The Ridge Trading P/L v JC Export & Import P/L
[2007] FMCA 1927
•15 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THE RIDGE TRADING PTY LTD v JC EXPORT AND IMPORT PTY LTD & ANOR | [2007] FMCA 1927 |
| TRADE PRACTICES – Interlocutory application – admissibility of documents – evidence – authenticity of documents – visible defects – original unavailable for forensic document examination – inadmissible. |
| Evidence Act 1929 (SA) Evidence Act 1995 (Cth), ss.62, 63, 64 Foreign Evidence Act 1994 (Cth), ss.3,34 Supreme Court Rules 1970, Pt 18, r.4 |
| Australian Securities and Investments Commission v Rich & Ors [2005] 53 ACSR 752; [2005] NSWSC 417; 216 ALR 320 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 New South Wales Crime Commission v Trinh [2003] NSWSC 811 |
| Applicant: | THE RIDGE TRADING PTY LTD |
| First Respondent: | JC EXPORT & IMPORT PTY LTD |
| Second Respondent: | ZHEN QING HUANG |
| File number: | SYG1785 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Moschoudis |
| Solicitors for the Applicant: | Luminous Legal |
| Counsel for the Respondent: | Mr P G Bolster |
| Solicitors for the Respondent: | Gray & Perkins Lawyers |
ORDERS
The copies Long Hua Carpet Co Ltd of Suqian Jiangsu, Industrial Product Purchase Agreements identified as documents [4] and [5] in this judgment are inadmissible.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1785 of 2006
| THE RIDGE TRADING PTY LTD |
Applicant
And
| JC EXPORT AND IMPORT PTY LTD |
First Respondent
| ZHEN QING HUANG |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Ridge Trading Pty Ltd (“Ridge Trading”) operates a wholesale business supplying a variety of homeware products to grocery, hardware and other retail stores in Victoria and New South Wales. An item from the Ridge Trading product line are bathroom mat sets. JC Export and Import purchased homeware products from Ridge Trading from about 1 March 2005 to 2 August 2005. The first purchase was an order for 3,360 bathroom mat sets and between 1 March 2005 and 2 August 2005, a total of 12,690 bathroom mat sets were purchased. However, as at 3 August 2005, JC Export & Import had not purchased any more bathroom mat sets from Ridge Trading.
Mr Ru Min Yao, the managing director of Ridge Trading, in his affidavit of 23 June 2006 filed in these proceedings, indicates that he became aware that JC Export and Import were distributing bath mat sets packed 12 sets to a carton, whereas the normal packing of Ridge Trading bath mats were 15 sets per carton. Mr Ru Min Yao states that between 11 and 13 March 2006 he visited Sydney and made his own enquiries and found that there were a number of stores in New South Wales selling bathroom mat sets bearing The Ridge Trading Pty Ltd as the distributor on the packaging. It is claimed that the packaging, label and appearance of those bath mats looked almost identical to that of the bath mats that Ridge Trading usually distributes, but on careful examination slight differences were identified, although they carry the same product barcode that is used on some of the bathroom mat sets distributed by Ridge Trading. That product barcode is registered by and to The Ridge Trading Pty Ltd.
The matter was initially brought before this Court on 23 June 2006 by Ridge Trading as an urgent ex parte application seeking orders restraining “JC Export & Import Pty Ltd and Zhen Qing Huang from selling, offering or exposing for sale, distribution and/or marketing in Australia any bath mat sets or individual bath mats bearing the name The Ridge Trading Pty Ltd on the product or on any packaging of those products”. Since that date the matter has been before the Court on a number of occasions seeking orders for the further conduct of the matter, including mediation which failed to resolve the issues between the parties. On 13 July 2007 the matter was set down for final hearing on 20, 21, 22 and 23 November 2007. In the preparation for the final hearing a dispute has arisen between the parties in respect to the authenticity of certain key documents which is the subject of this judgment.
Evidence
The following affidavit evidence was read in respect to this application:
(a)Ru Min Yao, managing director of The Ridge Trading Pty Ltd, sworn on 21 February 2007 (affidavit of Ru Min Yao); and
(b)Shun Cheng, solicitor of Gray & Perkins Lawyers, sworn on 1 November 2007 (affidavit of Shun Cheng).
