Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak

[2006] NSWSC 615

CITATION:	Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 615
HEARING DATE(S):	13/6/06 - 16/6/06
JUDGMENT DATE :	14 June 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	06/14/2006
DECISION:	Evidence rejected
CATCHWORDS:	EVIDENCE – hearsay evidence of a person’s state of mind – whether able to be given by a file note which is not itself a business record – EVIDENCE – opinion evidence – whether opinion evidence able to be received under section 78 Evidence Act 1995 when contained in a file note which is not a business record
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 McGregor v Nichol [2003] NSWSC 332
PARTIES:	The Mid-City Skin Cancer and Laser Centre Pty Ltd - Plaintiff Ali Zahedi-Anarak - First Defendant Idameneo (No 123) Pty Ltd T/as Sydney Medical Centre - Second Defendant L W Kernot Pty Limited - Third Defendant Laurence William Kernot - Fourth Defendant
FILE NUMBER(S):	SC 2863/02
COUNSEL:	R D Marshall; P K Bruckner - Plaintiff J Downing - First Defendant G Lucarelli - Second Defendant R D Wilson; A Eastman - Third and Fourth Defendants
SOLICITORS:	Kelvin Solari - Plaintiff Yeldham Lloyd Associates - First Defendant Kennedys - Second Defendant Hancock Alldis & Roskov - Third and Fourth Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

WEDNESDAY 14 JUNE 2006

2863/02 THE MID-CITY SKIN CANCER & LASER CENTRE PTY LTD v ALI ZAHEDI-ANARAK & ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: Objection is taken to the admissibility of a file note. The file note is one which was made by Ms Glynne. She is the mother of the principal of the plaintiff in these proceedings.

2 The plaintiff is a company through which Dr Lindsay carries on a medical practice. It purchased a practice known as Sydney Skin Cancer Clinic. One substantial issue in the litigation concerns whether there has been passing off and misleading and deceptive conduct engaged in by a doctor who formerly worked at Sydney Skin Cancer Clinic and who has commenced work at another practice called Sydney Medical Centre. Another issue concerns whether that doctor's working at Sydney Medical Centre has involved any misuse of confidential information.

3 Miss Glynne worked as an administrative assistant in the plaintiff’s practice. At a time when litigation had already begun, she made a file note.

4 Insofar as it is now sought to be tendered in evidence, it reads as follows:

“File note: Sydney Medical Centre. Patient: Rex Cox: I rang the above patient on 17/6/02 to advise of a change of address and to monitor treatment received at Sydney Skin Cancer Clinic ... He was under the impression the clinic had transferred to Sydney Medical Centre. He thought he would see his old doctor, Dr Mason who treated him at Sydney Skin Cancer Clinic ... thought it strange that they did not have his medical records ... He was very happy that we have his medical history and made an appointment in October 2002 and told me that several doctors at Sydney Skin Cancer Clinic had always treated him well over the years and was happy to see Dr Lindsay.”

5 That file note came to be exhibited to an affidavit which Ms Glynne swore which contained the following paragraph:

“Exhibited hereto and marked “TG-34” is a copy of my file note of a telephone conversation I had with Mr Rex Cox, a former patient of the Sydney Skin Cancer Clinic, on 17 June 2002. I have checked the records of the Sydney Skin Cancer Clinic and have not found any record of the First Defendant treating Mr Thompson [sic] at that clinic. The records indicate that other Doctors at that clinic saw Mr Thompson [sic] over the period from 1995 to 2002 on 39 occasions. On the last 13 of those occasions the records indicate that Dr Mason saw Mr Cox.”

I assume that the references to “Mr Thompson” are intended to be references to Mr Cox.

6 Counsel for the plaintiff did not seek to support the file note as a business record. He contended, however, that it was admissible under either Section 72 or Section 78 of the Evidence Act 1995. Section 72 says:

“The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”

7 It was submitted that here Mr Cox’s state of mind was recorded by the file note, and for that reason Section 72 applied.

8 My attention is drawn to the decision of Davies AJ in McGregor v Nichol [2003] NSWSC 332. In that case, evidence was given, apparently by affidavit, of the terms of a conversation. Davies AJ held, at [31] that that evidence was admissible to show that one of the participants in the conversation had a belief which was manifested by the terms of the conversation.

9 In my respectful opinion that conclusion was clearly correct.

10 In the present case, however, the evidence does not take the form of a deponent, in an affidavit, saying that she had seen, or heard, anything concerning the conversation with Mr Cox.

11 Section 72 enables the Court to receive evidence of an out of court representation about a person’s health, feelings, sensation, intention, knowledge or state of mind, but only when there is evidence of that representation.

12 In my view, Section 72 is not attracted when a deponent of an affidavit merely exhibits to an affidavit a file note, and says it is a file note of a conversation she had, when the file note is not itself a business record. That is because such a file note is not itself evidence. The affidavit does not state anything beyond that the deponent had a conversation with Mr Cox, and that she made the file note. Most importantly, it does not say that the contents of the file note are true.

13 For that reason, I would not allow the file note to be admitted under Section 72. In saying that, I do not mean to suggest that, but for the deficiency I have identified, the file note would be admissible.

14 The plaintiff also relied on Section 78 of the Evidence Act. Section 76(1) Evidence Act provides:

“Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”

15 Section 78 Evidence Act provides:

“The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.”

16 I was referred to the useful decision of White J in Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379. His Honour points out that there is no sharp dichotomy between opinion and fact, and that, to the extent that an opinion is based on what a person saw, heard or otherwise perceived about a matter or event, section 78(a) provides a basis on which it can be received.

17 However, Section 78 also has another requirement, namely that,

“Evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.”

18 In the present case, the opinion which is sought to be tendered is, it seems, the opinion of Mr Cox. It is he whose mental state is referred to in the note. No reason is given why it was not possible to have Mr Cox give evidence, in affidavit or other admissible form, of his perception of any matter or event that the file note relates to. I do not accept that receiving evidence, in the form of an unsworn second-hand statement of Mr Cox’s views, is necessary to obtain an adequate account of any perception of his.

19 For that reason, I would not support the admissibility of the file note under Section 78.

20 Thus, I reject the file note TG-34 insofar as it is tendered.

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