Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 23] - [2023] WASC 380

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 23] [2023] WASC 380
CORAM:   SMITH J
HEARD:   18 - 19 SEPTEMBER 2023
DELIVERED          :   3 OCTOBER 2023
FILE NO/S:   CIV 3041 of 2010
(Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)

BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)

FILE NO/S: CIV 2617 of 2012
BETWEEN: WRIGHT PROSPECTING PTY LTD
Plaintiff
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
HOPE DOWNS IRON ORE PTY LTD
Second Defendant
BIANCA HOPE RINEHART
Third Defendant
JOHN LANGLEY HANCOCK
Fourth Defendant
HOPE RINEHART WELKER
Fifth Defendant
GINIA HOPE FRANCIS RINEHART
Sixth Defendant
HAMERSLEY WA PTY LTD
Third Party

FILE NO/S: CIV 2737 of 2013
BETWEEN: DFD RHODES PTY LTD
First Plaintiff
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executor of the estate of DONOVAN FRANCES DUNCAN RHODES
Second Plaintiffs
AND
HANCOCK PROSPECTING PTY LTD
First Defendant
WRIGHT PROSPECTING PTY LTD
Second Defendant
HOPE DOWNS IRON ORE PTY LTD
Third Defendant
BIANCA HOPE RINEHART
Fourth Defendant
JOHN LANGLEY HANCOCK
Fifth Defendant
HOPE RINEHART WELKER
Sixth Defendant
GINIA HOPE FRANCIS RINEHART
Seventh Defendant
HAMERSLEY WA PTY LTD
Third Party
(BY ORIGINAL ACTION)
BIANCA HOPE RINEHART
First Plaintiff by Counterclaim
JOHN LANGLEY HANCOCK
Second Plaintiff by Counterclaim
AND
GEORGINA HOPE RINEHART
First Defendant by Counterclaim
HANCOCK PROSPECTING PTY LTD
Second Defendant by Counterclaim
HANCOCK MINERALS PTY LTD
Third Defendant by Counterclaim
THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD
Fourth Defendant by Counterclaim
TADEUSZ JOZEF WATROBA
Fifth Defendant by Counterclaim
WESTRAINT RESOURCES PTY LTD
Sixth Defendant by Counterclaim
HMHT INVESTMENTS PTY LTD
Seventh Defendant by Counterclaim
150 INVESTMENTS PTY LTD
Eighth Defendant by Counterclaim
HOPE RINEHART WELKER
Ninth Defendant by Counterclaim
GINIA HOPE FRANCIS RINEHART
Tenth Defendant by Counterclaim
MAX CHRISTOPHER DONNELLY as trustee in bankruptcy of LANGLEY GEORGE HANCOCK
Eleventh Defendant by Counterclaim
HOPE DOWNS IRON ORE PTY LTD
Twelfth Defendant by Counterclaim
ROY HILL IRON ORE PTY LTD
Thirteenth Defendant by Counterclaim
MULGA DOWNS INVESTMENTS PTY LTD
Fourteenth Defendant by Counterclaim
MULGA DOWNS IRON ORE PTY LTD
Fifteenth Defendant by Counterclaim
WRIGHT PROSPECTING PTY LTD
Sixteenth Defendant by Counterclaim
DFD RHODES PTY LTD
Seventeenth Defendant by Counterclaim
MATTHEW JOHN KEADY AND DOROTHEA MARGARET CAMPBELL as executors of the estate of DONOVAN FRANCES DUNCAN RHODES
Eighteenth Defendants by Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Evidence - Section 79C Evidence Act 1906 (WA) - Objections to documentary evidence - Business records

Legislation:

Evidence Act 1906 (WA)

Result:

Rulings made

Category: B

Representation:

CIV 3041 of 2010

(Consolidated with CIV 2617 of 2012 by Orders dated 9 September 2014)

Original Action

Counsel:

Plaintiff	:	Mr E M Heenan & Ms N Wootton
First Defendant	:	Mr P Brereton SC & Ms M Parker
Second Defendant	:	Mr P Brereton SC & Ms M Parker
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Third Party	:	Ms C Wren

Solicitors:

Plaintiff	:	Clayton Utz
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Corrs Chambers Westgarth
Third Defendant	:	YPOL Lawyers
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	No appearance
Second Plaintiff by Counterclaim	:	No appearance
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	No appearance
Third Defendant by Counterclaim	:	No appearance
Fourth Defendant by Counterclaim	:	No appearance
Fifth Defendant by Counterclaim	:	No appearance
Sixth Defendant by Counterclaim	:	No appearance
Seventh Defendant by Counterclaim	:	No appearance
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	No appearance
Thirteenth Defendant by Counterclaim	:	No appearance
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	No appearance
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	YPOL Lawyers
Second Plaintiff by Counterclaim	:	YPOL Lawyers
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
Second Defendant by Counterclaim	:	Corrs Chambers Westgarth
Third Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fifth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Seventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Eighth Defendant by Counterclaim	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Twelfth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Thirteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixteenth Defendant by Counterclaim	:	Clayton Utz
Seventeenth Defendant by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

CIV 2617 of 2012

Counsel:

Plaintiff	:	Mr E M Heenan & Ms N Wootton
First Defendant	:	Mr P Brereton SC & Ms M Parker
Second Defendant	:	Mr P Brereton SC & Ms M Parker
Third Defendant	:	Mr A Hochroth & Mr D Delany
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Third Party	:	Ms C Wren

