Southern Equities Corp Ltd (in liq) v Bond

SOUTHERN EQUITIES CORPORATION LTD (IN LIQUIDATION) & ORS V BOND & ORS

[2001] SASC 70

Civil

1................ LANDER J....... The trial of this matter commenced on 12 February 2001. Mr Hoffman, counsel for the plaintiffs, opened the plaintiffs’ case and, at the completion of his opening, applied to tender some 21 lever arch files of documents.

I dealt with each of the documents individually and accepted or rejected the tender of each, after argument. These reasons are to explain specific rulings which I have made and for rulings which I am about to make.
The application for the tender of some documents gave rise to considerable argument and the need to undertake a close analysis of those legislative provisions which provide evidential aids for the admission of documents. However, I must say, in fairness to the defendants, the defendants did not object to many of the documents. Mainly they confined themselves to matters of principle and the more important documents.

The Parties

The first plaintiff, Southern Equities Corporation Ltd, (SECL) was formerly known as Bond Corporations Holding Ltd. It was a public company incorporated in Western Australia and was the holding company of the second plaintiff. The second plaintiff was in turn the holding company of all of the companies known as the Bond Group. The third plaintiff, Mr Richard England, is the liquidator of the first plaintiff, appointed pursuant to an order of this Court. It is not necessary in these reasons to give any further description of the plaintiffs.
Alan Bond was the chairman and an executive director of the first plaintiff. The second and third defendants are the trustees of the bankrupt estate of Mr Peter Beckwith, who was an executive director and managing director of the first plaintiff. The plaintiffs have compromised their action with those trustees. The fifth defendant, Mr Craig Bond, is a son of Mr Alan Bond and is alleged by the plaintiffs to be the controller of the fourth and sixth defendants. Whether that allegation will be made out does not matter for the purpose of these reasons. Ms Caboche, the seventh defendant, was and is the secretary and financial controller of the fourth defendant. She was also the secretary and financial controller of Dallhold Investments Pty Ltd (Dallhold), which was a company controlled by the first defendant and, which in turn until its liquidation, held more than 50 per cent of the shares of the first plaintiff. The first defendant controlled Dallhold which controlled SECL which, through the second plaintiff, controlled the Bond Group.
The eighth defendant, Mr John Bond, is also a son of Mr Alan Bond and, of course, a brother of Craig Bond. He was a director of the first plaintiff although his profession is that of a barrister and solicitor.
The ninth defendant, which has not appeared in these proceedings, is a company incorporated in the Commonwealth of the Bahamas as an international business company. It is the plaintiffs’ case that the ninth defendant is controlled by the fifth defendant, Mr Craig Bond. Although that is a matter seriously in dispute it does not need to be resolved at this time.

History

Each of the personal defendants was examined under Pt 5.9 of Chapter 5 of the Corporations Law and a transcript was taken of their examination; s 597(13). Each of them signed their transcript as they were obliged; s 597(13).
A number of other persons, some of whom were employed by the plaintiffs, but most of whom were independent of the plaintiffs, were examined pursuant to s 596B of the Corporations Law as persons who had taken part or been concerned in the examinable affairs of the first plaintiff. Again a transcript was taken of each of those witnesses’ examinations and each of the witnesses signed that transcript.
Some other persons provided the liquidator with affidavits in lieu of being examined under the Corporations Law.
Two others provided affidavits in response to orders made in this Court and orders of courts overseas.

The Opening

In his opening, Mr Hoffman, identified the witnesses who would be called to give evidence in the plaintiffs’ case. Some of those witnesses are resident in Western Australia; one is resident in Queensland. Two others are resident in Texas in the United States of America; two others are resident in the Commonwealth of the Bahamas; and one is resident in England.
He advised the Court, in his opening, that the interstate witnesses would be brought to Adelaide for the purpose of giving their evidence. He said that Lady Angela Nevill, who is the witness resident in England, would also be brought to Adelaide. However, the Court would be obliged to travel to Texas and the Bahamas for the purpose of taking the evidence of the four witnesses resident in those two jurisdictions.
After he completed his opening and during argument on the admissibility of documents, Mr Hoffman indicated that he proposed to lead the evidence of those witnesses by simply tendering either the transcript of their examination under the Corporations Law or by way of an affidavit sworn by the witness. That would then allow the defendants to cross-examine those witnesses.
He indicated, in his opening, that apart from those witnesses he intended to call he also would seek to lead the evidence of other witnesses who had been examined under s 597, or who had supplied affidavits, by tendering the transcript of their examination or alternatively tendering their affidavits. He indicated that he would rely upon s 45A, s 45B, s 34C and s 59J of the Evidence Act 1929 (SA) for the purpose of that tender.
Further, he indicated that he would apply to tender the examinations of each of the personal defendants in this case as evidence against all of the other defendants. In that regard he indicated he would rely upon s 597(14) of the Corporations Law and s 45B of the Evidence Act.
In due course he made all of those applications.
I set out in a schedule to these reasons the witnesses who Mr Hoffman indicated he would call and those witnesses whose evidence he indicated he sought to tender in transcript or affidavit form. The schedule also indicates their place of residence.

The Liquidator’s Examinations

The liquidator has made extensive use of s 596A and s 596B of the Corporations Law. He has sought and obtained a number of orders for the examination of each of the personal defendants and has conducted examinations of those defendants by counsel over a number of years. He has also used the power in s 596B to examine a number of persons who were apparently involved in the examinable affairs of SECL.
It must not be understood that I am criticising the liquidator in the carrying out of his administration or the use of the powers given by the Corporations Law. I am merely observing what he has done.
A liquidator, of course, must not use the procedures available to examine persons under the Corporations Law for an improper purpose. It will be an abuse of the Court’s process if the liquidator has as his or her predominant purpose an improper purpose: Re Southern Equities Corporation Ltd (In Liq); Bond & Another v England (1997) 25 ACSR 394.
A number of purposes have been identified in the authorities as improper. It is not necessary in these reasons to discuss those authorities or to identify purposes which have been held to be improper. It is enough to state that it is not necessarily an improper purpose for a liquidator to examine a person about a matter which is currently the subject matter of litigation between the company and that person: Re Hugh J Roberts Pty Ltd (In Liq) and Companies Act (1970) 2 NSWR 582; Hamilton v Oades (1989) 166 CLR 486; New Zealand Street (Aust) Pty Ltd v Barton (1994) 13 ACSR 610; Re Southern Equities Corporation Limited (In Liq); Bond and Another v England (supra).
If a liquidator does obtain an order for an examination of an examinee for an improper purpose, the order is liable to be set aside on the application of the proposed examinee: Re Excel Finance Corporation Ltd (In Liq); Worthley v England (1994) 52 FCR 69.
Mr John Bond did not apply at any time to set aside the order for his examination. Nor did he contend in this hearing that the liquidator was actuated by an improper motive.
However Alan Bond, Craig Bond and Delores Caboche each applied to set aside orders made for their examination upon the basis that the orders had been obtained by the liquidator for an improper purpose. Each of their applications failed. Each of them appealed to the Full Court of the Supreme Court to have the orders set aside. Their appeals failed; in the case of Craig Bond in Re Southern Equities Corporation Limited (In Liq); Bond v England (1997 Full Court Matheson, Perry and Nyland JJ, Judgment No. S6084.2); and in the case of Alan Bond and Delores Caboche in Re Southern Equities Corporation Ltd (In Liq); Bond and Another v England (supra). Mr Craig Bond sought special leave to appeal to the High Court but that application was abandoned after an application to stay his examination was refused by McHugh J. The application for a stay was refused on the ground that Mr Craig Bond’s application for leave to appeal had little prospect of success. Mr Alan Bond and Ms Caboche also sought special leave to appeal. In their cases special leave was refused.
It is clear beyond doubt that this Court has found that the orders for the examination of each of those defendants were not obtained for an improper purpose. Although those defendants reserved their right to argue that the liquidator was actuated by an improper motive, no effort was made to identify the evidence upon which such a finding could be made. It was merely argued that an examination under this section, whilst litigation was pending against the examinee, was ipso facto improper. Such a submission is inconsistent with the authorities to which I have referred
Each of the defendants was represented by counsel, indeed senior counsel, on their examination and each was examined by counsel in the presence of a Master of this Court, Judge Bowen Pain. From time to time senior counsel for each of the defendants took objection to questions put by the liquidator’s counsel and those objections were ruled upon. None of the defendants complained during their examinations that the conduct of liquidator’s counsel constituted an abuse of process of the Court. None of them complained that the manner of the examination was improper.
However it was contended before me that the examination of Mr Craig Bond was conducted in an improper manner. It was submitted that the examination was a cross examination which amounted to an improper examination. That being so it was said that Mr Craig Bond’s examination was an abuse of the process of the Court.
The liquidator seeks to tender the transcript of the examinations of each of the defendants not only against the respective defendants but also against each other defendant. The defendants argued that the application to tender the defendants transcripts against the other defendants was improper and also amounted to an abuse of process.

