Supetina Pty Ltd v Lombok Pty Ltd

94 C A T C H W O R D S

EVIDENCE - valuation report sought

to be tendered without calling

valuer as witness

- valuer unfit

by reason of bodily condition to

attend

evidence sought to be admitted under Evidence Act

1977-1981 (Qld) - Part IIIA

of Evidence Act 1905 (Corn) dealing

with admissibility	of business record - whether valuation report
business record -	whether inconsistency between Commonwealth and

State Acts

- inconsistency found and valuation report excluded

under s.7C of Commonwealth Act as

wa3 obtained for purpose

of, or

in contemplation of, judicial proceedings.

Evidence Act 1905

(Corn) ss.7A, 7B, 7C

Judiciary Act 1903 3.79

Constitution 5.109

Acts Interpretation Act 1901 (Corn)	s.15AA
Evidence Act 1977-1981 (Qld) 55.5,	92, 98

SUPETINA

PTY

LTD

(First Applicant) and AVIONNE JOY VINCENT

(Second Applicant)

v. LOMBOK PTY LTD

(First Respondent) and

KENNETH CYRIL GUY (Second Respondent) and JOHN RONALD BRYANT

(Third Respondent)

Qld G1 of 1984

4::i. !.

SPENDER J.

JI;.i-f.

BRISBANE

:c%\?

6 DECEMBER 1984

.L.Y

, --.>

<,;'"'

.J ??..a

I? '

-- .P

-S-./

IN THE FEDERAL, COURT OF AUSTRALIA

)

QUEENSLAND DISTRICT REGISTRY

)	QLD G1 of 1984

GENERAL DIVISION

)

SUPETINA PTY LTD

First Applicant

AND:

AVIONNE JOY VINCENT

Second Applicant

LOMBOK PTY

LTD

First Respondent

AND:

KENNETH CYRIL GUY

Second Respondent

AND :

JOHN RONALD BRYANT

Third Respondent

O R D E R

JUDGE MAKING

ORDER:

SPENDER J.

DATE OF ORDER:	6 DECEMBER 1984
WHERE MADE:	BRISaANE

THE COURT ORDERS

THAT:

The

valuation

report

prepared

by Mr

Harold Foster and sought to

be admitted

into evidence	by the applicants not be	so
admitted.

IN THE FEDERAL COURT OF AUSTRALIA

)	QLD G1 of 1984

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

)

BFlIWEEN :

SUPETINA PTY

LTD

First Applicant

AVIONNE JOY VINCENT

Second Applicant

AND :

LOMBOK PTY LTD

First; Respondent

AND:

KENNETH CYRIL GUY

Second Respondent

AND :

JOHN RONALD BRYANT

Third Respondent

SPENDER J.

6 DECEMBER 1984

I .

EXTEMPORE RMSONS FOR JUDGMENT

The appllcants seek to tender, pursuant to s.92

of the

Queensland Evidence Act 1977-81, a valuation report relatlnq to

the land, the

sub~ect

of these proceedings, prepared by a Mr

Harold Foster. Mr Foster is a qualified valuer.

Mr Muir, who appears for the applicants, concedes that thls report was made or obtained for the purpose

of,

or in

contemplation of, judicial

proceedings.

The

reason

for

the

seeking

the

tender

this

report

without

Mr Foster's

attendance as a witness appears from exhiblt

54. Thls shows that

Mr Foster 1 s unfit, by reason of his bodily condltion. to attend aa a witness.

Shortly put, on

6 June

1984,

Foster suffered

moderately larqe inferior myocardia1 infarctlon

in Cairns, and is

belnq treated by a speclalist on Wickham Terrace in respect of hls heart condition. There has recently been lncreasinq anglna on effort, requlring further hospital review, and he 1s shortly

to have a coronary anqiogram to assess his coronary circulation.

His medical practitioner, who has had Mr Foster as a

patient for approximately seven years, expresses the oplnion that

he will not be fit to attend court hearinqs for at least six

months.