Solicitors:

Plaintiff	:	Clayton Utz
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Corrs Chambers Westgarth
Third Defendant	:	YPOL Lawyers
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	Deutsch Miller
Sixth Defendant	:	Dentons Australia
Third Party	:	Allens

CIV 2737 of 2013

Original Action

Counsel:

First Plaintiff	:	Ms K Lendich SC & Mr S Taylor
Second Plaintiffs	:	Ms K Lendich SC & Mr S Taylor
First Defendant	:	Mr P Brereton SC & Ms M Parker
Second Defendant	:	Mr E M Heenan & Ms N Wootton
Third Defendant	:	Mr P Brereton SC & Ms M Parker
Fourth Defendant	:	Mr A Hochroth & Mr D Delany
Fifth Defendant	:	Mr A Hochroth & Mr D Delany
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Third Party	:	Ms C Wren

Solicitors:

First Plaintiff	:	Taylor & Taylor Lawyers Pty Ltd
Second Plaintiffs	:	Taylor & Taylor Lawyers Pty Ltd
First Defendant	:	Corrs Chambers Westgarth
Second Defendant	:	Clayton Utz
Third Defendant	:	Corrs Chambers Westgarth
Fourth Defendant	:	YPOL Lawyers
Fifth Defendant	:	YPOL Lawyers
Sixth Defendant	:	Deutsch Miller
Seventh Defendant	:	Dentons Australia
Third Party	:	Allens

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	No appearance
Second Plaintiff by Counterclaim	:	No appearance
First Defendant by Counterclaim	:	No appearance
Second Defendant by Counterclaim	:	No appearance
Third Defendant by Counterclaim	:	No appearance
Fourth Defendant by Counterclaim	:	No appearance
Fifth Defendant by Counterclaim	:	No appearance
Sixth Defendant by Counterclaim	:	No appearance
Seventh Defendant by Counterclaim	:	No appearance
Eighth Defendant by Counterclaim	:	No appearance
Ninth Defendant by Counterclaim	:	No appearance
Tenth Defendant by Counterclaim	:	No appearance
Eleventh Defendant by Counterclaim	:	No appearance
Twelfth Defendant by Counterclaim	:	No appearance
Thirteenth Defendant by Counterclaim	:	No appearance
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	No appearance
Sixteenth Defendant by Counterclaim	:	No appearance
Seventeenth Defendant by Counterclaim	:	No appearance
Eighteenth Defendants by Counterclaim	:	No appearance

Solicitors:

First Plaintiff by Counterclaim	:	YPOL Lawyers
Second Plaintiff by Counterclaim	:	YPOL Lawyers
First Defendant by Counterclaim	:	Speed & Stracey Lawyers
Second Defendant by Counterclaim	:	Corrs Chambers Westgarth
Third Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fifth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Seventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Eighth Defendant by Counterclaim	:	Speed & Stracey Lawyers
Ninth Defendant by Counterclaim	:	Deutsch Miller
Tenth Defendant by Counterclaim	:	Dentons Australia
Eleventh Defendant by Counterclaim	:	Corrs Chambers Westgarth
Twelfth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Thirteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Fourteenth Defendant by Counterclaim	:	No appearance
Fifteenth Defendant by Counterclaim	:	Corrs Chambers Westgarth
Sixteenth Defendant by Counterclaim	:	Clayton Utz
Seventeenth Defendant by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd
Eighteenth Defendants by Counterclaim	:	Taylor & Taylor Lawyers Pty Ltd

Case(s) referred to in decision(s):

Agricultural Land Management Ltd v Jackson [2013] WASC 464
AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306
Beamish v The Queen [2005] WASCA 62
Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239
Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684
Hancock v Rinehart [2015] NSWSC 646
Hancock v Rinehart [2020] NSWSC 1853
Lancaster v R (2014) 44 VR 820
Lithgow City Council v Jackson (2011) 244 CLR 352
McKay v Commissioner of Main Roads [No 2] [2010] WASC 153
O'Leary v Lamb (1974) 7 SASR 159
Presilski v Shepherd [2021] WASC 100
Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 193
Rhodes v De Castro [2022] WASC 214
Rhodes v De Castro [No 2] [2023] WASC 93
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12] [2022] WASC 474
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647

SMITH J:

1.0 Introduction

On 18 and 19 September 2023, I heard numerous objections to the tender of documentary evidence by the parties to the Wright Prospecting Pty Ltd (WPPL) proceedings (in consolidated actions CIV 3041 of 2010 and CIV 2617 of 2012), and the DFD Rhodes Pty Ltd (Rhodes) proceeding (in CIV 2737 of 2013).[1]
[1] It is noted that documents that are the subject of objections only on grounds of relevance and weight are to be the subject of closing and if necessary reply submissions.
I made rulings with reasons in the course of the hearing in respect of the majority of the documents that remained in dispute following conferral. I do not propose to say more about those rulings.
I reserved my decision on ruling on two classes of documents both of which raise issues of admissibility under s 79C of the Evidence Act 1906 (WA).
The first class of documents concerns statements made in one document,[2] and whether:
(a)statements in a document, being statements of a qualified person in a transcript of evidence given on oath in examination proceedings are admissible as statements in a 'business record', within the meaning of s 79B and s 79C(2a) of the Evidence Act; and
(b)if the statements are not statements in a 'business record', whether pursuant to s 79C(1) and s 79(2)(g) the statements are admissible because having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling the qualified person as a witness to give direct oral evidence.
[2] Tender Number 06885.
The second class of documents comprises three documents.[3] The principal issue raised in respect of each document is whether the court can be satisfied that statements made in legal advice referring to factual matters and opinions including instructions could be given as direct oral evidence of those facts or opinion so as to be admissible pursuant to s 79C(2a) of the Evidence Act.
[3] Tender Numbers 06802, 06803 and 06796.
In respect of the second class of documents the statements objected to refer to other documentary records either created by Hancock Prospecting Pty Ltd (HPPL) or were provided to HPPL as legal advice.