Part 5.9 of the Corporations Law

The liquidator’s application requires a consideration of both the Corporations Law and the Evidence Act 1929 (SA).
Section 597 (14) provides:
“Subject to subsection (12A), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules, may be used in evidence in any legal proceedings against the person.”
Subsection 12A is not relevant in these proceedings. It is only relevant to criminal proceedings. The transcripts have been signed by the respective defendants.
Section 597 (14) makes admissible a transcript of an examination of an examinee in civil proceedings against that examinee.
Mr Wells QC who appeared for Ms Caboche, argued that s 597(14) is not itself a discrete rule of admissibility, but merely operates to facilitate proof of the answers given in proceedings against the examinee and to remove a barrier to admissibility that might otherwise arise by reason of an examinee having made involuntary admissions. He argued that the answers given must still be admissible according to the general rules of evidence (whether common law or statutory).
Section 597 gives to the eligible applicant (in this case the liquidator) a power not enjoyed by an ordinary litigant: In ReJohn Arnold’s Surf Shop Pty Ltd (1979) 23 SASR 222 at 230; Hamilton v Oades (supra) per Mason CJ at 497.
The power to examine a person about a corporation’s examinable affairs is given to an eligible applicant. An eligible applicant includes a liquidator and other persons who, like a liquidator, would be reliant upon others to become aware of a corporation’s examinable affairs. For the purpose of these reasons I shall confine myself to a liquidator’s circumstances.
Part 5.9 provides for a mandatory examination (s 596A) and a discretionary examination (s 596B). If a liquidator seeks to examine an examinable officer, of the kind referred to in s 596A(b) the Court must summon that person for examination about the examinable affairs of the company. The examinable affairs of a corporation are very wide: s 9. An examinable officer includes the directors, secretaries and executive officers of the corporation which by definition includes any person who was concerned in or has taken part in the management of the corporation: s 9 Corporations Law.
The liquidator thus has a right to examine those persons who are most likely to be aware of the examinable affairs of the corporation.
The liquidator may also seek an order of the Court for the Court to summon a person who has taken part or been concerned in the examinable affairs of the corporation, who has been or may have been guilty of misconduct in relation to the corporation, or a person who simply may be able to give information about the examinable affairs of the corporation: s 596B.
The liquidator not only has power to summon a person to give oral evidence but also summon a person to produce, at an examination, books that are in the person’s possession and relate to the corporation or to any of its examinable affairs: s 596D(2).
In respect of examinable officers of the kind referred to in s 596A the Court also has a power to require those persons to file an affidavit about a corporation’s examinable affairs if a liquidator applies for such an order; s 597A.
Thus the liquidator is clearly given very wide investigative powers.
However, those investigative powers are subject to the control of the Court. Section 596F empowers the Court to give directions about the matters to be inquired into and the procedure to be followed at any examination. It allows the Court to give directions as to who might have access to records of the examination: s 596F(1)(e). It also allows the Court to exclude from the examination any person or persons, even if the examination is held in public: s 596F(1)(d).
It allows the Court to prohibit the publication or communication of information about the examination including the questions asked and answers given at the examination: s 596F(1)(f).
Section 597 provides for the conduct of the examination. Particularly it provides that an examination is to be held in public, except if the Court considers that by reason of special circumstances it is desirable to hold the examination in private: s 597(4).
The Court has power to put questions itself to a person being examined or allow others to put questions about the corporation or any of the corporation’s examinable affairs: s 597(5B).
The Court can direct a person to produce, at the examination, books that are in the person’s possession and are relevant to matters to which the examination relates or will relate: s 597(9).
I will deal with the question of the transcript of the examination later.
It is clear that the widest powers are given to the Court to ensure that the conduct of the examination proceeds fairly and is restricted to questions relevant to the examinable affairs of the corporation.
The purpose of the power given in Pt 5.9 is to provide the liquidator with the means of discovering the assets of the corporation and their whereabouts, the identity of creditors and thereby the extent of the liabilities of the corporation, the reasons for the demise of the corporation and whether anyone, including those examined might be guilty of some civil or criminal wrong.
A person must attend if summonsed: s 597(6). He or she must produce any books required to be produced: s 597(7)(d).
A person who attends must take an oath or affirmation, must answer any question that the Court directs the person to answer, and must not make a statement that is false or misleading in a particular way: s 597(7)(a), (b) and (c) respectively.
A person is not entitled to refuse to answer a question in the examination on the ground that the answer might tend to incriminate the person or make the person liable to a penalty: s 597(12). Although the examinee must answer such a question, if the examinee before answering a question claims a privilege against self incrimination, and the answer might tend to incriminate that person the answer is not admissible in any criminal proceedings or any proceeding for the imposition of a penalty: s 597(12A).
The power is therefore given for the purpose of a liquidator investigating and carrying on civil proceedings and any relevant authority considering criminal proceedings.
The procedure is not only investigative but it also allows for the gathering of evidence. That is obvious from the provisions of s 596D and s 597(9).

The admissibility of the defendants’ transcripts of examination

The procedure also provides for the making of a transcript of the examination of the examinee: s 597(13). The purpose of recording the examination is to obtain evidence which may be used in legal proceedings: s 597(14).
The liquidator is given the right to tender the transcript of the examination without further proof in any legal proceedings brought against the examinee. However the liquidator may not tender against the examinee, in any criminal proceedings, brought against that person that part of the transcript for which the examinee has claimed privilege against self incrimination during the examination: s 597(12).
The purpose of s 597(14) is to provide the liquidator with the means of obtaining relevant evidence from the examinee, including but not limited to admissions of the examinee. This enables the liquidator to prove a case on behalf of the company in any proceedings brought against persons who have taken part, or been concerned in the examinable affairs of the corporation, and who have been guilty of misconduct in relation to that company.
The intent of the section also is to facilitate the proof of criminal proceedings against any of those persons, although in those proceedings the examinee’s privilege against self incrimination is preserved.
Therefore I do not accept Mr Wells’ submission that s 597(14) does not make the transcript admissible. In my opinion, the clear intent of s 597(14) is to make the transcript admissible in proceedings against the examinee.
I think the transcript is admissible provided it is signed by the examinee or authenticated as provided by the rules in any proceedings against the examinee. In my opinion, the transcript does not have to satisfy any of the common law requirements for admissibility. Nor does its admission against the examinee depend upon any other statutory provision. It is admissible in its own right. Its admission, of course, will be subject to relevance. An irrelevant examination could not be admissible because it is irrelevant and in those circumstances it would not tend to prove any matter in issue in the proceedings: Re Norman Baker Pty Ltd (In Liq); ex parteHillmann (1981) 6 ACLR 257.
Indeed I think the transcript would be admissible if tendered by the examinee in proceedings against the examinee: Walker v Wimborne (1976) 137 CLR 1 per Jacobs J at 15.

A discretion to refuse to admit the transcript?

