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

1. 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:

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

2. 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.

2. 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 no record kept, in accordance with that system, of the occurrence of the event.

(5)  For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).”

3. In relation to the first objection, it does not appear to me to be a good objection. The document forms part of the records belonging to Emirates. It forms part of the records kept by Emirates in the course of their business, and it contains a previous representation made or recorded in the document in the course of the business. The business of Emirates as an airline carrier includes the receipt of complaints or feedback from members of the public in order that they might deal with the complaints and remedy the position or improve their services.

4. Subsection (2) of s 69 also makes clear that the hearsay rule does not apply to a document if the representation, in this case being the representations of the plaintiff as to what happened, was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. Having regard to the facts of the case, clearly the plaintiff would have or might reasonably be supposed to have had personal knowledge of the asserted fact. Accordingly, the first aspect of objection to the document is rejected.

5. In relation to the second aspect, as I indicated, objection is taken as to the document on the basis in essence that it was prepared by the plaintiff for or in contemplation of an Australian proceeding. The basis on which it is submitted it should be inferred that it occurred for that purpose, is as follows:

1. there is a reference in the general practitioner notes of Dr Chand on 12 November 2016 to the fact that, "Patient is going through solicitor for claims";

2. that at p 165 of Exhibit 1 there is a reference to "GP reports suing Air Emirates" on 12 November 2016; and

3. the reference in the document itself to "I would like to be compensated for this injury and my medical expenses paid for".

6. I have not been referred in the course of argument to any authorities relating to s 69(3).

7. However, the 14th edition of Odgers on the Uniform Evidence Law at paragraph EA.69.240 refers to the decision by the Court of Appeal in Averkin v Insurance Australia Ltd [2016] NSWCA 122 at [112]‑[113] where Leeming JA, with whom McColl JA agreed, stated that the words of the section were all words "which are directed to identifying a purpose. Where there is such a purpose connecting the preparation or obtaining of the representation to litigation, then the subsection applies".

8. Reference is also made to other authorities, including Lewis v Nortex Pty Ltd [2002] NSWSC 1083 of Hamilton J where his Honour said: "It is, rather, that the possibility, bearing in mind human nature, to make self‑serving statements in such circumstances" justifies the application of the hearsay rule. In Vitali v Stachnik [2001] NSWSC 303 Barrett J concluded at [12]:

"The purpose of the exclusion is...to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self‑serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings."

9. Mr Stewart of counsel, who appears for the plaintiff, points to the fact that the plaintiff may well have been seeking compensation for her injury and medical expenses other than in a litigious context, and that it amounts to feedback in terms of an injury. Mr Stanton of counsel, who appears for the defendant, relies on the references I have set out above establishing that the document was prepared for the purpose of it being self‑serving, and accordingly it falls within the subsection.

10. In my opinion, I must take into account the context in which the complaint was sent. I have no doubt that it was partly as feedback to the airline, but the sub‑topic on p 21 of Exhibit A is "complaint". It is also prepared in the context of seeking compensation, and in the context of a reference to solicitors. The nature of the document is of such a detail as to the effect on the plaintiff as to be of a sort which one often sees in the context of litigation or contemplated litigation.

11. In particular, I refer to the detailed nature of the disabilities and restrictions which the plaintiff uses, the reference to the injury being in her dominant hand, and to the radiological evidence. In the light of the authorities that I have referred to, I am satisfied that the purpose was one in the contemplation of a claim, and that the self‑serving nature of it is sufficient for it to be excluded, and I accordingly rule it inadmissible.

**********

Decision last updated: 11 October 2019