Soia v Bennett [No 4]
[2012] WASC 292
•16 AUGUST 2012
SOIA -v- BENNETT [No 4] [2012] WASC 292
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 292 | |
| 16/08/2012 | |||
| Case No: | CIV:1130/2003 | 4 OCTOBER 2011 | |
| Coram: | COMMISSIONER SLEIGHT | 4/10/11 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Rulings given on objections | ||
| B | |||
| PDF Version |
| Parties: | KIM PETER SOIA PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 71) MARTIN LAWRENCE BENNETT |
Catchwords: | Evidence Evidence Act 1906 (WA), s 79C Whether letter of resignation with explanation a business record Whether letter admissible as statements of a qualified person Whether discretion should be exercised to reject the admissibility of the statements contained in the letter |
Legislation: | Evidence Act 1906 (WA), s 79C |
Case References: | Beamish v The Queen [2005] WASCA 62 McKay v The Commissioner of Main Roads [No 2] [2010] WASC 153 Nicholson v The Queen (1984) 113 LSJS 125; 12 A Crim R 231 Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 10) [2002] SASC 128 Tobias v Allen [1957] VR 221 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
PERSONALIZED TUITION SERVICES PTY LTD (ACN 009 099 71)
Second Plaintiff
AND
MARTIN LAWRENCE BENNETT
Defendant
Catchwords:
Evidence - Evidence Act 1906 (WA), s 79C - Whether letter of resignation with explanation a business record - Whether letter admissible as statements of a qualified person - Whether discretion should be exercised to reject the admissibility of the statements contained in the letter
Legislation:
Evidence Act 1906 (WA), s 79C
(Page 2)
Result:
Rulings given on objections
Category: B
Representation:
Counsel:
First Plaintiff : Mr E W Alstergren & Mr C J Twidale
Second Plaintiff : Mr E W Alstergren & Mr C J Twidale
Defendant : Dr J T Schoombee & Mr N Ebbs
Solicitors:
First Plaintiff : Galic & Co
Second Plaintiff : Galic & Co
Defendant : Bennett & Co
Case(s) referred to in judgment(s):
Beamish v The Queen [2005] WASCA 62
McKay v The Commissioner of Main Roads [No 2] [2010] WASC 153
Nicholson v The Queen (1984) 113 LSJS 125; 12 A Crim R 231
Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 10) [2002] SASC 128
Tobias v Allen [1957] VR 221
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- COMMISSIONER SLEIGHT:
(This is a decision delivered orally on 4 October 2011 during the trial of this action and edited from the transcript).
1 Counsel for the defendant Mr Bennett seeks to tender into evidence a document MFI 73. The document is a letter dated 9 October 2000 addressed to Mr Bennett and signed by three former employees of ITC, Mr Andrew Posa, Mr Mark Posa and Mr Luke Emery.
2 The letter is entitled 'Events leading to the resignation of Andrew Posa, Mark Posa and Luke Emery'. The letter contains a list of forty nine dates from 21 February 2000 to 6 October 2000 describing various events that have alleged to have occurred and relate to the relationship between the three former employees of ITC and the plaintiff Mr Soia. Included in the commentary contained in the letter are descriptions of tensions between the former staff members and Mr Soia concerning the format of the video productions prepared for streaming of tutorials on the internet.
3 Neither Mr Andrew Posa nor Mr Mark Posa was called to give evidence during the trial. Mr Emery was called by the defendant and gave evidence. The evidence of Mr Emery was that he was told by Mr Andrew Posa that Mr Bestall, a financial manager employed by Mr Bennett in his law firm, had requested a letter setting out events leading to the resignation of the three former employees of ITC. Mr Emery said that the three of them sat down together and, using detailed notes of Mr Andrew Posa, drafted a letter setting out all of the incidents that had occurred. Mr Emery in his evidence identified 34 incident dates described in the letter of which he had personal knowledge.
4 As I have mentioned earlier, neither Mr Mark Posa nor Mr Andrew Posa was called to give evidence. The defendant filed an affidavit of Ms Onafaro dated 19 September 2011, which, in substance, states that Mr Andrew Posa was located working in the United Arab Emirates and was contacted by telephone and email. The defendant's solicitors formed the impression that Mr Andrew Posa would not cooperate to provide evidence at the trial and decided that they would make no further effort to have Mr Andrew Posa give evidence at the trial (either by attending the trial in Perth or by video-link from Dubai). No explanation was given as to why Mr Mark Posa was not called.
5 The defendant seeks to tender MFI 73 under s 79C of the Evidence Act 1906 (WA) (the Act).
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6 The plaintiffs object to the tendering of the document on the following grounds:
(a) The document is irrelevant.