Mr Wells also argued that even if the transcript was admissible I had a discretion to refuse its admission. He argued that the Court had a residual discretion to refuse the tender of the transcript in circumstances where the liquidator had abused the Court’s processes. In this case he argued that the liquidator had been guilty of an abuse of process in obtaining the order for the examination of each of the defendants. Furthermore, he said that the liquidator had been guilty of an abuse of process in the conduct of the examination of Craig Bond. Thirdly, he argued that the liquidator was guilty of an abuse of process in tendering the transcript in these proceedings.
The suggestion that the liquidator’s counsel had been guilty of an abuse of process in the conduct of the examination could only be relevant to the admissibility of Mr Craig Bond’s transcript of his examination against himself or the admissibility of Mr Craig Bond’s transcript of examination against the defendants. The first question does not concern Mr Wells’ client, Ms Caboche. The second question is not relevant to s 597(14) because that subsection does not purport to make any transcript of examination admissible against anyone but the examinee. The argument was not therefore available to Mr Wells in relation to s 597(14).
However, Mr White QC, who appeared for Mr Craig Bond, adopted Mr Well’s submissions and in particular the submission that his client’s examination had been conducted in such a way by the liquidator’s counsel that it amounted to an abuse of process. In those circumstances the point does need to be addressed but only from Mr White’s client’s viewpoint.
It was not submitted by any of the defendants that any of the other examinations had been conducted in a manner which would amount to an abuse of process.
The first question that needs to be decided is whether in civil proceedings the Court retains a residual discretion to refuse the tender of admissible evidence in circumstances where it is said that the evidence had been obtained by an abuse of the court’s processes.
The discretion, if it exists, lies outside the legislation. Section 597 does not provide for the exercise of any discretion in the Court in which the legal proceedings are brought against the examinee: Douglas-Brown v Furzer (1994) 11 WAR 400; Duke Group Ltd (In Liq) v Pilmer (1994) 63 SASR 364.
Mr Hoffman argued that in civil proceedings, at least where the judge is sitting without a jury, the court is not called upon to exercise the same discretions to refuse the tender of admissible evidence as practice requires in criminal proceedings. He argued that there is not the same need to prevent otherwise admissible evidence coming to the attention of the trier of fact as there is in criminal proceedings.
The circumstances in which a court will be called upon to exercise a discretion to refuse to admit otherwise admissible evidence in criminal proceedings has been identified recently in a decision of the Court of Criminal Appeal in this State in R v Lobban [2000] 77 SASR 24 [Martin J, Doyle CJ and Bleby J agreeing]
There are four separate circumstances where a court might be called upon to exercise a discretion to refuse to admit otherwise admissible evidence in criminal proceedings. First, when the probative value of the evidence is outweighed by the prejudice to the accused: R v Christie [1914] AC 545. Secondly where public policy would dictate that the tendered evidence should be refused: R v Ireland (1970) 126 CLR 321; Bunning v Cross (1998) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19. In that case the evidence might have been obtained by illegal or improper means or the authorities might have engaged in unlawful conduct to procure the commission of the offence for which the accused is standing trial. Thirdly where it would be unfair to the accused to admit confessional evidence in the sense that the accused’s trial would be unfair if the evidence was admitted: R v Swaffield (1998) 192 CLR 159. Fourthly where the receipt of otherwise admissible non confessional evidence would be unfair to the accused again in the sense that it would deny the accused a fair trial: Driscoll v The Queen (1977) 137 CLR 517.
I have said that his Honour identified four separate circumstances in which the Court might be called upon to exercise a discretion. It would probably be more accurate to say that his Honour believed there were only three separate circumstances. The first category, that is the Christie discretion, his Honour suggested was a particular example of the fourth.
However, because the Christie discretion has been separately considered in the context of civil proceedings I shall proceed upon the basis that there are four separate circumstances. It should not be understood that I disagree with Martin J’s analysis but for these reasons it does not matter whether in criminal proceedings there are three or four distinct circumstances when a discretion might be called upon to be exercised to refuse to admit otherwise admissible evidence.
Of course there are good reasons why the courts have developed rules of evidence which include residual discretions to refuse to admit otherwise admissible evidence. The Christie discretion will be exercised in favour of the accused so that a jury will not be exposed to evidence which has a tendency to mislead it or excite its prejudices: R v Morris (1995) 78 A Crim Reports 465 and 469.
The Bunning v Cross discretion has been erected to protect the administration of justice. If the Courts were perceived to allow prosecutors to perform illegal or improper acts for the purpose of obtaining evidence to secure a conviction, public confidence in the courts would be eroded. In Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 at 288 the Chief Justice said of this discretion:
“It is founded upon the need to preserve the integrity of the administration of justice and the need to protect the processes of the courts of justice: see Ridgeway (at 30-32) per Mason CJ, Dean and Dawson JJ. An object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities: see Ridgeway (at 32): R v Swaffield (at 22) per Brennan CJ.”
The exercise of the discretion requires the Court to weigh competing public interests; the public interest in the need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from unlawful and unfair treatment.
The third and fourth discretions are available to the courts so that they can ensure an accused person has a fair trial. Unlike the circumstances arising in the second discretion the discretion, in the third and fourth circumstances is not necessarily enlivened by any illegal or improper conduct on anyone’s part. Rather the residual discretion is available to the court to ensure that, for whatever reason it would be unfair to the accused, in that the accused would not have a fair trial, to admit the otherwise admissible evidence.
In respect to the fourth circumstance, Gibbs J (Mason, Jacobs and Murphy JJ agreeing) said in Driscoll v The Queen (supra) at 541:
“It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused.”
Assuming, as I have said, that the fourth circumstance is separate from the third, it is necessary to consider how an accused person might not receive a fair trial by the admission of evidence which is relevant, probative and not unduly prejudicial.
It might be that the evidence has little probative value but that its admission might allow the jury to place too much weight upon the evidence. It can be seen when the test is posed thus that Martin J was right to say that the first circumstance is no more than a particular of the fourth. It is difficult to conceive of circumstances where the court would exercise a discretion to refuse to admit otherwise admissible evidence, which has not been illegally or improperly obtained, which is logically probative of the accused’s guilt and which is not unduly prejudicial to the accused, on the basis that if admitted it would interfere with the accused’s right to receive a fair trial.
In any event I do not believe that the first, third and fourth circumstances which I have identified would allow, the court in civil proceedings to exercise a discretion to refuse to admit otherwise admissible evidence.
Of course, all parties in civil proceedings are entitled to the same basic right as the accused in criminal proceedings and that is the right to a fair trial. But where a judge is sitting without a jury as is the case in this State there is no need, in my opinion, for the erection of discretion to refuse to admit evidence which has been lawfully and regularly obtained, which is relevant to a matter raised upon the pleadings and which is probative of the party’s claim or defence.
If that evidence happens to be prejudicial to the other party that other party is not denied a fair trial by its admission. The trier of fact in this State will be well equipped to give the appropriate weight to the evidence and to ignore any prejudicial effect attached to its admission.
Whilst the rules of evidence are the same in both civil and criminal proceedings the practices differ. In criminal trials with a jury, evidence which although admissible, has a prejudicial value which outweighs its probative value, may not be admitted. The same is not true in civil proceedings; R v Christie (supra) per Lord Moulton 559. The Christie discretion has no application to civil proceedings.
In Sheldon v Sun Alliance (1988) 50 SASR 236 von Doussa J said at 247:
“The discretion which resides in a trial judge in criminal proceedings to exclude evidence where its prejudicial effect outweighs its probative value has no application in a civil trial: Ibrahim v The King [1914] AC 599 at 610; Hurst v Evans [1917] 1 KB 352 at 358; Manenti v Melbourne and Metropolitan Tramways Board [1954] VLR 115; David Syme & Co Ltd v Mather [1977] VR 516 at 531. There may be a discretion in civil proceedings to exclude evidence that has been obtained by a serious and deliberate infringement of legal rights of another, but that is a different discretion (and not one that is relevant to be considered in the instant case): see Mazinski v Bakka (1979) 20 SASR 350 at 361; Pearce v Button (1985) 8 FCR 388 at 401-403; Cleland v The Queen (1982) 151 CLR 1.”
There is dictum in cases decided in England (Mood Music Publishing Co v De Wolfe Ltd (1976) 1 Ch 119; Berger v Raymond Sun Ltd (1984) 1 WLR 625) and a case in Queensland (Taylor v Harvey (1986) 2 Qd R 137) to suggest that there is a discretion to refuse to admit similar fact evidence which, although probative, would be oppressive or unfair if admitted. I think those cases are confined to similar fact evidence. They could not stand for the proposition that the Christie discretion is available to be exercised in civil proceedings. Christie’s case itself shows that the rule there promulgated was only to apply to criminal proceedings: [559]. This Court has consistently stated that the Christie discretion has no application to civil proceedings: Evans v F (1964) SASR 130; Mazinski v Bakka (1979) 20 SASR 350 per Wells J at 380; Sheldon v Sun Alliance Ltd (supra) per von Doussa J at 247 and Duke Group Ltd v Pilmer (supra) per Mullighan J at 378.
In my opinion, it is well settled in Australia that a discretion of that kind is not available to a trial judge in civil proceedings.
In New South Wales the Court of Appeal has decided that a judge does not have the discretion to reject relevant and otherwise admissible evidence whether sitting with or without a jury: Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 per Kirby P (Meaghar JA and Handley JA agreeing). I think in that case the Court of Appeal not only decided that the Christie discretion and the unfairness discretion were not available but nor was the public policy discretion. In Victoria the Full Court of the Supreme Court in David Syme & Co Ltd v Mather (1977) VR 516 approved a previous decision of the Court in Manenti v Melbourne and Metropolitan Tramways Board (1954) VLR 115 concluding that in civil cases there was no discretion to exclude evidence relevant to the issues.
However that leaves for decision the question whether the Bunning v Cross discretion is available in civil proceedings. The Bunning v Cross discretion is often spoken of as public policy discretion. Indeed the passage which I have cited from Question Of Law Reserved (No. 1 of 1998) (supra) shows the foundation upon which the discretion is based. In Pollard v The Queen (1992) 176 CLR 177 at 203 Deane J said that the Court should not be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”.
In Ridgeway v The Queen (supra) at 35 in the joint judgement of the majority it was said:
“At this stage, it suffices to say that, for the reasons given above, it should be accepted that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence or an element of an offence in circumstances in which its commission has been brought about by unlawful conduct on the part of law enforcement officers.”
There can be no doubt in my opinion that the Bunning v Cross discretion is based upon the need to ensure that the Court’s processes are not defiled by a prosecuting party’s improper or illegal conduct.
In both criminal and civil proceedings, the Court is alive to ensure that its processes are not abused. The Court cannot permit a party to abuse its processes and profit by it. It is essential for the maintenance of the administration of justice that the Court’s processes are not abused and, if they are, the abusing party does not profit by the abuse.
It seems to me therefore that the same public policy is relevant in civil proceedings as in criminal proceedings. The public policy being as I have stated it, the protection of the integrity of the Courts and thereby the administration of justice.
In principle I can see no reason why the evidence which has been improperly or illegally obtained cannot in the exercise of the Court’s discretion be excluded in civil proceedings.
In England there is authority to the contrary.
In Reg v Leatham (1861) 8 Cox CC 498 at 501 Crompton J said speaking of civil proceedings “it matters not how you get it; if you steal it even, it would be admissible in evidence.” In Helliwell v Piggott-Simms [1980] FSR 356 at 357 Lord Denning said: “even if it was unlawfully obtained, nevertheless the judge is right to admit it in evidence.”
In Karuma v The Queen (1955) AC 197, Lord Goddard speaking for the Board of the Privy Council said:
“In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained.”
He went on to say:
“There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. This was emphasised in the case before this Board of Noor Mohamed v The King [1919] AC 182 and in the recent case in the House of Lords, Harris v Director of Public Prosecutions [1952] AC 694 and 707. If, for instance, some admission of some piece of evidence, eg, a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out.”
However the English Courts have not recognised the Bunning v Cross discretion and those cases may be distinguished. This is clear from Karuma v The Queen (supra). Lord Goddard’s speech recognises the traditional discretion in the criminal law recognised in Driscoll v The Queen (supra) to refuse the admission of otherwise admissible evidence where to admit it would be oppressive or unfair to the accused, but does not recognise the particular discretion identified in R v Ireland (supra) and Bunning v Cross (supra): see also Kingv R (1969) 1 AC 304 at 315; Jeffrey v Black [1978] 1 QB 490; R v Sang [1980] AC 402. (Compare a recent decision of the House of Lords in Attorney General’s Reference (No. 3 of 1999) [2001] 1 All ER 577.) The English authorities are no reason to deny the existence of a public policy to refuse to admit otherwise admissible evidence in civil proceedings.
The universality of the proposition that no discretion exists at all in civil proceedings was questioned by Pincus J in Pearce v Button (1985) 60 ALR 53 at 551-553. After referring to English authority and Manenti v Melbourne & Metropolitan Tramways Board (supra) he said:
“Both the Australian work just referred to, and some American cases, throw doubt upon the universality of the proposition that a civil court cannot exclude relevant evidence on the ground that it was improperly obtained. To take an extreme example, it is difficult to believe that in civil proceedings there could be no discretion to exclude, on policy grounds, admissions obtained by violence or threats of violence. If the Customs officers had extracted the documents from Mr Pearce by threatening to shoot him, one cannot see any real likelihood of the documents being admitted. That is, despite the apparent lack of authority in England or Australia supporting its existence, there must surely be a discretion even if in civil cases to exclude such evidence on policy grounds. Further, it is not clear why considerations of policy should necessarily be more favourable to the admission of the illegally obtained evidence in civil matters than in criminal matters. The public purpose to be served in the former may be trivial or non existent, whereas a prosecution usually has at least an ostensible public function. However, it cannot be unfair to the applicants to consider the admission of the evidence, assumed to be unlawfully obtained, as if there were such discretion as exists in criminal cases. Applying those tests in favour of the applicants, I am clearly of the view that the discretion should be exercised against them.”
In Miller v Miller (1978) 141 CLR 269 at 277 Gibbs J, in a case which involved Family Court proceedings and the admissibility of evidence obtained in contravention of the Telephonic Communications (Interception) Act 1960 (Cth), said:
“However, if the sub-section does not render evidence of such a conversation inadmissible, the court would have a discretion to exclude it, since it was unlawfully obtained: Bunning v Cross.”
His Honour assumed that illegally obtained evidence could be excluded in exercise of a judge’s discretion in Family Court proceedings.
In Mazinski v Bakka (supra) the Full Court of this Court was concerned with the admissibility of blood analysis evidence which had, on one view, been obtained other than in accordance with the procedures under the Road Traffic Act 1961-1976.
King CJ said 361;
“For the reasons given by Wells J I agree that the result of the analysis of the blood sample was probably admitted by the learned trial Judge. It was argued before us that the Judge had a discretion, similar to that which existed in criminal cases to exclude the evidence on the ground that its admission would be unfair to the party against whom it was intended, and that the proper exercise of that discretion would have resulted in the exclusion of the evidence. Even if a Judge in a civil trial has such a discretion, it is difficult to see how its exercise could have resulted in the exclusion of the evidence.”
He went on to say;
“It is therefore unnecessary to decide whether a judge in a civil case has a discretion to reject admissible evidence, particularly evidence which has been unlawfully obtained, and the extent of any such discretion. There has been a marked development of the law in recent years as to the basis and extent of the discretion in criminal cases: viz The Queen v Ireland (1971) 76 CLR 321; Bunning v Cross (1978) 52 ALJR 561. Perhaps a parallel development is to be looked for in relation to civil cases. Some of the considerations upon which the discretion is exercised in criminal cases have no counter part on the civil side, but the public interest referred to in Bunning v Cross in protecting the citizen’s immunity from arbitrary and unlawful infringement of his rights is applicable to both. The courts cannot appear to condone the obtaining of evidence by deliberately illegally conduct which constitutes a serious infringement of legal rights. Whether by adapting the concept of abuse or process or by some other means, it seems to me that the courts must seriously consider assuming a discretionary power in civil cases to reject evidence which a party has obtained by a serious and deliberate infringement of the legal rights of another.”

106......................... Wells J said at 380/381:

“This is a civil case and the rules of evidence to be applied to it, although, generally speaking, coincident with the rules that are applied in criminal cases, vary from the latter in certain important respects. Apart from statutory provisions that apply to civil, but not to criminal, cases - for example, s 34C of the Evidence Act 1929, (as amended) - the most important difference is to be found in the discretion given to a trial Judge in a criminal case to exclude evidence that is relevant and not rendered inadmissible by any exclusionary rule. As far as I am aware, no similar discretion is given to a judge trying a civil case, and counsel were unable to find any authority for the existence of such a discretion. One or two expressions and dicta were culled from earlier cases which, taken alone, might be used to suggest that a judge sitting in the civil jurisdiction has a discretion of that kind, but in every case what was being alluded to was the trial Judge’s undoubted power to evaluate evidence to determine whether it is relevant: compare In the matter of a petitionbyFrits Van Beelen (1975) 9 SASR 163 at 192-197.”
To the general rule there is, in my opinion, one qualification: although the discretion of the trial Judge in a criminal case is lacking in a civil case, there remains, as always, the residual power of any court to prevent abuse of its processes, whether in the criminal jurisdiction (see The Queen v O’Loughlin; Ex parteRalphs (1971) 1 SASR 219 at 229, 281-282) or in the civil jurisdiction (Metropolitan Bank v Pooley (1885) 10 App Cas 210 at 214; Willis v Earl Beauchamp (1886) 11 PD 59; and Lawrance v Norreys (1890) 15 App Cas 210 at 216). It seems to me that if a piece of evidence was obtained by means of conduct that was deliberately and cynically criminal or otherwise outrageous, a civil court terms to whom such evidence was tendered, and who was made aware of the facts surrounding its intention, might be moved to say, modelling itself on Wilmot CJ in Collins v Biantern (1767) 2 Wilson 341 at 350:
“No polluted hand shall touch the pure foundations of justice. Whoever is party to felonious and wicked acts to obtain evidence shall not come in an unclean manner to ask a Court of justice to help him by using the evidence thus obtained. Procul, O! procul este profani: “In other words, a court might say that it would not allow itself to be placed virtually in the position of particeps criminis with respect to a person seeking the court’s aid to complement his felonious conduct. But it would, in my view, require a strong case to warrant a court’s taking such a course - for example, cases where acts of torture or extortion have been employed.”