Disputed documents
The documents in dispute are best described in a letter from JC Export & Import’s solicitors, Gray & Perkins Lawyers, which is annexure “A” attached to the affidavit of Shun Cheng. That letter is addressed to Forensic Document Services, PO Box 167, Manly NSW 1655 Attention: Candice Moussa. The relevant part of that letter states:
We enclose the following documents:
1. A copy of the original contract signed by our client’s agent
dated 30 June 2005;
2. A copy of the original contract signed by our client’s agent
dated 28 November 2005; and
3. A copy of the original contract signed by our client’s agent
dated 9 March 2006.
We are in possession of the originals of the abovementioned documents, which claimed to be the true contracts signed between our client’s agent in Shanghai, China and a manufacturer in Jiangsu Province, as instructed by our clients.
We also enclose:
4. A copy of contract dated 9 March 2006; and
5. A copy of contract dated 28 November 2005.
The abovementioned documents are provided by the Applicant. We will request access of the original contracts or the best available copies from the Applicant.
The two documents in question are also found in the affidavit of Ru Min Yao and are attached in annexure marked “E”. Translations of both of those documents have been prepared by “Vietnamese and Chinese Business Golden Guide”, by Dr Zhiyi Liu, NAATI Acc. No: 29181 on 18 January 2007.
The translation of the document identified in the Gray & Perkins Lawyers’ letter at number [4] contains the following information:
Industrial Product Purchase Agreement
Seller: The Long Hua Carpet Co. Ltd of Suqian Jiangsu
Purchaser: JC Export & Import Pty Ltd
Signing Place: Jiangsu Suqian
Date: 09/03/2006
1. Name, Quantity, Price & Delivery
Bathroom 2 piece set and bathroom 3 piece set - 900 boxes
Delivered on 9 April 2006
The translation of the document identified in the Gray & Perkins Lawyers’ letter as number [5] contains the following relevant information:
Industrial Product Purchase Agreement
Seller: The Long Hua Carpet Co. Ltd of Suqian Jiangsu
Purchaser: JC Export & Import Pty Ltd
Signing Place: Jiangsu Suqian
Date: 29/11/2005
1. Name, Quantity, Price & Delivery
Bathroom 2 piece set and synthetic mat – 684 boxes
Delivered on 25/12/2005
Source of disputed documents
The affidavit of Ru Min Yao sets out the circumstances in which he obtained possession of the “disputed documents” which were subsequently filed in these proceedings and are the subject of this judgment. The relevant clauses from the affidavit state:
4.On or about 12 September 2006, I made a telephone call to my cousin, Huawei Ye, a practising Chinese lawyer. He advised me to the effect that, “The only method to obtain evidence legally in relation to this matter, is for you to apply to the relevant Department of the Chinese Government, namely the Industry and Commerce Administration Bureau. Chinese law also protects fair trading.”
5.After this honourable Court made orders in this matter on 24 November 2006, I made enquiries online at the website of Jiangsu Province Suqian City Industry and Commerce Administration Bureau (“the Bureau”). I understand the Bureau is the Chinese equivalent of the New South Wales Department of Fair Trading.
6.On 5 December 2006, I travelled to Shanghai, China to carry out enquiries in relation to this matter.
7.On or about 14 December 2006, I accompanied officials from the Bureau on their inspection visit to the offices of Long Hua Carpet and Co Ltd (“Long Hua”).
8.I saw the managing director of Long Hua, Mr Zhao Long, surrender to the Bureau officials, the relevant documents listed in paragraph 12 below. I saw Mr Zhan Long signed and sealed the original print head used by this company to produce the pirated bathroom mats sold to the First Respondent.
11.I saw Mr Zhao provide to the Bureau officials documents, including:
(a)Certificate by Long Zhao to the Bureau enclosing the print head supplied by Mr Guan on behalf of JC Export and Import Pty Ltd (Annexed and marked with letter “D”). The certificate states that 30,585 mats were produced by Long Hua and sold to the First Respondent.
(c)Contracts between Long Hua and the First Respondent (annexed and marked with letter “E”).
