Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd

[2008] NSWSC 645

CITATION:	Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 645
HEARING DATE(S):	16/06/08, 17/06/08, 18/06.08, 19/06/08, 20/06/08, 23/06/08, 24/06/08, 25/06/08
JUDGMENT DATE :	25 June 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	1. Plaintiffs' application for order under s 70(1)(a) of the Civil Procedure Act refused 2. Extracts from English language documents sought to be tendered are inadmissible.
CATCHWORDS:	EVIDENCE - admissibility - various matters relevant to admissibility of business records - provenance of foreign language original and reliability of English translation - PROCEDURE - discretion of court under Civil Procedure Act 2005 to dispense with the rules of evidence - whether discretion should be exercised
LEGISLATION CITED:	Civil Procedure Act 2005, ss 56, 70 Evidence Act 1995, ss 55, 56, 59, 69, 75, 135 Supreme Court Act 1970 , s 23
CATEGORY:	Procedural and other rulings
CASES CITED:	Ainsworth v Hanrahan (1991) 25 NSWLR 155 Bray v F Hoffman La Roche Ltd [2002] FCA 243; (2002) 118 FCR 1
PARTIES:	Tim Barr Pty Limited - First Plaintiff Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant
FILE NUMBER(S):	SC 2762/02
COUNSEL:	Mr R G McHugh SC/Mr J E Lazarus - Plaintiffs Mr M L D Einfeld QC/Mr R E Dubler SC/Mr A C Harding - Defendant
SOLICITORS:	Corrs Chambers Westgarth - Plaintiffs Verekers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 25 JUNE 2008

2762/02 TIM BARR PTY LIMITED & ANOR v NARUI GOLD COAST PTY LIMITED

JUDGMENT

1 The plaintiffs seek to tender, as a number of separate documents, several extracts from two separate and much longer documents, which are at Tabs 2 and 3 of the exhibit to the affidavit of Mr Dalzell (a solicitor employed by the plaintiffs’ solicitors) sworn on 17 June 2008. One of those documents is of 113 pages (beginning “Section 1: Business Trip to Australia (15/02/98 to 21/03/98)”) and the other of 141 pages (beginning “Section 11: Business Trip to Australia (22 Jan to 20 Feb 2000)”). I shall refer to these two longer documents as “the English language documents”.

2 The English language documents are said to be a translation of a document apparently in Japanese script at Tab 1 of the exhibit to Mr Dalzell’s affidavit. The Japanese script appears to be typewritten or word processed, rather than handwritten. I shall refer to the document at Tab 1 as “the Japanese text”.

3 The Japanese text is said to contain material composed by Shigeo Narui and recorded by him. If the English language documents are in truth accurate translations of the Japanese text and if the Japanese text is what it is said to be, the English language documents, if admissible, will provide evidence of things done by Shigeo Narui in relation to matters the subject of these proceedings.

4 The defendant’s objection to the extracts from the English language documents sought to be tendered by the plaintiffs is a hearsay objection based on s 59 of the Evidence Act 1995. The plaintiffs accept that the content is hearsay but say that the English language documents are business records admissible under s 69 exception to the hearsay rule. The provisions about relevance in ss 55 and 56 also arise for consideration, as does the court’s discretion under s 135. A further submission of the plaintiffs based on s 70 of the Civil Procedure Act 2005 will also need to be addressed.

5 Evidence has been adduced with a view to establishing facts material to the determination of the question of the admissibility of the extracts the plaintiffs wish to tender. I shall refer to aspects of that evidence as needed.

6 In pursuing its objection, the defendant begins with the Japanese text. It appears at Tab 1 of the exhibit to Mr Dalzell’s affidavit behind a copy of a letter from the Office of the Director of Public Prosecutions dated 15 October 2004 addressed to the plaintiffs’ solicitors and referring to the enclosed “business reports relating to Kings Forest by Shigeo Narui”. The letter goes on to say that an “independent translation has been requested from the Community Relations Commission and will be provided to you once it is received by the office”.

7 The defendant says and I accept that the statement in this letter that the Japanese text is “business reports relating to Kings Forest by Shigeo Narui” is hearsay and for that reason is inadmissible. That means that the letter does nothing to prove facts about the creation and nature of the Japanese text.