I have already referred to the passage in Sheldon v Sun Alliance (supra) where von Doussa J said that a discretion to exclude evidence which has been obtained in an illegal fashion might well exist.
In Duke Group Limited v Pilmer, (supra) Mullighan J after concluding that the Christie discretion did not apply, said that there might be two circumstances in which the Court had a discretion to reject admissible evidence. The first might be in the circumstances mentioned by King CJ in Mazinski v Bakka (supra) and the second if admitting the evidence would result in procedural unfairness.
I am inclined to the view that the Bunning vCross discretion is available to the court in civil proceedings for the very reason it exists in criminal proceedings and that is to protect the administration of justice.
In my opinion a court would not sit idly by and allow its processes to be abused and then allow the person guilty of that abuse to tender the fruits of the abuse in those or other proceedings. The court has a duty to protect itself against such abuses. It will stay proceedings where otherwise a party will not receive a fair trial until a fair trial can occur. It will stay proceedings for all time where a party has brought proceedings for an improper or collateral purpose: Williams v Spautz (1992) 174 CLR 509 at 519 If the Court will exercise those powers in civil proceedings it must have the power to refuse or accept the tender of evidence obtained by reason of an abuse of process.
In my opinion, there is a residual discretion in the court to refuse to allow the tender of otherwise admissible evidence where that admissible evidence has been obtained by abuse of the court’s processes; Mazinski v Bakka (supra).
Not all evidence improperly or illegally obtained will be rejected. Improperly or illegally obtained evidence is not by itself inadmissible; Cleland v R (1982) 151 CLR 1. If evidence has been obtained in that way and is sought to be tendered in civil proceedings the Court has a discretion, which will be exercised having regard to the underlying policies which call for the discretion’s existence, the circumstances in which the evidence was obtained and the potential prejudice to any party if the evidence is admitted or rejected.
There are however not the same competing public policies operating. In civil proceedings there is the public policy that all admissible evidence ought to be before the Court to allow it to arrive at the correct result. On the other hand there are the public policies in protecting the individual from unlawful and improper conduct at the hands of another and in protecting the integrity of the Court’s procedures.

Should the discretion be exercised to refuse the admission of the transcripts of examination?

In this case, as I have said, the defendants apart from Mr John Bond relied upon three discrete circumstances which they said identified the liquidator’s abuse of process.
Mr John Bond did not argue that the liquidator had been guilty of an abuse of process and so did not ask the Court to exercise any discretion to refuse to admit the transcript of his examination on that ground.
However, each of the other defendants did argue that the transcript of their examination should not be admitted against them because the liquidator had been guilty of three discrete abuses.
As to the first ground identified by Mr Wells, in my opinion, that is untenable. Each of the defendants complained in the winding up proceedings of the respective orders made against them for their examination. Each of them failed in that complaint. All of them appealed and all had their appeals dismissed by the Full Court of this Court. Two of them, Ms Caboche and Mr Craig Bond sought leave to appeal from the High Court. Mr Craig Bond abandoned his application and Ms Caboche’s application was dismissed.
In my opinion, it is not possible for the defendants to argue that the liquidator was, in obtaining these orders, actuated by an improper motive. I understand that the defendants would wish to argue, in due course, that the improper motive was manifested by the orders being obtained after the issue of these proceedings. It will be argued that the decision of the Full Court in Re: Southern Equities Corporation Ltd (In Liq), Bond & Anor v England (supra) is wrong. The defendants reserve to themselves the right to argue that any order obtained after the issue of proceedings for the examination of a defendant was ipso facto an abuse of process. That argument could only succeed in the High Court and I would be surprised if it could succeed there; Hamilton v Oades (supra) per Mason CJ at 497.
The first ground relied upon for the exercise of a discretion in favour of a defendant therefore cannot be made out.
The second ground was only relied upon by Mr Wells and Mr White in relation to the examination of Mr Craig Bond.
I have read the examination. In my opinion, the conduct of the examination was not improper. The liquidator’s counsel conducted a vigorous but, in my opinion, fair examination of Mr Bond. At times the examination included leading questions much in the nature of cross examination but that did not render the examination unfair. Some questions went to the credit of Mr Craig Bond, but that also does not render the examination unfair. Whilst it might be an abuse to conduct an examination for the predominant purpose of destroying a person’s credit that does not mean that questions going to credit cannot be asked: In Re Hugh J Roberts Pty Ltd (In Liq) and Companies Act (supra), Street J said at 585:
“Very often the gathering of information quite properly involves testing the reliability or credit of the examinee from whom the information is being obtained.”
Mr Craig Bond was represented by senior counsel who took objection to some questions but not to the examination itself. It was not argued, in the examination, that the conduct of counsel was improper. No complaint was made after the examination and the winding up proceedings to the conduct of liquidator’s counsel. The examination was conducted in the presence of a judicial officer who had the obligation of ensuring that the examination was fair. The Master needed to ensure that “the examination is not made an instrument of oppression, injustice or of needless injury to the individual”: Rees v Kratzmann (1965) 114 CLR 63 at 66. In my opinion he fulfilled that obligation.
Therefore there is nothing upon which Mr Craig Bond can presently rely for the proposition that the conduct of the examination was unfair and thereby an abuse of process by the Court.
The second ground is not made out.
The third ground is a little difficult to understand. I think it is the three defendants’ complaint that the mere application to tender the transcripts in these proceedings evidences an abuse of process.
There is no doubt that the transcripts are relevant. The examination was directed to the very matters raised in the pleadings. It is difficult to understand how it can be said that the application to tender relevant and admissible documents can be evidence of an abuse of process.
In my opinion there is nothing in the application to tender these documents which would evidence an abuse of process.
In my opinion the transcripts are relevant and admissible against each of the examinees in these proceedings. Whilst I accept that I retain a discretion to refuse to accept the transcripts if the evidence was obtained by way of an abuse of the Court’s processes, in my opinion, there is nothing to suggest that there has been any abuse of the Court’s processes.
It was for those reasons that I admitted each of the transcripts against the respective defendants.

Are the transcripts of the examination of each defendant admissible against the other defendants?

The plaintiffs sought the admission of the transcripts of examination not only as against the particular defendant, but also against each other defendant.
The defendants argued that if I concluded the transcripts were admissible and should be admitted against each of the respective defendants I should not admit the transcripts of each of the defendants against each other.
The plaintiffs cannot rely upon s 597(14) for the cross admissibility of these transcripts. Section 597(14) is clearly limited in its terms to the admission of the transcript of an examination in legal proceedings against the particular examinee.
If the transcripts of the examinations are admissible against other defendants it must be because of some other provision outside the Corporations Law: Wily v Lo Presti (1998) 16 ACLC 82 at 83.

The evidential aids in the Evidence Act

Sections 45A and 45B were introduced into the Evidence Act (SA) in 1972. Section 45C was enacted in 1984. Section 59J was introduced in 1992.
All four sections are remedial in character and were enacted for the purpose of facilitating the proof of evidence in both civil and criminal proceedings. Because they are remedial, they should be given the most liberal construction and any technical construction should be eschewed.
The purpose of s 45A, s 45B and s 45C is to facilitate the proof of evidence and in the case of s 45A and s 45B the proof of documents without the requirement that the author of the documents need be called; Hillier & Carney v Lucas [2000] SASC 331; The Queen v Calabria (1982) 31 SASR 423; Burnside Sub-Branch RSSLA Inc v Burnside Memorial Bowling Club Incorporated (1990) 58 SASR 324.
Of course the sections have different work to do of course. Section 45C was enacted to allow the proof of a document without the party tendering the document being called upon to produce the original. It relieves parties from the rigours of the best evidence rule. Section 45A was enacted to facilitate the proof of business records. Section 45B was enacted for the purpose of proving a statement of fact contained in a document.
Section 59J has a different function. It does not provide for facilitating the proof of evidence. Rather it provides for dispensing with compliance with the rules of evidence. It also is not confined in its operation to documents as are ss 45A, 45B and 45C.
Section 45C is not important for the purpose of these reasons. It needs no further discussion.

Sections 45A and 45B Evidence Act 1929 (SA)

I turn to sections 45A and 45B which I set out:
“45A(1)... An apparently genuine document purporting to be a business record -
(a)     shall be admissible in evidence without further proof; and
(b).... shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)... A document shall not be admitted in evidence under this section if the court is of the opinion -
(a)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 of the matters contained in the document; or
(b)that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c).... that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)... For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)    In this section -
“business” means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
“business record” means -
(a).... any 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; or
(b)any reproduction of any such record by photographic, photostatic, lithographic or other like process.
45B(1)    An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred shall, subject to this section, be admissible in evidence.
(2)    A document shall not be admitted in evidence under this section where the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document.
(3)... A document shall not be admitted in evidence under this section if the court is of the opinion -
(a).... 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 of the matters contained in the document;
(b)that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c).... that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(4)... In determining whether to admit a document in evidence under this section, the Court may receive evidence by affidavit of any matter pertaining to the admission of that document in evidence.
(5)    For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(6)    In this section -
“document” means -
(a)     any original document; or
(b).... any reproduction of an original document by photographic, photostatic or lithographic or other like process.”
Although in the end it was s 45B which was relied upon by the plaintiffs for the tender of the transcripts of the examinations of each of the defendants against each other defendant, s 45A was relied upon for the purpose of the tender of other documents.
I need therefore to consider and decide upon the construction of both sections.
Sections 45A and 45B have some similarities. Because they have different work to do they also have dissimilarities.
Both sections incorporate the same scheme whereby an apparently genuine document, which otherwise satisfies the requirements of sub‑section (1) in each section, will be admitted subject to the safeguards provided in the section itself.
Both sections apply only to documents and indeed “apparently genuine documents.” It is a prerequisite therefore for the operation of both sections that the document which is being tendered is apparently genuine.
Both sections provide for the admissibility of an apparently genuine document which otherwise complies with the requirements in sub‑section (1) of each section.
Both sections provide safeguards to protect the party against whom the document is sought to be tendered. In both cases the Court may refuse to accept the tender of an apparently genuine document which otherwise complies with the respective sections. First 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. Secondly, where the Court is of the opinion that the evidentiary weight of the document is outweighed by the prejudice which might result to any of the parties. Thirdly where the Court concludes that it would be otherwise contrary to the interests of justice to admit the document in evidence.
Both sections provide guidelines by which the Court will assess the evidentiary weight that should be given to the document on its admission.

Section 45A

There are however marked dissimilarities. Section 45A only applies to business records and in that regard only applies to any document “prepared or used in the ordinary course of business for the purpose of recording any matter relating to the business.”
Therefore s 45A does not apply to a document unless it is prepared or used in the course of business for the particular purpose which I have identified. It follows that the following threshold matters are required to be established before s 45A can operate. First the document sought to be tendered must be an apparently genuine document. Secondly it must purport to be a business record, being a document which is prepared or used in the ordinary course of business. Thirdly if it is an apparently genuine document which has been prepared or used in the ordinary course of business it must have been prepared or used “for the purpose of recording any matter relating to the business”. All three matters need to be established before the document can be admitted. If those matters are established then the document is admissible without further proof, and may be used as evidence of any facts stated in the record, or any fact that may be inferred from the record. That inference can arise wholly from the record itself or from the record and other evidence.

