Metroplaza P/L v Girvan NSW P/L

[1993] FCA 1051

JUDGMENT NO. ........ ........ .. W.*w*..sm. (OS1 1 9.3

CATCHWORDS

EVIDENCE - admissibility and relevance - business records - correspondence between solicitors and a State Royal Commission

- S 7C Evldence Act 1905 (Cth) - whether a State Royal

Commission a proceeding authorised by a law of Australia.

Acts Inter~retation Act 1901 (Cth)

Evidence Act 1905 (Cth) - s 7A(1), s 7B, S 7C(1), s 7C(3)
Roval Commissions Act 1923 (NSW)

METROPLAZA PTY LIMITED v GIRVAN NSW PTY LIMITED (IN LIOUIDATIONl. C.C. (NEW SOUTH WALES) PTY LIMITED ( IN LIOUIDATION) formerlv known as CONCRETE CONSTRUCTIONS (NSW1 PTY LIMITED. LEIGHTON CONTRACTORS PTY LIMITED. HOLLAND STOLTE PTY LIMITED. THE MASTER BUILDERS ASSOCIATION OF NSW.

REGISTRY

AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS, JOHN

CUNNINGHAM. MULTIPLEX CONSTRUCTIONS PTY LIMITED

No. NG 5 of 1992

FOSTER J

4 AUGUST 1993

SYDNEY	RECEIVED
2 9 AUG 1994
FEDERAL COU T OF

AUSTRAL1
PRINCIPAL

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IN THE FEDERAL COURT OF AUSTRALIA )

j

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 5 of 1992

)

GENERAL DIVISION )

BETWEEN:  METROPLAZA PTY LIMITED

Applicant

AND :  GIRVAN NSW PTY LIMITED (IN
LIQUIDATION)

First Respondent

C.C. (NEW SOUTH WALES) PTY LIMITED (IN LIQUIDATION) formerlv known as CONCRETE CONSTRU~TIONS (NSW) PTY LIMITED

Second Respondent

LEIGHTON CONTRACTORS PTY

LIMITED

Third Respondent

HOLLAND STOLTE PTY LIMITED

Fourth Respondent

THE MASTER BUILDERS

ASSOCIATION OF NSW

Fifth Respondent

AUSTRALIAN FEDERATION OF

CONSTRUCTION CONTRACTORS

Sixth Respondent

JOHN CUNNINGHAM

Seventh Respondent

MULTIPLEX CONSTRUCTIONS PTY

LIMITED

Cross-Respondent

CORAM:  FOSTER J

DATE:', , ' . 4 AUGUST 1993

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REASONS FOR JUDGMENT

(Extempore)

has been taken to the tender in these

.._I -..

proceedings, at this point, of a document against the fourth respondent. The document, or a copy of it, is to be found at page 319.1 of exhibit B. It is a document, the tender of which was specifically made subject to any objection being taken to its admissibility. That objection has been taken on behalf of the fourth respondent and the matter has been argued before me.

The original document has been produced and I take it that the tender is now to be regarded as of the original document. The original document shows, in a way not apparent in the photostat copy to be found at page 319.1, that certain portions of the document are written in a different coloured ink, red as against what may be original blue or may indeed be pencil, and to some extent, apparently, in a different hand.

The document is tendered pursuant to Part IIIA of
the Evidence Act 1905 (Cth). There was initially some

question as to whether the document was a document emanating

abundantly clear, however, as argument proceeded and reference	from the possession of the fourth respondent. It became
was made to the list of documents in discovery, that it in fact had been a document produced on discovery or referred to on discovery by the fourth respondent. I am satisfied from what appeared from that discussion that the original document which is now being tendered was in fact sent to the authorities conducting the Royal Commission into aspects of the building industry and that it was sent to those authorities by the fourth respondent.
I have to consider in the first instance, the tender being under Part IIIA, whether the document can properly be regarded prima facle as a document of the business of the fourth respondent. In deciding this question, as in deciding all other questions relating to the admissibility of the document, I am to have regard to s 7H of the Evidence Act 1905. That section provides that:

"A court may, for the purpose of deciding questions

of admissibility under this part, draw inferences from the form or content of the document in which the statement is contained as well as from other matters from which inferences may lawfully be

drawn. "

It is to be noted that the document bears the date 22 October 1988. Clearly, it is dated the day following the day upon which the second of the meetings relied upon in these proceedings was held. The form of the document, in my view,

memorandum and report for use in the business of the fourth	is in every way consistent with it being an internal
respondent. It has the form of such a memorandum or report. The subject matters referred to in it indeed correspond to a significant extent with the subject matters established to have been matters of discussion at the meeting of 22 October
The content of the document in relation to that part of it that refers to fees specifically refers, in my view, to the operations of the fourth respondent. It does so in the portion which reads:

"E .g. if we were successful we would have to meet a fee commitment to Concrete, Leighton, Girvan and Multiplex of $500,000 by 4."

Independent evidence in the case establishes that those organisations were represented at the meeting of 22 October 1988 and also that a fee structure of the kind referred to here was the subject of discussion at that meeting. I am quite prepared to draw the prima facie inference that this was a document that came into existence and being in the nature of a report, made to relevant persons in the hierarchy of the fourth respondent, as to the events of that meeting.

The applicant seeks to tender the documents that run

from pages 1064 to 1254 in the exhibit F. Additionally he

copy of page 1199. He seeks to tender it against all	seeks to tender page 1163 which is manifestly no more than a
respondents on the basis of the business record provisions of Pt IIIA of the Evidence Act 1905 (Cth). Objection to the tender has been made by all respondents. The parts of the document that will be sought to be relied upon of the document as admitted into evidence are to be found at page 1199. They are relevantly four entries relating to Girvan Brothers with amounts of money appropriate to each entry in the sum of $250,000.
In the first instance it may be noted that the total of those amounts represents the total figure of $1,000,000, which is a figure referred to in other parts of the evidence as having been paid by Girvan Brothers in respect of the Metroplaza project.
It is put in favour of the tender that the document, on the face of it, is a business record of the Master Builders Association, one of the respondents in this case, and that the requirements of Part IIIA are otherwise met, so that the statements I have referred to, being the Girvan Brothers entries, become admissible in evidence as admissible statements within the meaning of that Part.
I have regard to the provisions of s 7H to which I have made reference previously in these proceedings, and once
again emphasise the very considerable width of the powers
given to the Court to draw ~nferences. I consider, first, the
form of this document. It is a list of contractors in alphabetical order. Against each contractor, there is a reference to the contract site; there is then a reference to contract value and reference to an invoice. The document itself describes itself as a "Contracts Let Register". It bears a particular date on each page. It has the appearance of a document which is regularly updated on a daily basis. No
doubt, through the operations of some machine, be it a computerised machine or some other sort of office machine, it has the appearance certainly of being a register.
It has the appearance of being a register that an organisation, being an association of builders, could well keep in relation to its members and the work those members have in hand or are in the process of performing. Bearing in mind the evidence of the case as to contract fees and the like, it is not unreasonable to see this as being the sort of register which, if kept, could play some part in enabling the association to keep track of any fees that it currently charged builders for one reason or another.
It is put that it is equally likely that this document was a document prepared not for the ordinary business operations of the Master Builders Association but for the precise purposes of that organisation's dealing with the requirements of the Royal Commission. Bar-coding on the
document is pointed to as leading to that inference. Whilst
that is a possibility, I have come to the conclusion that the
format of this document leads more probably to its being categorised as an ordinary business record of the organisation's state of affairs as at the particular date which it bears.
That being so, the question necessarily arises as to whether the particular entries become admissible; having regard to the other sections of Part IIIA governing the admissibility of statements in documents. The objection is taken that there is insufficient identification of a relevant qualified person or of any qualified person such as to bring the statements withln the purview of the s 7B. I have regard to s 7B(l)(c) which very much widens the concept of a qualified person's making relevant statements in a document.
I have regard to the inferences that are open to be drawn from the format of the document and other matters to which I have made reference. Indeed, I am of the view that the format of the document itself is sufficient. It enables me to comfortably draw inferences that the entries to be found in this document are entries incorporated in an official register of the Master Builders Association from information supplied by qualified persons; which information has been utilised for the purpose of producing this document.

