Trade Practices Commission v T.N.T. Management Pty Ltd

...

3 .

been raised to its admission.

The document purports to

be a

record made by a witness, Mr Frewen, of a conversation which took

place at a meeting which he attended on 10 March 1976 between the

persons present at that meetlnu.

Mr Frewen has qiven evldence, but has

not yet been

cross-examined.

He has refreshed his memory from the document

and

uiven

further refreshing his memory. Reliance is placed upon the provislons	evidence	of the	conversation	after	so
of

Part IIIA of the Evidence Act

1905 and it is

submitted for the

plalntlff that the statements in the document should be admltted

ln evldence.

The document purports to

be a record of the conversatlon

ghich took

place

the

meetlna.

conslder

that

there

1 s

therefore a statement ot fact

In the document

to the extent that

it 1 s a record of what was said

at the meetlng. The statement of

fact belnq what was sald in the conversatlon was made

by Mr

Frewen. who appears to

me to be a qualified person In that he was

enqaged

the

relevant

buslness

at the

tlme

made

the

statement.

I refer to the relevant sectlon

of the Act, s.7A(1).

I consider that the statement was made elther

the course of

the business

for the purposes of the buslness. s.7Bll)rb).

Although the document, so far

as the evidence goes, has not been

shown to form part

what mlght be called a record

continuous kind kept

the buslness.

I stlll thlnk it "forms

part of the record of the business" : 5.7B(l)(a).

I consider the

4 .

document falls

within the words of s.7A(2) In that It falls at

least within recognised by him

the

words

"otherwise

produced

him; or ...

as hls statement".

note the provisions

s.?H concerning the Court's

power to

draw

inferences. In my oplnlon, the document would

ordinarlly be excluded because of the rule against hearsay, but s.7B(2)(a) neuates this ground of inadmisslbility. The record was made shortly after the conversation in March 1976 and It 1 s common ground that some civll proceedlngs were commenced by Tradestock Pty. Limited in December 1976.

Sectlon ? C t l ! excludes the statement from the provlsions

of S .?B

If lt

was "made or obtained fcr the purpose of

c)r In

contemplatlon of any judlclal or

admlnlstrative proceeding". M y

attention was also drawn to

s.iD!3) and ! 4 ) .

The effect

,:sf this

sectlon 1s that the statement map not be used in proceedings such

as those now before me where It ;S made "In cmnexlon wlth. 3 r In

connexlon with any investlgatlon relatlng or leadinu to" the

proceedings at present before me.

The proceedlngs before me were not commenced

1mt11 1978.

and I

conslder SO

far as the evldence goes that the statement

made under conslderatlon does not fall vlthln

s.?D(3).

I have

some doubt whether the statement

may not

have

been made In

contemplation of !udicial

proceedings. No argument was directed

to me on whom the onus

lay

of establishing this, and

the

examination in chief

of Mr Frewen has not yet been completed.

I have decided the appropriate course is

to rule that I

will admit

the

statement

this

document

unless

the

concluslon of Mr Frewen's evldence it appears that it was made or obtained for the purpose of or In contemplation of any judicial or adminlstratlve proceedings.

I add that anythinu, for example, an expresslon of

my rulina does not extend to the admission

opinion In the document

whlch goes beyond a statement settlnu

out what was sald at the

meetlnu. At

present, unless It appears that the document was

made or

obtalned for the purpose of or in

contemplatlon rf any

judicial or adminlstratlve proceedinus, I

a l l admit the dccument

as agalnst the flrst defendant and only as

evidence of what was

sald at the meetlng. This leaves open the question

of vhether

anything stated by any

person present at the meetlnq

1 s endence

of anythinq other than the fact that It was said and	by whom.
18 July 1983

Evldence - Euslness records

- Whether statements in a letter

are statements of fact

- What is part of

a record

- Pule

aqalnst hearsay	-	Safeguards in Part IIIA of Evldence Act 1905.
Wrltten Rulinq

6 .

This judgment concerns the admissibility of

MFI 26 and

purports t o be a letter dated 19 February

1976 from N.E. Stock,

Director of

TIC Management Consultants, to

D. Blaney, Victorlan

Manager of Ansett Frelqht Express.

The whole

of thls letter

1 s

tendered with

the exception of the last two paragraphs. Apart

from the date, the descrlptlon of the addressee and of Mr Stock,

the other parts

“Dear Sir,

We wish to thank you for your quotatlon dated

of the letter whlch are tendered read:

12th February.

1976 concerning the lnterstate

cartaqe of products

manufactured

Sylon

Internatlonal

Llmlted,

Mahoneys

Road,

Thomas t

own.

We also

cmflrm our

telephone

conversation

today whereby we sccepted

your

quotation I n

part as suthorlsrd 011 behalf

Sylon

International Llmlted

as follows:

General Servlse.

Melbourne trI): A.C.T. Ferth.	hdelalde,
Pocket Ser-nce.

Melbourne t o :

Sydney1A.U.T.

Erlrbane.

Adelalde.

Perth.

Tasmanla.”

The provislcnz r?f

dealing with the sdmlsslblllty of buslness records are relied

upon.

Part IIIA of t h e EJidence Art 1305

For admlsslhlllty under those provlslons there must be

statement of

fact In a document ( s . 7 B ! 1 ! ! .

It is the statement

fact slhlch

1 s admlsslble.

The fact must also be one in

respect of which evidence is admissible. A statement of fact may

be made by words or otherwise (s.7A(l)) and fact includes opinion

(s.7B(3)).

It was common ground that, in general, a statement of

oplnion was only admissible

where the opinion was given

by an

expert who could give the opinion orally in the wltness box.

The

document contaming the statement must form "part

of a record of

a business" (s.7B(l)(a)) and it appears that this requlrement may

be sufficient to exclude

a statement in a document whlch

1 s a

record but not part of

a record.

MFI

26 was a copy of a letter

kept in a

file of T.I.C. Management Consultants.

Emilio Tlrado counsel for the second defendant as authorlty for the proposltlon

(1974) 59 C.A.R.

80 was cited by senlor

that a letter in

a flle was not part of

a record. In that case

the relevant statutory provlsion referred to the admlsslblllty

"of a

record relatlng to any trade or buslness and complled In

the course

of that trade

or business from informatlon supplied

. . . " .

The members

of the Court

of Appeal did not record any

concluded fmdlng In that case but expressed doubt whether a letter of complalnt kept in a flle of correspondence constltuted

a record within the relevant legislatlon.	The	Court at	p . 3 0
pointed out that:

"The lanquaqe of Section 1 seems on Its face to contemplate the maklnq or compilation of a record. That means the keeping of a book or a

file, or

a card index into which information

1 s deliberately put

order that it may be

available to others another

day."

The words of the included the word "compiled" and they are

section

there

under

consideration

different to those in

Part IIIA.

I do not think that case

15 signlficantly relevant.

R. v. Jones C19781 1 W.L.R. 195 was also cited. That case also referred to a record

or part of

a record "compiled".

Watkins Products Inc. v. Thomas (1965)

D.L.R. 252 was also

cited but here again, different words were under consideration.

I propose to follow the declslon

f Hunt J. In Compaflna

Bank v. Australla & New Zealand Banklnu Group

Ltd. C19821 1

N.S.W.L.R. 409.

In that case

hls Honour held that a copy

of a

letter wrltten

by company X to company Y obtalned from the

records of company X satlsfled the test

of belnq part of a rpccrd

in litigation between

companies P. and B under s.14CE of the

Evldence Act

1898, P1.S.W.

The wordlng In that sectlon

1 s the

same as m s.7B which 1 s under conslderatlon.

A copy of a letter wrltten by the dlrector of a ,:ompany

conducting business transactions between the company and the

customer

concernlnq

businecs

Acustcmer

is, in

m 7

oplnion. clearly "part of a record of a business" at least where

the record of

whlch It 1 s part can be ldentlfled.

If thls be 3

requirement it appropriate flle of T.I.C. Management Consultants.	was	satlsfled	because	MFI	7-6	came	from m
The record

need not containing a

continuous record.

loose

leaf

ledqer

card

statement of fact.

at least where It

1 s one

of a

number of cards in a box, and

which otherwise satisfies the

a	provisions of	Part IIIA, would also be part of	a record within
s.7B(l)(a).

Attention was directed to the words

"we

accepted your

quotation"

and "as authorised

behalf

of" in

the

second

paragraph of MFI 26. My

attention was dlrected to varlous cases

Including

Toblas

v. Allen (No. 2) C19571 V.L.R. 221

pp.224-225,

v . Pope

and

Belair

Cellars

Ptv. Ltd.

(19721 4

S.A.S.R. 45 at pp.54-56, O'Leary

Lamb ( 1 9 7 3 ) 7 S.A.S.R. 159

pp.196-198 and cases dealt with what is included

C19687 1 W.L.R.

756

at 761. Those

In the word "fact" in somewhat

slmllarly worried sections of

other statutes. In aeneral, ~t vas

said that to say that two partles

"agreed" was not d statement of

fact.

In thls case I am concerned with the words

"we accepted

your quotatlon In

part".

Mr Mason Q . C . submltted that, If a

person says we agreed to

to lunch, that 1 s hardly a matter of

law but is really

a statement whlch.

;Ihilst not in direct speech,

was llttle more chan recordinq	an	answer trhar: the person sald
"yes" to an offer to qo to lunch.

Counsel for the sl:rth defendant cited

Re Norman Kins &

Co. Ltd. (1960! 6G S.R. 98 as an author1:;l for the propositlon that a document contalnlnq an acknowledgement of an authority 1 s not a document settlnq out a fact or facts but rather a

concluslon from facts not mentioned

in the document.

10.

I consider that in

HFI

26 it is appropriate to regard

the words

"we accepted your quotation in part" as being little

more than saying

"we said yes to your quotation

in part".

seems that the meaning

the statement need not

be clear

unambiguous for it to be admissible. Sometimes

a part of

document, not being a statement

fact, has been admitted to

explain a

statement in the document (Re Marra Developments Ltd.

C19793 2 N.S.W.L.R. 193 at p.202).

I would relect the statement in that part

of the letter

whlch reads "as authorised on behalf Limited" because that is a conclusion, at least in part of law,

of Sylon International

in relatlon to a Ltd. and T.I.C. Management Consultants.

prior transaction between Sylon International

Some

consideration

was

given

s.:B(2)(d)

which

provides that

a statement is admissible notwithstanding that

"is in such

a form that it would not be admissible If Tiven

oral testimony".

In my opinlon this appears to relate, at least

primarily, to

a case where the statement in the document 1 s not

in direct speech.

note that the Vlctorlan Act considered

Toblas v. A m ,

supra, and the

South Australlan Act considered

in Pope

v. Belair, supra, and O'Learv

v. Lamb, supra, did not

contain any slmilar section. In some cases this section may

permlt the admission of phrases such as	"we agreed" whlch would
not be admissible in oral testlmony.