If a business record is admitted under s 45A, its evidentiary weight shall be determined after a consideration of the source from which the document has been produced, and the safeguards if any that have been taken to ensure its accuracy and any other relevant matters; s 45A(3).
Those matters must be matters relating to the accuracy of the record itself. Before s 45A(3) has any part to play it must have been established that the document which has been tendered is an apparently genuine document. It therefore follows that s 45A(3) is not concerned with the genuineness of the document, but more with the accuracy of the contents of that apparently genuine document.
Even if the document passes all of the threshold requirements the document will not be admitted in evidence if the Court is of the opinion that it should not be admitted for any of the reasons in s 45A(2).
Whilst the matters in s 45A(2) have been described as safeguards, in a sense they are discretions. In The Queen v Calabria (supra) at 430 King CJ described the provisions in s 45A(2) as both safeguards and discretions. They are both, in that discretions have been enacted to provide safeguards to the party against whom the document is sought to be tendered against the capricious use of the section. The same can be said of s 45B. (But see Mullighan J in Duke Group Ltd v Pilmer (supra) at 375).
Section 45A(2) recognises that the document is otherwise admissible, having been made admissible by the document conforming with the matters in s 45A(1). However whilst the document might be otherwise admissible by virtue of s 45A(1) the Court has a discretion in s 45A(2) to refuse the tender of that document for any of the reasons in s 45A (2).
By way of an example, the matter in s 45A(2)(b) is the Christie discretion applied to a document which is otherwise admissible by virtue of s 45A(1). Parliament has seen fit to include the Christie discretion to allow the Court to reject the tender of an otherwise admissible document in both criminal and civil proceedings. There can be no doubt that this safeguard or discretion applies to all legal proceedings when documents are sought to be tendered under s 45A or s 45B.
Section 45A(2)(c) would give rise to questions of oppression and unfairness, and any other matter relevant to the question of the interests of justice. That is not unlike the discretion identified in Driscoll v The Queen (supra).
Section 45A(2)(a) requires the Court to consider whether the person by whom or at whose direction the document was prepared should be called. In that consideration the purpose of the section should not be overlooked. The section has been enacted to provide for the admissibility of documents without the need for the calling of the person who prepared the document. It is not enough therefore for the party opposing the tender to insist as a matter of form upon that person being called.
Again the considerations in s 45A(2)(a) only arise after it has first been established that the document is an apparently genuine document and is a business record having been prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business.
Therefore the safeguard or the discretion in s 45(2)(a) does not operate to require the party tendering the document to call the person referred to in s 45A(2) to prove the genuineness of the document, or to prove that it is a document which has been prepared or used in the ordinary course of business for the particular purpose in s 45A(4).
In a consideration of the matters under s 45A(2)(a) the person by whom or whose direction the document was prepared is called “to give evidence of the matters contained in the document.” Ordinarily the party tendering the document would not be called upon to call a person by whom or at whose direction the document was prepared except to establish the accuracy of the matters recorded in the document.
The Court can reject the tender under s 45A(1) if it 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 to give evidence of the matters contained in the document. The Court must therefore be satisfied in a consideration of a rejection of the tender that the party by whom or at whose direction the document was prepared is available to be called by the party tendering the document and in all the circumstances, it would be appropriate to require that party to call that person.
Therefore in a consideration of s 45A(2)(a) the following must be addressed. First whether the party seeking to tender the document can, in the sense is able to, call the person by whom or at whose direction the document was prepared. Secondly whether that party should call that person. Both those matters depend upon the Court being of the opinion that the person by whom or at whose direction the document has been prepared can and should be called to give evidence of the matters contained in the document and only in relation to those matters.
Mr Hoffman argued that if the document was admissible under s 45A(1), because the Court was not of the opinion of any of the matters in s 45A(2), then the document so admitted will be evidence of any facts stated in the record or any facts that may be inferred from the record, even if the document contains hearsay evidence. He said a document admitted under 45A rendered hearsay evidence admissible if contained in that document He relied upon a decision of the Court of Criminal Appeal in The Queen v Nicholson (1984) 113 LSJS 125 and in particular in the judgment of the Chief Justice (with whom Walters and Mohr JJ agreed) at 133 where His Honour said:
“Statutory provisions of this kind are intended to make available to Courts evidence which would be acceptable in other matters of serious concern in the community, but have been excluded from the consideration of the Court by the common law rules of evidence. They are intended to render hearsay admissible.”
In addressing s 45B on an earlier occasion King CJ made similar comments; The Queen v Calabria (supra) at 430. Mr Hoffman also relied upon decisions of judges at first instance in this State: The Queen v Perry (No. 3) (1981) 28 SASR 112 per Cox J at 115; Duke Group Limited (In Liq) v Pilmer (supra) at 375; Ryan and Others v ETSA(No. 2) (1987) 47 SASR 239.
There is no doubt that the decisions to which Mr Hoffmann referred support his proposition that hearsay evidence is admissible in any document which is tendered under s 45A.
Mr Wells on the other hand argued that hearsay evidence was not admissible under s 45A or indeed s 45B. I shall deal with s 45B a little later.
He relied upon a decision of Bray CJ, in O’Leary v Lamb (1973) 7 SASR 159. In that case the former Chief Justice said at 198-199:
“However, I do not think that Parliament intended to make any document admissible when the matter and the document would not be admissible if offered in the oral evidence of someone who could depose to it at first hand. Lamb could not have related in the box his conversation with Burton or his recommendations to the managing director. It could not have been intended, surely, to turn inadmissible oral evidence into admissible documentary evidence by the simple process of the witness writing down in a business record what he would not be allowed to testify to in the witness box. If he could do this, there would be no point in the prohibition of subsection 2(a) against receiving the evidence of the court thinks that the person who prepared the document could and should be called. Here, he has been called and the document is tendered, not in substitution for his oral evidence, but as an amplification of it, by putting before the court material to which he would not be allowed directly to depose. In my view, the inter-office memorandum was not made admissible by s 45A.”
On the face of it that dictum stands for the proposition that any hearsay evidence contained in a document which is sought to be tendered under s 45A will not be admissible, even if the document itself is admissible under s 45A.
O’Leary vLamb (supra) was not referred to in The Queen v Nicholson (supra) and The Queen v Calabria (supra) nor was it referred to by Mullighan J in Duke Group Limited v Pilmer (supra). It was referred to by Olsson J in Ryan v ETSA (No. 2) (supra) and expressly not followed.
Mr Wells however took me to two further decisions of the Court of Criminal Appeal. In Beauregard-Smith v R (1995) 180 LSJS 188 King CJ (with whom Matheson and Millhouse JJ agreed) said at 5:
“The second ground of appeal was that the learned judge ought, in any event, to have admitted that statement pursuant to s 45A of the Evidence Act. Section 45A of the Evidence Act enables business records to be proved. It is a valuable means of proving facts which are otherwise relevant and, subject to being proved by admissible means, made admissible.
It is not a proper use of that section to proof facts which, if deposed to by a witness having knowledge of those facts, would not be admissible. In the absence of a foundation under s 28 of the Evidence Act, it would not have been permissible for Dr Lawson to have given evidence of the statement. It would, therefore have been a misuse of s 45A to permit it to be proved pursuant to that section.”
King CJ presided in the three decisions of The Queen v Nicholson (supra), The Queen v Calabria (supra) and Beauregard-Smith v R (supra). In the first case His Honour directly addressed the question of the admissibility of hearsay evidence in a document which is admissible under s 45A. In the second, His Honour implicitly addressed that question and answered it the same way, expressly stating at 430 that s 45B “seeks to remove the restrictions imposed by the ordinary rules of evidence as to documentary evidence and hearsay.”
The question in the third decision was quite different. In that case the complainant in a rape trial was called by the prosecution and cross-examined. She was not cross examined about an alleged prior inconsistent statement made to her medical practitioner, Dr Lawson. Immediately before Dr Lawson was called the accused’s counsel became aware for the first time of the earlier statement. She sought the recall of the complainant for further cross examination. The trial judge, for perfectly proper reasons, refused the application. Counsel then sought to tender the statement made to the medical practitioner pursuant to s 45A of the Evidence Act. Dr Lawson, in the absence of any suggestion of a prior inconsistent statement, could not have given evidence of what he was told. The application to tender the statement made to the general practitioner was made in an endeavour to tender evidence which was otherwise wholly inadmissible.
This case did not concern the admissibility of hearsay evidence. The decision cannot be said to contradict expressly or implicitly anything said by King CJ in the earlier decisions.
In the second case to which Mr Wells referred, Question of Law Reserved (No. 3 of 1997) (1998) 70 SASR 555, three men were jointly charged with murder. All pleaded not guilty. One of the men, Wanganeen, was interviewed by police. He applied for a voir dire application to have the record of part of the interview excluded. The trial judge ruled that the transcript of the interrogation of Wanganeen, should be excluded. After announcing that ruling counsel for one of the co-accused, Smith, indicated that he would attempt to have Wanganeen’s interrogation admitted either in cross examination of the prosecution case or, if the interrogating officers were not called, by calling them as witnesses in his client’s defence.
On appeal by way of case stated it was argued that the transcript of the interrogation could only be admissible against the accused who made the out of court statement and in view of the trial judge’s ruling it had been excluded. It was argued that it was otherwise hearsay being an out of court statement.
The accused, Smith, seeking to use the interrogation of the other accused, argued that it could be tendered under either or both of ss 45A or 45B of the Evidence Act.
Prior J said at 562-563:
“It was further submitted before this Court, though not to the trial judge, that even if the transcript of interview was not otherwise admissible it was admissible pursuant to ss 45A and 45B of the Evidence Act 1929 (SA).
That argument must be rejected. Whatever else may have been said in other cases, the finding of unfairness by the trial judge, the rule against hearsay and the real purpose of those provisions makes such an argument untenable. As Bray CJ put it in O’Leary v Lamb (1973) 7 SASR 159 at 198, those provisions are not to make admissible that which would be inadmissible. The section may apply should proof of an inconsistent statement become a relevant issue in the trial.”
In the same case Perry J said at 570:
“I agree with Prior J that the argument that ss 45A and 45B of the Evidence Act 1929 (SA) afford a means by which Wanganeen’s out-of-court statements now in question might be adduced in evidence at the behest of Smith should be rejected. Both of the sections are essentially facultative in their operation. They are designed to facilitate proof, rather than to provide grounds of admission of evidence which would otherwise be inadmissible.”
Williams J said 574:
“I agree with the other members of this Court that the provisions of s 45A and s 45B of the Evidence Act 1929 (SA) (which facilitate manner of proof) do not operate to render admissible the contents of the transcript of interview with Wanganeen.”
There is no mention in that decision of The Queen v Calabria (supra) or the cases which have followed it. However I have searched the file of that case stated. The transcript of the argument in the Court of Criminal Appeal shows that Smith’s counsel relied upon The Queen v Calabria in support of his argument that the transcript of the interrogation should be able to be tendered under either or both of s 45A and s 45B. No one suggested that The Queen v Calabria (supra) was not in point. No one suggested that it had been wrongly decided. There is no apparent explanation for the Court not dealing with that earlier decision.
In Question of Law Reserved (No. 3) of 1997 (supra) Prior J held that the out of court statement of Wanganeen would be hearsay if relied upon by Smith. It could not be admitted as an exception to the hearsay rule: Bannon v The Queen (1995) 185 CLR 1. Perry J said that the interrogation was inadmissible against Wanganeen because of the provisions of s 74E of the Summary Offences Act 1953. He also said that Bannon v The Queen (supra) prevented the recognition of an exception to the hearsay rule which would have allowed the tender by Smith of Wanganeen’s interrogation. Williams J agreed with both Prior J and Perry J.
In the case stated, as in Beauregard-Smith v R (supra), the party seeking the tender of the document under s 45A was attempting to lead evidence which, if led orally, would be wholly inadmissible. The party was not seeking to tender a document which incidentally contained hearsay. The party was in both cases attempting to circumvent the rules of evidence by tendering the evidence in documentary form. I agree that is an impermissible course of action. However that does not mean, as has been put, that hearsay evidence cannot be admitted in documents tendered under s 45A.
In Duke Group Limited (In Liq) v Arthur Young (No. 3) (1990) 55 SASR 11 Perry J had to consider the application of s 45A of the Evidence Act 1929. Whilst he was not called upon in that case to pass any opinion upon whether the documents in question could admit hearsay evidence, he did quote King CJ’s dictum at 239 in The Queen v Nicholson (supra) which included the Chief Justice’s observation that s 45A and s 45B render hearsay evidence admissible. After quoting that section Perry J observed that The Queen v Nicholson was clear authority for what might constitute a business record.
It would be surprising if the Court of Criminal Appeal in Question of Law Reserved (No. 3 of 1997) (supra) intended to overrule a previous decision of its own without making a reference to it.
I think that the appropriate way to deal with evidence which is tendered in a document and complies with the threshold obligations in s 45A(1), but is tendered for the purpose of circumventing rules of evidence which would otherwise prevent the evidence being given orally, is to apply the provisions of s 45A(2)(c), and reject the evidence in the interests of justice. This was the alternative course suggested by Perry J and, in my respectful opinion, the preferable course.
Intermediate Courts of Appeal are not strictly bound by their own previous decisions and would only depart from a previous decision cautiously and when compelled to the conclusion that the earlier decision is wrong: Nguyen v Nguyen (1990) 160 CLR 245 at 288-290. Indeed the practice of the Court of Criminal Appeal is “not to depart from its previous decisions unless they are shown to be plainly wrong”: R v Do (1990) 54 SASR 543 at 545.
Neither case relied upon by Mr Wells can be understood to be over ruling The Queen v Calabria (supra).
In any event, in my opinion the decision in The Queen v Calabria (supra) at least as so far as it applies to s 45A, is correct. Business records are often compiled by a number of different persons and on information supplied by persons other than the collater of the records. Business records regularly include hearsay and often hearsay upon hearsay: Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 at 548-549. I do think that Parliament intended in enacting s 45A to make business records admissible so as to include in those records hearsay material which would, if given orally, be inadmissible. The very purpose of the section is to facilitate proof of matters which either could not previously be proved or alternatively could only be proved with a degree of difficulty. If s 45A only allowed business records which did not contain hearsay evidence to be tendered the section would have very little work to do. Indeed if that was its only purpose it is difficult to understand why this section would have been enacted because s 45B would fulfil that same limited function.
Therefore, in my opinion, s 45A is intended to make hearsay material contained in business records admissible.
That does not mean that every document which contains hearsay material will be admissible under s 45A. As I have already explained the safeguards which are available in s 45A(2) will operate to exclude evidence which is unreliable by reason of hearsay evidence.

