Loureiro v Mac Aus Unit Pty Ltd

[2022] NSWSC 139

Supreme Court

New South Wales

Medium Neutral Citation:

Loureiro v Mac Aus Unit Pty Ltd [2022] NSWSC 139

Hearing dates:

21-22 February 2022

Date of orders:

22 February 2022

Decision date:

22 February 2022

Jurisdiction:

Common Law

Before:

Gleeson J

Decision:

The tender of the report of Chris Katehos and Cecelia Tang dated 25 January 2022 is rejected.

Catchwords:

EVIDENCE – tender of summary evidence – Evidence Act 1995 (NSW), s 50 – whether report is a summary of voluminous or complex evidence incapable of convenient examination

Legislation Cited:

Evidence Act 1995 (NSW), s 50

Cases Cited:

Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding [2004] NSWSC 768

Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568

Thackray v Gunns Plantations Ltd [2011] VSC 380

Category:

Procedural rulings

Parties:

Carlos Jose Luis Loureiro (First plaintiff)
Claudio Jose Leal Meireles (Second plaintiff)
Jose Carlos Reis Meireles (Third plaintiff)
Mac Aus Unit Pty Ltd (First defendant)
Antonio Manuel De Carvalho Conceicao (Second defendant)
Patricia Conceicao (Third defendant)
David Conceicao (Fourth defendant)

Representation:

Counsel:
A C Canceri / E Bartley (Plaintiffs)
M J Stevens (Defendants)

Solicitors:
Jeresyn Legal (Plaintiffs)
Somerset Ryckmans (Defendants)

File Number(s):

2020/135763

Judgment

1. GLEESON J: The plaintiffs seek to tender under s 50 of the Evidence Act 1995 (NSW) a report dated 25 January 2022 from Mr Chris Katehos and Ms Cecelia Tang of Furzer Crestani, Forensic Chartered Accountants, served on the defendants’ solicitors on 31 January 2022. Counsel for the plaintiffs expressly disavowed seeking to tender the report as expert evidence under s 79 of the Evidence Act.

2. The Court has a discretion under s 50 of the Evidence Act to allow evidence to be adduced in the form of a summary of 2 or more documents if the Court is satisfied that:

(a) it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents; and

(b) a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question.

3. The section is intended to achieve the purpose of permitting summary evidence in the event that the Court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question, so long as the other party has seen the summary and been given a reasonable opportunity to examine or copy the documents: Thackray v Gunns Plantations Ltd [2011] VSC 380 at [66] (Davies J), citing Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding[2004] NSWSC 768 at [19] (Einstein J).

4. In Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568, a case involving the tender of spreadsheets and tables, Ward J identified at [63] three matters to be determined for the purposes of the s 50 application:

… whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, for example, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible conveniently to examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point).

5. The three elements of s 50 can be conveniently referred to as the summaries issue, the volume/complexity issue and the reasonable opportunity issue.

6. Addressing first the second issue, what the plaintiffs seek to adduce as summaries under s 50 is the text of a report of 27 pages together with three annexures and 6 schedules. The attachments to the report marked C to
   AL, excluding cover pages, relevantly comprise 143 pages of copies of bank statements, credit card statements, cheques, applications for bank cheques and bank cheques. These documents have already been admitted into evidence as Ex E.

7. The report itself contains three sections. By reference to the plaintiffs’ amended statement of claim, the first section identifies withdrawals from the plaintiffs’ bank accounts and corresponding amounts deposited into the defendants’ bank accounts based on bank records produced on subpoena and documentation provided by the plaintiffs which are attached to the report. Insofar as the alleged summary is based in part on instructions given by the plaintiffs’ solicitors as recorded in par 7.3 what is really being sought to be adduced in relation to the summary of Loan 11 is not a true summary of the contents of two or more documents.

8. The second section identifies bank debits of over $1000 in the defendants’ bank accounts into which the identified deposits were made, for a period of 14 days from the date of each deposit, noting the amount, and, where possible, the purpose of the payment and the payee.

9. The third section records various payments made from the defendants’ credit cards which the authors of the report say “may” relate to the Livingstone Road and/or Chester Street properties respectively, such as utility, council or real estate agent fees, and where possible noting the payee and purpose of the payment.

10. The second and third sections of the report go further than purporting to locate withdrawals from or deposits into bank accounts; the exercise of judgment or subjective opinion in the formulation of the alleged summary of the purpose of the payment and whether the payment relates to a particular property, again means that what is really being sought to be adduced is not a true summary of the contents of two or more documents.

11. Even if it be assumed that the document sought to be adduced under s 50 is a summary of evidence of the contents of underlying documents (which is disputed at least in part by the defendants), it is apparent from the attachments to the report that it is possible to conveniently examine the evidence which has been summarised in the report. The volume of the underlying documents does not make it impractical to adduce the evidence in a way that has probative value. Nor are the underlying documents complex: cf Thackery where the underlying documents were voluminous – 30 archive boxes, 15 archive folders and a large volume of electronically stored records; and Re Idylic where the spreadsheets and tables comprised over 6,000 documents.

12. In this case, the report does no more than provide a commentary or submission as to the contents of 143 pages of underlying documents which are neither voluminous nor complex. Plainly, s 50 is not attracted.

13. In these circumstances it is not necessary to address the other matters relevant to admissibility of summary evidence under s 50.

14. The tender of the contents of the report dated 25 January 2022, including annexures and schedules, is rejected.

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