(b) Insofar as the document is a recording of what Mr Mark Posa and Mr Andrew Posa say occurred, it is hearsay.
(c) Insofar as Mr Emery is concerned, it is inadmissible as a prior consistent statement.
Relevance
7 On the question of relevance, it is material to note that a considerable amount of evidence has been led during the trial as to Mr Soia's relationship with the staff. The defendant contends that it goes to causation. The first plaintiff pleads in par 13 of the particulars of damages filed on 14 January 2011 that had the defendant financed ITC in accordance with a budget document dated 30 June 1999, the joint venture undertaken by Mr Soia and Mr Bennett would have succeeded. Accordingly, the defendant contends that it is relevant to consider all factors which might militate against the business being successful. This includes whether ITC had a functional staff and whether Mr Soia's personality would have made it unlikely that future staff relationships would have been harmonious.
8 I agree with the submission of the defendant that on the face of it the content of the letter dated 9 October 2000 is relevant.
Section 79C
9 Counsel for the defendant contends that the letter is admissible as evidence of the truth of the content of the letter under s 79C of the Act on two grounds:
(i) It is a business record of ITC having been prepared by employees of the business and given to Mr Bennett in his capacity as a director of ITC. As such it is submitted that the business record is admissible under s 79C(2a) of the Evidence Act.
(ii) Alternatively, the document is admissible under s79C as a statement in a document made by a qualified person, Mr Andrew Posa, and he is unavailable to give evidence because he is out of the State and it is not practicable to secure his attendance; or having regard to all the circumstances of the case, undue delay,
- inconvenience or expense would be caused by calling him as a witness.
10 Section 79C of the Act makes a statement in a document admissible notwithstanding amongst other things, the hearsay rule. Section 79C provides as follows:
79C. Documentary evidence, admissibility of
(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -
(a) was made by a qualified person; or
(b) directly or indirectly reproduces or is derived from one or other or both of the following -
(i) information in one or more statements, each made by a qualified person;
(ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
(a) he is dead;
(b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness;
(c) he is out of the State and it is not reasonably practicable to secure his attendance;
(d) all reasonable efforts to identify or find him have been made without success;
(e) no party to the proceedings who would have the right to cross-examine him requires him to be called as a witness;
(f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot
- reasonably be expected to have any recollection of the matters dealt with in the statement;
- (g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or
(h) he refuses to give evidence.
- (2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -
(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b) the court is satisfied that the business record is a genuine business record.
(2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.
(3) This section makes a statement admissible notwithstanding -
(a) the rules against hearsay;
(b) the rules against secondary evidence of the contents of a document;
(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
(d) that the statement is in such a form that it would not be admissible if given as oral evidence,
but does not make admissible a statement which is otherwise inadmissible.
(4) Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of -
(a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings;
- (b) an investigation which led to the discovery of facts constituting or being constituents of the alleged offence;
(c) the preparation of a defence to a charge for any offence; or
(d) the preparation of the case of the prosecution in respect of any offence,
- shall not be rendered admissible as evidence by this section.
(5) For the purposes of this section a court may -
(a) for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;
(b) in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.
(6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a) may necessitate undue consumption of time; or
(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
11 I will deal firstly with the issue of whether the letter is a business letter.
12 A business record is defined in s 79B of the Act as meaning 'a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business'.
13 A business is defined as meaning 'any business, occupation, trade or calling and includes the business of any government body or instrumentality and of any local government'.
14 The common law rule is that only statements made by a person actually giving evidence in court as to events within his knowledge are admissible in court proceedings of the facts. Further former oral or
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- written statements of any person, whether or not he is a witness to the proceedings, may not be given in evidence if the purpose is to tender them as evidence of the truth of the matters asserted in them: Phipson on Evidence (11th ed, 1970) 268.
15 If a document falls within the definition of a business record in s 79B, then apart from a requirement that the direct oral evidence of the statement would be admissible, there is no other additional requirement and the document is admissible (s 79C(2a)); Beamish v The Queen [2005] WASCA 62 [157]. However, where a statement is made by a qualified person, that person is not to be called as a witness unless the court otherwise orders (s 79C(2b)). This is consistent with the purpose of the legislation as explained in the second reading speech of the Acts Amendment (Evidence) Act (WA) which inserted the business record provisions. The relevant minister in this second reading speech stated:
Under the bill, business records can be tendered as evidence without calling as witnesses persons who supply the information in these records unless the court considers it in the interests of justice to do so. This will reduce the length and the cost of the trial and aid in the jury's comprehension of the issues.