Section 92 of the Queensland Evidence

Act provides

that:

"(1) In any proceeding (not being

a criminal

proceeding) where direct oral evidence of a

fact

would

admissible,

any

statement

contained

in a document

and

tending

establish that fact shall, subject to this if -

(a) the maker of the

statement had personal

knowledge of the	matters dealt with by
the statement, and	is called as a witness

in the proceeding;

(b) the document is or forms part of

a record

relating to any undertaking and made in

the

course

that

undertakinq

from

information supplied (whether directly

indirectly) by persons who

had,

or may

reasonably

supposed

have

had,

personal knowledge of the

matters dealt

with in the

information they

supplied,

and the person

who

supplied

the

information recordgd in the statement in

question is called as

a witness in the

proceeding.

Sub-section ( 2 ) provides:-

" ( 2 ) The condition in

sub section (1) that the

maker of the statement

or the person who

supplied the information, as the case may

be,

be called as a witness need not be satisfied

where -

(a) he is

... unfit by reason of his bodily

... condition to attend as a witness;"

Section 98 of the Evidence Act

(Qld) provides that:-

"(1) The court may

in its discretion reject

any

statement

notwithstanding

that

the

requirements of this Part are satisfied with

respect thereto,

if for any reason it appears

3 .

to be inexpedient in the interests of justice

that the statement should be admitted.“

Mr Muir asserts that the valuation report comes within

S. 92 of the State	Act, and the conditions for its receptlon have
been met.

The respondents say that the statement contained in the

document is covered by the provisions

Part

IIIA of

the

Evidence Act

1905 (Commonwealth) dealing with the admissibility

of business records. It is submitted that the evidence

is caught

by the provisions of s.7B

of the Commonwealth

Act and is subject

to the restriction which exists by virtue of sub-s.7C(l), being

document

which

was

prepared

“for the

purpose

of, or in

contemplation of,” judicial proceedings.

It is said that the provisions of the Commonwealth

statute dealing with business records evince an intention to

cover the field

and, by virtue

of s.109

of the Commonwealth

Constitution, 9.92

the State Act

is, to the extent

of its

jnconsistency

with

Ehe

provisions

of Part

IIIA

the

Commonwealth Act, invalid.

It is further asserted by the respondents that the

valuation opinion of Mr Foster

Is not a statement which satisfies

the requirement of sub-s.92(l)(a) of the Queensland

Act in that

Mr	Foster, the maker of the statement, did not have personal

knowledge of the matters dealt wlth

in the statement, it being

submitted that the report, beinq

a valuation report, consists

opinion and

Mr Foster is not then to be characterised

as a person

who had “personal knowledge of	the matters dealt wlth by the
statement”.

Before dealing with the major questions,

will deal

first with this last submission.

It is clear that a valuer, when

called to given evidence, can properly give evidence of the

inquiries made, and the results of those inquiries, which form

the basis for the opinion at which he arrives. The position is

similar to that of

medical practitioner who is entltled to

state the medical history given to him by his patient in order to

show the foundation of his opinion	- see Ramsay v. Watson (1961)
108 C.L.R. 642.

Cross

On Evidence, Second Australian Edition, at

paragraph 20.10, in dealing with the meaninq to he attributed to

the word "statement" in s.92, the learned authors say that there

is no doubt that the word

"fact" is wide enough to cover opinion.

Section 5 of the Evidence Act 1977

(Qld) provides that:-

"'statement' includes any representation

fact, whether made in words or otherwise and

whether made

a person,

computer

otherwlse;

The authorities show that statements of opinion by

expert are admissible as "statements",

which 5.92 refers,

provided	the requirements	of that section are otherwise dealt
with.

l .

5 .

v. Masih (1968)

2 All

E.R. 2 2 6 , the

Court of

Appeal had to conslder the reception, under the provlsions of the

Evidence Act

1938, of

a statement of opinlon by a handwritinq

expert. In that case it was indicated that statements of opinion were admissible under the Act. Support along similar lines can be obtalned from Warner v. Women's Hospital C19547 V.L.R. 410 per

Sholl J. at

p.415, and Lenehan

v. Queensland Trustees Limited

C19653 Qd.R. 559

per Hart J.

Closer to the facts of this partlcular case

are

the

observatlons of McInerney

J. in Morlev v. Natlonal Insurance Co.

1119673 V.R. 566.

Having

referred

the

two

cases

last

mentioned, his Honour concluded that a

document incorporatins a

statement

of opinion

OF the now deceased maker, which opinion

would be admissible

In oral evidence If the person were allve and

called as a wltness, may be admitted as evidence of opinion, such

opinion beinq a "fact"

wlthm the meanlng of 5.55 of the Evidence

A&	1958 !Victoria).

