Metroplaza P/L v Girvan NSW P/L

[1993] FCA 1054

/ O S 4 9 3

JUDGMENT NO. ........ ....

CATCHWORDS

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

- s 7C Evidence 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 LIOUIDATION), 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, AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS. JOHN CUNNINGHAM, MULTIPLEX CONSTRUCTIONS PTY LIMITED

SYDNEY

No. NG 5 of 1992

FOSTER J

29 JULY 1993

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 5 of 1992

1

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) formerly known as CONCRETE CONSTRUCTIONS (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

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1-11 i,r::i;~$';!. ,. r.; I REASONS FOR JuDGrnNT

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HIS. HONOUR:; ,' During the course of submissions being made to . c _ _ _ ,

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the" dotirt by Mr Hughes of Queen's Counsel as to the admissibility into evidence of a document being the statement of one Woollard, Mr Spender of Queen's Counsel has sought to introduce into evidence, in aid of his submission as to the admissibility of that statement, certain documents that have been produced to the Court on notice in these proceedings. These documents are copies of correspondence between an officer of the Royal Commission into Productivity in the Building Industry in New South Wales and the solicitors acting for the second respondent. It is sought by the tender on behalf of the applicant in these proceedings to place reliance upon certain statements of fact and certain inferences which arguably could be drawn from the contents of these documents, going in general to the question whether Woollard was acting as agent for the second respondent at the time of his making the statement, the introduction of which into evidence is in question.

The tender of these documents has been objected to

and I have heard considerable argument on the question of

on the basis that they are: first, admissible according to

their admissibility. Mr Spender has put their admissibility

common law principles governing the admission of documents into evidence; and secondly, if that basis is denied him, that they are admissible in any event as business records pursuant to the provisions of the Evidence Act 1905 (Cth) (the " m " ) . Specifically, reliance is placed upon the provisions of Part IIIA of the which deals with the admissibility of business records and provides, in a series of sections and subsections,

rules governing the admission of documents categorised as such records. The admission into evidence on either ground has been strenuously opposed on behalf of the second respondent.

I can see no basis upon which the documents can be admitted in accordance with the principles of the common law. They appear to me to fall foul of the rules against hearsay and in those circumstances cannot be admitted into evidence as a matter of general principle.

The statutory provisions have been the subject of much discussion in the submissions that have been made to me. It has not been seriously contended that the documents would not qualify for the general description of business records. They therefore fall, in my view, within the provisions of the section governing the question of their admission into evidence. The section, however, which has received the most concentration in argument has been s 7C. This section deals with general restrictions on admissibility under this part.

Subsection 7C(1) reads as follows:-

"(1) A statement is not admissible under section 7B in a proceeding if it was made or obtained for the purpose of, or in contemplation of, any judicial or administrative proceeding."

The phrase "judicial or administrative proceeding" is the subject of definition in s 7C(3).	In accordance with
that subsection that phrase means:-

(a)	a proceedings before any court, whether a court of Australia or another country; or
(b)	a proceeding before any other person or body (not being a court) authorized by law, whether a law of Australia or of another country, or by consent of parties, to hear or receive evidence."

The admission into evidence of the statements contained in these documents is opposed on the basis of these provisions. It is common ground and, indeed, it is adequately proved that the statements came into existence in the general context of the Royal Commission to whlch I have made reference. The first consideration, therefore, is whether that Royal Commission was relevantly an "administrative proceeding"; it clearly not being a judicial one. The only matter for determination in relation to that question is whether it was, in terms of the section, "a proceeding authorized by a law of Australia". The submission has been put to me that it was not such a proceeding as it was a proceeding set up under the provisions of the Roval

Commissions Act 1923 (NSW). The Acts Interpretation Act 1901 (Cth) gives a	somewhat limited definition of the word "Australia" when used
in legislation, but provides that that interpretation shall yield to a contrary intention disclosed by any legislation under consideration. When I have regard to the provisions of s 7A(l) (a) and (b) of the Act and its reference therein to a "business" including "the administration of the government of the Commonwealth, of a State, of a Territory or of another country", I am satisfied that where the expression "a law of Australia" is used in s 7C(3)(b) it is intended to cover legislation not only of the Commonwealth Parliament but also of the states of Australia.
I am satisfied that the proceedings of the Royal Commission into Productivity in the Building Industry were relevantly a proceeding authorised by a law of Australia.
I therefore come to consider whether the statements sought to be admitted into evidence in the correspondence which has been tendered were relevantly "made or obtained for the purpose of, or in contemplation of" the proceedings of the Royal Commission. This section is wider in its terms than what might be described as corresponding sections in the Evidence Acts of the various states of Australia.
Counsel have not been able to direct my attention to any previous case which has construed the meaning of this
phrase. I feel that I can do no more than give to the words
their obvious ordinary meaning even if, perhaps, that obvious and ordinary meaning takes the content of the phrase beyond what mlght have been contemplated by the Parliament.
A reading of this correspondence, which broadly relates to the obtaining of a statement from Mr Woollard for the use of those conducting the Royal Commission, seems quite clearly, in my view, to indicate that the correspondence and the factual statements contained therein were made by the solicitors for the second respondent and obtained by the people acting as officers of the Commission for the purpose of the administrative proceeding which that Commission was. I think also that they were made and obtained in contemplation of those proceedings, especially insofar as those proceedings were indeed on foot and not merely anticipated.
In those circumstances I have come to the view that this material cannot, at the present stage of evidence in this
case, be admitted into evidence. I reject this tender.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

' 1

Associate:

Date : 29 JULY 1993

A P P E A R A N C E S

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

with MR D.J. HAMMERSCHLAG

INSTRUCTED BY:  ROSENBLUM & PARTNERS

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

with MR R.E. DUBLER

INSTRUCTED BY:  CORRS CHAMBERS WESTGARTH

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

with 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:	29 JULY 1993
DATE OF JUDGMENT:	29 JULY 1993