Ipex ITG Pty Ltd v State of Victoria (Ruling No 2)

[2010] VSC 382

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No. 7182 of 2002

IPEX ITG PTY LTD (IN LIQUIDATION)	Plaintiff
V
STATE OF VICTORIA	Defendant

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 18, 19, 23 and 24 August 2010
DATE OF RULING:	24 August 2010
CASE MAY BE CITED AS:	IPEX ITG Pty Ltd v State of Victoria (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 382

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PRACTICE AND PROCEDURE – Admissibility of document prepared by witness from notes made at meeting by the witness.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr  R W McGarvie SC with Mr A W Sandbach	A J H Lawyers Pty Ltd
For the Defendant	Mr J D Elliott SC with Ms G Schoff	Victorian Government Solicitor

HIS HONOUR:

1. Before we recall Mr Miles I propose to give a ruling on the admissibility of the document, being exhibit CM-C to the witness statement of Craig Frank Miles dated 12 July 2010.  This is a document that is attached to the witness statement of Mr Miles.  It purports to record what was said at a meeting held on 8 August 2002 at 2 p.m.  In paragraph 5 of the witness statement Mr Miles refers to the document as “a true and accurate record of the simultaneous notes which were taken by me at the meeting on 8 August 2002.”

1. The document does not represent “simultaneous notes” taken.  It is a typed version of handwritten notes taken at the meeting.  The notes were typed after discussion with James Cook, legal counsel at the time employed by the plaintiff.  The notes from which the document CM-C was prepared have been destroyed or discarded.  The document, CM-C, was not discovered and appeared for the first time as an annexure to the witness statement of Mr Miles.  The original has not been produced.

1. This, in my opinion, is most unsatisfactory.  Discovery was ordered many years ago.  Discovery is a serious obligation and the late appearance of the document calls for some explanation.  I was invited to conduct a voir dire under s 189 of the Evidence Act to determine whether the document should be admitted into evidence.  It was submitted that it should not because of the exception contained in s 69(3)of the Evidence Act dealing with business records.   That section does not permit a party to rely on a business record, “if the document was prepared for the purpose of, or in contemplation of, or in connection with an Australian proceeding.”

1. Mr McGarvie submitted that the notes are not hearsay because the witness, Mr Miles, was present and heard what was said and wrote down the substance of what was said.  It is submitted that it was his document, in effect, and as such it is not tendered as a business record, although it may well be a business record.  The document, CM-C, was, on the evidence given to date, derived from handwritten notes.  The document was prepared a few days after the meeting and the notes were discarded.  The document was not signed at the time but the evidence is that it accurately records what was said and was based on the notes that were made at the time.

1. The witness, Mr Miles, has exhausted his memory and sought recourse to the typed notes.  I will allow reference to the notes and I will admit the exhibit into evidence.  In my opinion the exhibit is not hearsay in the sense that it is a report about what was said at a meeting by a person present at the meeting and at a time when the events were fresh in his memory.

1. Mr Street and Mr Spurr have both provided witness statements on behalf of the defendant and although parts of the evidence of Mr Miles has been struck out, they do respond in their own witness statements to the various matters raised.  Further, in paragraph 13 of the further amended statement of claim the plaintiff pleads that a meeting was held on 8 August 2010 and the substance of the meeting is set out in the particulars to paragraph 13, so it has been dealt with in the pleading, perhaps slightly differently to that which appears in the document which is CM-C.

1. It may be a matter for submission in due course about the lateness of the discovery and in the event that there is no explanation forthcoming, I may be invited to make certain findings but at the moment I propose to admit the document as a document of the witness made at a time when the events were fresh in his memory and recording, as it does, simply what was said at the meeting.

1. There may be further argument about what one is to make of the content going beyond what was said at the meeting and I say nothing about that at this stage.  The law is what it is and there are authorities directed to the question as to whether a document of this kind is evidence of the facts stated therein, or simply a document that records what was said.