2.0 Legal Principles

Section 79C creates statutory exceptions to the rule against hearsay.
The subsections of s 79C of the Evidence Act that are relevant to the disposition of the objections in this matter are as follows:
(1)Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -
(a)was made by a qualified person; or
(b)directly or indirectly reproduces or is derived from one or other or both of the following -
(i)information in one or more statements, each made by a qualified person;
(ii)information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
(2)Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless -
…
(g)having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or
…
(2a)Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -
(a)the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b)the court is satisfied that the business record is a genuine business record.
(2b)Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.
(3)This section makes a statement admissible notwithstanding -
(a)the rules against hearsay; or
(b)the rules against secondary evidence of the contents of a document; or
(c)that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
(d)that the statement is in such a form that it would not be admissible if given as oral evidence,
but does not make admissible a statement which is otherwise inadmissible.
…
(5)For the purposes of this section a court may -
(a)for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;
…
(6)For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -
(a)may necessitate undue consumption of time; or
(b)may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
Section 79C(1) and s 79C(2) apply to documents in general and s 79C(2a) and s 79C(2b) apply solely to business records.[4] Section 79C(1) and s 79C(2a) apply to statements made by a qualified person, including statements tendered for the truth of the contents recorded in a document by third party.[5] Section 79C(1)(b) and s 79C(2a) also apply to statements that are not made by a qualified person.[6]
[4] Beamish v The Queen [2005] WASCA 62 [152], applied in Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239 [111] (Buss JA).
[5] Beamish v The Queen [2005] WASCA 62 [147] - [168].
[6] Presilski v Shepherd [2021] WASC 100 [129] (Smith J); See also Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12] [2022] WASC 474 [48] and [43] (Kenneth Martin J).
The relevant definitions of material words that must be read into the text s 79C of the Evidence Act wherever those words appear are as follows:[7]
(a)'business' means any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government;
(b)'business record' means 'a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business';
(c)'derived' means 'derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting, consolidation or by accounting, statistical or logical procedures';
(d)'statement' includes 'any representation of fact or opinion whether made in words or otherwise'; and
(e)'qualified person' in relation to a statement, unless the statement must be made by an expert, means 'a person who had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement'.
[7] Evidence Act 1906 (WA) s 79B.

Importantly, s 79C(2a) makes statements in a document admissible. It does not make the document itself admissible. The existence of an admissible statement in a document therefore does not make the balance of the document admissible, if it is otherwise inadmissible.[8]
[8] Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239 [124] ‑ [126] (Buss JA); referring to Re Marra Developments Ltd & The Companies Act [1979] 2 NSWLR 193, 198 (Needham J).
There are two alternatives to invoke the business records preconditions of admissibility in s 79C(2a) which are:[9]
(a)was the document 'prepared' in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)was the document 'used' in the ordinary course of a business for the purpose of recording any matter relating to the business?
[9] Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239 [121] - [126] (Buss JA); applying McKay v Commissioner of Main Roads [No 2] [2010] WASC 153 [30] ‑ [31] (Beech J).
In respect of each class of documents, to determine whether each document falls within s 79C(2a), as a business record, it must be established that:
(a)direct oral evidence of the facts and opinions in statements in the transcript would be admissible;
(b)the statements in the transcript sought to be admitted are a business record;[10] and
(c)the transcript was either 'prepared' or 'used' in the ordinary course of business for the purpose of recording any matter relating to the business.
[10] It is noted that if the court is satisfied that the documents the subject of the objections are business records, that no issue arises that the documents are not genuine business records.
As to the alternative limbs of 'prepared' and 'used', Solomon J recently relevantly observed that:[11]
Whether the document was prepared in the ordinary course of business or used in the ordinary course of business, that preparation or use must be for the purpose of recording any matter relating to that business. The weight of authority is that it need not be the sole or even the dominant purpose; it is enough that it is a substantial purpose.
Where the document was not prepared by the person or entity carrying on the relevant business, but the business used an externally generated document as a record of information relating to its business, it does not thereby use the document 'for the purpose of recording any matter relating to the business' unless there is, or it is contemplated that there will be, some further or ongoing recording of information by or on behalf of the business.
That limitation requiring further recording of information applies only where reliance is placed on the 'use' alternative within the definition of business record. If the document was 'prepared' by a person or entity in the ordinary course of the business of that person or entity for the purpose of recording any matter relating to that business, no further recording of information is required.
[11] Rhodes v De Castro [No 2] [2023] WASC 93 [28] ‑ [30].
In Rhodes v De Castro [No 2], Solomon J found that the power in s 79C(5)(a) could be utilised to draw any reasonable inference from the formal contents of the document in which the statement is contained or from any other circumstances to decide whether a statement is admissible for the purposes of s 79C to infer that the relevant statements were ultimately derived from financial and other records.[12]
[12] Rhodes v De Castro [No 2] [2023] WASC 93 [32] ‑ [49].
It is not sufficient to find that a document prepared by a third party and found in the files of a business to be admissible as a business record simply because it was filed and kept by the business.[13] This is because without more statements made by third party in a document are not made in the course of or for the purpose of business of the first party. As Beech J pointed out in McKay v Commissioner of Main Roads if a business uses an externally generated document as a record of information relating to its business, it does not thereby use the document for the purpose of recording any matter relating to the business within the meaning of the definition of business record, but it does so only if there is or it is contemplated that there will be some further or ongoing recording of information by or on behalf of the business.[14]
[13] McKay v Commissioner of Main Roads [2010] WASC 153 [37] ‑ [39] (Beech J) applying Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647, 659 (Franki J); Agricultural Land Management Ltd v Jackson [2013] WASC 464 [15] (Edelman J).
[14] McKay v Commissioner of Main Roads [2010] WASC 153 [32] ; applied in Agricultural Land Management Ltd v Jackson [2013] WASC 464 [12] ‑ [15] (Edelman J).
Edelman J in Agricultural Land Management Ltd v Jackson pointed out that Beech J was only concerned with the use limb when his Honour found that there must be some further or ongoing recording information by or on behalf of the business for a document to be used in the ordinary course of the business. To the approach of Beech J, Edelman J added:[15]
[A]s a matter of textual construction where a document is merely received from an external source it is difficult to construe the mere receipt and retention of the document as amounting to a 'use' for the 'purpose of recording any matter relating to the business'. Except perhaps in an exceptional case in which the business is itself concerned with the recording of that information, something more than mere receipt and retention will be required. For instance, as I explain below, that 'something more' might be the receipt by a banker of documents by a banker which are used as record for the purpose of the bankers running account. Or it might be the receipt of documents which are used as a record for the purposes of preparation of audited accounts of the business.