12.

provisions in ss.7M and

7N concerning cases heard before

a jury.

In the present case it is

a relevant fact that Mr Stock will be

avallable for cross-examination

as Indeed is Mr Frewen.

There

is, of course, also the safeguard that the judge always has to assess the welqht of any evldence agalnst the background of the

other evldence the partles

have placed before

hm.

In this

regard certaln speclal provlsions are made by s.7F. In decidinu

whether a statement should be admitted, the court is entltled to

draw inferences as provided in s.7H.

I have

not dlrected my

attentlon to the provisions of

s.7C(1) or s.7D(3). Although counsel did ralse the question on vhom the onus lay to establish the facts relevant

to elther nf

these sections, nn detailed

submissions were made to

me.

I will follow the

same

course

that

I followed ln

relation to MFI 3.

I rule that I v111 admit the statements

in so

much

of the document MFI

16 as has been tendered (except the

words "as authorised on behalf of Sylon International Llmlted") unless at the conclusion of Mr Frewen's evidence It appears that it was made or obtained for the purpose of. or In contemplatlon

of, any ~udlclal

or admlnlstratlve prsceedlnqs.

36 July 1983

(Transcript 3623-3624)

Evidence

Buslness

records

Whether

record

made

13.

qualified employee of

a company of contents of

an invoice of

e	another company is admissible under	Part IIIA of the Evidence Act
1905.
Oral Rullnq

I am able to give

an oral ruling on the admissibility of

certaln paragraphs of exhibit L which are now tendered, based on the provlslons of Part IIIA, dealing with the admissibility of

business records, of the Evidence Act 1905.

The ruling I qive is

I believe in accord

with the ruling I

have already glven in

relation to MFI 3, which appears	in the transcript at pages	2549
to 2551.

I consider that if Mr

Frewen l ooks at an

invoice of X

sent to Y. a cllent, at the premlses of Y, and Mr Frewen makes a record of a statement from the invoice in a document, part of a

record of Tradestock Pty. Llmlted. whlch was made In the ccurse of or for the purpose of that company's buslness, then

Mr Frewen

is a quallfled person

in relatlon to that record.

I can see no

difference between thls and

an employee of the client whom

I have

called Y in this case, makinq an entry In part of one of Its records; for example, J. transport ledqer or a creditor's ledqer. In both cases the person making the record seems to me to have personal knowledge of what was recorded in the invoice.

However, the position is dlfferent

if the record made

14.

by, for example, Mr Frewen is really a conclusion drawn from

various sources concerning Y ' s busmess, even though one

of the

sources used to reach the conclusion was

an lnvolce of X. I see

a distinctlon between a record made by Mr Frewen of what was sald

by an officer of X to an officer of Y, a client of Tradestock, and related to Mr Frewen by an officer of that cllent. I do not

conslder such a record would be admlsslble. Frewen would. have no personal knowledge of the conversatlon but

In that case

would have

to rely

on what

he was told by the officer of

the

client and

conslder that would not be admlsslble, apart

course from any question

of bemg an admlsslon by a party. Also,

any statement of	fact must be relevant.	It	must of course be a
statement of fact.

Conslderation must also be qiven as to whether

S . ~ M

and

s.?C(lI or s.7D(3)

and

! 4 ) are relevant, and any rullnTs

I am

glvlng In relation to any

of the

documents referred to In M F I 4 0

are only tentative rullngs In so far as I sqrPe that a statement

1 s admissible. and will ultimately depend upon the conclusion: I

reach at the

end of Mr Frewen's evldence

in relation to the

possible application

of s.7C or 7D. Ultimately of courze the

welght has to be considered

wlth

reference to

S . ? € ' .

Applying those principles admlt only the statement referred to on the rlqhthand slde

to exhibit L, I prcpose t3

agalnst the figure 3. Some dlfflculty arises

to what 1s the

appropriate way to do that, but I think the appropriate way

1s to

15.

say that I will admit so much of paragraph 1 as is evidence of

the fact set out in the righthand column under the figure 3 .

do not propose mentioned in that column.

deal

with each of the

other

statements

The first statement, in

my vlew, 1 s

not really a statement of

fact and

I do

not think the letter

really says what that purports to allege. Most

of the others, if

not all the others, are rejected upon the ground that they

do not

fall wlthin the tests

I have set down, but are really conclusions

about the Mindrill business reached by

Mr Frewen as a result of

his inspection, presumably, conclusions from a

of a number

of documents, and hls

number of statements, presumably made to

hlm,

and I suppose also some personal observations

he may have made In

respect, for servlces used by Mlndrlll.

example,

to one or more of the categories of

3 November 19R3

Evldence - Business records

- Whether an unlncorporated body

1 s a business wlthin	s.7A of Evldence Act 1905.
Wrltten Rullnq

Senior counsel for the C@mmissicn tendered of the Natlonal Frelght Forwarders Assoclation

the mlnutes ("N.F.F.A.") for

the followlng dates

to the extent

to whlch statements in those

minutes were admlssible under the business records part

of the

16.

Evidence Act 1905 ("the Act"). Senior counsel

3130 dealt with a

number of

alternative grounds upon

which

he alleqed the minutes

were admissible.

declded that the most appropriate course was

consider

their

admisslbllity

under

the

business records

provisions first.

Two major questlons arose; flrstly whether the

N.F.F.A.

was a business within the meaning of s.7A(l)(a) of the Act; and

secondly, If it was. whether there are any statements of fact in

the mmutes whlch are admissible pursuant to s.7B of the Act and

are not otherwlse

inadmissible

or properly excluded because of

some other provlslon m Part 111.4 of the Act.

The minutes purport to be for	th? dates of:
(a) 12 February 1976

(b)	2 3 March 1976

(d) 4 August 1976 (two meetlnqsi

(e) 11 November 1976

(f) 14 Aprll 1977.

MK W.A. Levltt

ldentified

the

bgok

containin9

the

minutes at p.6653

as belnq one of three mlnute books

of the

N.F.F.A.

They were marked €or ldentlflcatlon 411 and some of the

minutes of the

meetlnqs

under

conslderatlon

were

separately

marked for identlflcatlon as MFI 384. Mr Lentt described his posltion with the N.F.F.A. as executive director ( 6 6 4 8 ) , although

17.

he indicated

there was some

uncertainty

about

correct

description of his position (6675).

He appears to have acted as

the chief executive officer of

N.F.F.A.

He said that he attended

all the relevant meetings and took notes durlng the currency of

the meeting and then prepared the formal minutes therefrom.

said that he duplicated copies and arranged for them to

be sent

to the chalrman and to

each member (6693, 6827). To all Intents

and purposes the mlnutes

of each meetlng

as slgned were

reallty a

document prepared by Mr Levitt of what took place at

meetings which

he personally attended.

As a matter of

convenience, I decided to determine

whether the N.F.F.A.

fell withln the definitlon

of "buslness"

within s.7A of the Act and then questlon of the admisslbillty of any statements under

allow submisslons on the

s.7B. This

rullng does not go beyond the question

whether the N.F.F.A.

fell wlthin the definition	of "buslness". So far as is rel?vant,
s.7A(1) of the Act reads:

"In thls

Part, unless the contrary Intention

appears -

'business' Includes -

(a) any

business,

professlon.

occupatlon,

calling, trade or undertaklng whether or not engaged In or carrled on for profit

and whether engaged in or

carried on in

Australla or elsewhere,

lncludlng

any

business,

profession,

occupatlon,

calling, trade or undertaklng engaged in

or carrled on by the Crown In rlght of

the Commonwealth or of a State: and

(b) the administration of the government of

l a .

the Commonwealth, of a State, of a Territory or of another country, whether

carrled on in Australia

or elsewhere."

A great number of cases were clted to me by the parties

and in particular by senior counsel for the

first,

flfth and

seventh and the second defendants.

The extent

of the argument

can be gauged by the fact that substantially

a full day was spent

on submissisns in relation to the aspect

now under consideration.

I have already

glven a number of rulings

the

admisslbllity of buslness

records

this

case

and

it is

approprlate to refer to what

I said In the reasons I dellvered

18 July 1983 In rela?lrJn to MFI

26.

At pp.6 and 7 I referred to

the fact that

Part

IIIA

the

Evidence

Act

was

remedial

legislation intended Instances, well nlqh lmpossiblllty of provlnq certaln facts

remove

the

dlfficulty

cr. In zome

business situatlons and that,

In my oplnlcn, If posslble, the Act

should be construed liberally.	I see no reason	to depart €rom
those concluslnns.

Senior counsel

f o r

the Commission referred me to

number of

cases, the flrst of

whlch was a ?udgment of the High

Court in Rochfort v. Trade Practices Commission 4 3 A.L.R. 659 and to a passage in the Judgment of Mason #J. at p.667 where hls

Honour dealt with documents of unlncorporated assoclations and used the expresslon:

the rules relatlng to the publlcatlon of

"The business of an unincorporated

assoclstion

1 s

generally

19.

conducted by an executive officer, subject to directions given by

an executive

committee".

Whilst

his

not a statement

necessarily applicable to

s.7A of the Act, it seems to me to be a

very slgnificant statement.

Senior counsel also referred to a

Court of Victoria of Mather and Deesan v. Morsan C19711 Tas S.R.

192 where the questlon under conslderatlon was whether the

judgment of the Full

conduct of an

athletic carnlval conducted by the Burnle Athletlc

Club was a busmess wlthln the meanlnq of

s.40A of the Evidence

Act 1910 which provided, lncer alla, that "'business' includes a

buslness, profession, occupatlon, calllnq, trade

or undertaking

whether engaqed

in or carrled on by the

Crown, or 3 state

authority or by

any other person". In

3 Jolnt judgment Burbury

C.J. and Neasey J. at p.209 sald:

"The only sctlvlty which could

be quallfled as

'a business' in the context

thls 'case was

the runnlnq of a carnlval m d we see no reason why that would not come wlthln tne expresslon

'undertaklng'

the

def lnltlcn

'buslness'

. "

That case also seems to

be of assistance.

I have been referred to

so many cases by sen1or counsel

for the defendants

I have mentloned that

It is impractlcal to

deal with each one of them. the word "business" "suits its meanlnq to the context

In general, it was submitted that

In which It

20.

is found". See Town Investments

Ltd. v. Department of

the

Environment C19783	A . C .	359 at p.383.	I	am prepared to proceed
upon that basis.

A number

of cases were cited to me which arise under

3.51 and s.26(a) of the

Income Tax Assessment Act 1936.

I did

not find any of these cases of any slgnlficant help, if for no other reason, than because of the speclal deflnitions which are to be found in 5 . 6 of that Act and of the fact that it deals so

much with the question

of proflts.