Clearly, the policy of the a, as indeed it has

been expounded in other cases to which to which it is

unnecessary to make precise reference, is in favour of the

admissibility of documents which, on their face, appear to be business records. Once admitted, the onus is cast, of course, upon the persons or persons against whom the material is admitted, to adduce evidence displacing the inferences which can be drawn, if those inferences indeed lead to a wrong ultimate conclusion of fact. I am of the view that there are sufficient inferences here to make these documents prima facie admissible under the Part, and admissible against all parties

in this litigation. I so admit them.

I will not alter the ruling I have made in the matter. It will perhaps have to be debated later, but that is the ruling I have made.

All respondents have objected to the admissibility of the documents. The objections ultimately come to a submission that they cannot be relevant to any issue pleaded or particularised in the case. I have considered the documents and the submissions for and against their admission. The basis upon which admissibility is put, is that the documents are relevant to show, in the period leading up to the time of the agreement sued upon, that the AFCCs fee structure was of concern to it, and that it had a dependence upon special and contract fees. The documents do not go directly to the alleged agreement, but it is argued that, in general terms, they demonstrate a motivation on the part of

the AFCC to enter into an agreement of the type alleged.

I have had some hesitation about this matter, but I have come to the conclusion that the objections really go to the weight of the evidence and may indeed go substantially to its weight, but that they do not ultimately affect the

admissibility of the documents on the ground of the objection

taken. I propose to admit them, and I indicate that I admit them pursuant to the provisions of Part I11 of the Evidence doubt, through the operations of some machine, be it a computerised machine or some other sort of office machine, it has the appearance certainly of being a register.

It has the appearance of being a register that an organisation, being an association of builders, could well keep in relation to its members and the work those members have in hand or are in the process of performing. Bearing in mind the evidence of the case as to contract fees and the like, it is not unreasonable to see this as being the sort of register which, if kept, could play some part in enabling the association to keep track of any fees that it currently charged builders for one reason or another.

It is put that it is equally likely that this document was a document prepared not for the ordinary business operations of the Master Builders Association but for the precise purposes of that organisation's dealing with the requirements of the Royal Commission. Bar-coding on the

document is pointed to as leading to that inference. Whilst

that is a possibility, I have come to the conclusion that the

format of this document leads more probably to its being categorised as an ordinary business record of the organisation's state of affairs as at the particular date which it bears.

That being so, the question necessarily arises as to
whether the particular entries become admissible; having

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:  MR J.M. SPENDER, QC

w i t h MR D.J. HAMMERSCHLAG

INSTRUCTED BY:  ROSENBLUM & PARTNERS

COUNSEL FOR THE SECOND RESPONDENT: THE HON. T.E.F. HUGHES, QC

w i t h MR R.E. DUBLER

INSTRUCTED BY:  CORRS CHAMBERS WESTGARTH

COUNSEL FOR THE THIRD RESPONDENT: MR J.D. HEYDON, QC

w i t h MR C.P. COMANS

INSTRUCTED BY:  ROBIN MAXAM

COUNSEL FOR THE FOURTH RESPONDENT: MR M.R. ELLICOTT

INSTRUCTED BY:  ADDISONS

COUNSEL FOR THE FIFTH, SIXTH AND SEVENTH RESPONDENTS:

MR J.B. SIMPKINS

INSTRUCTED BY:  COLIN BIGGERS & PAISLEY

COUNSEL FOR THE CROSS-RESPONDENT: MR B.W. WALKER

INSTRUCTED BY:	DUNHILL MADDEN BUTLER
DATE OF HEARING:	4 AUGUST 1993
DATE OF JUDGMENT:	4 AUGUST 1993