2.0 First class of document - Vol 1 of the Sceales Files - Transcript of evidence given in a compulsory examination in bankruptcy proceedings in 1999

[15] Agricultural Land Management Ltd v Jackson [2013] WASC 464 [17].

Rhodes do not object to the tender of the Sceales Files on the basis that the statements made in the documents are not admitted to prove the opinions expressed in relevant documents were accurate or approve the conclusion about which the opinions were expressed. With the exception of the statements made by Georgina Hope Rinehart (Gina Rinehart) on oath in the bankruptcy examination proceedings, Rhodes and Bianca Rinehart and John Hancock agree that the documents in the Sceales Files may be tendered into evidence by Bianca Rinehart and John Hancock on this basis.[16]
[16] It is noted that it is agreed between HPPL and Hope Downs Iron Ore Pty Ltd (HDIO) (the HPPL parties) and Bianca Rinehart and John Hancock in respect of Vols 1 to 6 of the Sceales Files that in the absence of identification of the relevant documents that the HPPL parties have a right to object to any document once the use of the document by Bianca Rinehart and John Hancock is known.
Rhodes objects to the tender pursuant to s 79C of the Evidence Act, of a transcript of statements made by Gina Rinehart recorded in a public examination by her on oath in bankruptcy proceedings on 16 September 1999 on the basis that Bianca Rinehart and John Hancock have not identified any particular admissions against interest within the transcript on which they rely. An extract of the transcript of evidence given by Gina Rinehart is a document that forms part of the compilation of documents in Vol 1 of the Sceales Files.
Bianca Rinehart and John Hancock, however, do not seek to tender the relevant statements in the transcript as admissions against interest.
Bianca Rinehart and John Hancock cannot tender the statements as admissions against Rhodes or WPPL because the statements made by Gina Rinehart were not admissions made on behalf of either of the plaintiffs. Nor do they seek to tender this evidence as against HPPL or Hope Downs Iron Ore Pty Ltd (HDIO).
In the course of replying to the objections made by Rhodes to the tender of the extracts of transcript, counsel for Bianca Rinehart and John Hancock explained the basis upon which they seek to rely upon the statements as follows:[17]
These statements, if they need to be made by a qualified person, they are being made by a qualified person. They are being made by Gina because we rely upon all these statements for Gina's own subjective understanding that the June 1988 agreement was a binding agreement; that it, together with the deed of March 1992, and clause 5 in particular, had created a trust over the shares in Zamoever. But that was all in accordance with the 1988 agreement and that, pursuant to that trust, Gina was to have control over Zamoever, and HFMF for that matter, up until her children reached the age of 25. This was all something that had been contemplated by the agreement of June 1988. Gina's obviously in a position to give evidence from her own personal knowledge about that matter.
[17] ts 2270.
Consequently, Bianca Rinehart and John Hancock seek to tender the extract of transcript of evidence as a business record, which if admitted as such the statements made on oath by Gina Rinehart would stand as evidence of the truth of facts stated, in the absence of an order by the court requiring Gina Rinehart to be called as a witness.[18]
[18] Evidence Act 1906 (WA) s 79C(2b).
Bianca Rinehart and John Hancock argue that the extract forms part of a 'business record' of HPPL. In particular, it is argued that the Sceales Files were prepared in the ordinary course of business of HPPL, for the purpose of recording any matter relating to the business of HPPL being matters that were considered to be relevant to the 1988 Plan.
It is also argued by Bianca Rinehart and John Hancock that the Sceales Files were used by HPPL from time to time in relation to proceedings that were bought against HPPL by Rose Porteous. They also submit that the Sceales Files were also used by Gina Rinehart in her capacity as trustee of the Hope Margaret Hancock Trust (HMH Trust) for the business of the HMH Trust.
Consequently, the issue raised in respect of the first class of document is whether statements made by Gina Rinehart in a transcript of an examination in bankruptcy proceedings, a copy of which was obtained and kept by HPPL is admissible as a 'business record', within the meaning of s 79B and s 79C(2a) of the Evidence Act.
The transcript came to be in the possession of Bianca Rinehart following the making of delivery orders in 2020 by Ward CJ in Eq requiring Gina Rinehart to deliver to Bianca Rinehart the Sceales Files and any Bankruptcy Transcripts.[19]
[19] Hancock v Rinehart [2020] NSWSC 1853.
The application for delivery orders came before Ward CJ in Eq following a dispute about the effect of orders made by Brereton J in Hancock v Rinehart (Trust Documents)[20] and whether the Bankruptcy Transcripts and Sceales Files were documents of the HMH Trust. Brereton J had made findings in earlier proceedings that a number of classes of documents constituted documents of the Trust which classes included 'all documents received or held by Gina Rinehart in some capacity other than as trustee, including as a director of HPPL, which were used in the administration of the Trust'.[21]
[20] Hancock v Rinehart (Trust Documents) [2018] NSWSC 1684.
[21] Hancock v Rinehart [2020] NSWSC 1853 [59].
In the proceeding before Ward CJ in Eq, her Honour was called upon to consider a number of issues which included whether the Bankruptcy Transcripts and the Sceales Files were documents of the HMH Trust or otherwise were documents which Gina Rinehart is or should be obliged to deliver up in her capacity as outgoing trustee of the HMH Trust or by reference to case management principles.[22]
[22] Hancock v Rinehart [2020] NSWSC 1853 [46] ‑ [50].
On 17 December 2020, Ward CJ in Eq ordered that Gina Rinehart deliver up to Bianca Rinehart the Sceales Files and any Bankruptcy Transcripts.