12.I saw, and am aware that, the Bureau officials recorded and filed the investigation and the evidence referred to in the above paragraph. I was informed by the Bureau officials that the original documents except the print head would be retained in the Bureau’s custody and that if a request is made they would consider releasing the original to me to be used as exhibits to the Court.
Current status of the disputed documents
The applicant’s solicitor, Mr Hudson Lu of Luminous Legal, in a facsimile dated 15 October 2007 to Shun Cheng (affidavit of Shun Cheng, annexure “D”) advises that:
We advise that the original contract is still in the possession of the manufacturer and is not in our possession. We advise in relation to the first best copy which is in the government’s hand, we advise that our inquiries with the government is that it would not release the copy that they have in their possession to us. As advised in court, we could provide our copy to your examiner. We note that you would advise us the name of your examiner and we could arrange our best copy to your examiner for examination.
Ms Michelle Novotny of Forensic Document Services Pty Ltd, in a letter dated 31 October 2007 to Shun Cheng (affidavit of Shen Cheng, annexure “I”), makes the following observation in respect to the forensic examination of copies:
…… examinations based on reproductions of the questioned documents will not allow for proper consideration of the finer structural features and dynamic qualities of the signatures. The examinations will be limited to the pictorial features evident on the copies submitted. Furthermore, in the absence of the original questioned documents the possibility cannot excluded that one or both signatures on the questioned documents are images of genuine signatures which were “copied and pasted” from another document/s. Any conclusion expressed as a result of examinations of reproductions of the questioned documents will be qualified and subject to confirmation following detailed examination of the originals. That is not to say that a qualified conclusion may not be of assistance to this matter.
Mr Bolster, for the respondents, submits that the signatures on the two disputed documents and the three original documents do not match, which raises the question of whether there are either three forgeries or whether there are two forgeries. The respondents have produced its documents which are originals and want them submitted to a handwriting examiner for analysis. The applicant has only poor copies of the two disputed documents. The evidence of Ms Novotny is that she could not rule out the possibility of legitimate signatures having been transposed to produce fake documents. Mr Bolster argues that the issue is whether or not Mr Liang De Guan signed the disputed documents and whether they are business records of Long Hua Carpet Co Ltd.
A further issue that brings the disputed documents into dispute emerges when both sets of documents are compared with the shipping bills of lading and the customs documentation if the number of cartons and the number of containers are compared on the invoice, bill of lading and customs document, then in the case of those documents which apply to documents [1], [2] and [3] no discrepancies are found. However, in the document identified as number [5], with the transaction date of
29 November 2005, there is a discrepancy between that document and the contents of the respective bill of lading and customs documentation. It is acknowledged that document [4] - the March 2006 shipment documents - do correspond. I also note that the June 2005 contract has not been produced and although this may appear to be unusual, I do not believe that any further inference can be drawn as no inspection of this document can take place. However, I do believe that some considerable weight must be attributed to the authenticity of the documents identified as [1], [2] and [3] because of the correlation with all the other supporting documentation that is available.
Issue in dispute
The issue to be determined is whether the copies of the contracts dated 9 March 2006 and 28 November 2005 (being item [4] and [5] respectively identified in the letter of Gray & Perkins Lawyers and described in [5] to [8] above) are:
a)whether the copies of the contracts are authentic business records of the Long Hua Carpet Co Ltd of Suqian Jiangsu; and
b)whether the signature of Liang De Guan appearing in the centre box of the document footer below the company address of JC Imports & Exports Pty Ltd, Unit 10/14 Childs Rd, Chipping Norton NSW 2170, Australia, is authentic.
Authentication of documents
The Court’s attention was directed to the decision of National Australia Bank Ltd v Rusu & Ors [1999] NSWSC 539 per Bryson J at 17 where His Honour stated:
17.Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the common law and under statutes for public registers and for many kinds of documents when certified in various ways: and see the method of proof provided in some cases by s. 170 and s. 171 of the Evidence Act 1995. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business’ records, or can recognise it as one of the records of the business.
