Lewis v Nortex Pty Ltd (in liq) - [2002] NSWSC 337

CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 337

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3081/97; 1750/02

HEARING DATE(S): 18 & 19 April 2002

JUDGMENT DATE: 19 April 2002

PARTIES :

3081/97
Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Kation Pty Ltd (Respondent)
Brian Raymond Silvia (Liquidator)
1750/02
Lamru Pty Limited (P)
Kation Pty Limited (D1)
Peter Lawrence Lewis (D2)
Mark Lewis (D3)
Nortex Pty Ltd (In Liq) (D4)

JUDGMENT OF: Hamilton J

COUNSEL : J T Johnson (Kation P/L & P L Lewis)
S J Motbey (Lamru P/L)
P A Somerset, Solicitor (Liquidator & Nortex P/L)
No appearance (M Lewis)

SOLICITORS: Kemp Strang (P L Lewis & Kation P/L)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator & Nortex P/L)
Corrs Chambers Westgarth (M Lewis)

CATCHWORDS: EVIDENCE [130] - Documentary evidence - Secondary evidence - In general - Computer hard disk containing a copy of a copy of a copy of a relevant computer file.

LEGISLATION CITED: Evidence Act 1995 ss 48(4), 57, 142
Supreme Court Rules 1970

CASES CITED: Banque Commerciale SA en liquidation v Akhil Holdings Limited (1990) 169 CLR 279
Nodnara Pty Limited v Deputy Commissioner of Taxation (1997) 38 ATR 527

DECISION: Computer hard disk admitted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 19 APRIL 2002

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq)
1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED

JUDGMENT

1 HIS HONOUR: The subject matter with which this judgment deals is the tender of a document being a hard disk in a computer which is MFI8 and is in the custody of the Court as on subpoena, insofar as it contains a computer file which has come to be called file number 22. The hard disk is a document as defined in Part 1 of the Dictionary in the Evidence Act 1995 (“the EA”) as being “anything from which … writings can be reproduced with or without the aid of anything else.”

2 Even the way in which this came to be an issue that I am now determining after a voir dire hearing of some days is somewhat complex. The history as to how the issue arose in its present form I set out in some remarks this morning. I have not directed those remarks to be taken out separately in the form of a judgment but they are correctly recorded in the transcript on p 414. The development and argument of this issue has not proceeded in an entirely orderly way, owing to the fact that the preparation of this case has not been entirely thorough or orderly. This is not the time and place to explore the reasons or attribute any blame for that. But a result of the situation is that there are many computer records, and some printouts of some of them, that relate in a fairly central way to an important issue in this case, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 337
Decision Date: 19 April 2002

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Lewis v Nortex Pty Ltd (in liquidation) was heard. The plaintiff, Mr Lewis, sought to recover damages against the defendant company, Nortex Pty Ltd, which was in liquidation. The central issue of the case revolved around the admissibility of secondary documentary evidence, specifically a computer hard disk that contained a copy of a copy of a copy of a relevant computer file. Mr Lewis argued that the contents of this computer file were critical to his claim and needed to be admitted into evidence.

The court was required to determine whether the proposed evidence, which was a computer hard disk containing a copy of a copy of a copy of a relevant computer file, met the criteria for admissibility under the rules of evidence. This involved examining the chain of custody, the reliability of the copy process, and whether the evidence was relevant and necessary for the determination of the case. The court needed to decide if the evidence was authentic and had not been altered in a manner that could affect its integrity.

The court considered the principles of admissibility of secondary evidence, particularly focusing on the reliability and integrity of the copies. It held that while the evidence was a copy of a copy of a copy, it was still possible to establish its authenticity through the chain of custody and the consistency of the content. The court found that the evidence was relevant to the issues in dispute and necessary for the fair resolution of the case. Consequently, the court admitted the evidence, acknowledging the procedural complexities but emphasising the importance of the evidence in determining the rights of the parties involved.

The final orders of the court included the admission of the computer hard disk as evidence in the case, thereby allowing Mr Lewis to proceed with his claim against Nortex Pty Ltd (in liquidation) with the benefit of the contested computer file.

Orders