The Sceales Files comprise a number of documents in files which were sent on 24 October 2006 by Robert Sceales of Sceales & Co, solicitors, addressed to Gina Rinehart as trustee of the HMH Trust (care of Terry Solomon, who at that time was HPPL's general counsel).
The Bankruptcy Transcripts had been obtained by HPPL in circumstances where the company had petitioned the estate of Langley George Hancock (Lang Hancock) and was subsequently represented in its own right in relation to the bankruptcy examinations.[23] Ward CJ in Eq accepted evidence before her in the application for delivery orders that the Bankruptcy Transcripts had been obtained by HPPL for its own corporate purposes (specifically, in order to obtain legal advice in relation to legal proceedings).[24] Her Honour also found that the evidence established that the Bankruptcy Transcripts were provided to Sceales & Co for the purpose of its retainer (on behalf of Gina Rinehart as trustee of the HMH Trust).[25]
[23] Hancock v Rinehart [2020] NSWSC 1853 [20] and [149].
[24] Hancock v Rinehart [2020] NSWSC 1853 [156]. The affidavit of Hugh Robert Scott sworn 30 June 2020 is also before the court in these proceedings as Tender Number 08745.
[25] Hancock v Rinehart [2020] NSWSC 1853 [161].
The evidence before her Honour was that: (a) the Sceales Files had been compiled by Mark Bickerton who was the information manager for HPPL in the 1990s and early 2000s and the files comprised documents he considered to be relevant to the Plan of 1988; (b) in or about 2005, Terry Solomon asked Mark Bickerton to deliver a copy of the 'Plan of 1988' files to Sceales & Co; and (c) Mark Bickerton did so, after adding additional documents that related to one of the Porteous Proceedings (CIV 2121 of 1992 in the WA Supreme Court).[26] These files were delivered to Sceales & Co under cover of a letter dated 23 June 2006, and which files included some of the Bankruptcy Transcripts.[27]
[26] The source of this evidence is a letter written by Mark Bickerton bearing a date of 23 June 2006. This letter is before the court in these proceedings at PDF 2333 of Tender Number 08745 as an annexure to an affidavit of Hugh Robert Scott.
[27] Hancock v Rinehart [2020] NSWSC 1853 [38] ‑ [39].
Relevantly for the purposes of the application presently before this court, Ward CJ in Eq found that: (a) the Sceales Files were provided to Sceales & Co who had been retained by Gina Rinehart for the purposes of the giving of 'trust advice'; and (b) (although HPPL may have had a proprietary interest in the Sceales Files by virtue of their compilation) the [information contained in the] files were used in the administration of the HMH Trust in the sense that they were considered by and the subject of advice given to the trustee of the HMH Trust [Gina Rinehart who became the trustee of the trust on the death of Lang Hancock].[28]
[28] Hancock v Rinehart [2020] NSWSC 1853 [146] ‑ [147].
Her Honour also accepted the evidence that the Bankruptcy Transcripts were obtained by HPPL for its own corporate purposes in order to obtain legal advice in relation to legal proceedings.[29]
[29] Hancock v Rinehart [2020] NSWSC 1853 [156].
Although this ruling only considers the admissibility of the statements made by Gina Rinehart recorded in the extract of transcript of evidence given on 16 September 1999, it is to be noted that what was referred to by Ward CJ in Eq as the 1998 Plan, is pleaded by Bianca Rinehart and John Hancock in these proceedings as the 1998 Agreement.[30]
[30] See for example their plea in par 165.4 of Bianca Rinehart and John Hancock's Second Further Amended Defence dated 28 June 2023 filed in the Rhodes Proceedings.
When regard is had to the finding made by Ward CJ in Eq, that the Sceales Files were used by Gina Rinehart in her capacity of trustee of the HMH Trust in the administration of the trust, it can be found in these proceedings that the relevant transcript was used for the purpose of legal advice to Gina Rinehart in her capacity as trustee of this trust, which use can properly be characterised as for the purpose of recording any matter relating to the trust.
The question is then whether the document was used in the ordinary course of a business, in the sense of, can the business of the HMH Trust be properly characterised as a business within the meaning of that term in s 79B and s 79(2a). The answer to this question must be yes.
The sole asset of the HMH Trust is shares in HPPL, whereby HPPL is the ultimate holding company of HDIO, whose interest in the Hope Downs mining project underlies the value of the trust property.[31] A 'business' is widely defined in s 79B for the purposes of s 79C. A 'business' is defined in s 79B to mean any business, occupation, trade or calling, which definition would extend to a trust engaged in holding valuable assets for the benefit of the beneficiaries, which is required from time to time to apply income from those assets for the benefit of the beneficiaries.
[31] Hancock v Rinehart [2015] NSWSC 646.
In addition, when regard is had to the findings made by Ward CJ in Eq that HPPL had compiled the Sceales Files, and had used the information contained in those files when obtaining legal advice, it is clear that this court can be satisfied that the Sceales Files were prepared and used in the ordinary course of the business of HPPL, for the purpose of recording any matter relating to the business of HPPL, being the recording of matters which were relevant to Bankruptcy proceedings and were used for preparation of legal advice.
For these reasons, the statements made by Gina Rinehart in the Bankruptcy examinations recorded in the transcript in Vol 1 of the Sceales Files are admissible as a business record pursuant to s 79C(2a). The evidentiary weight of the statements made by Gina Rinehart recorded in the extract of the transcript of evidence is not a matter that goes to admissibility but should be addressed in further submissions.
Because I found that the extracts of transcript form part of a business record prepared and used in the ordinary course of a business (of HPPL and also used by Gina Rinehart as trustee of the HMH Trust) within the meaning of s 79C(2a), it is not necessary to determine whether the extract of transcript would be admissible pursuant to s 79C(1) and s 79C(2)(g) of the Evidence Act.