Section 45B

I turn now to s 45B. I have already dealt with the similarities between that section and s 45A.
Two threshold matters must be addressed before s 45B can aid in the admission of a document. First, a document which is sought to be tendered under s 45B must be an apparently genuine document. Secondly it must purport to contain a statement of fact. The statement of fact may be express, or there may be matter contained in the document from which a statement of fact may be implied or can be inferred.
Unlike s 45A however, s 45B requires the Court to turn its mind to one further matter before the document may be admitted. The Court must not admit the document if it is not satisfied that the person by whom or at whose direction the document was prepared could have at the time of preparation of the document deposed to his own knowledge to the statement that is contained or implicit in, or which may be inferred from the contents of the document.
Section 45B therefore requires that if the document is tendered for the proof of the statement of fact expressly contained in the document, the Court must be satisfied that the person referred in subsection 45B(2) could have deposed of his or her own knowledge to that statement of fact. On the other hand, if the statement of fact sought to be proved is implicit in the document, then the Court must be satisfied that the person referred to in subsection 45B(2) could have given evidence of that statement of fact which is to be implied from the document. It also follows that if the statement of fact can be inferred from the document the Court must be satisfied that the person referred to in subsection 45B(2) could have given evidence of that inferred statement of fact.

Section 34C applies only to civil proceedings and the discretion which is provided for in s 34C(5) only applies to civil proceedings which are “with a jury”. It is not clear why s 34C(5) applies only where civil proceedings are conducted with a jury because at the time of introduction of s 34C the Juries Act 1927 (SA) provided that civil trials be conducted without a jury except in quite limited circumstances. A civil trial could only be conducted with a jury if it appeared to the Court that a question might arise whether any party had been guilty of an indictable offence; s 5 Juries Act. The section, as enacted, suggests a slavish adherence to the English model.
Assuming the evidence is relevant to an issue in the proceedings a party may tender a document which contains a statement made by a person as evidence of the fact in the statement in the following circumstances:
(1) If the maker of the statement is called.
(2a).. If the maker of the statement had personal knowledge of the matters dealt with by the statement
or
(2b). Where the document in question is or forms part of a record purporting to be a continuous record, the maker made the statement (in so far as the matter is dealt with thereby and not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might or reasonably supposed to have personal knowledge of those matters.
(3)No statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish may be tendered: s 34C(3).
(4)... A statement shall not be deemed to have been made by the person unless the document or the material part was written made or produced by the person with his own hand or signed or initialled by him (or her) or otherwise recognised by him (or her) in writing as one for the accuracy for which he (or she) is responsible; s 34C(4).
The second condition contains alternatives and only one of them need be established.
If all the conditions except for the first are met, the maker of the statement need not be called if the maker is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he or she is beyond the seas and it is not reasonably practical to secure his or her attendance, or if all reasonable efforts to find him or her have been made without success.
The Court has a further discretion to dispense with condition (1) or to allow a copy of the document to be tendered, provided that all other conditions are complied with if the Court is satisfied that undue delay or expense would otherwise be caused: s 34C(2).
There is an ultimate discretion in the Court to reject the statement notwithstanding that the requirements of the section have been satisfied if, for any reason, it appears to be inexpedient in the interests of justice that the statement should be admitted, but only in circumstances where civil proceedings are being held with a jury. There are now no such proceedings of that kind in this State and it seems to me therefore that that ultimate discretion is not available to the Court. For all intents and purposes the discretion given to the Court in s 34C(5) no longer has any application, if it ever did.
It follows therefore that the Court must accept the tender of the evidence if the statement conforms with subsections 34C(1), (3) and (4) and if the maker of the statement is called.
The Court’s only discretion, in this State at least, is whether the Court should accept the tender of the statement, which otherwise conforms with subsection 34C(1), (3) and (4), without the maker of the statement being called for the reasons in the proviso to s 34C(1) or for the reasons in s 34C(2).
The section, as understood therefore allows the tender of witness statements, without the witness being called, if the proviso to s 34C(1) or s 34C(2) is invoked. It also allows the tender of a previous consistent statement if the maker is called. If the statement includes matters forming part of a record purporting to be a continuous record, and the document was made in accordance with s 34C(1)(i)(b), hearsay evidence may be admitted.
There were two particular aspects of this section which were addressed in argument. First, who might qualify as the maker of the statement. Secondly who might be a person interested at a time when proceedings were pending or anticipated.
I do not think there is much doubt that a person who swears an affidavit, whether pursuant to a court order, or at the behest of the plaintiffs’ solicitors or for any other reason, is the maker of the statement contained in the affidavit.
I therefore think that any affidavit which has been sworn and which the plaintiffs would rely upon would be admissible as evidence of the fact contained in the affidavit provided the conditions in s 34C(1) are satisfied and provided that the deponent to the affidavit was not a person interested within the meaning of s 34C(3) at the time when the affidavit was sworn.
For reasons I have given I do not believe the Court could prevent the plaintiffs calling a person who has sworn an affidavit and tendering that affidavit as the witnesses’ evidence in chief provided that the other conditions in the section have been met: s 34C(3).
The transcript of a person’s examination is a little more difficult. Can it be said that a person who is examined under Pt 5.9 of the Corporations Law is, on signing the transcript of his or her examination, the maker of that statement?
The maker of a statement for the purposes of s 34C can be one of two persons. The maker can either be a person (the first person), who had personal knowledge of the matters dealt with by the statement or, where the document forms part of a continuous record, the person who made the statement in the performance of a duty to record information supplied to him or her by the first person, who had personal knowledge of those matters: s 34C(1)(i).
However, to qualify for admission, the document must have been made by a person in his or her own hand, or be signed or initialled by that person, or otherwise recognised by that person in writing as one for the accuracy of which the person is responsible: s 34C(4).
In an application pursuant to s 34C to tender the transcript of an examination conducted pursuant to Pt 5.9 of the Corporations Law the only person who could qualify is the examinee because no-one else fulfils the criteria in s 34C(4). If the examinee is not the maker, no transcript of examination obtained under Pt 5.9 of the Corporations Law is admissible.
Is the examinee the maker of the statement? In my opinion the examinee is. The examinee fulfils the criteria in s 34C(1)(i)(a) in that he or she would have had personal knowledge of the matters dealt with by the statement and the statement was later acknowledged within the terms of s 34C(4) so that the document might be deemed to have been made by the examinee.
I was referred to a decision of the Court of Appeal in England in Barkway v South Wales Transport Company Limited (1949) 1 KB 54.
In that case the widow of a passenger killed in a motor vehicle accident which occurred as a result of a tyre bursting, brought proceedings in negligence against the bus company. There had been a previous action brought by an injured passenger in which Mr Jenkins, a tyre tester employed by the bus company, gave evidence on behalf of his employer.
Before the second action Mr Jenkins died.
In that second action neither party sought to tender the transcript of Mr Jenkins’ evidence in the first action. However, witnesses were cross examined in relation to views expressed by Mr Jenkins in that earlier action.
On appeal, counsel for the company applied to tender Mr Jenkins’ evidence in the first action. The Court of Appeal refused tender because it decided that the maker of the statement either had to be Mr Jenkins or the shorthand writer.
However the Court was of the opinion that Mr Jenkins could not have been the maker of the statement. It did so because the statement was not written, made or produced by him with his own hand, nor was it signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he was responsible. In the other words the Court concluded that he was not the maker because the statement did not come within the equivalent of s 34C(4).
Specifically the Court said that the case may have been otherwise if his evidence had been in a signed deposition.
The Court then considered whether the shorthand writer was the maker of the statement because a shorthand writer satisfied the requirements of subsection (4), and could come within the matters in subsection (1)(i) if the shorthand writer was the maker of the statement. The Court of Appeal decided that the shorthand writer also did not qualify as being the maker of the statement because even though he was acting in the performance of his duty, he was not recording information was supplied to him by Mr Jenkins. The Court said such a construction would be an abuse of language.
The Court also concluded that even if the shorthand writer was the maker of the statement, the information supplied to him was by a person interested. Mr Jenkins was an employee of the party in the first action sued.
The decision with respect is not entirely clear. On one understanding the decision stands for the proposition that there was no maker of the statement. On the other hand the decision may be understood as deciding that in the case of Mr Jenkins, the preconditions in subsection (3) and (4) were not met so that he could not be the maker, but nor could the shorthand writer because Mr Jenkins was a person interested. In my opinion the decision does not prevent a conclusion that had Mr Jenkins written, acknowledged or signed the evidence so as to conform with subsection (4), and had he not been a person interested, the document would have been admissible as a statement made by him.
In this case the transcripts of the examination of the various witnesses have been signed and therefore comply with s 34C(4). In those circumstances the statement and the document can be deemed to be made by each of the examinees if they can be properly be understood as being the makers of the statement and, of course, if they are not persons interested and the other conditions in s 34C(1) are satisfied.
I think it is safe to conclude that the person who transcribes the transcript is not the maker of the statement. I think that has been decided in Barkway v New South Wales Transport Company Limited (supra) but, if not, that was certainly the decision of the Full Court of this Court in RePractitioners of the Supreme Court (1980) 26 SASR 275 per Mitchell J at 282.
In that case, counsel sought to tender evidence given in a prosecution of two practitioners in later proceedings, for their striking off. He argued that the maker of the statement was a shorthand writer who had transcribed the statement. That argument was expressly rejected by Mitchell J, with whom Mohr J agreed.
The maker of the statement must therefore be either the witness who was examined or, perhaps, the Master who presided at the examination.
I say perhaps the Master, because in Edmonds v Edmonds [1947] P 67 the Court of Appeal was called upon to consider the admissibility of a transcript of evidence of proceedings before a Commissioner in India.
After discussing the English equivalent of s 34C Lord Oaksey LJ said:
“It is contended for the co-respondent that the words in s. I, sub-s. I (i) (b) “in the performance of a duty to record “information” are totally inapt to describe evidence before a commissioner or, I suggest, before a judge. In my opinion, although those words are wide enough to cover other forms of information which may be supplied, they are still apt to cover the evidence given by a witness either before a commissioner or before a judge. Such evidence is simply a form of information supplied to a commissioner or to a judge, to whom it is given on oath and under the solemnity of legal proceedings.”
That case was considered in Brinkley v Brinkley [1965] P 75. In that case parties sought to lead evidence of a Clerk of Court’s notes as being a statement made by the Clerk. The Court refused to admit the document upon the basis the Clerk was not so sufficiently identified with the Court to be included within the “information supplied to him”.
In the end result therefore the maker of the statement must be the examinee or the Master who presided over the examination. There could be two makers. The examinee could be the maker for the purposes of s 34c(1)(i)(a) and the Master for the purpose of s 34C(1)(i)(b). If it is the Master then the transcript of the examination is not admissible because it does not comply with s 34C(4). I do not have to decide whether the Master was the maker of the statement, as well as the examinee, because the document could not be admissible if he was.
If it is the examinee who was the maker, the document may be admissible if the examinee was not a party interested, and the other requirements of s 34C(1)(i) are met.
In my opinion the examinee is the maker of a statement in an examination under Pt 5.9 of the Corporations Law. This is consistent with the dictum in Barkway v New South Wales Transport Company Limited (supra) and also consistent, in my respectful opinion, with commonsense. I do not believe that the fact that any examinee may have only attended at the examination because of the coercive powers given in Pt 5.9 is relevant for a determination as to who is the maker of the statement. Whether the examinee attends voluntarily or otherwise, in the end result that which is recorded is the evidence of the examinee and must, in my opinion, be the examinee’s statement. The examinee therefore is the maker of the statement. That is consistent with the construction which was given to s 45B in The Queen v Calabria (supra) although, of course, the language in 45B is different.
In my opinion therefore the maker of the statement in respect of the transcripts of the various examinees are the respective examinees and the statements are admissible under s 34C provided that the other conditions to which I have referred are met.
That raises the second matter. It was argued by Mr Harris QC who appeared for Mr John Bond that a number of the examinees were persons interested.
Section 34C(3) prevents the admission of a statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which a statement might tend to establish
Mr Harris argued that a person might be interested within the meaning of s 34C(3) if proceedings were anticipated, which might affect the reputation of the examinee or the examinee’s employer. In those circumstances he said that most of the examinees were persons interested.
In Barkway v South Wales Transport Company Limited (supra) Mr Jenkins was held to be a person interested in the result of the first action in that his reputation as a tyre tester was involved and apart from that he was interested as an employee in his employer winning the case.
Mr Jenkins, I have assumed, was called to give expert evidence relating to the testing of tyres and to prove the procedures for that testing. In those circumstances it might have been that he would have been found the party responsible for the ultimate failure of the tyre. His responsibility would be visited upon his employer. In those circumstances of course he was likely interested in the proceedings.
However that does not mean that anyone who has the most peripheral interest in the proceedings is a person interested.
Wicks J (with whom Doyle CJ and Mullighan J agreed) in Murray-Oates v JJAD Pty Ltd (1999-2000) 76 SASR 38 reviewed two lines of authority as to the meaning of a person interested. He said at 49:
“There are two lines of authority as to the meaning of “a person interested” within the meaning of s 34C(3) of the Evidence Act. First, there are a number of South Australian cases dating from 1961 which have held that a person interested is one who at the time of the making of the statement has a substantial material interest in the subject matter of the statement. Secondly, there are cases in New South Wales and Victoria, following English authority, which hold that the test is that a statement should be admitted under the subsection only where there is a complete absence of bias on the part of the maker of the statement at the time it was made.”
After reviewing the lines of authority His Honour said that the South Australian cases should be followed, and in particular the reasoning of Chamberlain J in Murphy v Haskell (1961) SASR 1. Chamberlain J said in that case at 3:
“One view is that a person is “interested” unless he is likely to have been completely unbiased at the time of the making of the statement, the other is that he is interested only if he is likely to be materially affected by the result of the litigation. In my opinion, the balance of authority and of reason favours the latter view, which also derives considerable support from the terms of s 34D, which provides that in estimating the weight, if any, to be attached to the statement, regard shall be had, inter alia, to “the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts”. This provision appears to contemplate that a written statement may be admissible although the maker may not be an impartial person.”
It is clear that the recent decision of the Full Court has approved that dictum and of course I must follow that decision. In any event I think the decision is right.
Section 34D provides:
“(1).. In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2)For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of the evidence given by the maker of the statement.”
I think, as Chamberlain J said in Murphy v Haskell (supra), s 34D makes it clear that the legislation contemplates a person giving evidence in circumstance where that person is not completely without bias. So much follows from the need to inquire into any incentive to conceal or misrepresent facts which the maker might have had. Section 34D only applies after the statement has been admitted under s 34C. The section assumes, therefore, that a person interested may still have an incentive to conceal or misrepresent facts.
I therefore reject Mr Harris’ argument in so far as he suggested that some of these witnesses may be persons interested within the meaning of s 34C(3). I do not think any of these witnesses would be persons interested, unless they were likely to be materially affected by the result of the litigation. I am not aware of any other proceedings pending or anticipated.
If the defendants wish to pursue further argument on this point I shall deal with each of witnesses one by one to determine whether any of those witnesses are likely to be materially affected.
In summary it is my opinion that s 34C would allow the plaintiffs to tender the statements of those witnesses who have been examined under the Corporations Law by tendering the transcripts of their examinations, provided that those persons are not persons interested in the sense that they are not likely to be materially affected by the litigation, and if they are called to give evidence as provided in s 34C(1).

It was urged upon me that I should dispense with the requirement that some of these witnesses be called because they are beyond the seas and it is not reasonably practicable to secure their attendance.
In the main, the witnesses who the plaintiffs sought to be absolved from calling, but at the same time tendering their statements pursuant to s 34C, were witnesses resident in England with the exception of two witnesses resident in Australia. It was submitted that the cost of calling those witnesses allowed for the application of the proviso or if not, the exercise of the discretion in s 34C(2).
One of the witnesses whose affidavit the plaintiff sought to tender was, at the time of the swearing of her affidavit resident in Jersey in the Channel Islands. She is now dead and her death has been formally proved. I am satisfied that her evidence is mainly formal.
I am satisfied that at the time she swore the affidavits she had personal knowledge of the matters dealt with in the affidavits. I am further satisfied that she was not a person interested within the meaning of s 34C(3) at the time she swore the affidavits.
In those circumstances I thought it appropriate to admit her affidavits as statements pursuant to s 34C. The weight to be given those statements will depend in due course on any matters that are put to me under s 34D.
There are witnesses resident in Western Australia whose examination transcripts the plaintiffs have sought to tender. The proviso in s 34C(1) does not apply to them. I am not prepared to find that undue delay or expense would be caused by requiring them to give evidence in the trial: s 34C(2). I am not prepared, at least at this stage, to receive their transcripts without their being called.
I am satisfied that the remaining witnesses whose statements the plaintiffs sought to tender pursuant to s 34C are, as claimed, beyond the seas.
I am not satisfied however that it is not reasonably practicable to secure their attendance.
In opening Mr Hoffman advised the Court that it will be necessary to take evidence on commission pursuant to Letters of Requests, or private arrangements in the Commonwealth of the Bahamas and in Texas in the United States of America.
He also indicated that he would be calling as one of his principle witnesses Lady Angela Nevill who would travel to Australia for the purpose of giving her evidence. I think it is anticipated that Lady Angela Nevill’s evidence will take longer than any other witness.
It is necessary therefore for the Court to travel overseas for the purpose of taking evidence in the two jurisdictions to which I have referred.
It is possible, and indeed I have signed an order, for the issue by the Registrar of a Letter of Request directed to the High Court in England, for this Court to sit in England.
In those circumstances the witnesses, who are presently resident in England, could give evidence in England. It would be therefore reasonably practicable to secure their attendance. If the High Court in England accedes to the Letters of Request, which it is anticipated it will, I will have power to compel witnesses to attend to give evidence. Therefore I do not believe that it is not reasonably practicable to secure those witnesses attendance.
I also do not believe that the fact that these witnesses are resident in England is a reason for the application of s 34C(2). I am conscious of the fact that the plaintiff will put to increased costs by this Court having to sit in England. The plaintiffs will have their own costs and they have to undertake to pay the costs of the Court in travelling to and residing in that jurisdiction to take the evidence. In any event the plaintiffs have to meet that cost in the two other jurisdictions.
However in determining whether it would be appropriate to conclude that undue delay or expense would be caused regard must be had to the subject matter of the litigation, and the matters which the witnesses will be called to prove.
The plaintiffs have made very serious allegations against all of the defendants. They allege that the first defendant Mr Alan Bond has been guilty of breaching the fiduciary duty that he owed to the first plaintiff. They allege that the remaining defendants either assisted him in the breach of that fiduciary duty or alternatively participated in the fruits of that breach.
They also claim that the defendants have been guilty of a conspiracy to defraud the first plaintiff. The allegations are very serious and if made out would have serious ramifications for any of the defendants who are held to be liable.
The amount of money, which the plaintiffs seek to recover and which they claim was lost as a result of the matters to which I have referred, the claim for exemplary damages and the further claim for interest and costs make this a very important piece of litigation for all concerned.
The defendants have indicated to me that they wish to cross examine each of the witnesses. Not all defendants wish to cross examine all witnesses but all witnesses are sought to be cross examined by one or other of the defendants.
Having regard to the seriousness of the charges and the consequences it would be inappropriate to allow the plaintiffs to prove their case by the simple tender of the witnesses transcripts of examination pursuant to s 34C, without the witnesses being called at least for cross examination.
In those circumstances I refused to accept the tender of those witnesses transcripts of examination or affidavits pursuant to s 34C, without the witnesses being called.
If at any time it can be proved that a witness, who the plaintiffs would wish to call, cannot be called then I will hear the plaintiffs further on their application to tender that person’s affidavit or transcript of evidence.
I turn to s 59J.