18.In equity and commercial litigation proof of the authenticity of business documents does not often claim attention because practices are followed which limit the occasions when it needs attention. The authenticity of documents is often established in accordance with rules of court for documents which have been subject of discovery (Supreme Court Rules 1970), Pt 18, r 4) or of notices to admit their authenticity (Form 22), or when counsel against whom a document is tendered has reasons to accept its authenticity, and decides not to object to its tender.
Then at [28] His Honour states:
28.So far as I am aware there is no judgment which has decided that under the Evidence Act 1995 the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena and by whom. References in case law to authentication of documents tendered are usually brief and incidental. Texts dealing with the legislation do not appear to have commented to the effect that under the legislation documents establish their own authenticity: see the comment on business records in Cross on Evidence, 5th Australian ed (1996), Butterworths, Sydney, ed J D Heydon QC at [5540]-[5550], which deals with s 48 and s 69, among others and makes no comparison with s 45b of the Evidence Act 1929 (SA) with which that work deals (at [35400]). I have not noticed any such observation in S Odgers, Uniform Evidence Law, 3rd ed (1998) LBC, Sydney, either.
In Australian Securities and Investments Commission v Rich & Ors [2005] 53 ACSR 752 His Honour Austin J sets out a distillation of the principles of all authentication where His Honour states:
93.The defendants contended that ASIC’s provenance evidence fails to address a matter of fundamental importance in a case such as this, namely the authenticity of the nine categories of documents. According to this submission, documents do not prove themselves, and need to be authenticated, in effect as a condition precedent to relevance and to admissibility under the exception to the hearsay rule for business records. For these submissions, the defendants relied on National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539. ASIC claims that its provenance evidence, which identifies the source of the documents in the Ferriers I:/drive or elsewhere, when considered with what is on the face of the documents themselves, is sufficient foundation for the tender of the documents, which can then be allowed to speak for themselves. It challenges Rusu to the extent that the case would impose any higher requirement of authentication.
…
11.1 The Rusu decision
95.In Rusu, the plaintiff bank (NAB) claimed that Ms Rusu stole a large sum of money from it, with assistance from Mr Mato. NAB alleged that after the alleged stealing they had significant amount of funds available to them compared with their resources prior to that time. It sought to recover its allegedly stolen money, and to assert charges and to obtain tracing orders over their assets.
96.Counsel for NAB tendered 2 pages (referred to in the judgment as “pp 25 and 26”) of what appeared on their face to be a transaction history inquiry in relation to an account identified by number, but nothing on the face of the documents identified the bank or the customer. There was, however, evidence that pp 25 and 26 were in a bundle of documents produced by Advance Bank in response to a subpoena that specified bank records for a different period, and to the effect that Advance Bank’s customer was Francis Mato. Mr Mato’s full name was Peter Francis Mato. A solicitor for NAB made an affidavit attaching a schedule of payments, alleging that Mr Mato had paid a substantial sum of money into the Advance Bank account on the day after the alleged theft.
97.Bryson J rejected the tender. In doing so, he carefully distinguished between authentication of documents, relevance, the procedure for proving the contents of documents, and admissibility of representations in documents as business records notwithstanding the hearsay rule.
98.As to authentication, he said (at 312):
Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to provide themselves or accepted as what they purport to be; there are exceptions under the common law and under statute for public registers and for many kinds of documents when certified in various ways: and see the method of proof provided in some cases by s 170 and s 171 of the Evidence Act 1995. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business’ records, or can recognise it as one of the records of the business.
99.I read the last quoted sentence to mean that in the case of a business record, its authenticity may be proved, at the simplest, by the evidence of a person who satisfies two conditions: namely, first, that he or she participates in the conduct of the business; and second, that he or she compiled the document, or found it among the records of the business, or can recognise it as one of the records of the business. As I read the passage, his Honour did not have in mind proving the authenticity of the business record by the evidence of a person unconnected with the business who has found the document among the records of the business or can recognise it as a business record. But the sentence is intended to be illustrative rather than comprehensive, as demonstrated by the words “at the simplest”.