3.0 Second class of documents - Statements made in Hayward legal advice referring to advice given by others and instructions

There are three documents in this class.
The documents are memoranda of legal advice prepared by a Mr Hayward on 6 October 1995,[32] 12 October 1995[33] and 9 November 1995,[34] which advice was given in respect of taxation matters that arose in relation to the ownership of tenements as between HPPL and Hancock Resources Ltd (HRL).[35]
[32] Tender Number 06803.
[33] Tender Number 06802.
[34] Tender Number 06796.
[35] It is to be noted that I made an oral ruling in respect of two statements in Tender Numbers 06802 and 06796 recording matters relating to the State Government's awareness of the existence of certain matters at the time of entry into the State Agreement, and gave reasons for my ruling, which I do not propose to say any more about in these reasons.
HPPL objects to the admission into evidence of the following statements in Mr Hayward's advice which are as follows:
(a)in the advice dated 6 October 1995:[36]
[36] Tender Number 06803, PDF 2.
However, in order for HPPL to establish the existence of the constructive trust it is not enough for HRL to simply stand aside. HPPL must actually prove the existence of the constructive trust. However, as noted in a memo from Jeff Lee to John Morhall on 6 April 1995;
'Our problem was that on advice from Mr C Steytler QC we were not in a position to successfully establish our claim against HRL without further evidence which we apparently could not obtain.'
(b)in the advice dated 12 October 1995:[37]
[37] Tender Number 06802, PDF 1 and PDF 2.
The only problem with that position is that HPPL appears not to be able to prove the existence of the constructive trust if the matter were to be contested. The opinion of Zelestis QC and Curthoys is based on several assumptions which appear not to be capable of proof, while the opinion of Steytler QC was that the evidence which was needed to prove the constructive trust could not be obtained.
…
As I have previously noted, unless we are able in some way to establish the constructive trust in favour of HPPL we are left with the position that HDL holds the Hope Downs tenements on a bare trust for HRL and that HRL has not disposed of any beneficial interest in those tenements. In that situation, no liability to capital gains tax can have arisen.
…
In determining the most efficient method of establishing both the legal and beneficial ownership of the Hope Downs tenements in HDL there are two possible scenarios depending on whether or not the constructive trust is to be established. Each has its risks and benefits.
Constructive Trust
If the parties are to work on the basis that HRL always held the Hope Downs tenements on a constructive trust for HPPL the present position is that the legal title to the tenements is held by HDL but the beneficial ownership is in HPPL.
This has the advantage that the tenements were never an asset of HRL, HRL has never disposed of any asset and no liability to CGT has arisen. It has the further advantage that neither the attempted renunciation by virtue of the irrevocable offer nor the deed of renunciation have any foundation and no liability to stamp duty can arise. Further, this approach represents the entries in the books of HPPL.
There are however two problems with this position;
•HPPL is not able to prove the constructive trust to the satisfaction of a court which means that it is not possible to obtain a final order of a court as to the existence of the constructive trust other than by consent. A consent order would not carry the same weight in relation to either the Stamp Office as would a judgement after the matter had been fully argued
(c)in the advice dated 9 November 1995:[38]
The only problem with that position is that HPPL appears not to be able to prove the existence of the constructive trust if the matter were to be contested. The opinion of Zelestis QC and Curthoys is based on several assumptions which appear not to be capable of proof, while the opinion of Steytler QC contained a statement that the evidence which was needed to prove the constructive trust could not be obtained.
That may still be the case. If the evidence is available, the opinion of Zelestis QC supports the existence of the relevant constructive trust.
…
As I have previously noted, unless we are able in some way to establish the constructive trust in favour of HPPL we are left with the position that HDL holds the Hope Downs tenements on a bare trust for HRL and that HRL has not disposed of any beneficial interest in those tenements. In that situation, no liability to capital gains tax can have arisen.
[38] Tender Number 06796, PDF 1.