The same could be sald of

number of the other cases clted to me partlcular Act under consideratlon differed from the words of the

where

the words

of the

Act I am now consldermg. One such dlfference found

in more than

one case was that

It was not clear whether the wordlng

of the Act

under consideration only concerned actlvltles carried on for

profit. See, for

example,

v. Cravden

C19781 1 W.L.R. 604

where It was held that to fall wlthln the word

"buslness" in 5.1

of the Crlmmal Evidence Act, 1965 (U.K.) the actlvitles must

have a "commerclal connotation".

Mr Levitt's evidence office, that an asslstant director was

was

that

the

N.F.F.A.

had

on the staff together wlth

two girls

t 6 6 5 1 ) ,

and that the Associatlon kept books and

a bank

account (6652).

The rules of the N.F.F.A. have been admitted in

relation to the flrst.

flfth and seventh defendants and they show

that the objects

of the N.F.F.A. are:

21.

"The

objects of the

Association shall be to

promote and

further

the

interests

of its

members

and

the

industry

which

they

operate.

There is

also

some

evidence

from

Mr Levitt

concerning

the

activlties of the N.F.F.A.

It is necessary to approach the construction upon the basis that it includes any "buslness

of s.7A

... or undertaklng

whether or not engaged In or carried on for profit". It is clear that no specific mention 1s made of unlncorporated bodies in s.7A. but It seems to me, In the case of a remedlal act whlch

must be construed liberally,

to be

ridiculous to come to the

conclusion that the word "buslness" did not include

a partnership

carrying on what mlght be called

a buslness or

an undertaklng

whether or not

It was carrled

cm for proflt.

I cannot see any

reason to exclude an unincorporated bndy from s.7A If

it falls

withln the meaning

of the words "buslness" or "undertaklng" I

cannot see

how one would descrlbe the

N.F.F.A.

except as a

buslness or undertaking.

Certamly, If one were entltled to l o o k

at the dictionary

defmltlon of

"business", there would not be

any doubt

but, even If

one is not

s o entltled, It

seems to me

qulte clear undertaklng wlthln

that

the

N.F.F.A.

1 s elther a buslness

or an

s.7A.

It obviously acts on behalf of Its

members;

held

regular

meetlnus;

the

secretary

prepared

circulars to be sent to members and there is evidence that at least some of the people whom Mr Levltt said attended the

2 2 .

relevant meetings

apparently relevant company and apparently purported to represent

at least one company.

occupied

a position with one or other 0

A number N.F.F.A. and it is clear that

of the defendants have

admitted membershlp of

all these defendants were engaged

in buslness transactions conducted for profit and

I think it 1s

perfectly clear that the N.F.F.A.

was

a business or undertaklng

conducted by its members to further the business interests

those members although it itself did not appear	to be conducted
for profit.

It may be that a question arises of the extent to whlch

those defendants

who have not admltted membership are

lnvctivecl

with the Assoclation but necessary to deal further

at thls staqe

not

thlnk it

with thls questlon. Statements gf fsct

in business records are admissible aTainst everyone.

The oblects

of the N.F.F.A. are only in evldence

It present aqainst the

first, fifth and seventh defendants and the flrst and seventh have admitted membership. At least in relatlon

to the flrst and

seventh defendants,

am satisfied for these reasons that the

N.F.F.A. is a business. There is also the general evidence Levitt which does not depend on what is stated in the oblects

of Mr

on who are the members of the N.F.F.P..

I have directed my attention to the word

"buslness"

rather than to the word "undertaking". I have done thls because

23.

I consider that the

N.F.F.A. fell within the word "business".

argument was

presented to me

behalf of defendants that the

word "undertaking"

had to be read ajusdem generis

with the words

which preceded it and therefore,

if anything, it was

a word of

limltatlon rather than of extension.

I note the statement

Sugarman J. at p.128 in Reference Under The Electricity Commission (Balmaln Electric Llqht Co. Purchase) Act 1950 (1957) 57 S.R. (N.S.W.) 100 that "undertaklng" 1s a word of varlable

meaning.

However, I am by

no means satisfied that the word

"undertaking" in

s.7A(l)(a)

1 s not to be read as one of the

categories which fall within the word

"business" which In s.7A(1)

is said to Include all those categories within

(a) and (b).

thls basis it would be even clearer that the

N.F.F.A. carrled on

an "undertaking" within	the definition of the word "business" in
S . 7A.

I had my attention Public Prosecutions C19653 A.C.

dlrected

v. Director of

1001 and In particular to the

statement that,

In the case of

hearsay evldence, authorlty must

be found to ~ustify

Its reception withln some established and

existing exceptions exceptlons thereto would amount to judiclal legislatlon. Were

the

rule

because

countenance

new

not for the provisions

of Part IIIA

of the Act the Commlsslon

would have admissibility of the minutes. I conslder Part IIIA, as

to rely on Its other arguments to establish the

I have

said, is remedlal leglslatlon

which, inter alla, establishes a

statutory exceptlon to the hearsay rule In cases

which

fall

24.

within it. It seems to me to be an attempt by the legislature to

meet the changing economlc condltions which have arisen.

It 1s

not inappropriate to say at this stage that had

thls action been commenced when the present rules of the Federal

Court were in operation it would have been possible to consider

whether it might not

have

been appropriate to apply certain of

the provislons of order 10 rule 1(2)(c).

I propose to admit such of the statements in the mlnutes

as business records under Part IIIA which have been tendered as

fall within s.7B of the Act and should not otherwise be excluded.

14 and 15 November 1983

Evldence -

Business records -

Part IIIA of the Evldence Act

1905 - Admlssibility of minutes of unlncorporated associatlon

Whether meeting must be validly called

Whether partlcular

facts should be specified before record	1 s admitted	-	luxether
maker of statement is a qualified person.
Wrltten Rulinq

This ruling minutes of the meetlnq of 12 February 1976, and on what

relates

what, if any, parts of the

basis, I

will admit under Part IIIA

of the Evidence A c t 1905 ("the Act").

25.

As has

been the practice in this case, what appears to

have been every conceivable argument

has been ralsed on the

question now under consideration. It would be quite impractical to attempt to deal wlth each argument speclfically but I am

contlnuing, at least for the present

tlme, the

practice I have

adopted of providlng falrly detailed rulings on evidence rather than simply saying that I will admit or reject the evidence. Of course, I have carefully considered each argument that has been presented to me.

I have sald before In thls case in relatlon to business

records that Part IIIA

the

Act

was remedial legislation

Intended to remove the difflculty

or,

In some instances, well

niuh

impossibility

of provlnu

certaln

facts

business

sltuations. In

my opinlon. If possible, It should

be construed

liberally.

(See my rullnq of

18 July 1983).

I say thls wlthout

having to

r e l y on the specific provisions of

s .15AA of the

Interpretation Act 1901.

Because of the submissions made by counsel for varlous defendants, I feel It is necessary to relterate what

I conslder

to be the proper approach to thls remedlal leglslstlon. out some passages from the judgment of the New South Wales Court

jet

of Appeal In Albrlqhton v. Roval Prince Alfred Hospital

C191?0] 2

N.S.W.L.R. 542 where

the Court was consldering the provlslons of

substantially identical provislons in the Evidence

Act,

1898

(N.S.W.

) .

26.

Hope J.A. at pp.540-549 said:

"Any significant

organization In

our society

must depend for its efficient carrylnq

on upon

proper records made by persons who have no

interest other than to record as accurately as

possible matters relatinu to the business wlth

which they are concerned.

In the every-day

carrying on of the actlvities of the business,

people would look

to, and depend

upon, those

records, and

use them on the basis that they

are most probably accurate.

...

The purpose of

Pt IIC 1 s to brmq into the

court room a

method of establlshlng the truth

which

1 s

relled upon by our soclety outslde

the court

room - to

brlnq Into the rules of

evidence a reallty whlch they

otherwise

lacked. A report of the Law Reform Commission which led to the enactment of Pt IIC shows how

thorough

was

the

conslderatlon

qlven

reformlng

the

law

this

end.

Properly

understood and applied,

Pt IIC makes available

to courts, In a

way to be feund

In many other

parts of the common law

world, a most valuable

source of evldentlary

materlal whlch rules of

evldence

d vlsed

a other

age

would

exclude.

Hutley expressed by Hope J.A. on this aspect hut Hlutley J .9 . added some

J.?.. and Reynolds

J.I.. aareed wlth the vlews

mews of his own.

At p.569 his Honour sald:

"In fact, reference to the Report of the Law

Reform Commlsslon on Evlclence !Business Records !LRC 1 7 ) . whlch 1 s avallable for the purpose of ldentlfylnq the 111s whlch the Act was passed to cL(re: see Slack-Clawson International Ltd. V. Paplerwerkse Waldhof-Aschaffenburs AG Ci97S3 A.C. 591 at

p.614;

Morosl v.

E r r o r Newspapers

Ltd.

C19773 2 N.S.W.L.R. 749

at p.805; ?.ndrews v.

John Fairfax

5r Sons Ltd. C19803

2 N.S.W.L.R.

225 shows that It was the dlfflculty caused by

2 7 .

the rules against hearsay

in a modern society

that the Act	was passed to	overcome.
..

When a document is admitted, a statement in that of fact (provided a fact is admissible)

1s evidence of the fact.

It follows, in my opinion, that the whole of the documents produced in answer to a subpoena were admlsslble, unless his Honour ruled that they could not be relevant to the issue,

either as going to

liability or to damages

for

pain and suffering.

' I

And at p.570:

"One of the results of the enactment of Pt IIC of the Evidence Act 1 s that, by making records admlssible, persons agalnst whom otherwise no

case has been made

out may be forced to enter

the witness box to explaln thelr part In the transaction recorded in the records. Thls 1s not the type of preludice whlch can be relied

upon to exclude evidence given under the Act,

at least in clvil proceedlngs."

And also at p.571:

"However, whlle It 1 s on the statute book, the

legislatlon has to be

glven Its full effect,

and escape sectlons, such as s.l4CP, should kept business records should be admissible in evidence, even if their admission does not fit In wlth the tradltlonal philosophy for admissibility. The legislature has gone out

not be applied so as to frustrate the evident

purpose of leglslatlon Itself. The clear

of its way to

emphasize that certaln obstacles

to admissibility, e.g. the hearsay

rule, have

disregarded

entlrely.

This, in

oplnlon, means disregarded in the assessment

2 8 .

of whether the admission

of the documents

would be unfair.

I note hls Honour's crlminal proceedlngs In the second last passage

quallfication In relation

which

I have

clted and the provlsion

m s.7D(41 of the Act providlng that

proceedings under 5.77 of the Trade Practices Act 1974 are to be

treated as crlminal proceedings in relatlon to s.7D.

Senior counsel for the Commlssion sought to tender

business records provided (W1 483) a document In

only

certain

parts

of the

minutes

and

which he set out at least one

construction of each of

the

statements

facts

which he

submitted were to be found

In the records.

