Tilley Air Conditioning Pty Limited v Traminer Pty Limited

[2008] NSWDC 371

CITATION:	Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2008] NSWDC 371
JUDGMENT DATE:	10 October 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The document is admitted.
CATCHWORDS:	CIVIL LAW - objection to tender of part of letter - objection on the grounds of relevance, authenticity and hearsay - discretion pursuant to s 135 of the Evidence Act 1995
LEGISLATION CITED:	Evidence Act 1995 s 69, 135
PARTIES:	Tilley Air Conditioning Pty Limited Traminer Pty Limited
FILE NUMBER(S):	894/06
COUNSEL:	Mr Bland Mr Loewenstein

JUDGMENT

1. Two pages of a tendered letter dated 30 April 2001 on the letterhead Insultech are not objected to by Mr Bland. Mr Bland objects to the third page which comprises a series of typed headings and figures. He objects on the grounds of relevance and authenticity, in addition arguing that I should exercise my discretion under s 135 of the Evidence Act1995 to refuse to admit it.

2. I regard the document as relevant as a result of the cross-examination of Mr Beecroft undertaken by Mr Bland, over T656 and T657. The pages were referred to by the witness in response to a proposition put to the witness in cross-examination at line 45 on T656.

3. I am satisfied of its authenticity as a result of evidence given on the voir dire in the last 15 minutes or so by Mr Beecroft and evidence which he gave yesterday. It appears at T657 where he says that he went to Insultech and asked for a copy of the document in question, which I am satisfied is what Mr Beecroft describes as the workings out supporting the Insultech quotation. I am therefore satisfied of its provenance.

4. By implication Mr Bland also objects on the grounds of hearsay. It is a hearsay document because it is not this witness's document. It contains a previous representation by somebody else. But I am satisfied that the hearsay rule does not apply because it falls within the business record exception in s 69 of the Evidence Act. Mr Bland argued that that exception did not apply because the document was prepared for the purpose of conducting or in contemplation of these proceedings. But I am satisfied that that was not the case as a result of the answer given a moment ago by the witness to my question directed to him about that topic.

5. Insofar as I am asked to exercise my discretion under s 135 of the Evidence Act, I decline to exercise that discretion. I do not see how the document could be unfairly prejudicial except insofar as Mr Bland has not seen it before. I regard that prejudice as overcome by the potential for Mr Bland to seek leave to reopen his case. I do not regard the admission of this document into evidence as having the potential to result in any undue waste of time. I therefore decline to exercise my discretion under s 135 of the Evidence Act.

6. I propose to admit it because I am satisfied that the provisions of s 45 of the Evidence Act have been satisfied and it is in fact tendered in this case by Mr Loewenstein. The only provisions of Chapter 3 which could render the document inadmissible and therefore prevent the application of s 45 are those dealing with relevance and hearsay. For the reasons that I have already given I regard the document as relevant and the hearsay rule does not apply.

7. For those reasons I propose to admit the document.

**********