Stationers Supply Pty Ltd v Victorian Authorised Newsagents Association Ltd

[1991] FCA 853

9          at

IA 'JUDGMENT NO. au - .7 -

VICTORIA DISTRICT REGISTRY	)	VG 256/91
)
GENERAL DIVISION	)

BETWEEN: STATIONERS SUPPLY PTY LTD

Applicant

AND:  THE VICTORIAN AUTHORISED NEWSAGENTS
ASSOCIATION LIMITED

First Respondent

a!!D:  NEWSPOWER (VICTORIA) PTY LTD

Second Respondent

m:  VICSTAT PTY LTD (trading as Victorian
Newsagent Supplies)

Third Respondent

m:  BRIAN GEOFFREY O'MALLEY

Fourth Respondent

m:  JOHN RUSSELL REITH

3 0 D E C 1991 Fifth Respondent

AUSTRALIA

PRINCIPAL

REGISTRY -. AND- HENRY JUSTIN SLOANE

Sixth Respondent

:	m	a	-	Ryan J
Date:	11 December 1991

last year and who have now become members of Newspower. The

U: Melbourne

EX TEMPORE RULING ON ADMISSIBILITY OF EVIDENCE

Objection has been taken to the admissibility of paragraph 73 of an affidavit sworn on 20 September 1991 by Ian Paul Squires on behalf of the applicant ("Stationers Supply"). That paragraph is in these terms:

"During the last five to six weeks my assistant Cheryl Frenche and I
have spoken to 70 newsagents who ordered stock from Stationers Supply

responses received from the newaagents to our enquiries about their
present ordering intentions for the Christmas promotion can be

summarised as follows:

(a)	28 newsagents sald that they had already placed their 1991 Christmas promotional orders with VNS and would not be ordering from Stationers Supply. These 28 are part of the 34 newsagents referred to in paragraph 71 of this affidavit who placed Christmas promotion orders in 1990with Stationars Supply but did not do so in 1991;
(b)	12 newsagents said that they had already placed the majority of their 1991 Christmas promotional orders with VNS and that they had placed only partial orders with Stationers Supply. These newsagents are those 12 referred to in paragraph 71 of this affrdavit who have reduced their orders with stationers Supply and have placed the balance of their orders with VNS;
(C)	30 newsagents were not prepared to say whether they had placed orders with VNS or whether they intended to do so or alternatively whether they intended to place orders with Stationers Supply. At the time of swearing my affidavit the Chistmas promotional purchase period was closed and no orders have been placed with Statroners Supply by these newsagents. Six of these newsagents formed part of the 34 newaagents referred to at paragraph 71 of this affidavit who placed orders for the 1990 Christmas promotion with Stationers Supply but did not do so in 1991."

The evidence of the survey carried out by Mr Squires and MS

Frenche does not, on the whole, tend to prove a state of mind on the part of the persons surveyed or the existence of a

public or collective state of mind on a specific question. It

is therefore not brought within the exception to the hearsay

rule or taken completely outside that rule by application of

the principles stated as follows by Mahon J in ~ustomalass

Boats Ltd. v Salthouse Brothers Ltd. [l9761 R.P.C. 589 at 595;

[l9761 1 N.Z.L.R. 36 at 41.

"The unsworn persons respondrng to a questionnaire and the anonymous
customers who order or inquire about goods are all people making
statements out of Court to a witness called in the proceedings, and
although the basis of admissibrlity does not appear to be overtly
founded upon anything except established practice and procedure under
the trade mark and patent legislation, I can for myself see no
objection to the classification of such evidence either as proving a
public state of mind on a specific question, which is an acknowledged
exception to the hearsay rule, or as proving an external fact,
namely, that a designated opinion is held by the public or a class of
the public, this not being a matter of hearsay at all."