The HPPL parties object to statements contained in memoranda from Mr Hayward that contain third hand (or even more removed) hearsay or inadmissible opinion. They argue that these statements cannot be admitted as business records because they are expressions of an opinion that is not otherwise admissible in circumstances where the maker of the statement and their expertise is not known, nor is the basis for their holding such an opinion known.
As set out in [13(a)] of these reasons s 79C(2a) does not render admissible statements that would still be inadmissible even if given in direct oral evidence.[39]
[39] See O'Leary v Lamb (1974) 7 SASR 159, 198 (Bray CJ); Rhodes v De Castro [2022] WASC 214 [46] (Hill J).
Bianca Rinehart and John Hancock accept that the statements made in the Hayward advice dated 12 October 1995, in the paragraphs immediately above the heading in bold, 'Constructive Trust', beginning with the words 'As I have previously noted', and the statements made in the second page of this advice including the first dot point, are statements of Mr Hayward's opinion and are admissible only for the fact that the opinion was given.[40] This concession is properly made and must necessarily also apply to the statements to the same effect in the advice dated 9 November 1995, and to the other statements of opinion by Mr Hayward in each of the three documents setting out his advice.
[40] ts 2301.
Essentially the HPPL parties' objection goes to statements that are repeated in the Hayward advices that appear to have their genesis in the record of what was stated by Jeff Lee in a memo to John Morhall on 6 April 1995.
The HPPL parties point out that the maker of the statement that further evidence could apparently not be obtained (to successfully establish the HPPL constructive trust claim against HPPL) advices is not known. They also point out that there is uncertainty in the language surrounding the statements, namely that such evidence 'apparently' could not be obtained such that there is no basis for concluding that whoever made this statement may reasonably be supposed to have any relevant knowledge of what was stated.
Consequently, the HPPL parties argue that the statements to this effect thereby fall outside the rationale for the business records exception, and also the statements do not fall within the terms of s 79C(2a),[41] because the statements cannot 'tend' to establish the fact or opinion when there is no basis for inferring that the maker had any relevant knowledge as to what was stated. In any event, because of the difficulties with the statements, HPPL claims it would cause undue prejudice to admit the statements and that the statements to this effect in each of the advices should be excluded under s 79C(6).
[41] Referring to Lithgow City Council v Jackson (2011) 244 CLR 352 [17] (French CJ, Heydon & Bell JJ); Lancaster v R (2014) 44 VR 820 [27] (Nettle & Redlich JJA & Almond AJA).
In response to the HPPL parties' objections, counsel for Bianca Rinehart and John Hancock informed the court that Bianca Rinehart and John Hancock do not seek to tender the statement in each of the advices, the subject of the objection, as evidence to prove the fact that HPPL was unable to prove the constructive trust claim as at April 1995. What they seek to prove is that HPPL was given advice that it could not establish the claim and that it had that understanding.[42]
[42] ts 2292.
In particular, Bianca Rinehart and John Hancock argue that what is important about what is recorded in the Hayward advices is what was believed within HPPL as to whether it was in a position to prove the constructive trust at the time (as at April 1995), what advice was given at the time about that, and on which it would have acted.[43]
[43] ts 2294.
Counsel for Bianca Rinehart and John Hancock explained that by the tender of these three documents into evidence they seek to establish three facts.[44]
[44] ts 2292.
The first fact is that HPPL understood as at 6 April 1995, on advice from Steytler QC, that it was not in a position to successfully establish its claim against HRL without further evidence which it apparently could not obtain, and that was HPPL's understanding.
The second fact is that HPPL was advised, on advice from Steytler QC, that it was not in a position to successfully establish its claim against HRL without further evidence which it apparently could not obtain on 6 April 1995.
The third fact is that HPPL, as at 6 April 1995, was in possession of the Steytler advice, which was directed to HRL rather than HPPL.
As to the third fact Bianca Rinehart and John Hancock seek to draw from the statements, senior counsel for the HPPL parties conceded that the HPPL parties would accept that the statement made in each of the Hayward advices is some evidence of knowledge on the part of HPPL, of advice given by Steytler QC, but whether the statement demonstrates they were in possession of the actual written advice of Steytler QC or the effect of the advice is not clear but may not be material.[45]
[45] ts 2307.
As to the first and second fact sought to be found by Bianca Rinehart and John Hancock, it is apparent from the advice given by Mr Hayward on 12 October 1995 that Mr Hayward had the benefit of instructions from John Morhall, and that Mr Hayward had the advantage of reading a number of opinions, including the opinion of Zelestis QC and Curthoys, but not the opinion of Steytler QC.