16 For a document to be a business record, it must have been 'prepared or used in the ordinary course of business' (s 79B of the Act). In McKay v The Commissioner of Main Roads [No 2] [2010] WASC 153, Beech J held that survey responses, held by the State, were not part of the business records of the State. This ruling was based in part on a number of authorities which supported the proposition that business records 'made in the course of, or for the purpose of, the business' did not include a document prepared by a third party. His Honour was not referred to South Australian authorities relating to s 45A of the Evidence Act (SA). Section 45A has a similar definition of 'business record' as is contained in s 79C of the Act, although the admissibility of business records contains the qualification 'a document shall not be admissible in evidence -- if the court is of the opinion -- that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence to the matters contained in the document'.
17 In Nicholson v The Queen (1984) 113 LSJS 125; 12 A Crim R 231, 133, King CJ (with whom Walters and Mohr JJ agreed), stated that it was not necessary under s 45A of the Evidence Act (SA) for the document to be prepared in the ordinary course of business; it being sufficient that it should be 'used in the ordinary course of business' for the purpose of
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- recording any matter relating to the business. That case concerned proof of an accused requesting a bank in Hong Kong for funds. The Court of Appeal held that a telex from the Hong Kong bank to the National Australia Bank in Adelaide could be treated as a business record of the Adelaide bank and admissible as to the truth of its contents. In Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 10) [2002] SASC 128, Bleby J stated that under the definition of a business record in s 45A, the document 'prepared and used' in the ordinary course of business need not necessarily be the same business as the business the proprietor of which held the document.
18 It is unnecessary for me to decide whether the conclusion of these South Australian authorities is correct, although in my view it appears to be against the wording of the definition of a business record in s 79B of the Act. This is despite the wide scope of s 79C of the Act which is meant to facilitate the proof of the contents of documents without requiring the author of the document being called.
19 In this case, MFI 73 was prepared at the request of Mr Bennett, who was a director of ITC. Evidence was given during the trial that Mr Bennett was the director responsible for most of the administrative functions of ITC including dealing with staff issues such as payment of wages etc. In my view, the letter produced was a document used in the ordinary course of business for the purposes of recording a matter relating to the business. Accordingly it is admissible as a business record, subject to the question as to whether I should exercise a discretion to exclude it under s 79C(6) of the Act.
Is the letter admissible as a statement of a qualified person?
20 If I am incorrect as to my conclusion that the letter constituted a business record, then the defendant submits in the alternative that the document is admissible under s 79C(1) of the Act. To be admissible under s 79C, the document must fulfil three criteria.
1. Direct oral evidence of a fact or opinion contained in the document would be admissible.
2. The statement is made by a qualified person.
3. The qualified person must be called as a witness unless it is impossible or impracticable to call the qualified person to give evidence for any of the reasons listed in s 79C(2).
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21 A qualified person is defined in s 79B of the Act, and it is not in dispute that Mr Andrew Posa, Mr Mark Posa or Mr Emery are qualified persons.
22 No evidence has been led that any one of the signatories to MFI 73 could not be located or refused to give evidence. As to Mr Andrew Posa, I am not satisfied that the affidavit of Ms Onafaro establishes that he could not be located or that he refused to give evidence.
23 On the basis of the above, I am satisfied that the prerequisites to admissibility of the document under s 79C(1) have not been met and therefore, on this alternative ground, I will not allow tendering of the document.
Discretion to exclude under s 79C(6)
24 There remains the issue of whether I should exercise a discretion to exclude MFI 73 on the grounds that admitting it into evidence would create undue prejudice. The plaintiffs object to the admissibility of the document on the basis that it would create undue prejudice in that Messrs Andrew Posa and Mark Posa would not be available to be cross-examined by the plaintiffs' counsel.
25 Counsel for the defendant counters the submission by pointing out that counsel appearing for the plaintiffs did not cross-examine Mr Emery about the relationship between Mr Soia and the staff. Although Mr Emery did not give any evidence directly as to the incidents described in the letter, he gave other evidence which indicated a deteriorated state between Mr Soia and the staff.
26 The relevant principles as to the exercise of the discretion were considered by Beech J in McKay v The Commissioner of Main Roads [No 2],who helpfully summarised the principles as follows: [73] - [78[:
The starting point is that it is a discretion to reject. Thus once the requirements of the section are otherwise satisfied, the prima facie position is that the statement is to be admitted. The discretion to reject only arises if the court forms the opinion that the probative value of the statement is outweighed by, relevantly, the consideration that its admission may necessitate undue consumption of time or may create undue prejudice.