Counsel for the defendants, except counsel for the slxth

defendant, submitted that the Court must

requlrP the Commlsslon

to ldentlfy the constructlon of

an:r

statement tendered

a s

statement gf fact and that It should be bcund

by the construction

advanced In MF'I 483. I reject this submlsslon.

Although It statements of fact In a document,

1 s

clear that the

rourt

can m l y

admlt

IC seem5 to

that

the

practlce generally I n reported cases

has been not to requlre the

particular fact

of whlch lt 1 s souqht to have evldence frnm the

document to be construed

but slmply to admit the document

m l g as

some evidence in support of the proof of

the statement of facts

29.

appearing in the document.

See generally Compafina Bank

Australian and New Zealand Bankins Group Ltd.	C19821 1 N.S.W.L.R.
409 and Albriqhton’s Case, supra.

Senlor counsel for three defendants argued that the

mlnutes were not a

business record because they were not mlnutes

of the N.F.F.A. since it was said not to have been shown that the

meetlng was validly called by the executlve

(7111 to

7114).

Senior counsel for the second defendant also argued that the

meetlng was not a proper meeting because, Inter

alla, he sald no

quorum was present (7145).

do not f m d it necessary to declde

these questions because

do not think that the question whether

a record of

a meetlng 1 s a buslness record can depend upon

whether there was any proof that the meetlnq was valldly calleci in accordance with the rules of the organlsation. The

lnterpretatlon advanced on behalf

of defendants can be summarlsed

as senior counsel for certain defendants aqreed

(7127) that, in

his submission, a record

of somethinq done wtslde the powers and

objects of an lncorporated body o r outslde the rules of an unincorporated body could not be a buslness record of that body

(7127). In my opinlon

that is a submlsslon

wholly

wlthout

foundatlon and It

would provlde a rldlculous llmitatlon upon the

beneflts provided by the Act.

Senlor counsel for three defendants also submitted that

the questlon I have lust dealt with was Important in determining whether Mr Levitt was a qualified person wlthin s.7At1). In my

30.

opinion the

statements were clearly made at

least in the course

a -

of the business of N.F.F.A. and

I also flnd that it was made for

the purposes of N.F.F.A.

I am also satisfied that

Mr Levitt was

a quallfled person In relation to what took place at the

meetmg

because he was present, he heard what was sald. and I am satisfied that he made any statement in the mlnutes in the sense of the definltlon In s . 7 A ( 2 ) . I am also satlsfled that, at the tlme when those statements were made, Mr Levitt was at least an agent engaged In the business if not a servant and also I would

be dlsposed to flnd that he was

person retained for the

purposes of the buslness	( 7 1 0 4 - 5 )	even If he has not been shown
to be a pald servant.

What I have sald statements In the minutes being admitted

most

cases

goes only t? the

a s evidence that certain

things were sald at the meeting.

I am not prepared at this stage

to rule finally whether

Mr Levltt was

a qualified person in

relation to the truth of any of the

facts tg which the statements

were directed with the exception of all that part of the mlnutes

down to and including number

1 wlth the exception nf the names of

the companies or bodies named on the rlqht hand slde

of the names

those sald to have attended the meeting, together

wlth the

record of the date, the signature and descrlptlon

of the chalrrnan

at the end.	I understand Mr Hason has not argued to the contrary
(7180).

I do

not consider that the constructlon placed

on the

31.

minutes In the document MFI 403 should be treated

as the only

construction of a particular statement whlch the Commlssion would

be allowed to advance. On this basis the statements (other than

previously ldentlfied) which I propose to admit wlll be admitted

only as

evidence that they were made.

will be prepared to

consider an appllcation to

renew the tender

of any statements of

fact In the mlnutes If It is desired to tender those on the basis

that Mr Levltt was a the facts were true rather than to provide evldence that they

quallfied person to provide evldence that

were made at the meeting.

I add that the constructlon of any

such statement

In many cases

wlll be a questlon of

fact which

would be left to a

~ u r y

In many ~urlsdictions. This view appears

to have been accepted, at least

to some extent,

by counsel for

the slxth defendant ( 7 1 E 6 ) . I mention a l s o s.7H to whlch reTard may be had In decldlnq auestlons of admlsslblllty and s.7B(2)(c)

and

( 4 ) .

Items numbered 2, 3 , 4, 5 ,

h and 7 were not pressed.

admlt the statements of facts

ln Item 1. the slunature. date and

descrlptlon at

the end, that part before the first ltem except

the names of the organlsations or companies noted against the

names of those recorded ss

attendlnq 3 s evldence of the trlcth of

those facts and ltems

8, 9, 10 and 11 as rvldepce that statement5

of facts thereln were made

st the meetlng.

The parts of MFI 411 so admltted wlll

be exhlblt KH on

the basls of the above rulinu.

3 2 .

2 July 1984

3 3 .

Practices Commission

("the Commission") upon the ground that it

was not admissible as a business record of

Tradestock and also

that it was subject defendant argued that privilege had been waived but, because

professional

privilege.

The

second

take the view

that It is not admisslble as

a business record, I

wlll not express a view on the argument based

on privlleqe.

The	followlng conditlons must be satisfied for any

statement of

fact in this document to be admissible under Part

IIIA of the Evldence Act	1905 ("the Act")	as a business record	of
Tradestock:

(1)

The

statement of fact must be made in the course

of, or for

the

purposes

of, the

business of

Tradestock (s.7B(l)(b)).

( 2 ) The statement of fact must be

made by a quallfled

person (s.7B(l)(c)). paragraph does not appear to

The second

part of

that

be relevant In the

subject case.

Senior counsel for the Commlsslon ctld the solicitor signlng the letter fell wlthln paragraph

not dispute that

(a) of the

deflnition of "quallfied person" in s.7A(1).

I consider that any statement of annexure was not made in the course of, or

fact

m the letter or

for the purposes of,

the business

of Tradestock. Any such statement was made In the

34.

course of, or for the purposes

of, the solicitors' business and

reject the tender	of the letter of 3 March 1977 and the annexure
thereto.

I pass to consider the letter of 16 January 1978 and the accounts forwarded therewith. In order to decide this question	I
will summarise certain principles. They are:-

( A )

In qeneral, a statement

of fact in a letter from P.

to B found in the flles

of B 1s not admisslble as

business record

of B

merely because It was f.-led

and kept

by B.

This 1 s because statements in the

letter are not made In the course	of,	or for the
purpcses of, E.' S buslness.

( B )

If EL

person In

B ' s buslness makes a note on the

letter,

a statement

of fact in that note may be

admltted as a business record of B If the person maklnq It was a qualified person and dld so in the course of, or for the purposes of, the buslness. An example of this is the word "Paid" written m an

Invoice	by a person whose duty it was to make
payments.

( C )

An invoice may be a communlcation and, If relevant, admitted on the basis that it is not evidence of

the

truth of Its contents.

the

case

of an

35.

invoice filed In the records of

B with the word

"Paid" or other note written on It, the whole does

not become a business record

of B

merely because

the word

"Paid" is written on It.

The document

should be treated as

communlcatlon, and any

statement of fact In the note, if made by J. qualified person, will be admlsslble as evidence of

that fact under Part

IIIA of

the Act. Toqether

they may justify certaln facts being inferred. See

generally my comments In relation to Exhiblt 89 at

pp.6340 t o 6347.

See

also

the

transcrlpt

pp.8463 and 8465 relatlnu to Exhibits

200 and 205.

I admit the word

"Paid"

together with the fiuurez and

inltials on

the flrst page of the letter of

January l??@ to

the extent of any statement of fact therem under Part

IIIA of

the

Act

and I admit communicatlsn. No questlon of prlnleoe was

letter

and

the

accounts

ralsed

the

Commlsslon In relatlon

to thls letter or the accounts.

The exhiblt number wlll be 514

36.

ADMISSIONS

5 July 1983

(Transcript 2705-2709)

Evidence

Whether

statement

annual

report

of holdlng

company

constltutes

an admisslon

aqalnst

a wholly

owned

subsldlary.

Oral Rullnq

am ready to qlve

an oral ruling on the question

whether the two documents,

Anset-t Transport

Industries ilslted

38th Annual Report against the flfth defendant, 4nsett Transport	Tnd	41st	Annual	R e p o r t ,	can	be admlttwl
Industrles

(Operatlons

) Pty. Llmlted.

liance 1 s

placed on the Frlntlro

m d Newspapers Act,

1973 (New South reports fall withln the def lnition

Wales). The first questlcn

1 s

whetner these

of "dccument" In S.?.

document is

described 3 s

lncludlng "a book ,

pamphlet, leaflet,

circular

... or magazlne o r gther perlodlcal publlcatlon . . . " . This deflnltlon 1 s based upon namlng certain artlcles

lncluded withln the vord

"document". In my oplnion an annual

report of thls nature falls wlthln the words

"pamphlet,

. . .

clrcular. . . .

o r other perlodlcal publication". Even

If It does

3 7 .

not, it seems to me that it is clearly a document.

One of the definitions Oxford Dictionary, third edltlon.

of "document" in the Shorter

1s:

"Somethlnq written, Inscribed,

etc.,

which

furnlshes evldence

or Information upon any

sub ~ e c t

. . . " .

I	am satisfled that these two articles are documents

wlthln s . 2 of the Act under conslderatlon.

Section 5 provides 30 far as 1 s relevant that:

purporting to be the name of -

" A document . . . on which 1 s prlnted a name

. . .

(b) the

person

for

whom

or on

whose

lnstructlons the docl.rment was prlnted;

. . .

shall be recelved by all courts

. . .

ln any

proceedlnqs

. . .

a s prlma fscle evldence that

the person whose name	1s so prlnted 1 s -
...

(e)

the person ..- on whose mstructlons the

document was prlnted"

The documents under conslderation bear the

title "Ansett

Transport Industries Report". A llst of the names

Llmited"

and

both

are

marked

"P.nnua1

of the varlous directors appears In

38.

both, together with the name of the registered office

of the

company, being an address In Melbourne. The name Transport Industries" appears in several places.

"Ansett

Both contain directors' reports signed by R.M. Ansett, chairman and managinq director,

and R.L. Cooper, director. I am

satisfied that

5.5 of the Act

applies to make the name "Ansett

Transport Industrles" prima facie evldence

thar: the documents

were printed on the

instructlons of

that

company.

I would

therefore

admlt both documents

agalnst

Ansett

Transport

Industrles Llmlted.

The next questlon 1s vnether they are admlsslble against the flfth defendant, slnce P.nsett Transport Industrles Llmlted	1 s
not a defendant In these proceedlngs.