Bianca Rinehart and John Hancock argue that the recording in the advice by Mr Hayward of the memorandum from Jeff Lee to John Morhall of 6 April 1995 is secondary evidence of the memorandum, which memorandum has never been produced to Bianca Rinehart and John Hancock and which memorandum is a relevant business record. Bianca Rinehart and John Hancock contend that Jeff Lee would have been qualified to give oral evidence of the matters stated by him in the memorandum to John Morhall, because there is evidence before the court that in April 1995 Jeff Lee was HPPL's company solicitor, and John Morhall was HPPL's chief executive officer.[46]
[46] ts 2292 ‑ 2293, Tender Numbers 06849 and 03429.
There is force in this submission. As Vaughan J in AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] observed:[47]
The 'best evidence' rule requires that a party produce the best evidence that the nature of the case allows. Any 'non‑best' evidence is excluded. It is seen most often in the context of documentary evidence. There, if a party wishes to rely on the contents of a document, the original must be produced. Secondary evidence is only admissible if the original cannot be produced and the reason for its absence is explained.
[47] AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306 [181] ‑ [182] (citations omitted).
If as Bianca Rinehart and John Hancock contend, the original of the memorandum written by Jeff Lee cannot be produced and the reason for its absence is explained, then the record of what was stated in this part of the memorandum in the Hayward advice dated 6 October 1995 may be admissible on the basis to establish the fact of this record as an established exception to the best evidence rule.
In any event, the record of what was stated in the memorandum by Jeff Lee is admissible pursuant to s 79C(2a) as a statement that is an indirect reproduction in the Hayward advice dated 6 October 1995 of a statement made by Jeff Lee in a business record of HPPL, which statement is admissible pursuant to s 79C(3) notwithstanding the rules against secondary evidence of the contents of a document.
However, the admission into evidence of the record of what Jeff Lee stated in a memorandum to John Morhall on this basis does not necessarily give rise to the inferences sought to be drawn by Bianca Rinehart and John Hancock.
As to the statement in the memorandum of Jeff Lee and other statements to this effect in the Hayward advices that the Steytler advice was that HPPL was not in a position to successfully establish their constructive claim against HRL without further evidence which apparently HPPL could not obtain, is not a matter that Jeff Lee would be qualified to give oral evidence about.
The content and meaning attributed to the Steytler advice by Jeff Lee in his memorandum, and by Mr Hayward in the Hayward advices, are not admissible as business records of HPPL as neither Jeff Lee nor Mr Hayward could give oral evidence about the content and meaning of the Steytler advice but such statements can be admitted for non‑hearsay purposes as to what instructions were given to Mr Hayward by HPPL, and what HPPL did as a consequence of this instruction. In any event, the Steytler advice has been discovered and an agreement has been reached between the parties that the Steytler advice is to be admitted into evidence but not to prove the existence of a fact about the existence of which the opinion was expressed.[48]
[48] Tender Number 05725, Item 26 and Item 29 of Sch C to the HPPL parties' objections following conferral.
For the same reasons, the content and meaning attributed to the Zelestis and Curthoys advice in the Hayward advices is not admissible as a business record of HPPL as Mr Hayward could not give oral evidence about the content and meaning of that advice but can be admitted for non‑hearsay purposes as to what instructions were given to Mr Hayward by HPPL, and what HPPL did as a consequence of this instruction. Also, the Zelestis and Curthoys advice has been discovered and an agreement has been reached between the parties that this advice is to be admitted into evidence but not to prove the existence of a fact about the existence of which the opinion was expressed.[49]
[49] Tender Number 05725, Item 26 and Item 28 of Sch C to the HPPL parties' objections following conferral.
Further, whether the statement by Jeff Lee in the memorandum dated 6 April 1995, to the effect that HPPL was not in a position to provide the further evidence which apparently could not be obtained that Mr Steytler had indicated was required, only goes to Jeff Lee's belief about the instructions he had received from an unknown source or is a state of mind that can be attributed to a belief held by HPPL itself as at 6 April 1995 is a matter for further submissions to be made as to the inferences to be drawn and weight to be given to the evidence.
However, the inferences that can be drawn and the weight of those inferences do not go to the admissibility of the statement made by Jeff Lee in that memorandum when admitted as a business record pursuant to s 79C(2a) of the Evidence Act.
On this basis the statement objected to by the HPPL parties in the Hayward advices should be admitted into evidence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
3 OCTOBER 2023