TSUNASHIMA v World Avenue Pty Ltd

[2014] FCCA 2673

FEDERAL CIRCUIT COURT OF AUSTRALIA

TSUNASHIMA v WORLD AVENUE PTY LTD & ORS [2014] FCCA 2673

Catchwords:
PRACTICE AND PROCEDURE – Application to use document summarising voluminous documentary evidence.

Legislation:

Evidence Act 1995, s.50

Applicant: KENICHIRO TSUNASHIMA

First Respondent: WORLD AVENUE PTY LTD
(ACN 094 592 444)

Second Respondent: MASAAKI MATSUKUBO

Third Respondent: AKEMI MATSUKUBO

File Number: SYG 2471 of 2012

Judgment of: Judge Cameron

Hearing date: 17 November 2014

Date of Last Submission: 17 November 2014

Delivered at: Sydney

Delivered on: 17 November 2014

REPRESENTATION

Counsel for the Applicant: Mr J. Stephenson

Solicitors for the Applicant: Hayashi & Hong

Counsel for the Respondents: Mr S. Prince

Solicitors for the Respondents: Dixon Holmes

ORDERS

1. Leave be granted, pursuant to s.50 of the Evidence Act 1995 (Cth), for the applicant to adduce evidence at the hearing in the form of the summary which is at tab 7 of Exhibit KT-1 to the applicant’s affidavit sworn 8 July 2014 as evidence of:

   (a)the date, time and recipient and subject of the emails which the applicant sent in February and September in each of 2007, 2008, 2009, 2010 and 2011; and

   (b)the date, starting time, finishing time, other parties and subject of the Skype communications to which the applicant was a party in February and September in each of 2007, 2008, 2009, 2010 and 2011.

2. The applicant’s application that the hearing commencing 24 November 2014 be vacated be dismissed.

3. The applicant’s application for leave to adduce as evidence at the hearing a further summary, similar to the summary which is at tab 7 of Exhibit KT-1 but in respect of the period between 2 February 2007 and 23 October 2011 (other than the period included in the summary ordered in order 1), be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2471 of 2012

KENICHIRO TSUNASHIMA

Applicant

And

WORLD AVENUE PTY LTD (ACN 094 592 444)

First Respondent

MASAAKI MATSUKUBO

Second Respondent

AKEMI MATSUKUBO

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings commenced two years ago and have been difficult from the outset because of the magnitude and detail of the claim being made by the applicant.  The principal factual question which will have to be determined is what hours the applicant worked for the respondents.  From that flows a further question concerning whether he was underpaid in respect of the hours he worked.

2. A recent feature of the case has been the applicant’s attempts to find a way to put into evidence at the hearing a very large number of records of electronic communications which he says he had with the respondents and, it seems, with other people.  Those emails and Skype records are, the applicant deposes in his affidavit of 8 July 2014, the basis of the calculation of the hours he claims to have worked.  Exhibited to that affidavit is a binder of documents known as KT-1 of which one part is a USB memory stick said to contain copies of all the communications in question.

3. The applicant also sought to rely on a printed or photocopied selection of more than 16,000 pages from the documents on the USB stick.  Many are in Japanese and I indicated to the applicant’s representatives on 7 August 2014 that I would not admit into evidence documents which I could not read.  The applicant then sought to prove those documents by way of a notice to admit facts.  The respondents indicated in subsequent correspondence that they did not make the admissions sought and requested access to the computer on which the documents had been generated.  They were told that the applicant no longer had it.

4. Because of these practical difficulties, the applicant has sought leave pursuant to s.50 of the Evidence Act 1995 to rely on a summary of the more than 16,000 pages of documents which have been reproduced on paper.  The respondents have opposed that application.  In deciding whether a summary should be permitted, I have to consider whether the volume of the documents makes it impossible to examine them conveniently at the trial. 

5. The respondents objected on a number of bases to the applicant’s application for leave to use a summary.  The first was that as many of the underlying documents are in Japanese, they are inadmissible at least in their current form.  While that is so, their admissibility only turns, it seems, on the issue of translation.  The applicant and the second and third respondents are native Japanese speakers and quite capable of knowing whether any translation from Japanese into English is accurate or not.  The concerns which I expressed in August about the documents being in Japanese can be addressed in the summary and it should be kept in mind that the accuracy of that summary can be challenged. 

6. The respondents were also concerned about the authenticity of the documents in circumstances where, I am told, they no longer have their own records of email exchanges for the relevant periods.  That is a legitimate concern.  But it is one which applies to the underlying documents and does not address the question whether a summary of the alleged communications should be permitted.  In that regard, the respondents have a copy of the USB stick and so can compare the summary against what is stored on the stick.  I am satisfied that the summary on which the applicant seeks to rely is presented as a simple summary of information, of a limited scope and directed to the question of when he was at work.  The substantive content of the emails is not the focus of the summary.  That being so, perhaps the concern I expressed in August about the paper reproductions was misplaced.

7. In any event, the summary would only be an easier way to deal with all the documents on which the applicant has foreshadowed he wants to rely. If, at the hearing, it was necessary to go through those documents, through an interpreter as necessary, the hearing would be unduly expensive and time consuming. The summary proposed by the applicant is a convenient way to avoid that. He will therefore have his s.50 direction in relation to the summary found behind tab 7 of exhibit KT-1 to his affidavit of 8 July 2014.

8. Having finally seen a way to present his case in something approaching a manageable way, the applicant also applied for a similar direction in relation to all the other documents on the USB stick, a process which would take, perhaps, two months.  That application also involved an application to adjourn the hearing of the matter listed for two weeks commencing next Monday. 

9. It has been very difficult to reach a decision on this issue. Balancing the right of the applicant to mount his case as he would like with the right of the respondents to have the case decided and the interests of other litigants in this over-busy Court, I have decided to refuse the adjournment application and the application for a further s.50 direction because I consider that neither of the proposed orders is necessary.

10. The hours which the applicant alleges he worked are set out in the table behind tab 6 of exhibit KT-1 and he has adopted that table.  As long as there is no objection to paragraphs 97 to 99 of the applicant’s affidavit or to the table behind tab 6, a further summary could only serve to be additional evidence of matters which would already be in evidence.  If the respondents wish to challenge the accuracy of the applicant’s hours based on the times recorded in the documents reproduced on the USB stick then they are free to do so. 

11. Ultimately, the case will turn on who I believe and I consider that the applicant’s credibility, as far as it relates to the records of the alleged communications, can be tested sufficiently well using the summary in respect of which I have already given the s.50 direction. Anything else will be just a matter of detail and, as I said, if the respondents wish to use detail for that purpose the USB stick will be sufficient.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  18 November 2014