The documents lnformatlon about the flfth defendant, whlrh

provlde

a conslderable 3mour.t cf

1 s referred

to In

varlous places In both reports

as a wholly owned subsldlary

Ansett Transport Industrles Limlted, and varlous set out as being divlsions of the fifth drfezdant.

companies a r e

In the statutory declaratlons

verlfyinq

the

balance

sheet of the

flfth ,lefendant a s a foreiun cqmp,any flled In the

Australian Capltal Territory and

belnq

exhlbit

there

1 s

evidence that as at 29 June

1 9 7 4 , 2 8 June 1975,

June 1976 and

2 July 1977 the flfth defendant was a wholly owned subsldlarp

39.

Anse t t

T ranspor t

Indus t r l e s

L imi t ed

40.

Honour

took, and I find the judgment and the passage of

Justice

Owen in Finance

Guarantee

Co. Limited v. Federal

Commiss

ioner of Taxation (1970) 44 A.L.J.R. 368 at 370 very

helpful. There Mr Justice Owen said in relation Provident Goldmlnlns Companv Case:

to the Devala

"With respect, I feel some doubt as to the correctness of the decision but, in any event, I am of opinion that at the present day, when

It is common practice for

a chairman's address

to shareholders

at an annual meetina of a

public company to be supplled to the stock

exchange and to the publlc through the medlum

of the press,

It would be contrary to common

sense to hold that such an address could not

be used in

evidence

in proceedlngs by a thlrd

party, assumlng of

course it 1 s relevant to a

fact

which the

third

party

is seeklng

establish.

The documents under subpoena from the Sydney Stock Exchanae. One

now sought to be tendered were obtalned

wa-r

the

tender of MFI 15 is put by the Trade Frsctlres Commlsslm 1 s that the statements in those documents were made by somebody who had actual suthorlty to blnd the flfth defendant. In my oplnion thls

submlsslon 1s correct, because in each case the same aentleman

1 s

the chairman and managing dlrector

both companles, and

tne

statement is made

In an annual report of

the holdlng company

whereln a considerable amount

beneficial owner3 about the wholly owned subsidiary, the flfth

defendant.

of materlal

1 s provlded

for the

I am satlsfied that the statements In the reports about

41.

the fifth defendant were made by

a person who had the authorlty

of the fifth reports against the

defendant to make them.

I will admlt the two

fifth defendant which have been marked for

ldentlfication 15 and they will become exhlblt AK.

11 July 1983

Evidence - Whether statement in affldavlt 1s an admisslcn -

Must person maklng statement be aware of true facts.

I have paragraph 5 In the affldavlt of

considered the questlon of the admlsslbllltg

Mr James Rgdon Klng, sworn on

May 1983, last referred remalnlng 1 s whether parasraph S 1s admlsslble.

p.2673.

The only

questlon

I have already

ldmltted paragraph 6, and the formal parts

of the sffidavlt. as

Ex. AJ. At p.2670

Mr Mason sald:

"I am prepared to indlcate that the document

1s	tendered agalnst only the defendants for

whom my learned frlend Mr Capelln appears and

is tendered only

as an admlsslon of those

defendants ss t o

the type of kuslness carrled

on by Mayne Nlckless Llmlted. and the relevant

portlons of the document are paragraph

l(b) of

the merger notice and paragraph	l ( a ) of the
lenuthler document attached."

I have therefore

consider

whether

parauraph

42.

including the annexure marked B is admissible against the

first,

fifth and seventh defendants "as to the type of business carrled

on by Mayne Nickless Limited".

I was referred to Lustre Hosierv

Ltd. v. York (1935) 54 C.L.R. 134.

I also consider that Smith v.

Jovce (1953) 89 C.L.R. 529, a case in which Lustre Hosierv Ltd.

York was discussed, IS the best place to start consideratlon

of the

questlon. In

m v. Jovce a plaintiff A had sued

defendants B,

C and D in

relation to a physical inlury whlch A

had suffered as

a result of an accidental wound from

a knife used

by B. relevant to establish the negligence

C made a statement whlch had a clear meanlng and

was

C ' s statement was

held to be admissible as agalnst hlm although he had

no personal

knowledge of the way the accldent had happened.

The admlsslun

was, however, held to be admisslble only against

C and not

against B or D. At p.535 In a Joint ~udgment

Dlxon C.J.. Webb,

Fullauar, Kitto

and Taylor JJ. clted the followlnq passaqe from

p.143 In the judument

(3f Lustre Hosierv Ltd. v.

ynrk:

" 'If they dlsclose an lntentlnn to sfflrm or

acknowledge the exlstence of a fact' they wlll constltute evldence of an admlsslon 'whatever be the party's ource of lnfnrmatlon o r

belief'

. "

I also clte the follcwlng passaue from

p.143

of t x

~udgment of

Rlch, Dixon,

Evatt and McTiernan

JJ. in Lustre

Hoslerv Ltd. v. Y o r k :

"But, although the meaning of his words or conduct may depend upon the state of hls

43.

knowledge, once

that meaning appears and an

intention

disclosed

assert or

acknowledge the state of facts, Its admissibillty In evidence as an admlsslon is independent of the party's actual knowledge of the true facts."

In my

opinlon

paragraph

5 of

the

affldavlt

only

discloses an mtentlon to affirm or acknowledge the exlstence of the ccples referred to thereln. It does not constltute an

acknowledgment by the flrst, flfth and

seventh

defendants,

through thelr sollcitor. of the

truth of the statements in para.

l ( b ) of the

notice or

I n para.

l ( a ) of the attached submission

concernlng the type	of buslness carried	on by Mayne Nlckless
Limlted.

I therefore re~ect

par3graph 5 In Ex. A J .

5 and 6 September 1983

Evldence

Whether admission of counsel In other proceedlngs 1 s

admissible agalnst	a party In dlfferent proceedmqs.
Wrltten Rullnq

ThlS decislm 1s. concerned. wlth the admlsslbillty of

certain parts of MFI 342.

44.

HFI 342 consists of certain pages evidence given in the Federal Court

of transcript

Of a

In	Tradestock proceedlngs.

VG26

of 1977, a matter commenced

in the Australian Industrial

Court. Senior certaln selected passages

counsel

for the

Commission

sought

tender

the transcrlpt and photocoples

certain subpoenas as admlsslons by certaln defendants.

Two threshold questions arlse, namely

whether

any

oblectlon is taken to the use of the

transcript as proving what

was sald during the course

of the

proceedlngs and, secondly,

whether statements made

in those proceedinqs can

treated as

admlssions m these proceedlngs. Commission that any such admlsslons would be concluslve but only

It was not suggested by the

that they

were prima facle evldence agalnst the person nn whose

behalf they were made. None

of the defendants took any ob~ection

to the use of the transcript except the slsth defendant where an oblection was taken to certain passages, to whlch I w~ll refer

later, because

was alleged that they

were not accurate.

Senior

counsel

for

the

first.

fifth and

seventh

defendants

oblected to coples

of the subpoenas belna 3dmltted and aruued

that it

was necessary that the

originals be tendered. He

alcn

argued that orders

of the Court must be proved formally.

The baslc questlon

statement, which appears to be In the nature of an admlsslon, can

be received as prlma facie evidence of the facts in different

law that

arises 1 s whether 3

proceedings between partles, some

of whom are different, where

4 5 .

that statement

is made by counsel or a solicitor in proceedings

which, it is conceded, were of an interlocutory nature.

attention was drawn to a number of cases

and, in partlcular, to

H. Clark (Doncaster) Ltd.

v. Wllklnson C19653 1 Ch. 694. It

clear that the question in that case was whether a person was

bound by an admission

made

counsel

the

course

interlocutory proceedings and It was held that such

an admlsslon

could be withdrawn. Evldence was presented that the admission

was made by a counsel "briefed at the eleventh hour and

by the

solicitor's clerk" and that It was made wlthout instructlons

I have

examlned

the

vlews

expressed

Ftzlpson on

EJldence, 13th Ed. at pp.398-401 and to the views of Hunt J. In Slnoleton v. John Falrfax and Sgnz L t d ( 1 9 8 3 ) N.S.W.L.P.. 3E at

pp.48-51. In Sinuleton's appropriate to treat pleadings In the Eane wag as any other fgrm

Case

hls !{onour regarded It as

of admisslon. In general, the passases sought

t o be tendered as

admissions are lnterlocutory matters and Intended to

statements

made

counsel

appearlnq

I n

b e acted upon by the Judge.

I can see no reason why they

should nclt

be regarded

as prima

facie evidence against	the cllent en	xhose behalf counsel was
sddresslnq the Court.

I will now deal wlth the varlous parts

of che trsnscrlpt

whlch were tendered

as admlsslons.

I	propose to indlcate the extent to whlch any such

46.

statements will

be admitted and then to ask senior counsel

for

the Commission to mark by a line in red agalnst each part of MFI

342 whlch he contends should be admltted pursuant to my rullng.

It will then be necessary to ascertain whether counsel f c r the

defendant against whom the statement

1s admltted accepts those

markings as

giving effect to my judgment and

for me to consider

any Inability to reach agreement.

It 1 s

necessary to look at the transcript sought to be

tendered In the llght

of the parties In that actlon.

These are

shown In Exhlblt

EO.

I wlll

admlt

paue

marked

3 .

I would

admlt

statements on pp.4,

5 ,

1 0 9 , 467

and

470 as

evldence of

the

counsel or	sollcltors appearmu for the companles Identified
thereln.

I reject pp.6,

7 and

l 3 9 as k,.plnu only subm~sslons

counsel. I relect that part of p.9 consider that the statement by counsel for Tradestock Pty. Ltd.

tender4 slnce I do not

can, In the clrcumstances, be accepted as

an ,idmisslon by Ansett

Transport Industries (Operatlonsl Fty. Llmlted.

I reject pp.107 to 111. except pp.108 and 109, because I

consider that an order must be proved In a formal manner where it

1 s put in Issue as It 1 s by certaln defendants In thls case. See

generally orders 37 and

44 of

the Hluh Ccurt Rules and orders

3 3

47.

and 36 of the Federal Court Rules.

Notwithstanding the objections to the method a subpoena by tenderlnq a photocopy of the document,	of proof of
I admlt the

copies

of the

subpoenas directed to defendants In this action

whlch are lncluded In

MFI 342,

excludlnq the affldavit

of the

process server In each requirement of 5.4 of the Evidence Act

case. I do thls

relylng

upon

the

1905 and 3.34 of the

Evldence Act, 1898 (N.S.W.).	Each is admitted against the person
named in the subpoena.

I would admit against flrst parauraph on p.113 and the third paragraph on

T.N.T. Management Pty. Llmited the

p .114

and

aqalnst the fifth defendant, Ansett Transport Industries (Operatlons) Pty. Llmlted, the flrst two lmes of p.131 (5393-3). I wlll admit against T.N.T. Management Pty. Limlted the last half

of p.115 dealinu wlth the subpoena addressed to It and the €lrst

four llnes of p.116.

I also

admlt aqalnst the persons named m the relevant

subpoeana the relevant parts of

the whole of the rest

of p.116

and the flrst four paragraphs

of p.117.

