Salih v Emirates - [2019] NSWDC 560

District Court

New South Wales

Medium Neutral Citation: Salih v Emirates [2019] NSWDC 560
Hearing dates: 1 October 2019
Date of orders: 01 October 2019
Decision date: 01 October 2019
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
Page 22 of Exhibit A is inadmissible

Catchwords: Evidence – business records – exception in s 69(3) of the Evidence Act 1995 (NSW) – purpose to be inferred from the creation of a document containing a representation
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Averkin v Insurance Australia Ltd [2016] NSWCA 122
Lewis v Nortex Pty Ltd [2002] NSWSC 1083
Vitali v Stachnik [2001] NSWSC 303
Texts Cited: S J Odgers SC, Uniform Evidence Law (Law Book Co, 14th ed.)
Category: Procedural and other rulings
Parties: Gul Salih (Plaintiff)
Emirates (Defendant)
Representation:
Counsel:
C Stewart (Plaintiff)
D Stanton (Defendant)
Solicitors:
AJB Stevens Lawyers (Plaintiff)
Norton White (Defendant)

File Number(s): 2018/00319062

Judgment

Objection has been taken by the defendant to the admission into evidence of p 22 of the plaintiff’s bundle. The basis of the objection is twofold:

that the document is not a business record within s 69(1) of the Evidence Act 1995 (NSW); and

that it falls within the exception to s 69 in s 69(3) as it was prepared or obtained for the purpose of conducting, or for in contemplation of or in connection with, an Australian or overseas proceeding.

Section 69 of the Evidence Act 1995 provides as follows:

“69 Exception: business records
(1)  This section applies to a document that:
(a) either:
(i)  is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or
(ii)  at any time was or formed part of such a record, and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2)  The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a)  by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or
(b)  on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3)  Subsection (2) does not apply if the representation:
(a)  was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or
(b)  was made in connection with an investigation relating or leading to a criminal proceeding.

(4)  If:
(a)  the occurrence of an event of a particular kind is in question, and
(b)  in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind,

the hearsay rule does not apply to evidence that tends to prove that there is…

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.

Continue reading Salih v Emirates

Details

AGLC: Salih v Emirates [2019] NSWDC 560
Case: [2019] NSWDC 560
Decision Date: 01 October 2019

CaseChat Overview and Summary

The case of Salih v Emirates was before the court to determine the admissibility of certain business records under section 69(3) of the Evidence Act 1995 (NSW). The dispute centred around the production of a document that was sought to be admitted as evidence, specifically page 22 of Exhibit A. The respondents argued that this particular page of the document should not be admitted because it fell under the exception specified in section 69(3) of the Act.

The court was required to decide whether the document contained a representation that was created for a purpose from which it could be inferred that reliance was to be placed on the representation, thereby excluding it from being admitted under the hearsay rule exceptions. The primary focus was on whether the document was created for the purpose of making a representation that could be relied upon, which would trigger the exception in section 69(3).

The court examined the nature and purpose of the document in question. It was determined that the document was created in the ordinary course of business and contained a representation that could be relied upon. Given this, the court held that the document was subject to the exception in section 69(3) of the Evidence Act. Consequently, page 22 of Exhibit A was ruled inadmissible as evidence. This decision was based on the clear intent behind the creation of the document, which aligned with the statutory exception outlined in the Act.

Orders

Orders of the court

Page 22 of Exhibit A is inadmissible

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Salih v Emirates [2019] NSWDC 560
Hearing dates:	1 October 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	Page 22 of Exhibit A is inadmissible
Catchwords:	Evidence – business records – exception in s 69(3) of the Evidence Act 1995 (NSW) – purpose to be inferred from the creation of a document containing a representation
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Averkin v Insurance Australia Ltd [2016] NSWCA 122 Lewis v Nortex Pty Ltd [2002] NSWSC 1083 Vitali v Stachnik [2001] NSWSC 303
Texts Cited:	S J Odgers SC, Uniform Evidence Law (Law Book Co, 14th ed.)
Category:	Procedural and other rulings
Parties:	Gul Salih (Plaintiff) Emirates (Defendant)
Representation:	Counsel: C Stewart (Plaintiff) D Stanton (Defendant) Solicitors: AJB Stevens Lawyers (Plaintiff) Norton White (Defendant)
File Number(s):	2018/00319062