8 The plaintiff, however, seeks to adduce other evidence to show that Shigeo Narui in fact kept a diary or what was referred to as a “trip diary” recording events during his visits to Australia in connection with events the subject of these proceedings. That evidence is in an affidavit sworn on 1 September 2004 by Mr Hodgson, a solicitor with Hickeys, the firm that then acted for the present defendant. The affidavit was sworn by Mr Hodgson for the purpose of committal proceedings in the Local Court against Mr Barr, one of the present plaintiffs. The present defendant was required to produce certain documents to the Local Court. It asserted a claim to client legal privilege in respect of some of the documents produced. Mr Hodgson’s affidavit of 1 September 2004 was sworn in support of that claim for privilege.

9 The plaintiffs say that Mr Hodgson’s affidavit contains an admission by the present defendant, through its solicitors, as to the existence of certain documents, one of which is said to be headed “Shigeo Narui daily report” and to have been created by representatives of Narui Norin (the parent company of the present defendant). From this, it is said, one may infer that the document at Tab 1 to Mr Dalzell’s affidavit – the document I am calling “the Japanese text” – was created by Shigeo Narui.

10 There is an obvious problem in identifying the Japanese language document to which indirect reference may be made in Mr Hodgson’s affidavit with the Japanese language document exhibited to Mr Dalzell’s affidavit which is the Japanese text. A more fundamental problem raised by the defendant, however, is that, because Mr Hodgson’s affidavit was not read in the Local Court proceedings (the privilege claim having been disposed of without resort to it), Mr Barr, one of the present plaintiffs, who was the defendant in the Local Court, is subject to an implied undertaking to the Local Court not to use the information therein for the purposes of these quite separate proceedings. The implied undertaking requires that the information be used for the purposes of the Local Court proceedings only.

11 The plaintiffs accept that such an implied undertaking exists but Mr McHugh SC submits on their behalf that this court may release the implied undertaking, even though it was an undertaking to the Local Court. He referred to the broad jurisdiction created by s 23 of the Supreme Court Act 1970 and the fact that the Supreme Court is the superior court of record for New South Wales while the Local Court is an inferior court. The response of the defendant is that release can (or should) be granted only by the court to which the undertaking was given. Mr Einfeld QC referred, in that connection, to Ainsworth v Hanrahan (1991) 25 NSWLR 155 in which Kirby P, at 168, referred explicitly to the possibility of obtaining “the permission of the court in whose process the answers have been given under compulsion”.

12 I do not intend to decide whether this court can or should release Mr Barr from the implied undertaking given by him to the Local Court. I have already made brief reference to the reason. While Mr Hodgson’s affidavit might well prove the existence of something described as “Shigeo Narui daily report”, it cannot do anything to prove that the Japanese text at Tab 1 of the exhibit to Mr Dalzell’s affidavit is this “Shigeo Narui daily report”. Even allowing in full for the fact that the Japanese text contains names appearing in Roman alphabet characters – “John Smith”, to pick a purely hypothetical example – and that those names are the names of persons involved in events relevant to this case, I see no basis at all for any reliable inference that the Japanese text (which came from the Director of Public Prosecutions) is the document referred to in Mr Hodgson’s affidavit as “Shigeo Narui daily report” or that it was composed by Shigeo Narui. Mr Hodgson’s affidavit is therefore of no assistance in proving matters relevant to the questions with which I am now concerned.

13 I turn now to the plaintiffs’ reliance on the business records exception. For the exception to the hearsay rule created by s 69 to apply, the court must make findings on a number of matters. It must be found that the particular document forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business. It must also be found that the relevant representation in the document was made or recorded in it in the course of or for the purposes of the business. And it is necessary to make certain findings about the person who made the relevant representation (that is, that that person “had or might reasonably be supposed to have had knowledge of the asserted fact”) or about the basis on which the representation was made (that is, “on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact”).

14 If it is argued that s 69 applies to the Japanese text, the argument cannot be accepted. There is no evidence to justify any of the s 69 findings with respect to the Japanese text. While certain words in Roman script suggest that the content has to do with the subject matter of these proceedings, the circumstances of the creation of the Japanese text and the identity of the person who wrote or prepared it simply do not appear from the evidence. It is therefore not possible to gauge the state of the knowledge of that person, with the result that findings essential to the operation of s 69 cannot be made.