I note it has ke?n

agreed by senlor counsel for the Commlsslon and the sollcltor

appearlnq for Interstate Parcel Express

Co. Pty. Limited that the

last sentence of the paragraph attrlbuted to Mr Tonklnq snould

read: "These documents came Into	my hands by another source and	I
produce them".

4 0 .

I	admit the last seven lines of p.144 auainst the

persons named thereln. Page 159 was not pressed.

I re~ect

the last flve lines of p.342 and the

flrst

eight lines of p.343 and

I note the submlssions made by counsel

for the sixth defendant at pp.5271 and 5272

of the transcript and

the course

whlch

senior counsel for the Commlsslon sald

pp.5283e and 5283f that

he proposes to take,

I relect the grders on pp.467 and

468

I will

not admlt any other parts

any other pages In

MFI 342 at present but I

~ 1 1 1

uive leave to seek agam tg tender

any speclflc words alleqed

to constitut? an admission.

I 31-0

give leave	t3 any party to seek any necessary clarlflcatlsn	of
thls rullnu.

7 November 1984

Evldence

Whether statements 1n affidsvlt

by sglicltor ay?

admissions aaalnst cllent.

Wrltten Kulmq

Thls rullnq affldavit of Mr J.R. Klnq

ccncerns

dccument

MFI

4 1 2 ,

beln7

sworn qn 71 September 1981 m

49.

proceedings which could loosely be described as proceedings In

this matter in which an application was made whom a subpoena had been served, to set aside the subpoena.

by Mr Rochfort, upon

Kinu's affidavit was filed in Court on

21 September 1981 and an

effort was then made by counsel to read

it.

the

affldavit

Mr Klng

stated

that

was

the

solicitor for affidavit then purports to deal with

the

first, flfth and

seventh

defendants.

The

certain matters In support

of the

appllcation by Mr Rochfort. Senlor counsel who appeared

for Mr Rochfort also announced

hls appearance (1011) for the

flrst, fifth and seventh defendants. That counsel then sought to

have the Judoe rely on the affidavit of

Klng now

under

conslderaticn but senlor counsel

f w the Commlsslon oblected

! G

thls affldavlt beins relled upon (1020). However, the l?arr.ed Chlef Tudqe, who was the Judge hearlnu the appllcatlon, was not prepared to accept the evldence and mformatlon bellef contained in the Sffldavit ( 1 0 2 7 ) although he said that he had read the

aff ldavlt quickly

( 1 0 2 0 ) .

I considered a somewhat similar case In the ruiinq

gave on

11 July 1983

in relatlon to paraqraph 5 of exhlblt

which was also paragraph because I was of the

an affldavit of Mr Klnq.

I relected tha t

oplnlon that It only disclosed m

intention to afflrm

or acknowledge the existence

of certaln

documents referred discovered and did not constltute

In certaln

materlal

whlch

had

been

an	acknowledgement by the

5 0 .

first, fifth and seventh defendants, through their solicitor,	of
the truth of the statements which it identified.

In the affidavit presently under conslderatlon has sworn that he 1s the solicitor for the

Mr King

first, flfth and

seventh defendants and,

in paragraphs 2 , 3, 4 , 7,

9, 10 and 11,

that he has been Informed of certain matters by named people and

that	he verily belleves those matters. Persons providing the

information set out in paragraphs 2 , 3 and

4 are all identified

as belng employees of defendants and there 1 s no suggestion that Mr

either

the

first, flfth or seventh

Klng did not have

proper authority to swear and flle thls affidavlt nor Indeed is there any sugqestlon that the cmnsel who sought to read I t was actlng In any way beyond hls lnstructlons. It is to be notea

that this clearly

distmguishes matters ucder conslderatlon

by me

from those under conslderatlon In	H.	Clarke (Doncaster) Llmited
v. Wllklnson C19651 1 Ch. 695.

oplnlon Mr Kinu is seeklnu before the Court and asking the Court to accept on behalf of the

to place certam facts

In m:?

first, fifth

and seventh defendants those facts

and to act ‘upon

them. It seems to me that thls

1 s

a statement, In effect, made

by a sollcitor wlth proper instructions actinq for a person and	I
cannot see any difference between this case and the person

hlmself swearing In

an affidavit to hls bellef

of that statement.

I am therefore satisfied, subject to the questlon which

51.

I will deal with later, that paragraphs

1, 2 , 3 , 4 , 7,

9, 10 and

11 are admissible

against

first, fifth and

seventh

defendants.

I cannot see that the fact that the trial Judge was

not prepared

to place any reliance

on the affidavit makes any

difference. It is clear that once

an affidavit has been filed it

may be used by

the opposite party although the party filing it

may decline to use it.

It appears also that thls applies

affidavlts In interlocutory

proceedlnqs In the

same

actlon

although It

is not strictly true to say that the appllcation

Mr Rochfort was admlssibility of affldavlts as admissions is dealt

truly

an mterlocutory applicatlon. The

wlth generally

in Williams 2nd Ed. Supreme Court

Practlce, Victoria,

p .2030 .

At thls stage I am not prepared to admit paragraph 8 .

was not addressed upon

It but If the appllcant wlshes to have

consider it further

It has leave so to do. Paragraphs

5 . 6 and

12 were not pressed

by the appllcant.

I m 1 1

tnerefor? admlt paragraphs 1, 2 . 3,

4 , 7 , 9 . 10

and 11 against the	flrst, flfth and seventh defendants,	as
exhibit KD.

5 2 .

PUBLIC DOCUMENTS

11 July 1983

Evldence - Annual return How much admissible as public document.	with matter not required by law	-
Written Rulinq

It is now convenient to give

an oral ~udgment on the

admlssibillty of

MFI 17.

This document is the "form of annual

return of

a company havlng a share capltal" of Ansett Transport

Industries Llmlted

made

November

1978

and

lodged

pursuant to the provlslons

of the Companies Act 1961

with the

Cornmissloner for Corporate Affairs in Victoria. Included

In the

documents filed in purported compliance

with this obligation was

a copy

of the Ansett Transport Industries Llmited annual report

for 1978

whlch has already been admltted to a llmlted extent

3 s

part of Ex.

In addition to the particulars requlred by the

Companies Act, this document contains a Treat deal of material

which goes beyond those requirements mcludlng, for example,

photographs and moderately detailed descriptions of the varlous

activities of the corporation and Its varlous	operatmg divisions
or subsidiary companies.

The question for determination is whether the form of

53.

0 annual return or any part of it I s admissible as prima facle evidence of any or all of the matters stated therein.

I propose to deal first of all wlth the posltion In the authoritles which were clted to me before thls morning and then

to deal

with those cited today.

The most recent leadlnq case in th1s

area In Australla

United Geoffrey Lane L.J., Weln and Stocker

Klngdom

R_. v. Halpin C19751 1 Q.B.

907.

the

JJ. slttlng as the Court of

Appeal In a Crlminal Appeal dellvered

a lolnt judgment In a

matter whereln Halpin appealed agalnst

hls

conviction on

lndlctment contalning, Inter alia, .an acc,>unt

charging him, wlth

others, of conspiracy to

defraud.

The crltlcal question was

whether the annual return

of a company could be used to prove

that the shareholders 3rd dlrectors of

defendant

and

his

wlfe

were

effect

the

sole

that ;omFany.

It sppears that the

return 'ads

In fact

sl'?nefl by Halpln but that thls does not, seem

to have been

a factor to whlch the Court gave any welght.

The

admisslbility of the

return was dlspuced Ln tne

ground that It

was hearsay.

The Court consldered the long standlng leadlng case

of Sturla v. Freccia C18807 S

A.C. 6 2 3 .

Thar: case was described

by the Court of Appeal as

the :ocuf classlclls and a passage from

the speech of Lord Bl.,ckburn

p.643 was set aut. The questlon

was whether

document was a publlc document In the sense

necessary to make

It evldence of the fscts stated thereln.

The

Court consldered. that one Important questlon

was whether the

54.

entry

was made

by a

person having

duty to enquire and to

satisfy himself

as to the truth

of the recorded facts. The

passaqe cited from Lord Blackburn in Sturla v. Freccia included

the sentence:

"And an entry probably in a corporation book concerning a corporate matter, or something in which all the corporatlon is concerned, would be 'public' within that sense. But it must be

a public document, and it must be made

by a

document there to mean a document that is made

publlc off lcer . I understand a public

for the purpose of the publlc makinq use of

it, and being able

refer

it.

meant to be where

there 1 s

a judicial,

quasi-judlclal, duty to inqulre, as

might be

said

to be the

case wlth the bishop acting

under the wrlts lssued by the Crown."

After

citing

certaln

authorlties

the

jolnt

Judoment

contlnued at p.915:

"It seems to

lnescapable

from

those

authorities

that

was

condltlon

admlssibllity

that

the offlcial makinq the

record

should

elther

have

had personal

knowledqe of

the

matters whlch he was

recording

or should have inquired Into the

accuracy of the facts."

A little later the Judgment contlnued:

"But the common law should move

wlth the times

and should

recoqnlse

the fact that

the

offlclal charqed with recordlnq matters

public Import can no longer In thls highly complicated world, as llke as not, have personal knowledqe of thelr accuracy.

What has happened now is that the

function

55.

originally performed by one man

has had to be

shared

between two:

the

first

having

the

knowledge and the statutory duty to record

that knowledge and forward it to the Registrar

of	Companies, the second having the duty to

preserve

that

document

and

show

members of the public under proper condltions

as required.

Where a duty 1 s cast upon a llmlted company by statute to make accurate returns of company

matters to the

Registrar of Companles, so that

those returns can be filed and Inspected by

members of the

public,

the

necessary

conditions, In the judgment

this court,

have been fulfllled for that document to have been admlsslble. All statements on the return

are admlsslble as

prlma facle proof of the

truth of thelr contents."

The flrst of

the last three parauraphs clted polnts out

that the common law should move and thlrd paragraphs polnt out the ducy that

wlth the tunes, and the second

1 s cast an the

company. The ultimate view of the Court was that statements made in a return filed by a company In pursuance of a statutory duty

to make sccurste return3 whlch are

flled and can be lnspectrd by

the public

are "admlsslble as prlma facle

proof

of the truth of

thelr contents". It 1 s clear

that

the

court's

?Ildqment

only

extended to admlsslblllty as prlma

facle proof.

HalDln's case

has been accepted

by the recoqnlsed textwrlters.

(See r h z o n on

Evldence, 13th

Ed., para.

25-12 . at

p .513 , Archbold

Crlmlnal

Pleadlnq Evldence and Practice. 41-t

Ed.. para.

10-29 .

p.a39:

76. p.57;

Halpin's case does not deal

with materlal 1

n a return

56.

other than that which is

in compliance with the duty cast upon

the company by statute and therefore, whatever mlght

be the

position with regard to other material, I will reject any part of

the return which is not filed pursuant to a duty cast upon the

company by the Companies Act.

