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 )
1
NEW SOUTH WALES DISTRICT REGISTRY )
No. G1316 of 1988
1
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Trade Practices Commission v Arnotts Limited [1989] FCA 883
Case
[1989] FCA 883
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the Trade Practices Commission sought to determine the admissibility of certain statements contained in a letter admitted as part of Exhibit 85 in the proceedings against Arnotts Limited and others. The respondents contested the admissibility of the statements attributed to third parties in the letter, arguing they should be admitted as evidence of the truth of the statements under the business records provisions of the Evidence Act 1905.
The primary legal issue was whether the statements in the letter, attributed to third parties, could be admitted as evidence of the truth of what was stated under the "business records" provisions of the Evidence Act 1905. Specifically, the court had to determine if Mr. Rishworth, the maker of the statements, was a "qualified person" concerning the statements attributed to the retailers.
The court found that while Mr. Rishworth was qualified to make statements about his own business and his expert opinions, he was not qualified to speak for the businesses of the retailers he interviewed. The court ruled that a "qualified person" must have personal knowledge of the facts stated or be an expert on the subject matter. As Mr. Rishworth did not fit these criteria regarding the retailers, the statements attributed to them were inadmissible as evidence of the truth of what was stated.
Consequently, the court ruled that the statements in the letter were admissible only for the limited purposes for which they had already been admitted. The court also ordered that publication of these reasons for judgment be restricted to the legal representatives of the parties until 10 August 1989 and directed the Trade Practices Commission to notify Ball Partnership Pty. Limited of these reasons for judgment.