15 To the extent that s 69 is relied on in relation to the English language documents at Tabs 2 and 3 of the exhibit to Mr Dalzell’s affidavit, the outcome is, in the final analysis, the same. In that case, there is some evidence of authorship, in that there are certificates of translators. But they do nothing to satisfy the s 69 requirements, assuming that it is meaningful to attempt to apply those requirements independently to what purport to be translations. Quite separately, on this point, however, the certificates are themselves inadmissible hearsay.

16 For these reasons, the plaintiffs have not shown that s 69 applies to make admissible either the Japanese text or the English language documents.

17 There is a separate basis on which the defendant argues against the admissibility of the English language documents. It has to do with the matter just mentioned and the quality and reliability of the translations.

18 Let it be assumed that the Japanese text is, as the plaintiffs contend, something composed or written by Shigeo Narui. Let it also be assumed that the content of the translator certificates is admissible. The point the defendant makes, on those assumptions, is that the English language documents are devoid of probative value so that, by operation of s 56(2) of the Evidence Act, they are not admissible.

19 There are several translator certificates but they are sufficiently similar that I need refer to one only, being a certificate of D Boland. After stating that the annexed material is “an accurate full translation into the English Language from the [identified pages] in the Japanese language”, the certificate sets out a “note” as follows:

“{Translator’s note: three points should be understood by the reader:
1) In the Japanese language, pronouns are most often not specified . Where they not [sic] specified, they must be conveyed through context. Of course this doesn’t impede understanding normally.
2) However, this Japanese source document is written in anecdotal, colloquial , and often ambiguous language , as it is a work journal.
3) There is also a huge context gap for outsiders. This arises from the time-period gaps in the journal, as well as the non-comprehensive nature of the journal as a means of communication within the Narui Company. This document is a daily journal of activities and events. The writer assumes a large body of knowledge, much of which is not provided by the journal itself. The audience of the journal is people who understand the context. The additional context for them may have been provided by phone calls, faxes to the head office, conversations in person, etc.
So there are context gaps in the journal, and when combined with the intrinsic lack of explicit pronouns in the Japanese language, and further obscured by the colloquial language, in particular the grammar, in the source document, isolating pronouns, particularly personal pronouns, is a difficult and sometimes impossible task without gaining further understanding of the context. Personal pronouns have been excluded in parts of the English translation to reflect the ambiguity of the source document. Further investigation may be required to guarantee the accuracy of personal pronouns in this document. In particular, the distinction between “I” and “We” is ambiguous in a significant proportion of sentences.
In light of the above comments, any part of this translation that may be considered for use in, or as a basis for legal proceedings, should first be reconfirmed with the translators.}”

20 The submission made on behalf of the defendant is that the English language documents, considered in the light of the severe qualifications thus expressed in the translator certificates, have no capacity at all rationally to affect the probability of the existence of any fact in issue in these proceedings (I am here using the words in s 55(1)), so that the English language documents are not “relevant” in the s 55 sense and are therefore rendered inadmissible by s 56.

21 I am not persuaded that that submission would prevail, assuming that the authorship of the Japanese text had been proved and that the translator certificates themselves were admissible to prove the fact and quality of translation. On those assumptions, there would, despite the cautions in the translator certificates, be some capacity for the English documents to throw light on facts in issue. The uncertainties engendered by the translator certificates would cause the court to treat the English language documents with care and to be suspicious of their accuracy, particularly where pronouns were used. But there would still be some residual probative capacity sufficient to warrant a finding of relevance.

22 Although I have found that both the Japanese text and the English language documents are, because of the hearsay rule and non-applicability of s 69, inadmissible to prove the matters stated in the latter, I proceed to consider submissions of the defendant based on s 135 of the Evidence Act. The defendant says that if, contrary to my finding, the content of the English language documents is admissible, the court should exercise its discretion under s 135 to refuse to admit that evidence. The proposition the defendant advances here is that the probative value of the evidence is substantially outweighed by the danger that the evidence might either be unfairly prejudicial to the defendant or be misleading or confusing. Again I proceed on the assumption (which is contrary to my earlier findings) that the translator certificates are probative of the matters stated in them.

