mr Murphy instituted proceedings in the Dust Diseases Tribunal of New South Wales against the plaintiff claiming damages for personal injury. He alleged that he was suffering from mesothelioma as a result of exposure to asbestos whilst working for the plaintiff.
On 7 October 2010 the plaintiff issued the within proceedings against the defendant. It did so pursuant to the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (the Law Reform Act).
In statement of particulars he lodged in connection with his damages claim, which was verified on oath, Mr Murphy made certain assertions about his exposure to asbestos. He also gave a history of that exposure to two medical experts, Dr Burns and Dr Pang. I was informed that Dr Burns resides in New South Wales and is in ill health. I was informed that Dr Pang resides in Hong Kong.
Mr Murphy has since passed away.
The plaintiff contends that it is legally permissible for it to rely upon Mr Murphy’s statement of particulars in the within proceedings as proof of the facts alleged therein. It also contends that it is able to rely upon the histories Mr Murphy provided to Dr Burns and Dr Pang, as recorded by them in medical reports, without them being called to give evidence.
In support of its first contention it relies upon ss 34C and 45B of the Evidence Act 1929.
In support of its second contention it relies upon ss 45A and 59J of the Evidence Act.
I set out these provisions as follows:
34C—Admissibility of documentary evidence as to facts in issue
(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—
(a)     if the maker of the statement either—
(i)had personal knowledge of the matters dealt with by the statement;
or
(ii)where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
(b)     if the maker of the statement is called as a witness in the proceedings.
(1a)However, the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
(2)In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence—
(a)     notwithstanding that the maker of the statement is available but is not called as a witness;
(b)     notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.
(3)Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
(4)For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.
(5)For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a legally qualified medical practitioner and where the proceedings are with a jury, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.
45B—Admission of certain documents in evidence
(1)An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred shall, subject to this section, be admissible in evidence.
(2)A document shall not be admitted in evidence under this section where the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document.
(3)A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(4)In determining whether to admit a document in evidence under this section, the Court may receive evidence by affidavit of any matter pertaining to the admission of that document in evidence.
(5)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(6)In this section—
document means—
(a)     any original document; or
(b)     any reproduction of an original document by photographic, photostatic or lithographic or other like process.
45A—Admission of business records in evidence
(1)An apparently genuine document purporting to be a business record –
(a)     shall be admissible in evidence without further proof; and
(b)     shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)In this section—
business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
business record means—
(a)     any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)     any reproduction of any such record by photographic, photostatic, lithographic or other like process.…
59J—Court's power to dispense with formal proof
(1)A court may at any stage of civil or criminal proceedings—
(a)     dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute; or
(b)     dispense with compliance with the rules of evidence where compliance might involve unreasonable expense or delay.
(2)In exercising its power under subsection (1) the court may, for example, dispense with proof of—
(a)     a document or the execution of a document;
(b)     handwriting;
(c)     the identity of a party;
(d)     the conferral of an authority to do a particular act.
(3)A court is not bound by the rules of evidence in informing itself on any matter relevant to the exercise of its discretion under this section.
The plaintiff submits that the statement of particulars satisfies the pre‑requisites provided for by s 34C. It contends that if Mr Murphy were alive his direct oral evidence of the circumstances of his exposure would be admissible; he had personal knowledge of that exposure; the document was signed by him; he is dead and therefore cannot be called as a witness; and when he made the statement the within proceedings were not pending or anticipated, such that the bar created by s34C (3) does not operate.
The plaintiff submits that the statement of particulars satisfies the pre‑requisites provided for by s 45B. It contends that the document is apparently genuine; it purports to contain a statement of fact; and if Mr Murphy were alive he could give evidence of the circumstances of his exposure to asbestos.
The plaintiff submits that the medical reports satisfy the pre-requisites provided for by s 45A. It contends that the reports are apparently genuine; they were prepared in the ordinary course of business; and they are in the nature of a business record.
The plaintiff submits that the medical reports satisfy the pre-requisites provided for by s 59J. It contends that the cost of facilitating the attendance of Dr Pang would be prohibitively expensive and that arranging for Dr Burns to give evidence would be very difficult.
In relation to the submission that s 34C of the Evidence Act can be relied upon in using Mr Murphy’s statement of particulars as proof of the facts alleged therein is would be an absurd result if that statement of particulars could not be relied upon in the primary action, that is the action between Mr Murphy and the within plaintiff, but it could be relied upon by the plaintiff in a related action against another party, which is the situation here. In my view the word “proceedings” as it appears in s 34C (3) must include proceedings in connection with which the statement was made. As Mr Murphy clearly had an interest in those proceedings s 34C (3) prohibits their tender in the within proceedings.
I now turn to the submission based upon s 45B of the Evidence Act. This provision was the subject of extensive analysis by Lander J in Southern Equities Corporation Ltd (In Liquidation) & Ors v Bond & Ors (No 2)[1]:
Two threshold matters must be addressed before s 45B can aid in the admission of a document. First, a document which is sought to be tendered under s 45B must be an apparently genuine document. Secondly it must purport to contain a statement of fact. The statement of fact may be express, or there may be matter contained in the document from which a statement of fact may be implied or can be inferred.
Unlike s 45A however, s 45B requires the Court to turn its mind to one further matter before the document may be admitted. The Court must not admit the document if it is not satisfied that the person by whom or at whose direction the document was prepared could have at the time of preparation of the document deposed to his own knowledge to the statement that is contained or implicit in, or which may be inferred from the contents of the document.
