Gorham Holdings Pty Ltd v Roglands Pty Ltd

[1997] FCA 456

IN THE FEDERAL COURT OF AUSTRALIA      )
NEW SOUTH WALES DISTRICT REGISTRY     )              No. NG 336 of 1995
GENERAL DIVISION  )

BETWEEN:               GORHAM HOLDINGS PTY LIMITED
  Applicant

AND:  ROGLANDS PTY LIMITED
  Respondent

CORAM:  Lehane J
PLACE:    Sydney

DATE:     2 May 1997

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:

The question is whether the last sentence of paragraph 75 of the affidavit of Paul Bernard Gorham sworn on 8 May 1995 is admissible and with it the annexure to which it refers, annexure Z4. The annexure is a with compliments slip of a business called Karabiner Access Commercial Abseiling which, the deponent says, was received by the applicant.  The question is whether that document is to be regarded, within section 69 of the Evidence Act 1955, as a business record of the applicant.  I say a business record of the applicant because it is not suggested (and I think on the material before me it could not be suggested) that it is a business record of any other person.

The question is to be answered construing paras (a) and (b) of subs 69(1).  Paragraph (a) is satisfied if the document either is or was part of the records belonging to or kept by a person in the course of, or for the purposes of, a business.  (It is not difficult to conclude that the document now in question meets that description: it is a record, apparently it belongs to and has been kept by the applicant in the course or for the purposes of its business).

Paragraph (b), however, is satisfied only if the document contains a previous representation made or recorded in it in the course of, or for the purposes of, the business.  It was suggested that the words "the business" might relate to some business other than the one of which it forms part of the records or for which it is kept.  Such a suggestion is unsustainable; clearly the words "the business" in para (b) plainly refer to the same business as is referred to in subpara (a)(i).

The question, then, is whether the document contains a previous representation ‑ and pausing there I think it may be accepted that this document does ‑ made or recorded in the document in the course of, or for the purpose of, the business.  There are, I think, two possible constructions.  One would say that if the document, though primarily created for the purposes of the sender, is nevertheless likely to have an effect in relation to the conduct of the business of the recipient, it may be regarded as containing a representation made for the purposes of the recipient's business.  The other construction would require that the purpose (or at least the primary purpose) to which the making or recording of the representation is directed is that of the business to which the record belongs or by which it is kept: that is, in this case, the business of the recipient, the applicant.

In my view there are at least two considerations that weigh in favour of the latter construction.  One is that it seems somewhat odd simply as a matter of English usage, to speak of a document, sent by the creator of the document to the recipient, for the purpose of producing an effect in the running of the recipient’s business, as making the representations in the document in the course of or, for the purposes of, the recipient's business.  The more natural description of what happens in such a case is that the sender is making or recording the representations for the sender's own purposes rather than for any purpose of the recipient.  This is so although the communication may be intended to produce action of some kind by the recipient, in the course of the recipient's business.  The relevant purpose, it seems to me, is the purpose of the sender not the purpose of the recipient.

The other consideration is that if that construction is not applied the result may very well follow that, subject to matters of discretion, a document received by a person in the course of a business will ordinarily, or at least very frequently, simply because it is so received be admissible to establish the truth of whatever the document may represent.  That would be a surprising conclusion.  It is a conclusion that goes some distance beyond the much less surprising proposition that what responsible people record in the records of their own business may normally be taken as reliable evidence of what is recorded.

Counsel for the applicant sought to answer that proposition by submitting that no surprising result need ensue because the court could in these circumstances, relying on s 135 of the Act, refuse to admit the evidence if its probative value is substantially outweighed by prejudice or one of the other factors referred to in that section.  It seems to me, however, that the proper approach is to consider the construction of s 69 in the first instance without reference to s 135 having regard to the words actually used in the section and its apparent purpose: that purpose, clearly enough, is to make admissible documents produced by a business in its ordinary course for its purposes.  I do not think that that is a description of the document with which I am now concerned.

Section 69 is a new provision, is in this respect unilluminated by authority and it is by no means entirely easy to construe.  However, my view is that, for the reasons I have given, the last sentence in paragraph 75 of the affidavit and annexure Z4 should not be admitted into evidence.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:

Heard:  2 May 1997

Place:  Sydney

Decision:2 May 1997

Appearances:  Mr G P Segal of counsel instructed by Delaney Dimarco appeared for the applicant.

Mr R T McKeand of counsel instructed by Warren McKeon Dickson appeared for the respondent.