100.Bryson J held (at 313) that it was necessary to establish by evidence, other than the documents themselves, that pp 25 and 26 were a bank statement, that they were a statement of Advance Bank, and that the account to which they referred was an account of Mr Mato. He rejected the idea (at 315) that under the Evidence Act, the authenticity of documents tendered in evidence could be determined simply on the basis of the form and content of the document or on that basis taken with information about the source from which the document was produced, showing that it was produced on subpoena and by whom. He carefully analysed the Australian Law Reform Commission’s Interim Report on Evidence (Report No 26, 1985), referring to various paragraphs that indicated that the commission did not regard its Draft Bill as bringing about any such result. He noted that the commission had addressed s 45b of the Evidence Act 1929 (SA), under which no authentication was initially required and it was enough that the document was apparently genuine, and said (at 316):
It does not seem possible that, after addressing s 45b, the Law Reform Commission could have contemplated adoption of its principles without explicitly indicating that it was recommending this large change.
101.There were, in his Honour’s view, some indications in the Evidence Act that were inconsistent with a wide general presumption of authenticity. He referred (at 316) to s 152, which deals with authentication in the case of documents more than 20 years old produced from proper custody, and s 144(1)(b), which refers to “a document the authority of which cannot reasonably be questioned”.
102.His Honour expressed the opinion (at 313) that authenticity is to be distinguished from relevance. In the case before him, it was plain that the documents would be relevant if they were shown to be authentic and it was the evidence of authenticity that was lacking. He referred (at 313) to s 58(1) of the Evidence Act, which says that if a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity. He said that the question of authenticity is not a question as to the relevance of documents within s 58(1), which “treats authenticity as part of the material on which relevance may be determined”.
103.While there was some evidence with respect to compliance with s 69, this evidence was “vehemently unsatisfactory” as a means of proof of the records of Advance Bank (at 317), and (at 318) he was not satisfied on the balance of probabilities that pp 25 and 26 were what they were alleged to be.
104.I have set out his Honour’s reasoning in detail because it appears to me to be an important and persuasive analysis. His Honour’s reasoning shows that the Australian Law Reform Commission did not intend general abolition of the requirement to authenticate documentary evidence, and identifies indications in the Evidence Act that the authentication requirement has been generally preserved. The judgment carefully distinguishes the concept of authentication from the concepts of ways of adducing evidence, admissibility on the ground of relevance, admissibility of hearsay representations in business records, and the facilitation of proof of matters in issue…
Then at [116] His Honour says:
11.3 The requirement to authenticate documents
116.It would be absurd, according to Bryson J in Rusu (at 315), for the law to dispense on a general basis with the need to prove the authenticity of a document, for that would “put the court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect”. On the other hand, it is important not to set the bar too high for the authentication of documents, because if too much is demanded, the authentication requirement will fight against the policy underlying the business records provisions which, as Hope JA remarked in Albrighton (at 548), is “of great importance in the search for truth”. That policy recognises that any significant organisation depends for its efficiency upon the keeping of proper records, to be used and relied upon in the everyday carrying on of the activities of the business and therefore likely to be accurate, and “likely to be a far more reliable source of truth than memory”: Albrighton at 548-9 per Hope JA; see also Australian Law Reform Commission, Interim Report on Evidence, Report No 26, vol 1, at [709]. It is reflected in the term of s 69, which makes hearsay representations in business records admissible without requiring evidence from their authors.
117.The law responds to these competing concerns in a commonsense way, bearing in mind the distinction between authentication and the weight or probative value of the documents. In Rusu, Bryson J did not deny that inferences may be drawn from the document itself, relevant to the question of authenticity. Apart from s 58(1), there is express statutory authority to do so in s 183, when a question arises about the applicability of a provision of the Evidence Act. But Rusu insists on the need for authenticity to be established, and asserts that authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance. The other cases do not deny these propositions, in my opinion.
