Hodgson v Amcor Ltd; Amcor Ltd v Barnes No 7

[2011] VSC 309

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 09420 of 2004

HODGSON	Plaintiff
v
AMCOR LTD (ACN 000 017 372)	Defendant

No. 8181 of 2007

AMCOR LTD AND ORS (ACN 000 017 372)	Plaintiffs
v
TREVOR MARK BARNES AND ORS	Defendants

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JUDGE:

VICKERY J

WHERE HELD:

Melbourne

DATE OF HEARING:

23 June 2011

DATE OF RULING:

23 June 2011

CASE MAY BE CITED AS:

HODGSON v AMCOR LTD; 

AMCOR LTD v BARNES NO 7

MEDIUM NEUTRAL CITATION:

[2011] VSC 309

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EVIDENCE – Business records – s.69 Evidence Act 2008 (Vic) – Document improperly obtained – Document of little weight – s.138 Evidence Act 2008 (Vic) applied – Discretion exercised against document being admitted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff  (9420 of 2004)	Mr C Gunst QC with Mr P Booth of counsel	A.J. Macken & Co
For the Defendant  (9420 of 2004)	Mr W T Houghton QC with Dr S B McNicol and Mr G Fitzgerald of counsel	Corrs Chambers Westgarth
For the Plaintiffs  (8181 of 2007)	Mr W T Houghton QC with Dr S B McNicol and Mr G Fitzgerald of counsel	Corrs Chambers Westgarth
The First Defendant  (8181 of 2007)	Mr T Barnes appeared in person
The Second–Fourth Defendants (8181 of 2007)	Mr P Riordan SC with Mr SJ Maiden of counsel	Mills Oakley
The Fifth Defendant  (8181 of 2007)	Mr Sangster appeared in person
The Sixth–Seventh Defendants (8181 of 2007)	Mr M Champion of counsel	Holding Redlich Lawyers

HIS HONOUR:

1. Mr Houghton, senior counsel on behalf of the Amcor parties, seeks to tender absolutely Exhibit A14, which is a document in handwriting headed "Minutes of Meeting".  This particular document was produced from the bundle which Mrs Hottes found in her attic, comprising records of her late husband, Mr Hottes, and constituting what appeared to be business records of his business, being the Service Packaging Business.

1. Although the document in question appears on its face to predate the commencement of the Service Packaging Business, nevertheless, by virtue of the fact that it relates to preparatory work in establishing that business, in my view, it falls within the category of a business record within s.69 of the Evidence Act 2008, and on that basis, may be admitted.

1. However, the document was one of the documents produced by Mrs Hottes in the circumstances described in my earlier ruling,[1] pursuant to which Mrs Hottes produced the documents under a subpoena and the documents were then dealt with improperly. Mr Houghton submitted that the position relating to the improper obtaining of the document concerned was regularised on 16 May 2011, when the document, along with the other documents produced by Mr Hottes, were directed to be produced to the Court. He submitted that s.138 of the Evidence Act is now, and was from that date, spent.

   [1][2011] VSC 269

1. However, in my opinion, the conduct pursuant to which the documents were produced to the Court, by the direction made on 16 May 2011, does not detract from the fact that the evidence was from the outset improperly obtained in breach of Order 42 of the Rules of Court,[2] and for these reasons, s.138 of the Evidence Act is applicable.  This section directs that in these circumstances, the relevant document is not to be admitted unless the desirability of the evidence being admitted outweighs the undesirability of admitting the evidence, given the manner in which the evidence was obtained and other factors.

   [2]Supreme Court (General Civil Procedure) Rules 2005

1. As submitted by Mr Gunst, senior counsel for Mr Hodgson, the document on its face is not dated.  There is no authorship claimed for the document.  It is in handwriting.  No evidence has been called as to the author of the document, and no witness has been called to identify it.

1. In these circumstances, the document is of relatively low probative value, and accordingly, in the exercise of my discretion under s.138, I take the view that the desirability of the admitting of the evidence is outweighed by the undesirability of admitting it, given the nature of the way in which the evidence was obtained at the outset, and taking into account the gravity of the impropriety or contravention which I have described in my earlier ruling. For these reasons, I will not admit the document into evidence.

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