Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2)

In the case of Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2), the Federal Court considered the admissibility of certain evidence under the Evidence Act 1995 (Cth). The dispute centred around the use of printouts of archived webpages from the "Wayback Machine" as evidence, specifically whether these materials qualified as business records under section 69 of the Act. Dyno Nobel sought to introduce this evidence to demonstrate the availability of a particular website and its content on specific dates, without seeking to prove the truth of any facts stated within the webpages.

The legal issues before the court involved determining whether the Wayback materials could be considered business records under section 69 of the Evidence Act. Orica argued that the materials did not qualify as business records because they were not documents of either party and were instead the product of the Internet Archive's business. Furthermore, Orica contended that these materials were not admissible because they constituted hearsay and did not meet the exceptions outlined in the Act. Dyno Nobel, on the other hand, argued that the Wayback materials should be admitted as business records of the Internet Archive, or alternatively, under the discretionary provisions of section 190 of the Evidence Act.

The court ruled that the Wayback materials were not business records under section 69 of the Evidence Act. However, it exercised its discretion under section 190(3) to admit the evidence. The court acknowledged that the Wayback materials were hearsay but found that their admission was justified under the discretionary provisions of the Act. The court also imposed a limitation under section 136 of the Act, clarifying that the evidence could only be used to prove the availability of the website and its content on particular dates, and not to prove the truth of any facts within the webpages.

The court's final orders allowed the admission of the Wayback materials under section 190(3) of the Evidence Act, with the specified limitation that the evidence could only be used to establish the availability of the website and its content on certain dates. This ruling provided clarity on the admissibility of archived web content as evidence in Australian courts, balancing the need for relevant evidence with the protection against hearsay.