This leaves for consideration the

question of the rest of the return. I have not been referred

to,

nor have

I found, any judgment in

which Halpin's case

has been

considered.

Sturla v.

Freccia is the basic case

and I have already

clted what

regard to be the crltical passage

that case.

That case has been Everlnsham v. Councll of the Municipalitv of Penrith (1917) 34

dealt wlth frequently, for example,

W . N . 51, Breweries Ltd. v. Cassln (1956) V.L.R. 186. It

Re Stollerp C19267 1 Ch. 284, Carlton

Unlted

was

3lso

mentloned in B. v. Clarke C19623 2 Q.B. 91 at p.96 in a ~udqment

of the Court of Appeal expanded view of what is a publlc document.

In a way which may show

a somewhat

In Thrasvvoulos Ioannou v. Papa

Christoforos Demetricu

C19521 A.C. 84 the Prlvy Council consldered whether a document recording the result of an lnqulry conducted by one

Salim was a

publlc document. Sturla v. Freccia was dlscussed and the passaqe

whlch I have considered and Thelr Lordships

set out from the speech

Lord Blackburn vas

sald at p.94 that they could "see

no reason for attemptlng to quallfy

it in any respect". There 1 s

a passage at p.95

which might appear to support the view that

for

57.

document to

a public document, the public officer must

himself inquire into the truth

of statements therein recorded but

I think that conslderation to that

a somewhat

different

question

was

under

wlth whlch

I am faced.

Sturla v.

Freccla was also consldered by the House

Lords in Myers

v . Director of

Public Prosecutions

C19657 A.C.

1001. The question there under consideration was whether certain records kept privately by a company were admlssible

as plubllc

documents. It was held that they were not by to two on the basis that they were not open to Inspection

a ma~oritjr of three

by the

publlc.

Thls

1 s

a dlfferent question to the one now under

conslderatlon and somewhat varylnq vlews were expressed

by Their

Lordships.

However, the majority, Lormi Reld at

p .1021 , Lord

Morrls of Borth-y-Gest at

p.1028 and Lord Hodson at

p . 1 0 3 4 ,

made

it clear that at least It was very questlonable

how far 2 court

could extend the limits

of hearsay evldence whlch was admlsslble.

I conslder that there 1 s a lot to be sald that B. v. Halpln extends the area in whlch hearsay evldence can

for the vlew

be admitted in

a way which might not accord wlth the

news

expressed in Myers v. Dlrector

sf Publlc Pr3secutions.

I have which had not been clted to me previously. In

been referred this morninq to a number cf cases

v. Leveller Maaazine

C13791 A . C .

4 4 0 .

The Full Court. of thls Court consldered section

17(4) and section

50 in some detall m Australian Broadcastinu CTmmlsslon v . Parish 3 A.T.P.R. 4'3-154 and I do not thlnk it necessary to refer to 3r.y

par r lzu lar

part

= f

t k a t

!l:.,rlament.

153.

"1 am not

extending that any further to other

parties.

A t p.1064.8

his Honour was

asked. In relation to some

evldence given

by MK Wlse, to make the same order

with respect to

the use of this evldence "as your Honour made prevlousl:~". Senior counsel for the Commlssion then said:

"That it be not

used agalnst

Wise personally". His Honour then sald:

"Tnnls

may not be ased

f o r

civil O K

criminal proceedings aqalnst

Xlse".

Senior counsel for MK Wlse and others then zaid:

" T

L aake

the vlder appl~clticn,

that your Honour no doubt will decilne'.

VIS I-lmour then

sald that he 41d so decline.

154.

particular question although

senior

counsel for

the Commission

indicated the general nature

of the questions he would be asking.

That makes my attitude clear in a general way with regard to the

use which can be made of

the evidence during the period that the

court was closed. That concludes the ruling.

I want to say somethlnu more by way

an addendum to

the

rullng

I qave on 29 March 1984 on the

questlon of

transcript-ln-confldence, and this 1s the addendum.

155.

agreed with my rehsons.

Mr Justice

Blackburn,

the

Supreme

Court

of the

Australian Capital Territory, dealt

with a

somewhat slmilar

question in Re a Barrister and Solicitor. re Leaal Practitioners

Ordinance (No. 2 ) 1970 (A.C.T.) (1979) 4 0 F.L.R.

316.

At p.319

hls Honour aureed

with certain

of the observations made in

v .

The Trade Practices Tribunal:

parte Toohevs Ltd..

5 m .

Some lluht nay

a l s o be thrcwn

llpon the question

by an

examlnation ~f zectlon 80 of the SuDreme Court Act, 1970 (N.S.W.) ?~nd the notes -mlch are to Se f m nd l n Rlt-hie's Supreme Court

~ r l c t l c e , New SnIluth Wales.

156.

Evidence - Whether

written

statement

of expert

admissible

Section 14B of Evidence A c t ,	1898 (N.S.W.) and s . 4 7 ( 6 ) c€ Federal
C m r t of Australia Act 1976.
14 February 1984
Wrltten Rulinu

157.

of a fact would be admissible. any statement made by a

"(1) In any civil proceedings where direct oral evidence

person in a

document and tending to establish that fact

s h ~ l l , on

production

the

original

document, be

admissible as evidence

of that

fact if the following

conditions are satisfied,

that is to say -

(1)	if the maker of the statement either -

( a ) had personal knowledge of

the matters

dealt with by the statement;

t b )

...

; and

(il) if the maker

of the statement

is called as a

witness In the proceedznus:

. . .	.
Cenlor ccucsel f o r the CrJmrnlsslgn asked Professor Kolsen

L i

-..at the ,crluir.al zf I ststement, the flnal preparation of

158.

Personal.

Basic assumptions concerning the

issues In the case.

More detailed factual information relled upon by me.

Concept of competitlon.

The relationshlp between cornpetltion In the structurs

and cornpetltlon In the process sense.

The market.

Intermedlarles.

The definltlon and

structure of the market In uhlch t;?e

defendants were nperatlng.

The effect of	the allesed aureement upon competltlon in
the	nat1c'na.l

freluht Interaedlarles' services.

fgrwardlng

market

m d

l n

159.

proceeded.

It was

submitted by

senlor

counsel

for the

second

defendant that economic evidence was not admissible but	I ruled
aaalnst that.

It has been the practlce

in matters such

t h l s to

allow

expert economic evldence to be aiven and the framework

vlthm which that is to be consldered

has

been

clearly

estlollshed 37

the Judument 3f the

Full Court of

this Court l n

~ ~ s ~ r ! ? c % r d

Ya lne Australls

P r v . 11.1. v. Hecar Investments (Ng. 6 )

F'tv

Ltd. C19821 A.T.P.P. 4 0 - 3 7 7 .

In a 13lnt !udqment Bowen

13.J.

Ind Flsher I. ccnsldered the meanlna

(of !ne xords "compe'Lt1on In

a narker"

% p e % . r l n q In ~ . 4 7 ( 1 0 ) zf tne

::-%de Prscrlcss Lc:

q 'Yr.? A c t ' ) . A t 9.43.1-23

+.heir Honours :%id:

"The eccnomlc meanlnq muct

be applied I n J.

160.

practical way

to accommodate the concern

the Act

with busmess and commerce."

was also

submitted that the proceedings were not

clvll proceedlngs. relevant and that Professsr Kolqen was

that

s.7D of the

Evl5ence

Act

1905 was

a "person Interested". 1

ruled agalnst these submrsslons.

161.

an approach of this nature in looking at a statement of a qualified medical practitloner Containing eXpreSSiOnS of opinion as well as what was dlscovered on examlnatlon (Mansour's Case) or

indeed the opinlon

of a

handwriting expert

,as was properly

admitted

the

oplnion

of Lord Dennlnu

and

Salmon

L . J . .

provlslonally, but tentatively wronuly

so admltted in the oplnion

of Edmund Davles L . J . In D	3	v.	-
Masih C19681 1 W.L.R. 756. I

note the statement

In that case

by Salmon L . J . at

p.165 that a

slmllar sectlon

~n :he

Enullsh E'Jldence Act should be ulven

l l ~ e r a l c o n s t r u c t l c r

l f

pnssible.

proceeded lupcn

the ~ a 3 1 s

t n ~ t

' L a z t ' ' c:l.iL=

;r,:LAe

+ ? e

coinl?r, zf 3 11~17

?I.mliflet -:<pert.

Another question which

was raised 1s the extent t.1 which

an expert witness can

rely upon hearsay oplnlcn he has

obtained.

v. Abadom C19833 1 W.L.R. 126 the Court of Appeal took the view that an expert was entltled

to take account of oplnlon

In R

stemming from the work of

others ln the same fleld

of expertlse.

This materlal could

also extend t o unpubilshed material proolded

the expert made reference to

tPLat In nls evldence. Simll3rLy,

GGXanS J. In expert retall pharmaclst was pctltied

B o r o w s k l v .

Qllavl? C19641 V.R.

382 held that

a n

tc qive expert evldence

&sed. Inter ails. on sources	zgmmcnly	relled	upon	In the
sracclce of retali pr.arvac_v.

I ruled

(3644) that i would n o t 3umFt the %n5le ,f 'F:

5 G Z Qnder

s.14B m d that I

would a ~ v e

reasons later.

TtLe

163.

basic reason for this was that.

although Professor Kolsen would

be available

for cross-examination,

I considered that this was

really

an attempt to get substantially the whole

of Professor

Kolsen's evidence-in-chief

by means

of an unsworn statement.

Then

attempt was made to tender the flrst paragraph

Professor Kolsen's statement wherein he sald

"I am now and have

since August 1968 been

the

Professor

Economics

the

Unlverslty of Queensland". I re!ected

That because It vas an

unsworn statement and I considered that It vas

mereiy a step In

qettlnu

Professor

Kolsen's

evidence In

zhlef by an 'msworn

statemeRt.

164.

No detailed argument was presented

to me upon the effect

of this section.

In Feruuson v. Union Steamship Co. of New

Zealand Ltd. Windeyer

considered a letter written by a person

in New Guinea and tendered under the provision

of a

South

Australian Act which was in similar terms to

s.14B.

His Honour

rejected the letter for two reasons. one being 3.21 of the H

Court

Procedure Act 1903-1966. That

sectlon provlded

that

testimony at

the trial of

causes shall be ulven orally In o?en

c m r t and

In my opinion.

30 far as is relevant, 1s I n slmllar

terms t o that i n s.47(6)

of the Federal Court of Austral13 Arr

except that

4 7 t 6 ) is wrthout

prejudice to any other law that

would expressiy permlt

avy testlrnmy tr' Se othermse glven.

Walsh J. in Eisner v. Conrnlssioner 3f Tnxation adrn1t:ed

statements l n

a document relevant

3 s t3 3.

taxpayer's Intentlon

when he purchased

3 prqperty.