Section 45B therefore requires that if the document is tendered for the proof of the statement of fact expressly contained in the document, the Court must be satisfied that the person referred in subsection 45B(2) could have deposed of his or her own knowledge to that statement of fact. On the other hand, if the statement of fact sought to be proved is implicit in the document, then the Court must be satisfied that the person referred to in subsection 45B(2) could have given evidence of that statement of fact which is to be implied from the document. It also follows that if the statement of fact can be inferred from the document the Court must be satisfied that the person referred to in subsection 45B (2) could have given evidence of that inferred statement of fact.
The inclusion of s 45B (2) means that a court cannot accept the tender of a document pursuant to that section for the proof of a statement of fact which is implicit in or which may be inferred from the document if the Court is not satisfied that the person referred to in subsection (2) could not give evidence of the statement of fact which is implied in or may be inferred from the document.
In my opinion s 45B does not allow for the tender of otherwise inadmissible hearsay evidence as evidence. That follows, it seems to me, from the Court's obligation to be satisfied that the person by whom or at whose direction the document was prepared having to be able to depose of his or her own knowledge to the statement of fact in the document.
If that person can only give hearsay evidence and not evidence of his or her own knowledge of the statement of fact which is expressed in the document or which may be implied or can be inferred from the document, the Court could never reach the state of satisfaction required in s 45B (2) and would have to refuse the tender of the document.
[1] (2001) 78 SASR 554 at para 193.
In accordance with this summation the statement of particulars made by Mr Murphy is potentially admissible under this provision. The issue is, whether in the exercise of the Court’s discretion the document should be admitted. The exception created by s 34C (3) recognises the shortcomings of a self serving document prepared by a person who will potentially benefit from the contents of the document. Although the document has been verified in oath, it was doubtless prepared by Mr Murphy’s lawyers, and there can be no guarantee that Mr Murphy, if he had given that evidence orally, would have necessarily come up to proof. But even more importantly, the defendant in these proceedings has no opportunity to cross examine Mr Murphy and is thereby denied the opportunity to test the correctness of the allegations contained in the statement. In my view s45B (3) (c) compels the conclusion that it would not be in the interests of justice to allow its tender.
I now turn to the submission that s 45A of the Evidence Act can be relied upon to tender the medical reports of Dr Burns and Dr Pang.
In SECL (In Liquidation)[2] Lander J also made a helpful summary of the principles that apply to the tender of documents under s 45A. He said:
Therefore s 45A does not apply to a document unless it is prepared or used in the course of business for the particular purpose which I have identified. It follows that the following threshold matters are required to be established before s 45A can operate. First the document sought to be tendered must be an apparently genuine document. Secondly it must purport to be a business record, being a document which is prepared or used in the ordinary course of business. Thirdly if it is an apparently genuine document which has been prepared or used in the ordinary course of business it must have been prepared or used "for the purpose of recording any matter relating to the business". All three matters need to be established before the document can be admitted. If those matters are established then the document is admissible without further proof, and may be used as evidence of any facts stated in the record, or any fact that may be inferred from the record. That inference can arise wholly from the record itself or from the record and other evidence.
If a business record is admitted under s 45A, its evidentiary weight shall be determined after a consideration of the source from which the document has been produced, and the safeguards if any that have been taken to ensure its accuracy and any other relevant matters; s 45A(3).
Those matters must be matters relating to the accuracy of the record itself. Before s 45A (3) has any part to play it must have been established that the document which has been tendered is an apparently genuine document. It therefore follows that s 45A (3) is not concerned with the genuineness of the document, but more with the accuracy of the contents of that apparently genuine document.
Even if the document passes all of the threshold requirements the document will not be admitted in evidence if the Court is of the opinion that it should not be admitted for any of the reasons in s 45A(2).
…
…in a consideration of s 45A (2) (a) the following must be addressed. First whether the party seeking to tender the document can, in the sense is able to, call the person by whom or at whose direction the document was prepared. Secondly whether that party should call that person. Both those matters depend upon the Court being of the opinion that the person by whom or at whose direction the document has been prepared can and should be called to give evidence of the matters contained in the document and only in relation to those matters.
[2] (supra) at para 150.
In the ordinary course of a medico-legal dispute, in the absence of consent, it could be expected that expert medical witnesses will give oral evidence and cross examined. Some difficulties have been identified in connection with the calling of Dr Burns and Dr Pang. But an issue that has not been explored is the capacity of these witnesses to give evidence via video link. Unless I could be satisfied that that was not practicable I could not give consideration to the matters required by s 45A (2) (a).

For the same reason I cannot address the matters required in a consideration of the discretion permitted by s 59J.
The defendant contends that in any event the evidence of the doctors is irrelevant because it admits that Mr Murphy suffered from mesothelioma and that the only other evidence that the doctors can give is hearsay evidence being a recital of the history they obtained from Mr Murphy. It is trite law that an expert witness’s opinion is of little if any weight if the factual assumptions upon which it is based are not proved and that the history obtained by a doctor does not comprise of proof of those factual assumptions. See Ramsay v Watson[3]:
Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone.
[3] [1961] HCA 65.
But having made that qualification, in the context of this application, it would be wrong for me to assume that Dr Burns and Dr Pang are only being relied upon to prove that Mr Murphy suffered from mesothelioma.
I therefore adjourn further consideration of that aspect of this application to enable the parties to place before the Court evidence relevant to this issue.