It is true that part of subparagraph (a) of paragraph 73 tends to prove an intention by 28 respondents to Mr Squires' survey not to order Christmas promotional items for 1991 from Stationers Supply. To that extent, the paragraph might have been admissible by application of the principle which Wilcox J expressed in this way in Concrete Constructions Ptv Limited v

plumbers and Gasfitters Em~lovees Union (1987) 15 F.C.R. 64 at

81, where his Honour developed his reasons for ruling as

admissible statements by telephone by individual employee

respondents :

"I considered that the evidence was admissible as proof of the

readiness of the respondent employee to work and as proof of his

opinion that he was constrained by Unron policy not to do so. The

relevant principle is stated in S L Phipaon'e PhiDson on Evidence

(13th ed, 1986). par 7.34 in these words:

"Whenever the physical condition, emotions, opinions and state of
mind of a person are materral to be proved, his statements indicative
thereof made at or about the time in question may be given in

evidence."

As the following discussion in Phi~son makes plain there has been

controversy as to whether this princrple operates as an exception to

the hearsay rule:  as to which see also pobson v Morris (1975) 4

NSWLR 681. However, it as now authoritatively established that such

evidence is not hearsav: but ~rimarv	ev~dence	of the wrson's
condition etc. The	was ;xpreseed in this way in'the	advice of

the Judicial Committee of the Privy Council in patten v The Oueen

(1972) AC 378 at 387:

"The mere fact that evidence of a witness includes evidence as

to words spoken by another person who is not called, is no

objection to its admissibilrty. Words spoken are facts just as
much as any other action by a human being. If the speaking of
the words is a relevant fact, a witness may give evidence that
they were spoken. A question of hearsay only arises when the
words spoken are relied on "cestimonially', that is, as
establrshing some fact narrated by the words. Authority is
hardly needed for this proposition, but their Lordships will
restate what was said in the judgment of the Board in

Subramaniam v Public Prosecutor (1956) 1 WLR 965 at 970:

'Evidence of a statement made to a witness by a person
who is not himself called as a witness may or may not be
hearsay. It is hearsay and inadmissible when the object
of the evidence is to establish the truth of what is
contarned in the statement. It is not hearsay and is
admissible when it is proposed to establish by the
evidence, not the truth of the statement, but the fact
that it was made.'"

However, an essential distinction between that case and the present is that here there has been no attempt to identify the

customer or former customers of Stationers Supply included in

Mr Squires' survey or to give even the effect of the words

spoken by them. Accordingly, no opportunity has been afforded
to the respondents to this application to test the evidence
sought to be adduced by paragraph 73. For that reason, I
would exclude the paragraph even if it were thought to embody
hearsay evidence admissible in the exercise of a discretion on

proceedings of an interlocutory nature.

I also reject the submission by Mr Sweeney QC that the

statements summarised in paragraph 73 are somehow part of
aestae. The limits of that rubric of the law of evidence were
succinctly stated in Ratten v The Oueen (supra) where the

Judicial Committee in a passage cited by Wilcox J in the

C o n c r e t e said at 389 - 390:

"But if the drama leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it

ought to be received."

In my view, a statement made in response to a telephone call

from a person with an interest to collect evidence for pending
or contemplated litigation does not have the degree of
spontaneity indicated by that passage to be necessary to come
within the xes aestae exception to the hearsay rule. For
these reasons, I rule the whole of paragraph 73 to be
inadmissible.

I certify that the preceding four (4) pages are a true copy of the Reasons for Judgment of His Honour Mr Justice Ryan.

Associate: 4iL&M-

Date: l1 Qecernbe/ /49/

Counsel for the Applicant : Mr C A Sweeney QC with

Mr N Mukhtar

Solicitor for the Applicant	: Minter Ellison
Counsel for the First, Second,
Fourth, Fifth and Sixth
Respondents	: Mr P Mandie QC with

Mr D J O'Callaghan

Solicitor for the First, Second,

Fourth, Fifth and Sixth

Respondents : Arthur Robinson &

Hedderwicks

Counsel for the Third

Respondent	: Mr D J Martin
Solicitor for the Third
Respondent	: Lucas Baron
Dates of Hearing:	9, 10, 11 December
Date of Judgment:	11 December 1991