23 The defendant says that unfair prejudice accrues to it because the plaintiffs have not proved the authorship of the Japanese text, so that, even if the English language documents are a faithful translation, one simply cannot know whether the English language documents contain a translation – however unreliable it may be – of records made by Shigeo Narui. The same circumstance, coupled with the warnings in the translator certificates, is said to be productive of a misleading or confusing quality. And each of these factors is said to operate sufficiently strongly to cause it to outweigh substantially the document’s probative value. I accept those submissions. If the translator certificates were admissible, the negative qualifications they contain would, as discussed, severely curtail the probative value of the English language documents. And that weak probative value would be overwhelmed by the uncertainty stemming from the lack of evidence about who composed the Japanese text itself.

24 If the English language documents were otherwise admissible (which, in my opinion, they are not for the reasons already stated), the case would be one in which the power of rejection under s 135 was exercisable and would be exercised.

25 The provisions of the Evidence Act therefore lead to the conclusion that the extracts from the English language documents sought to be tendered by the plaintiffs are inadmissible and must be rejected.

26 The plaintiffs contend, however, that the court should exercise the discretion conferred by s 70 of the Civil Procedure Act 2005 and dispense with the rules of evidence so as to enable the content of the relevant extracts from the English language documents to be proved notwithstanding the obstacles to which I have referred. Section 70(1)(a) says that the court, at any stage of the proceedings:

“may, by order, dispense with the rules of evidence for proving any matter that is not bona fide in dispute, also with such rules of evidence as may give rise to expense or delay.”

27 An oral application for an order under this provision was made on behalf of the plaintiffs. Mr McHugh submitted that determination of that application entails an “interlocutory proceeding” for the purposes of s 75 of the Evidence Act, so that hearsay evidence is admissible upon the application. I did not understand counsel for the defendant to submit otherwise. I proceed, therefore, on the footing that, for the purposes of the s 70 application, it is open to me to have regard to the translator certificates which, for the purposes of the matters considered earlier, have been treated as containing inadmissible hearsay.

28 I should also mention that this part of the controversy was argued on the implied footing that statutory provisions contained in the Evidence Act are, as referred to in s 70(1)(a) of the Civil Procedure Act “rules of evidence”. Again, I did not understand there to be any contrary submission. I proceed accordingly.

29 The s 70 application is advanced on two alternative grounds. The first is that the matter of the status of the English language documents as translations of a diary recorded in Japanese by Shigeo Narui – that is, the combination of provenance and accuracy of translation - is “not bona fide in dispute”. The absence of “bona fide dispute” on these matters is said to rest in part on the translator certificates which, of course, go to the accuracy of translation and might therefore be seen to forestall genuine dispute on the matter of translation. In short, the submission runs, there is evidence of translation, even though it comes with caveats and qualifications, so that there cannot (or should not) be genuine dispute as to that.

30 As to the absence of bona fine dispute on the authorship or provenance of the Japanese text (and therefore the status of the English language documents as an embodiment of an English version of statements coming from Shigeo Narui), the plaintiff refers to correspondence between the parties solicitors. It is to that correspondence that I now turn.

31 On 24 August 2007, in a letter making observations on a certain particulars provided, the defendant’s solicitors said:

“Further, in respect of the particulars we note extensive reference is made to documents said to be Shigeo Narui’s Trip Journals as translated by the Community Relations Commission. In respect of those documents:
(a) we note they have not been discovered;
(b) ask that you confirm how they came to be in your clients’ possession.”

32 The reference to translation by the Community Relations Commission is sufficient, in my view, to show that the documents referred to in this letter are those I am calling “the English language documents”.

33 In a response of 30 August 2007, the plaintiffs’ solicitors gave details about how the English language documents came to be received from the Office of the Director of Public Prosecutions. They were described in the letter as “translated copies” of “the Daily Report”. The letter concluded:

“We note your comments that the accuracy of the Daily Report and the relevance of the document will be an issue in this matter should our clients wish to rely on it. Given that the original document was, it seems, produced by your client, and the relevance of its content to the current proceedings is unquestionable, we would ask that your client now confirms that it will not take any issue with the proposed tender of this document.”

