Trade Practices Commission v Arnotts Limited
[1989] FCA 883
•8 Aug 1989
, .
| JUDGMENT NO. ~I@@@#@#"HIII( | 8-3 | j& |
CATCHWORDS
Evidence - tender of document under business records provisions of Evidence Act - whether maker of statement relevantly
"qualified"
TRADE PRACTICES COMMISSION v. ARNOTTS LIMITED & ORS.
No. G.1316 of 1988
Beaumont, J.
Sydney
8 August 1989
IN THE FEDERAL COURT OF AUSTRALIA )
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| NEW SOUTH WALES DISTRICT REGISTRY ) | No. G1316 of 1988 |
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GENERAL DIVISION
| BETWEEN: | TRADE PRACTICES COMMISSION Applicant |
| AND : | ARNOTTS LIMITED Respondent ARNOTT'S BISCUITS LIMITED Second respondent FLEDSPAC PTY. LIMITED Third respondent THE DICKENS CORPORATION PTY. LIMITED Fourth respondent |
MINUTE OF ORDER
JUDGE MAKING ORDER: Beaumont, J.
| DATE ORDER MADE: | 8 August 1989 |
| WHERE MADE: | Sydney |
| THE COURT ORDERS: |
1. Rule that the statements in the letter dated 11 May 1988 (part of Ex. 85) are admissible only for the limited purposes for which they have already been admitted .
2. Up to and including 10 August 1989, publication of these reasons for judgment be restricted to the legal representatives of the parties.
3. Direct that the Trade Practices Commission forthwith notify the Ball Partnership Pty. Limited of these reasons for judgment.
Note: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
1
No. G1316 of 1988
| GENERAL DIVISION | 1 |
| BETWEEN : | TRADE PRACTICES COMMISSION Applicant |
| AND : | ARNOTTS LIMITED Respondent ARNOTT'S BISCUITS LIMITED Second respondent FLEDSPAC PTY. LIMITED Third respondent THE DICKENS CORPORATION PTY. LIMITED Fourth respondent |
CORAM: Beaumont, J.
DATED: 8 August 1989
REASONS FOR JUDGMENT
(on the purposes for which certain statements
in part of Ex. 85 are admissible)
Part of Exhibit 85 is a confidential document being a copy of a letter written by Mr. J. Rishworth to Mr. E. Doble, an officer of The Ball Partnership Pty. Limited (hereafter "Ball"), dated 11 May 1988. The letter has been admitted into evidence, without objection, as a business record for certain limited purposes, to be mentioned shortly. On behalf of Arnotts, it is submitted that the statements in the letter should also be admitted as evidence of the truth of what was stated in the
document to have been said by several third parties in the course
of interviews with the writer of the letter, Mr. Rishworth.
The background to the present question, without disclosing confidential details, is as follows. Mr. Rishworth is an officer of John Rishworth & Associates Retail Marketing Services Pty. Ltd. (hereafter "Rishworth"), a company which, it may be inferred, provides retail marketing services. Ball are marketing consultants. The copy letter to Mr. Doble states, inter alia, as follows (confidential matter has been excised):
"Dear Ed
AS discussed I visited Adelaide on Thursday, 5th May to complete interviews with the three major accounts, namely [three retailers are mentioned] concerning the possible introduction of a new range of biscuits.
[First named "retailer"]
I spoke with. ..(Perishable Buyer) and ... (Merchandise Manager). Even though they do not stock the lines they are extremely familiar with the market and with their major clients, namely, [several "client" retail outlets]. They indicated that these major clients would enthusiastically support another entrant into the biscuit market particularly biscuits of an established quality.
[A named supplier] is considered to be 'the bestr and the other two companies participating in the biscuit market, namely [other named suppliers], perform very poorly. It would necessitate individual promotional activity to be arranged with these groups but no up front costs would be involved apart from advertising or promotional activity.
I list below the promotional charges applicable for these smaller operators.
[First named "Retailer")
| Bonus BUYS | $850 or %g90 plus case off |
| Mark Downs | $400 plus case off or 5 products for $1600 |
It is common ground that the statements in the letter are evidence of (a) the terms of the communication between Rishworth and Ball; (b) the opinions held by Mr. Rishworth, as an expert in the area, as to the likely future conduct of the retailers; and (c) the process of reasoning adopted by Mr. Rishworth to form that opinion. But Arnotts seeks to go further and submits that each of the statements in the letter should also be received as evidence of the truth of the statements attributed to the retailers pursuant to the "business records" provisions of the Evidence Act 1905 ("the Act").
I cannot accept Arnotts' submission.
Section 7B of the Act is as follows:
"(l) Subject to this Part, where, in any proceeding, evidence of a fact is admissible, 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 at the time when the question of admissibility arises; | |||
| (b) | the statement was made in the course of, or for the purposes of, the business; and | |||
| (c) | the statement was made by a qualified person or reproduces, or was derived from, either or both of the following descriptions of information: | |||
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(2) This section makes a statement admissible
notwithstanding -
(a) the rules against hearsay;
| (b) | the rules against secondary evidence of the contents of a document; |
(C) that any person concerned in the making of the statement is a witness in the proceeding, whether or not he gives testimony consistent or inconsistent with the statement; or
| (d) | that the statement is in such a form that it would not be admissible if given as oral testimony. |
but does not make admissible a statement that is
otherwise inadmissible.