It is clear

thnt these evidentiary provision= are meant

to have a facultative effect and are to be construed broadly.

In relatlon to the Commonwealth provlslons and, In

particular,

the whole of the provisions

of Part IIIA

the

Evidence Act 1905,

s.15A.A of the Acts Interpretation Act 1901

(Commonwealth) cannot be Ignored.

6 .

In my view

it is not a bar to the operation

of s.92 of

the State Act that the statement which

I s sought to be tendered

is valuation opinion evidence. This is

even accepting that

there are,

in the statement proposed to be tendered, statements

of Inquiries made, and the results

those inquiries, and the

methods adopted to arrive at the opinion

which

the maker of the

statement

holds.

Each

those

latter

statements

would

admissible in evidence if qlven by

Mr Foster and are not to be

excluded by the constructlon contended

for

5 . 9 2 .

Turning now to the question of the Inter-relationshlp

inconsistency between provisions of the Commonwealth Evidence

Act

and the State Act, the

test to be applied has been variously

stated. In

Ex parte McLean

(1930) 4 3 C.L.R. 472

at p.483, Sir

Qwen Dixon

said:-

“When the Parliament of the Commonwealth and

the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule

of conduct

is identical

which

each

prescribes, and sec. 109 applies. That this

is so is settled, at least when the sanctions

they

impose

are

diverse

(m v. Palmer

(1926) 38 C.L.R. 441).

But the reason is

that, by prescribing the rule to be observed,

the Federal statute shows

intention to

cover the subject matter and provide what the

law upon it shall be.

If it appeared

thst

the

Federal

law

was

intended

supplementary to

cumulative upon State

law, then no inconsistency would

be exhibited

in imposing the

same duties or in inflicting

different penzlties. The inconsistency does

not lie in the mere coexistence

two laws

which

are

susceptible

simultaneous

obedience. It depends upon the intention

7 .

the paramount Legislature to express by its

enactment,

completely,

exhaustively,

exclusively, what shall be the law governing

the particular conduct

or matter to which its

attention

directed.

When a Federal

statute discloses

such an intention, it is

inconsistent with it for the law

of a State

to govern the same conduct or matter."

More recently, in Metal Trades Industry Association of

Australia

v. Amalsamated Metal Workers' and Shipwriqhts' Union

(1983) 48

A . L . R .

385, in the joint judgment of the Chief Justice

and Wilson and Dawson

JJ. at p.392, their Honours say:-

the basis that the alleged Inconsistency is

between the Commonwealt'n Act which authorizes

the making of the awards and the State law,

and the solution is to be found in the

application of 5.109 and the well-established

doctrine of inconsistency derived therefrom.

"The problem therefore is to be approached on take the law or the award with which the State law is alleged to be inconsistent and to discern precisely the matters which it is

the

Intention of the

Parliament, or

the

Commonwealth arbitrator as the case may be, are to be exhaustively determined thereby."

And later &t pp.392-393:-

" A law of a State will be inconsistent with an

award and consequently with

law of the

Commonwealth if 'its

effect, if enforced,

would be to destroy

or vary the adjustment of

industrial

relations

established

the

award with respect to the matters formerly in

dispute': per Isaacs

J In Clvde Enslneerinq

Ltd v.

Cowburn (1926)

37 C.L.R. 466 at

499.

Another

helpful

formulation

of the

relevant test of inconsistency was expressed

by Dixon J in Victoria

v . Commonwealth (1937)

58 C.L.R. 618 at 630: 'When

a State law, if

valid, would alter, impair or detract from

the operation of

law of the Commonwealth

Parliament , then

that

extent

invalid.

' "

The

Commonwealth Evidence Act provldes,

so far as is

relevant:-

"7A.(1) In

this Part,

unless

the

contrary

Intention appears

'business' Includes

(a) any

business,

profession,

occupation,

calling,

trade

undertaking whether or

not engaged

carried

on for profit and

whether engaged in or carried on in

Australia or elsewhere,

including

any

business,

profession,

occupation,

calling,

trade or

undertaking engaged in

or carried on

the

Crown

right

of the

Commonwealth or of a State; and

...