This approach was most recently confirmed in Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 per Spigelman CJ, Ipp JA and Basten JA at [30] where their Honours stated:
30.The scope of the trinity in s 167(c), “authenticity, identity and admissibility”, is reasonably clear as to its core, but imprecise at the periphery. For example, a party may seek to tender a handwritten file note, the relevance of which may be obscure unless one knows the author of the document, when it was created and whence it was extracted. These may be considered questions of “identity” in relation to a document or thing. If the nature of the document, its author and its time of creation is apparent on its face, there may be a question as to whether it is indeed what it purports to be, which might be categorized as a question of “authenticity”. Those matters may determine whether it is relevant, whether it is a business record, and may thus be matters affecting its admissibility. There is thus no entirely clear dividing line between questions of authenticity and identity and each may provide a basis for admissibility: see National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 at [17]-[19] (Bryson J). The connection was identified by Heydon JA in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 at [46], noting that “if the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant”. Indeed, the caselaw discussed by Austin J in Australian Securities and Investments Commission v Rich [2005] NSWSC 417; 216 ALR 320 at [93]-[121], is devoted to the question of authentication as a precondition to admissibility. Of more direct relevance for present purposes, Austin J referred to a distinction drawn by Hidden J in New South Wales Crime Commission v Trinh [2003] NSWSC 811 at [14] between authenticity and accuracy. Austin J stated at [118]:
Hidden J’s reasoning in Trinh, distinguishing between authenticity and accuracy, identifies part of a wider distinction, between matters of authenticity going to the adducing of evidence, and matters going to the credibility and weight of documentary evidence once it has been authenticated and judged admissible. Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves.
Consideration
The Court has before it five documents which can be described as Industrial Product Purchase Agreements from the Long Hua Carpet Co Ltd of Suqian Jiangsu which are essentially in the same format and differ only in respect as to the contents of those documents. The three of the documents (being [1], [2] and [3] respectively) are identified above. The originals of these documents are in the possession of Gray & Perkins Lawyers. The other two documents which are conveniently identified as [4] and [5] respectively are copies and are the disputed documents.
The two disputed documents are at the heart of the dispute between these parties and may have a significant bearing on the outcome of this matter. Ridge Trading has tendered the two disputed documents and has made significant claims in respect to them. Ridge Trading purports to rely upon these disputed documents to establish their case, which has been denied by JC Export and Import Pty Ltd, and the parties submit that the dispute focuses on competing evidence arising from these documents. The Court is informed that the original documentation cannot be produced nor are there any available witnesses to give evidence concerning their origin. The Court has been advised that officials from the Chinese authorities are unavailable to travel to Australia to give evidence nor are they available by telephone or video link to give evidence or to be cross-examined. In the absence of the originals the respondents in these proceedings are unable to have a forensic document examiner carry out a proper examination of the disputed documents.
I have heard detailed submissions from Mr Moschoudis that the disputed documents are records for the purpose of the Foreign Evidence Act1994 (Cth) with particular reference to ss.3 and 34 of that Act and an alternative argument in respect to the Evidence Act1995 (Cth), particularly ss.62, 63 and 64. However, neither of those Acts address the authenticity of the documents as that is not addressed by any provision of those Acts. Clearly, to the lay observer, the signature that appears on documents [1], [2] and [3] differs from the signature that appears on documents [4] and [5] and the issue as to authenticity of the documents is raised.
Authenticity of documents is dealt with on the balance of probabilities as clearly established in the decision of His Honour Bryson J in National Australia Bank Ltd v Rusu. Balance of probabilities is a low threshold and the test of authenticity is only applied in limited circumstances because of the procedural steps followed in commercial litigation with the tender of documents being more usually subjected to the court rules, particularly discovery.
On the material placed before the Court, there is no evidence from Ridge Trading concerning the provenance of the two disputed documents other than they came into the position of Mr Ru Min Yao during his visit to China in December 2006 when Mr Zhao Long, the managing director of Long Hua, surrendered documents to a member of the Suqian City Industry & Commercial Administration Bureau and copies were subsequently provided to Mr Ru Min Yao. Apparently, neither officials from the Bureau, representatives of Long Hua Carpet or the managing director, Mr Zhao Long, are prepared to give evidence in respect of the disputed documents or the manner in which they came into existence.
In the circumstances, I am not satisfied as to the authenticity of the disputed documents in the absence of evidence by a person or persons involved in their production or the absence of a forensic report in respect of the signature of Mr Zhao Long. I will not admit into evidence the two disputed documents as identified in paragraphs [4] to [8] above.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 15 November 2007
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