(3) In this section, 'factf includes opinion."
Reference should also be made to s.7H, which empowers the court, for the purpose of determining admissibility, to draw inferences from the form or content of the document as well as from other matters. Mention should also be made of s.7M(l)(c), which provides that where a party to a proceeding tenders any evidence under s.7B, and it appears to the court that the evidence may be unfair to any other party, the court may reject the evidence, or if it has been received, the court may exclude it. The present question is not, strictly speaking, whether the material should be excluded in any entire sense but, rather, whether it should be admitted for a particular, limited purpose only. In my view, the power conferred by s.7M(l)(c) is available to be used so as to restrict the purposes for which a statement is admitted (cf. Hughes v. National Trustees, Executors and Agency Company of Australasia Limited (1978) 143 C.L.R. 134 at p.153).
It is convenient to deal with each of the four ingredients of s.7B separately as follows:
(1) Where evidence of a fact or of an opinion is admissible, a statement of that fact or opinion in a document is admissible as evidence of that fact or opinion (see s.7.B(1)). What is the relevant fact or opinion here? The extract from the letter which is set out above states, inter alia, the following relevant facts and opinions:
| (a) | On 5 May 1988, Mr. Rishworth interviewed officers of a major "retailer" of food, asked them their attitudes to a possible new entrant into the biscuit market and received a positive response; |
| (b) | The officers also provided Mr. Rishworth with details of retail "promotional charges". |
Is either (a) or (b) a relevant fact or opinion?
In my view, the expert opinions of the officers of the retailer described in (a) is relevant, at least in the adjectival sense, to a matter in issue in the principal proceedings. Further, in my view, the facts being the details in ( b ) are also adjectivally relevant.
(2) The document must form part of a record of a
| business (see s.7B(l)(a)). | Since it may be inferred that both |
Rishworth and Ball were systematically collecting this information as part of a market research exercise, the letter was part of the records of the businesses of both those companies (see Compafina Bank v. Australia & New Zealand Banking Group Ltd. (1982) 1 N.S.W.L.R. 409).
(3) The statement must be in the course of, or for the purposes of, the business in question (see s.7B(l)(b)). In my opinion, the statement was made in the course of Rishworthls business and for the purposes of Ball's business.
| (4 | The statement must be either (a) made by a |
"qualified" person or (b) reproduced, or derived from, inter alia, information in a statement made by a "qualified person" (see s.7B(l)(c)). A "qualified person" is defined in s.7A(1) as follows:
"qualified person", in relation to a statement made in the course of, or for the purposes of, a business, means a person who -
| (a) | at the time when the statement was made, was - | |||||||
| ||||||||
| (b) | at that time - | |||||||
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(ii) in any other case - had, or may reasonably be supposed to have had, personal knowledge of the facts stated;"
It will be noted that the person must be qualified
the business in question.
In my view, Mr. Rishworth is a "qualified persont' in respect of the business of Rishworth. He is "qualified", in respect of that business, in two areas: (a) as to the facts being the communications passing between himself and the retailers he interviewed; and (b) as to any opinions he held as an expert in market research. However, in my opinion, Mr. Rishworth was not "qualifiedtt to speak in respect of the businesses of the three retailers (see Re Marra Developments Ltd. and the Companies Act (1979) 2 N.S.W.L.R. 193 at pp. 205-6; Ross McConnel Kitchen & Co. Pty. Ltd. (In Liq) v. Ross (1985) 1 N.S.W.L.R. 233 at p.236; Atra v. Farmers & Graziers Co-op CO Ltd (1986) 5 N.S.W.L.R. 281 at p.287; A.L.C. Ligertwood, Australian Evidence, 1988, at p.408).
It must follow, in my opinion, that the statements in the letter are not admissible as evidence of the truth of the statements there attributed to the three retailers. Mr. Rishworth was not "qualified" to speak for their businesses. Nor was there any relevant relationship of "association" for the purposes of sub-para.(a)(iv) in the definition of "qualified person" in s.7A(1). It is true that Mr. Rishworth interviewed the officers of the retailers. But that circumstance does not warrant the conclusion that, therefore, Rishworth and the retailers were "associated" for present purposes.
In the circumstances, it is not necessary to deal with the Commissionfs alternative argument of unfairness based on s.7M.
I make the following orders:
1. Rule that the statements in the letter dated 11 May 1988 (part of Ex. 85) are admissible only for the limited purposes for which they have already been admitted.
2. Up to and including 10 August 1989, publication of these reasons for judgment be restricted to the legal representatives of the parties.
3. Direct that the Trade Practices Commission forthwith notify the Ball Partnership Pty. Limited of these reasons for judgment.
I certify that this and the
| ||
| pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. |
W& Q; &
| Asso late | S |
Dated: 8 August 1989
| Counsel and Solicitors | Mr. B.C. Oslington Q.C., |
| for Applicant: | Mr. D. Staelhi and Mr. M.R.J. Ellicott instructed by the Australian Government Solicitor |
| Counsel and Solicitors | Mr. C.A. Sweeney Q.C. and |
| for first and second | Mt. Mr. P. Comans instructed by |
| respondents | Clayton Utz |
| Date of hearing: | 3 August 1989 |
| Date Judgment Delivered: | 8 August 1989 |
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