Evldence - Whether slitness can ?1ve ?vl(lence 3f any lnt?rcl,:n

to raise an expectatlon in the mlnd of m:? person presenr. ar. I

meetmg.

165.

5 March 1984

Written Rullnq

The first defendant has called In evidence a Mr E.W.W.

Prebble, at present Manamlna Dlrector

of T.N.T.

Transport (New

Zealand) Llmited.

Early

in his

evidence

was

asked

the

followins question:

'Dld YOU. In

any-hlns y m sald at the meetmq

In February 1376, Intend to ralse an cspectatlon l n the mlnds of m y person present

that you Or your ilomgany wculd

act

oartlcldlar sl3y Ln reistlcn tc T.I.C.

43nsultants?"

166.

transaction	had	taken place was to be decided objectlvelp.
(9356d)

The question at Issue

was whether

at a meeting

on 1 2

February 1976

Mr Prebble. on behalf of

the first defendant. had

made a contract or arrangement or entered into an understanding

wlthln the meanlnu

of s.45(2) of

the Trade Practices Act 1974

("the Act") as It ther. was.

167.

"As at

present advised, it seems

me that

one could have an understanding between two	r
more persons restricted to the conduct which

one of them will pursue without any element

mutual obligation, in

so far as the other

party

parties to the understanding are

concerned.

I was also referred to T.P.C.

v Tubemakers of Austral13

L t d .

( 1 9 8 3 )

A.T.P.R. 40-358 at

p p . 4 4 . 3 2 3 - 4

and to certain other

cases.

I expressly refrain from expressing any view upon the

constructlon

of the relevant expressions in

9 . 4 5

of the

Act

except In so far 3 3 1s necessary

to determine the admiss~bll~tp

If	the a u e s t l m ,maer zonnldoratlm.

168.

what Mr Prebble intended by what he said at the meeting 1 8 not relevant to the consideration of the question of whether or not the first defendant, through Mr Prebble. made an arrangement or entered Into an understanding which wa8 within s . 4 5 ( 2 ) . I refrain from expresslnq any view upon the questlon Of whether Mr Prebble can give any evldence of hls understandmq of anythlnq

that was said to hrm

by anybody else at the meetin?

(9343, 9364).

169.

Whilst

I am concerned

with

an arrangement

understanding and

not a contract,

I do not see any signiflcant

dlfference

principle.

may

that

Cornmlsslon’s

oblectlon

further

strengthened

considering

that

question 1s not whether a party to a contract can ?et some reilef

from it because of, for example. mlstake, but it

1s a question cf

consldermq the effect of what

was done In relation

to whether

not the acts establlshed contravened the relevant

provlsl:mns :f

3 . 4 5 .

(See Ckeshlre and Fifoot. Law of Contract. 4th Aust. C?

para. 939.)

‘a) Secondary

evidence

of :‘I.!r’*lunl,-atlon3 to such ,-.c ?he

defendants as are ultinately shcwn t o >e members

N.F.F ..L...

170.

(b)	As documents in the possession of the executive director of

N.F.F.A. or, in certain cases, secondary evidence of the

same and, as such. documents in the possession of those of

the defendants who were members when the circular was sent.

documents reliance is placed

on Part IIIA

of the Evldence Act 1905.

171.

1976 and 1977 dated 1 August 1983 Was considered by me

in my

ruling of

22 August 1983.

Hr Rochfort was held to be a

person

not required to produce the documents. Further subpoenas also

requiring the production of all origlnals and copies of circular

letters received from N.F.F.A. in i975. 1976 ar,d 1977 by each of

the defendants were served about 23 August 1983 and were dealt

with in some detall m my rullng of 6 September 1983. In short.

each defendant. except- the fourth defendant. clarmed prlvllege l n

respect cf a l l the documents souuht in the subpoena

issued to ~ t .

This ciarm for

p r ~ v l l e ~ e

XLS lccepte.' kv t h e ?ommlsslo? Ind. 1".

7::

Tplnlon. es:~Kl::ncs

--La:

t h e ti?rlm;-nents ssuqh7 I n the

sllc?oenai	cawnr.	C P	,cz-a~npd	fr.?= 1efenTlantz clalmlnu	such
zr:71:eqe.

172 .

members.

In saying this I

have in mind the evldence about the

course of business followed In sendinu out coples of clrculars

( 6 7 8 4 ,

6829,

7424,

7543

and

today).

I refer

Cross

Evidence, 2nd Aust. Edn.,

para 2.4, Phlvson on Evidence, 13th

Edn., para 9.22 and Halsburv's Laws

of Enaland.

4th Edn., Vol.

17. para

35.

I also rely on the ~udgment of Asprey J . A . . with

which Mason J.A. aureed. in Connor

v. Blacktown District Hospital

C19711 1 N.S.W.L.R.

713. The question arose whether evldence

was

adnlssible to show a ueneral course

of busmess

I n relation to

the cleanlnq of J. hospitll floor and Asprey

? . A .

sald at p . 7 2 1 :

173.

corporation or

entity were habitually addressed. There was also

e	some evidence	of complaints about non-receipt	of informatlon
( 7 4 3 0 ) .

In my

opinion there

is sufflcient evidence before ne to

admlt such of the clrculars as are tendered and are relevant not

o n l y

3aainst those persons in whose files the documents were

found but also as secondary evidence

of communicatlons to such of

the defendants as are

ultlmately shorn to be members of

Y.F.F.A.

at the relevant tlme m

a11 circumstances where It 1 s shc,%'n tnat

the

person to whom the

commun1car:c"

%as a<dressed was an

spproprlate person 50 rec21ve :?-e comm~n~catlon

on behalf of the

lorporatlon :r

?ntlrp snorn t ? Se 3 aember.

I have looked at the

, :lrcuiars tendered X>.=

I , io n3t s+p 5r.y ;eason

rp!ecr

3nlr :

them 3n +:?e urounds c f reievzm:y.

I wl- ad31t all the c l rcu lars

In the document headed	"N.F.F.A. clrc~,ars to be	tenderec" 3 s
communlcatlons.

1 7 4 .

date was alga tendered ( 7 4 7 4 ) and in MFI

479 a Similar stamp and

date was

tendered.

On each of these documents there appears to

be an

initial which was also described as

a squiggle. It

was

submitted by

counsel for the sixth defendant that there was no

statement of fact in the stamp and ultimately what were called squiggles Vdere not pressed by the Commission	(7490~~). I will
aDply the provlslons of s.7D(2)(b)(v) and !vi).

Counsel for the sixth defendant also submitted certain circulars which bore a dlfferent received stamp had not.

that

Leen t?ndered and senlor counsel for tFe

Commission then agreed

ta tender :he

recelved stamp on a number

of these circulars being

those marked MFI 474, FFI 475.

W1 476 and MF'I 477 to the extent

7r' ?he received stamp and 3

&ace 1 s D U S ~ ~ ~ S S

records. There was

s'cme argument about ;Ihether C.k-.e stamps m d dates m documents marKed for ldentifls3tlon 4 7 0 . + 7 9 and 4 7 ? acnntalned 3 scateneny

~f fact but I cmslder that t'nep

and I 7~111 adnlt ail ~ 7 . e

stamps and

dates and also the

notatl:? ':"DV

_ _ 5 3 i J . T . 3 .

rhp?

?L:-?

,:n

M F I 47Cl

3 s SIuslness records.

Oral Rulinq

This question concerns the admissibility in evidence of

dlscusslons which

t ook place between

Hr Cooper, apparently the

manaaing director

(fmance) of Ansett Freiqht Express, and

Wise, the aeneral manauer

of that company. in relation to

takeover by Ansett Freiqht Express of a company which has Seen referred to as Albury Border Transport.

M r Xlse 1s belnq asked (lruestlons In cross-examlnatlon by

zenlclr cmnsel f z r the Lrade

Practlces

Commisslon.

It 1s

slkmltted by senlor counsel

f a r -.he I'cmrnlsslon to be reievlrt I n

t m basls sf cne questlon of rnarr.et.

The matter has been sruued

m e r a perlod of more than

half a day but I feel It essentlal :n

?Isre a rullnu wlthcut

.de

lsy

The objection c a s

flrsr r3ken counsel

fgr ?'P,? peccr.d

.I?f?ndant. Senlor Tounsel

f.3r the defendant

- A 0 called Mr iilse

p u t s :r.e

matter ln a number of ways, but ?.P

does not s'Auqest r?.at

the re5cr:cr1sn on the

askmu of tne cru~stlon 1s crher tcan #>ne

based upon

the

propcsitlon

[:cat ln the

lntervlew

Ilnder

conslderation

the

Commlsslon

5r'as

s5ekinq

lnvcstiqlte

possible contraventlm

2f 3 .50 of the

Trlde Practlces Act

l 9 7 4

176.

("the Act"), and

that any information it obtained during this

interview was obtained in confidence and all such information

could certainly not be used except perhaps in proceedings in

relation to s.SO of the Act. He also accepts the KiTht to u s e

any such lnformatlon If it discloses an "iniquity" - 1 put that

in Inverted commas

- It 1s not an easy expresslon to apply.

"It would seem surprising to me if the law

were such as to compel a prosecutor in the position of the Commission here to return documents which might be evidence, or at le st

relevant to an issue in the prosecution Of the person charged, prior to the completion of the prosecution. That is particularly so where, as here, the purpose of the claimant is to recover the documents. not for the purpose of preventing their disclosure commercially to

competitors

or customers, but to hamper the

prosecution which is being brought."

Later

that

page

his

Honour

said

relation

to certaln

submisslons:

I was also referred to v4r1'3lls ~r:.r:pr rdses. Smltner: 3.

nad

ccnsrder

the

questlon

'2f

lnformatron

obtalned

i l

confidence I n the case of

Melbourne Home of Ford Ptv. Llmlted v .

178.

Trade Practices

Commission

and.

agaln for the sake

convenience, I

refer to the report in (1979) A.T.P.R. 40-131 at *:

p.18.402 and I refer

particularly

to the

passaqe

Fp.18.420-18,421.

His Honour cited a passage

from Diplock L.J.

in Parry-Jones v. Law SocietV. That

19 a passaqe appearlnq ln

C19591 1 Ch. at p . 3 . and h1s Honour there considered the question of contractual duty of confidence and sal4 in relation tc: that

duty

179.

satisfied any duty of confidence existed in this Case. Indeed, whether or not Mr Cooper or Mr Wise were in any way obliged to enaage in conversation or to answer any questions they vere

'asked. they appear to have chosen

SO to d o .

Counsel for the second defendant appeared

r e l y main111

on an alleged doctrine

of public policy. In relation to thls

question I consider the gassages

from the judgment of Sheppard 5.

ilhlch I have clted

It p . 4 2 . 9 9 0 are of consldersble signiflcance.

1 rill 1 1 1 9 ~

the quesclcn.

[1984] FCA 260

30 Jun 1984