'document' includes -

(a)	a book, plan, paper, parchment, film or other material on which there is

writing or printing, or on which there are marks, symbols or

perforations having a meaning

for

persons qualified to interpret them;

...

'qualified person', in relation to

a statement

made in the course of,

or for the purpose of,

a business, means

a person who -

(a)

at the time when the statement was made, was -

(i)

an owner of the business

or a

person

carrying

the

business;

(ii) a servant or agent employed or engaged in the business;

(iiil a person

retained

for

the

purpose of the business; or

9 .

(iv)

person associated with the

business

the

course

another business; and

(b)

at that time -

(i) in the case

of a statement

that

not

admissible

evidence

unless

made

expert

on the subject matter

of the statement	- was such an
expert; or

(ii) in any other case - had, or may reasonably be supposed to have had, personal knowledge

of the facts stated;

'statement'

includes

any

representation

fact, whether made in words	or otherwise."
Section 7B(1) provides -

"(1) Subject

this

Part, where,

any

proceeding, evidence

of a fact is admisslble,

a statement of the fact in

a document is

admissible as evidence of the fact if

(a) the

document

containing

the

statement

forms part of a record of a business, whether or not the business is in

existence

the

time

when

the

question of admissibility arises;

(b) the

statement

was

made

the

course

of, or for

the

purpose

of, the

business;

and

(C)

the statement was made by

a qualified

person or reproduces,

was derived

from, either or both of the following

descriptions of information:

(1)

information

one

mare

statements,

each

made

by a

qualified person

in the course

of, or for the purposes of, the

business;

10.

(ii) information

from

one

or more

devices designed

for, and used

for the purposes of the business in or for, recording, measuring,

counting

identifying

being

information,

not

information based on information

supplied by any person."

Sub-section 7B(3) provides

" ( 3 )

this

section,

'fact'

includes

opinion.

Then, s.7C provides in sub-s(l) -

"(1) A statement

not

admissible

under

section 7B in a proceeding if it was made or

obtained

for

the

purpose

of, or in

contemplation of

r any

judicial

administrative proceeding."

There are documents which are within the definition of

"document" and

which

contain statements which form part of a

record of

a business within the meaning

of the

Commonwealth

legislation, and which are also documents forming "part

record relating to any undertaking and made in the course of that

undertaking from information supplied" within the meaning

s . 9 2

of the Queensland Act. It therefore follows that there	are areas
in which both laws can have effect.

Section 7C imposes

a restriction on the admissibility of

any such document which is "made

or obtained for the purpose

of,

or in

contemplation

of, any

judicial

or administrative

proceeding." That restriction is not echoed in the State

Act,

and it therefore follows that the simultaneous operation of both

statutes would result in documents which would be admissible

virtce of the Queensland	Act being inadmissible by virtue	of the
Commonwealth Act.

The Queensland Act, putting aside for one moment the

operation

of 3.109

of the Constitution, would have effect by

virtue of the provisions of

3.79 of the Judiciary Act 1903 which

provides

"The laws of

each State

or Territory,

including the laws

relating to

procedure,

evidence, and the

competency of witnesses,

shall, except as otherwise provided by the

Constitution or the laws

of the Commonwealth,

be binding on all Courts exercising federal

jurisdiction

in that State or Territory in

all cases to

which they are applicable."

follows, in my

view, that

5 . 9 2

of the State

Act,

insofar as it relates to documents which come within Part IIIA of the Evidence Act 1905, is inconsistent with that Part and is to that extent invalid.

12.

It therefore becomes necessary to determine whether the

document sought to be tendered in this case

a document

containing the statement which forms part of

record of

business. In addressing that question, one has to have reqard

first of all to the wide definition of business and to the

definition of "qualified person" in s.7A of the Commonwealth

Evidence Act. When reqard is had to the words contained in para

(b) of the definition of a "qualified person", it is clear that

opinion evidence could be included as part of

a record of the

business. That this is

so is also clear when one has regard to

s.7B(31.

In addltion, the words themselves "part

of a record of

a business" suggest that no narrow view is to be taken in their

Interpretation.