In considering whether any undue prejudice exists, regard must be had to the interests of both parties to the proceedings: Coffman [30].
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- Relevant 'undue prejudice' may be suffered by a party who is unable to cross-examine a witness: Coffman [30]; Mouritz v Hegedus (Unreported, WASCA, Library No 990188A, 19 April 1999) (page 21).
The prejudice suffered by the party who is seeking to tender the document, if that document is not admitted, must also be considered: Coffman [30]. In Coffman, the result of refusing to admit the document would have been that the appeal would be dismissed. Of course, that is not the case here.
In this case, the prejudice to the plaintiffs in refusing to admit the report lies in the absence of the benefit of whatever probative value the report may have had. The extent of that prejudice must be considered taking account of whether, and to what extent, matters dealt with in the report can be the subject of cross-examination of witnesses and submissions.
Other factors that may be relevant to the exercise of the discretion include:
(a) The extent to which the statement in the document is ambiguous and requires clarification or explanation: Cavill [41] (albeit said in a somewhat different context);
(b) whether the statement was prepared by the tendering party's lawyers as a witness statement and was intended for use by them in an adversarial context: Shmee Pty Ltd v Bresham Investments Pty Ltd[2008] VSC 291 [21];
(c) whether the statement seeks to provide evidence of a central issue in the case: Shmee [21]; and
(d) whether the other party is or is not in a realistic position to controvert the proposed evidence by firsthand evidence of their own: Shmee [19].
27 In this matter, I take into account the following matters:
(i) The letter of 9 October 2000 contains a very detailed account of incidents between Mr Soia and the staff which was prepared largely from the detailed notes of Mr Andrew Posa. To allow the letter to be admitted as evidence of the matters contained in the letter without Mr Andrew Posa being called and subjected to cross-examination is potentially unfair to the plaintiffs. The unavailability of Mr Andrew Posa for cross-examination is a relevant consideration (see Tobias v Allen [1957] VR 221, 225). The extent that counsel for the plaintiffs might have cross-examined Mr Andrew Posa is difficult to assess. Although Mr Emery was not cross-examined about his evidence concerning the behaviour of Mr Soia and his relationship with staff, this does not mean that counsel appearing for the plaintiffs would not have
- cross-examined Mr Andrew Posa about the detailed recording of incidents that is contained in the letter of 9 October 2000.
- (ii) Further, the probative value of the contents of the document is reduced by the fact that the primary author, Mr Andrew Posa is not available for questioning and his notes have not been produced.
(iii) Further, although the defendant called Mr Emery, a joint signatory to the letter, his evidence-in-chief as contained in his witness statement did not seek to address with particularity the contents of the letter of 9 October 2000. Rather, he gave evidence of a more general description concerning Mr Soia's behaviour and his relationship with the staff. During the trial I made an oral ruling that Mr Emery could not be asked whether the contents of the letter was correct and thus simply adopt its content, but he could be asked questions taking him through the alleged incidents and asking him to give his evidence in relation to each such incident. This was not done
(iv) Further, I take into account that excluding of the contents of the letter dated 9 October 2000 has not prevented the defendant from adducing further evidence of the behaviour of Mr Soia and his relationship with the staff. As I have mentioned, Mr Emery covered this issue in his evidence-in-chief. Further, the defendant also called Ms Rosalinde Miles, who was employed as a casual typist at ITC, and was able to give evidence about her observations concerning Mr Soia's behaviour and relationship with the staff. Further, the defendant did not call Mr Mark Posa, who had provided a witness statement.
(v) Finally, the defendant called Mr Emery, one of the persons who was a signatory to the letter, without seeking an order from the court to do so pursuant to s 79C(2b) This subsection provides that a qualified person who makes a statement in a business record shall not be called as a witness unless the court orders otherwise. This section appears to be based upon the rationale that, if the person is called, the factual material contained in the document should be the subject of oral evidence rather than the document.
28 After considering all these matters I conclude that the probative value of the statements contained in the letter are outweighed by the consideration that their admission may create undue prejudice. In such
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- circumstances, I conclude that I should exercise my discretion to reject the statements contained in the letter to be tendered as to the truth of the facts alleged in the letter.
29 For the above reasons I rule that the content of the letter is not to go into evidence as to the truth of the statements contained in the letter. However, I will allow the letter to go into evidence on the basis that the letter had been sent and received by Mr Bennett. Accordingly, I will allow the letter to be tendered simply on the basis that it is contextual evidence of what was occurring in the course of the closing days of the business at or about the time the letter was received. This context should be taken into account to the extent that I may need to make findings about Mr Bennett's actions after 28 September 2000.
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