34 The defendant’s solicitors wrote to the plaintiffs’ solicitors on 6 September 2007 saying:

“In respect of the Trip Journals, you are seeking to have us identify whether or not our client will consent to the tender of some documents at trial in circumstances where the matter is not even set down for trial and your client’s evidence is not complete. There is no warrant for us to comply with that request at this stage and we simply reserve our client’s position.”

35 The matter rested there until, the plaintiffs say, about six weeks ago when the plaintiffs served the proposed tender bundle which contained the extracts from the English language documents. The defendant, at that point, referred to the matter of provenance, saying that this had not been proved and that there was a hearsay issue that could not be overcome by the business records exception. As to the reliability of the translation from the Japanese text to the English language documents, the plaintiffs say that it was only on Thursday last, the fourth day of the trial, that the plaintiffs first indicated objection. The plaintiffs’ allegation of lack of bona fide dispute, in terms of s 70(1)(a), was raised in a letter of 23 June 2008 and rejected by a letter of the following day.

36 I am not satisfied that there is no genuine dispute about the provenance of the English language documents – or, more particularly, on the question whether the Japanese original from which they were produced is in truth a document containing Shigeo Narui’s contemporary diary notes. The defendant flagged at an early stage in the correspondence that it would be raising that matter and relying on the hearsay rule and the inapplicability of the business records exception. On a fair reading of the correspondence, the defendant never retreated from that position; and it is pertinent that the same objections were raised when the proposed tender bundle was submitted some six weeks ago. Thus, even if it is accepted that the defendant was late in raising the additional matter of the accuracy of the translations, there has existed for a long time a dispute about provenance. There is no reason to think that the dispute is not genuine, bearing in mind that, while, according to the solicitors’ correspondence, the defendant had produced an original Japanese language document said to be Shigeo Narui’s diary, there was nothing to link that with the Japanese text that came from the Director of Public Prosecutions. That of itself is sufficient to make the part of s 70 concerning lack of bona fide dispute inapplicable.

37 The second aspect of s 70 relied on by the plaintiffs is that concerned with “expense or delay”. It is said that for the plaintiffs to be put now – or to have been put in the past – to the task of obtaining proof of provenance (and, if needed, obtaining a fresh translation of the Japanese text) would be productive of expense and delay. That may be accepted.

38 This leads to the last aspect of s 70, namely, that it confers on the court what is clearly a discretion. It has been said in relation to a rule of court in like terms that “care should be taken before reliance is placed on the rule where matters central to the case are involved or where there is a real dispute about matters that go to the heart of the case”: Bray v F Hoffman La Roche Ltd [2002] FCA 243; (2002) 118 FCR 1 at [110] per Merkel J.

39 I consider this caution to be applicable in cases advanced by reference to s 70(1)(a). In this instance, the activities of Shigeo Narui and persons with whom he dealt in relation to the subject matter of the proceedings are central to parties’ controversy. Much is at stake. I am not satisfied that the discretion conferred by s 70 – which, as I have found, is activated solely by the “expense or delay” consideration – should be exercised so as to obviate the need for proper proof of the extracts from the English language documents sought to be tendered by the plaintiffs.

40 I should mention, in conclusion, the plaintiffs’ reliance on s 56 of the Civil Procedure Act and the duty it casts on parties to assist the court to further the overriding purpose of the Act and the rules of court stated in that section, that is, the purpose of facilitating “the just, quick and cheap resolution of the real issues in the proceedings”. Section 56 was relied on as, in effect, an adjunct to a s 70(1)(a) but, while the objective there stated is one that must inform all procedural decisions, the importance of the matter of proof in this case is such that exercise of the discretion under s 70(1)(a) should be withheld.

41 My decision is as follows:

1. The plaintiffs’ application for an order under s 70(1)(a) of the Civil Procedure Act 2005 is refused.
2. The several extracts from the English language documents at Tabs 2 and 3 of the exhibit to the affidavit of John Dalzell sworn on 17 June 2008 sought to be tendered by the plaintiff are inadmissible.
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