Shortly put, the question is whether

a valuation made by

the valuer

1 s a document which

forms part of

a record

valuation busmess.

There is no doubt that It was made in the

course of and for the purposes of the business; nor is there any

doubt that it was made by a qualified person because there was no

question but that

Mr Foster was a person carryinq

on a valuation

business and, also, because

klr

Foster was

expert on the

sublect matter of the statement.

13.

In Compafina Bank v. Australia and New Zealand Bankins

Group Lr;d C19823 1 N . S . W . L . R .

409, Hunt J. was concerned with

the

question of whether

a copy of

a letter sent by one non-party

company to another non-party was admissible in evidence. At

p.412 his Honour held that:

“A copy of a letter sent by

a company where it

is part of that

company’s business to write

such

letters

appears

me therefore

amount to a record of that company within the

general

meanlng

of the word ’record’ ir,

S. 14CE(4)	C O €	the	Egidence	Act	1098
(N.S.W.) .l’’

At p.411 of that

report, Hunt J. refers to a number of cases

where decisions h

sve been made concerning the admissibility

various documents. In particular,

he directs attention to Bates

v. Nelson (1973) 6 S.A.S.R.

149, at p.155, where a copy of

report by

a psychiatrist to

a solicitor kept in the records of

a hospital was excluded. That exclusion

by Mitchell J. was based

on the provision

of sub-s. 45a(4) of the Evidence

Act 1929 (South

Australia), which defines a business record as, inter alia, meaning “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

the business“.

That much narrower

definition was determinative of the question in that case, but it

not of

much assistance in relation to different statutory

provisions.

14.

In my

view, giving

s.7B

the

wide interpretation it

should be

qiven, I am of

the view that a valuation made by

qur?lified person in the course of, and for the

purpose of, his

business, would be admisstble by virtue

of the provisions

3.B. The

valuation,

howewr, is within the restriction

contained in

s .7C.

Having been obtained for the purpose of. or

in contemplation	of, judicial proceedings the statement is not
admissible.

If I were

wrong

that

conclusion,

it would

necessary then to consider whether, in the exercise

of a proper

judicial discretion,

the evidence ought, nonetheless,

be rejecked

virtue

of the provisions of s.98 of the

Evidence A

(Queensland).

Relevant

that

question

are

a number

consider?.tions inclilding, but not limited

to, the following. The

document relates to

central question in these proceedings.

Next, it is evidence of

a nature which Is

susceptible of great

subjectivity.

Already

valuation

evidence

yielding

widely

differing conclusions has been given in this case. There is also

the difficulty

true assessment of the weight

the

evidence, depending, as it does, on the ilnpression one	forms oi
the opinion-giver.

15.

Crucial

the

task

of assessing

evidence

the

assist~nce

one gets from the testing in cross-examination. "he

general rule is that no testlmony Is proper to be Considered as against the interests of a Farty unless that party has had an

opportunity

submitting

an opponent

the

test

cross-examination:

v. Allen E18943 P. 248, at

p.253;

Re John O'Brien; ex parte Allchurch C19233 S.A.S.R. 411; In the

Estate of Constantine, Deceased

C19473 S.A.S.R.

415, at p . 4 2 4 .

Because of

the evidencs not being able to be evaluated

or tested by the ordinary methods, and the inherent subjectivity

of the evidence, the weight of the evidence would undoubtedly be

very light.

I confess some difficulty as to whether, in

the exercise

of	a proper discretlon, the evidence ought to be admitted,

leaving the question then to be assessed

a matter of weight,

or, whether

the

important

consideratlons

which I have

referred, particularly the centrality

the material to this

litigation, 13 such that it would not be fair to the respondents

to allow this evidence to be admitted untested. It

not

necessary to make a decislon in that respect, but probably

would have received the evidence

with all its limitations, but

have indicated that thc weight that would be given it, due to the

considerations that

I have mentioned, would be quite small.

16.

I am comforted in one aspect,

in m y event, in the

conclusion which I have reached in that it will be open to Mr

Muir, on behalf

the zpplicants, to use the material contained

in the valuation to test any vuluation evidence sought to be

led

by the respondents, both

as to methodology and as to conclusions.

[1985] FCA 94

6 Dec 1985