Jeeves and Jeeves

[2010] FamCA 258

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES [2010] FamCA 258

FAMILY LAW – RULING – Business records

Family Law Act 1975 (Cth)

APPLICANT: Ms Jeeves

RESPONDENT: Mr Jeeves

FILE NUMBER: MLF 10167 of 2000

DATE DELIVERED: 8 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 22 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Molyneux QC with Mr Combes

SOLICITOR FOR THE APPLICANT: JA Middlemis

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie & Associates

Orders

1. That the application of the wife to admit the evidence of the Commonwealth Bank records relating to 5 August 2003 as a business record under s 69 of the Evidence Act 1995 (Cth), is dismissed.

2. That the wife be permitted to rely upon the documents referred to in paragraph F of the outline of case document filed 19 June 2009 save for:

   ·Affidavit of Ms H sworn 12 December 2002;

   ·Affidavit of Mr E;

   ·Affidavits of Mr L other than that dated 18 June 2009 unless the other documents have been referred to in cross-examination or otherwise admitted into evidence.

IT IS NOTED that publication of this judgment under the pseudonym Jeeves & Jeeves is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:

MS JEEVES

Applicant

And

MR JEEVES

Respondent

RULING

1. This is a ruling in respect of two matters consequent upon the completion of a long hearing.  The issue concerns the admissibility of evidence.

2. The substantive application before me is by the wife under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside orders made by consent in 2003.

The first ruling

The Bank Documents

1. In August 2009 there was agreement between counsel that various documents which each had tabbed could be admitted into evidence.  As I understand the husband’s position, he had agreed that they were being put into evidence not on the basis of the truth of the statements but rather as to the fact that the statements were made.

2. On the husband’s counsel’s subsequent reflection and as a result of the clarification of the wife’s position, the husband sought to revisit his concession.  The wife wanted the documents admitted to show that in 2003 before the orders were made, the husband told his bank various things in the same way as he told her just what he wanted her to know.  Her case is that he misrepresented the financial position and his future intentions.

3. The documents specifically in dispute appear to be dated 5 August 2003.  The final orders were made in December 2003. 

4. In March 2010, senior counsel for the wife cross-examined the husband about what he had said to his bank in August 2003.  The husband had no recollection of any conversation with the bank.  No evidence was led about the specific conversations if they took place.

5. It is the wife’s case that the husband lied to her and/or misrepresented his intentions and/or withheld information all of which affected the valuation of a resources business prior to December 2003.  The wife asserted that based upon the husband’s misrepresentations, she consented to the orders in December 2003.

6. The documents sought to be admitted are said to be a series of notes from a Commonwealth Bank of Australia file relating to a “review” of the husband’s credit position with the bank apparently undertaken in August 2003.  The wife also desires to have the evidence admitted as a prior inconsistent statement of the husband in relation to his statements to through her professional advisers. 

7. It was submitted on behalf of the wife that the documents should be admitted into evidence based on ss 48 and 69 of the Evidence Act 1995 (Cth).

8. Section 48 provides that a party may by tendering it, adduce evidence of the contents of a document as evidence of an admission made by another party. If it was accepted that the document in question could be construed as an admission against the interests of the husband, it would fall within s 48. However, even if the document could be seen as an admission, the evidence still has to be otherwise admissible within the requirements of the Evidence Act.

9. Section 59 of the Evidence Act precludes the admission of hearsay. Section 60 provides an exception to the hearsay rule if the representation is relevant for a purpose other than proof of the asserted fact. Here, the wife desires to prove that the asserted fact was made by the husband.

10. Section 69 provides another exception to the hearsay rule. If the document forms part of the records of the Commonwealth Bank and it contains a previous representation made for the purposes of the bank’s business, the hearsay rule does not apply to the representation in the document if it was made by the husband because it might reasonably be supposed that he had personal knowledge of the asserted fact.

11. An examination of the documents shows that they are business records but the problem is whether or not any of the statements can be attributable to the husband.

12. It is not to the point that the husband had no recollection of the interview.

13. The purpose of s 69 is to enable records, particularly business records, to be used as evidence which is reliable because of their objectivity.

14. Section 69 provides that if the document forms part of a business record and contains a previous representation recorded for the purpose of the business, s 69 provides the exception to the hearsay rule. The hearsay rule does not apply to the document if the representation was made by a person, in this case the husband, who had or might reasonably supposed to have had, personal knowledge of the asserted fact or similarly, on the basis of information directly or indirectly supplied.

15. Thus, if the statements are attributable to the husband, the hearsay rule would not apply because he might reasonably be supposed to have had personal knowledge of the asserted fact.

16. Asserted fact is defined in s 59(2) to mean a fact the existence of which that it can be reasonably supposed was intended to be asserted in the representation. Thus, it is important to examine the document to see whether they contain asserted facts wherein the bank recorded the husband’s position.

17. As I have indicated, it was put by senior counsel for the wife that there was some significance in the date 5 August 2003, it being close to the date that the final orders were made.