Section 59J Evidence Act 1929 (SA)

Section 59J provides:
“59J (1)    A court may at any stage of civil or criminal proceedings -
(a).... dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute; or
(b)dispense with compliance with the rules of evidence where compliance might involve unreasonable expense or delay.
(2)... In exercising its power under subsection (1) the court may, for example, dispense with proof of -
(a)     a document or the execution of a document;
(b)     handwriting;
(c)     the identity of a party;
(d)     the conferral of an authority to do a particular act.
(3)... A court is not bound by the rules of evidence in informing itself on any matter relevant to the exercise of its discretion under this section.”
Section 59J as I have said, is somewhat different than the provisions to which I have already referred.
It has two obvious differences. First it is not confined to documents. Secondly it does not aid in the proof of evidence but allows the Court to dispense with compliance with the rules of evidence.
There are two circumstances in which a court may dispense with compliance with rules of evidence and they are those set out in s 59J(1).
In my opinion s 59J(2) is not intended to limit the manner or the circumstances in which a court may dispense with compliance with the rules of evidence. It is merely indicative of the circumstances in which the exercise of the power in subsection (1) may occur. Sub section (3) is necessary to allow the Court to be informally informed of matters necessary to determine whether the discretion which is provided for in s 59J(1) should be exercised.
The two circumstances which may give rise to the exercise of discretion are disjunctive. The Court may dispense with compliance with the rules of evidence if any particular matter is not genuinely in dispute or, even if genuinely in dispute, where compliance with the rules of evidence might involve unreasonable expense or delay.
It follows that s 59J may be invoked in circumstances where a matter is positively in dispute if to prove that matter in compliance with the rules of evidence would involve unreasonable expense or delay.
I have already given reasons for why I believe the Western Australian and English witnesses should be called. Those reasons are relevant to this section.
In considering a Rule of Court (Order 33 r 3) of the Federal Court which is similar but not identical in form to s 59J, Lockhart J said in Pearce v Button (1986) 65 ALR 83 at 97:
“Order 33, r 3 is made pursuant to the power conferred by s 59 of the Federal Court of Australia Act 1976. That section empowers the judges of the court to make rules, not inconsistent with that Act, making provision for or in relation to the practice and procedure to be followed in the court and for or in relation to all matters and things incidental to any such practice or procedure or necessary or convenient to be prescribed for the conduct of any business of the court (s 59(1)), in particular the means by which particular facts may be proved and the mode in which evidence of particular facts may be given: s 59(2)(p). This wide power authorizes a rule which empowers the court to allow the proof of facts at the hearing by some means not allowed by the rules of evidence. Order 33, r 3 is in wide terms. I see no reason why it should be read down. It should be construed according to its ordinary and natural meaning. But the power conferred upon the court by the rule is limited to dispensing with compliance with the rules of evidence to prove any matter not bona fide in dispute (r3(a)) or where such compliance might occasion or involve unnecessary or unreasonable expense or delay: r 3(b). In my opinion although it is for the judge to determine in each case whether the rule may be applied, its essential object is to facilitate the proof of matters which are not central to the principal issues in the case. The rule is not confined to dispensing with the rules of evidence to facilitate the proof of merely formal matters, but a judge should be slow to invoke it where there is a real dispute about matters which go to the heart of the case. Murine Eye Remedy Co v Eldred [1926] VLR 425; Meek v Guardian Assurance Co Ltd (1963) 80 WN (NSW) 940; H v Schering Chemicals Ltd [1983] 1 WLR 143 and Downs Irrigation Co-Operative Association Ltd v National Bank of Australasia Ltd (No 2) [1983] 1 Qd R 475 are cases where comparable rules or statutes were considered by courts of this country and the United Kingdom and where approaches were taken generally similar to mine.”
I do not overlook the difference in language. However I agree, with respect, with the reasons expressed by Lockhart J.
It is not my intention, nor do I believe it was Lockhart J’s, to read words into the Statute or the Rules. However the Statute, in my opinion, has more work to do when proof of formal or peripheral matters is being considered.
I appreciate of course the purpose of s 59J. It is to aid in the administration of justice and to assist in the delivery of more expeditious and cheaper justice.
I believe it is a valuable tool for a court in narrowing issues and proving facts. It cannot however be overused so as to deliver a forensic advantage to one party at the expense of another party. Whilst s 59J is silent as to when the discretion mentioned in the section should be exercised, in my opinion, the discretion would not be exercised unless it could be done so without injustice to any party and when it was in the interests of justice to do so.
In the circumstance of this case, s 59J(1)(b) at least so far as the tender of the transcripts of the overseas witnesses is sought, really adds nothing to the discretion available in s 34C(2).
Because I believe those transcripts are admissible under s 34C the same questions arise in s 34C(2) as 59J(1)(b).
Therefore, for the reasons I have already given I do not believe it appropriate in this case to exercise my discretion to dispense with compliance with the rules of evidence to allow the tender of the transcripts of examination of those overseas witnesses on the ground that requiring those overseas witnesses, to be called to prove those transcripts of examination might involve unreasonable expense or delay.
The plaintiffs also argued that the evidence which they intend to adduce from the overseas witnesses is directed to matters not seriously in dispute. The plaintiffs claim that many of the matters upon which those witnesses would give evidence are not denied but merely not admitted on the pleadings and there are no specific positive pleas in answer to those matters. They further claimed that some of the evidence on any understanding had to be non controversial.
In this case the defendants’ counsel have given me assurances that the witnesses they wish to cross examine are important, either for showing that the plaintiffs’ are incapable of proving their claim against the defendants or for the purpose of making out their defence to the plaintiffs’ claim. It is difficult after the plaintiffs’ opening and simply upon a reading of the pleadings, in a case of this complexity, and of this importance, to determine that a matter which senior counsel assure me is important to be inquired into in cross examination is not a matter seriously in dispute. I have in a case as complex and as important as this to accept the assurances of senior counsel that it is necessary for their clients’ defence to cross examine witnesses.
It seems to me, in the special circumstance of this case, it would not be appropriate for me to require the defendants to indicate in advance the matters upon which they wish to cross examine and the reasons why they wish to cross examine these witnesses. The defendants are entitled to present their defence in a proper order and that is after hearing the plaintiffs’ case.
I have reached the conclusion during argument that I could not be satisfied that the matters which the plaintiffs intended to attempt to prove by the calling of these witnesses were not matters genuinely in dispute.

Supreme Court Rule 50.03

Rule 50.03 provides:
“In proceedings to which this Rule applies, in addition to the exercise of any other power to make directions pursuant to r 55 or otherwise, the Court shall give all such directions as may seem desirable in the interests of justice and in order to secure a speedy and economical determination of the proceedings. Without limiting the generality of the foregoing, the Court may:
(a).... Direct that the issues be defined by such means as the Court may think fit other than by the delivery of formal pleadings.
(b)Direct on such terms and conditions as the Court may in its discretion impose that any party deliver to any other party or parties not later than such date before trial as shall be specified in such direction a written statement setting out the evidence intended to be adduced from all proposed witnesses or any particular proposed witness or witnesses, which statement shall, subject to any further order or direction including any order or direction by the trial Judge;
(i) be signed by the proposed witness
and
(ii)... be received at the trial as the evidence in chief of the witness giving the statement.
(c).... Dispense with or abridge the time for the taking of any interlocutory proceeding or step.
(d)Direct the use of the LIS litigation support system or any other computer process considered appropriate by the Court.”
I do not think r 50 adds to the powers which the Court has, at least in the circumstance of this case in relation to the transcripts of examination under s 34C and s 59J.
I accept that I could require the parties to conform with r 50.03(b).
The plaintiffs assert that I could require them to prove their case by the tender of the transcripts of examination. The defendants assert that I could require the plaintiffs to provide a statement in accordance with r 50.03 in addition to the transcripts of examination.
It seems to me in the circumstance of this case, where the trial has already commenced, it would be unfair to the plaintiffs to require them to provide a statement of the kind referred to in r 50.03. By the same token I believe the plaintiffs should lead evidence in a more organised form than simply by calling the respective witnesses and by the tender of the transcripts of examination on calling the respective witnesses.
However for the reason which I have already given I cannot prevent the plaintiffs from tendering the transcripts of the examination of the overseas witnesses on their calling those witnesses.
In any event I do not propose to exercise any of the powers under r 50.03.
The plaintiffs, rightly in my opinion, did not, at this stage of the proceedings, rely upon r 55.11(v) or r 78.01(2) and I need not discuss those Rules. Whether these rules might have assisted at an earlier time also does not need to be addressed.
For those reasons;
(1)... I admitted the transcript of examination of each of the defendants against the respective defendants.
(2)I refused the tender of the transcript of examination of Mr Zekulich, and Mr Mews, two witnesses resident in Australia without those witnesses being called.
(3)... I allowed the tender of the affidavits of Angela Dale Revill sworn on 13 August 1996. Ms Revill was formally resident in Jersey and is now deceased.
(4)I refused the tender of the transcript of examination of the overseas witnesses without those witnesses being called.
For the reasons given above
(1)... I refuse the tender of the transcript of examination of each of the defendants against the other defendants.
(2)I indicate that if any witness is called, who has been examined under Pt 5.9 of the Corporations Law, or who has sworn an affidavit, provided the transcript of the examination otherwise complies with s 34C(4), and the witness is not a person interested, the plaintiffs may tender as a previous consistent statement that transcript of examination or affidavit in the evidence in chief of that witness.

SCHEDULE

Witnesses Who Plaintiffs IntendedTo Call

Witnesses	Place Of Residence
Angela Nevill	London
Nancy Lake	Bahamas
Howard Lawrence	Bahamas
Paul Pettit	Fort Worth
Peter Philpott	Fort Worth
William Redmond	Queensland
George Way	Perth
Michael Cross	Perth

Witnesses whose evidence plaintiffs sought to tender in TX or affidavit form

Transcript

Witnesses	Place Of Residence
Jeffrey Mews	Perth
Kevin Lee Christensen	Perth
Wayne Zekulich	Perth
Jeremy Franks	London
Ian Poynton	London
Christopher Vaughan	London
Glyndwn Allen David Williamson	London
Ronald James Pepprell	London
John Shand Kydd	London
Andrew McIntosh Patrick	London
Robert Bleakley	New South Wales
Peter Philpott	Fort Worth

Affidavit

Witnesses	Place Of Residence
George William Couttie	New Zealand
Thomas Kruckemeyer	Adelaide
Sigrid Launois-Mayer	Lichenstein
Hans J Rohrer	Zurich
Cynthia M Walshe	Switzerland
Robert Gallagher	Queensland
Gillian Dobson	London
Sydney Gill	London
Angela Revill	Jersey
Margaret Lenaghan	Jersey
Grant Hawtin Julian	Perth
Garry John Trevor	Perth
Valerie Rose Teasdale	Perth
Paul Pettit	Fort Worth

[2001] SASC 70

16 March 2001