18. The document concerned is headed “Credit approval authority worksheet” and seems to be a series of pages which are grouped.  The first two pages appear to be an approval of the husband’s credit.  They contain the bank’s exposure and the finance sought for approval.  Having regard to the fact that what was apparently an increase in borrowings, the document is not really a review but the outcome of a specific application.

19. The following two pages thereafter are described as an application summary prepared by Mr B who gave evidence at the behest of the wife.  This summary is dated 5 August 2003.  The application related to the financing through the commercial arm of the Commonwealth Bank of a Kenworth prime mover and two Hercules trailers.  This document marries with the approval.  The second of the two pages appears on a plain reading to have been based upon financial statements to 30 June 2002 and various figures appear to have been extracted. 

20. The next two pages of the documents relate to the particulars of security that the bank held over the assets that were then in existence.

21. An attachment to that document extends the picture showing a breakdown of what was owing and what was being pursued by the husband.

22. Bearing the same date thereafter is a four page document headed “Credit Review”.  Under that heading is the words “Credit analysis”.

23. It is to the last four pages that the wife points as indicating the husband’s inconsistency in dealing with her.

24. The four pages were described by senior counsel for the wife as the answers of the husband to 18 questions.  I do not accept that I could draw that conclusion.  Clearly, some of the information had to come from the husband but it is not at all clear whether that came from the husband in August 2003 or much earlier.  For example, the second of the two “questions” relates to the profitability of the corporate entity for the year ended 30 June 2002 but there is no indication of the outcome for the year that had ended some two months before the document was prepared.  The document is confusing.  Whilst the author of the document wrote that the business profit record was “strong” in handwriting, someone has changed that to “good”.  No alteration was made to the material that supported the assertion.

25. There are also handwritten annotations in what looks remarkably like the handwriting of the person who authorised the extension of the facility.

26. Question 5 of the 18 questions raised the issue of the inventory turnover.  No reference was made other than that no such figure was “shown”.  It is not at all clear whether that was a conclusion drawn from documents or whether the matter was ever put to the husband by the officers of the bank.

27. I have concluded that the relevant “questions” are prompts that require the author of the review to respond.  If the husband told the bank about sales, it is curious why the author wrote “currently the business is known to be working double shifts”. If it was “known”, did that information come from the husband?

28. One statement showed that leasehold resources were not accounted for within the company’s books but the resource was estimated at between $5-8 million by “director”.  This was a subject specifically put to the husband in cross-examination by senior counsel for the wife.  He was mystified as to where it came from.  One would presume that the bank was not writing down things other than those given to it by its customer but I have no understanding of what it means.

29. The document refers to the purchase of a new resources site at A but according to the husband, that had been purchased well before 2003.  Why that would have been described as a “new [resources] site” and who made that statement, is not at all clear.  The statement does however say that the lease over the E site had approximately 8 to 9 years to run and a reference was made to the customer looking to negotiate a further period of “5 x 5 years” with the owner.  That statement does not appear to be one concluded from a discussion with the customer.

30. The 9^th heading is quite precise about cash flow calculations but the reference relates to the three year period up to June 2002.  That statement appears therefore to have been drawn from historical data rather than from something said by the husband.

31. Under the heading of the management’s integrity being reputable, the author wrote that the husband had a firm commitment to re-vegetation of the area that had been worked as well as a good rapport with local councils and relevant authorities.  The husband was complimented by the author that he had been “very open” in his dealings with the bank and had provided financial statements when requested.  That too suggests a conclusion not necessarily drawn from an interview with the husband.  Even if it was, I could not conclude that anything that was said was recorded around August 2003.

32. Reference to the husband’s age and offspring was also noted but again, there is no reference to that being anything other than historical.

33. On the assertion that this is a business record drawn from statements by the husband, I do not find it admissible as evidence of something stated by the husband in August 2003.  Because the relevant dates and the historical data are not new, this document looks more like a considered opinion of its author because the husband had applied for further plant and equipment.  Thus, in so far as it is sought to be admitted on the basis that the document contains representations of asserted facts as of August 2003, I decline to admit it into evidence.

The second issue

The wife’s outline

1. On 19 June 2009, the wife filed a second outline of case document in which she referred to a significant number of documents.  Two of the documents were excluded on the last day of the hearing leaving a whole variety of documents supposedly said to be relied upon.  Those documents included every affidavit of the wife’s expert witness Mr L.  Mr L filed an affidavit and gave evidence which was subjected to cross-examination, and as none of the earlier documents were referred to on 14 August 2009 I do not propose to take anything other than the affidavit of Mr L filed for these proceedings into account.

2. Most of the other documents appear to me to be uncontentious because of the fact that they were produced in court and put to the husband in cross-examination.  Thus, I propose to allow the wife to rely upon the documents other than the two that she withdrew but none of the documents of Mr L other than the affidavit filed for the purposes of this application.

I certify that the preceding Thirty Seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  8 April 2010