Albrighton v Royal Prince Alfred Hospital

MFI04 9The plaintiffs tender MFI04, being a document that purports to be an MYOB balance sheet of Maiden Civil Pty Ltd as at 7 September 2012, and was apparently printed on that date at 3.58pm. Together with the balance sheet, there are a loan account ledger in the name of Mr Rutherford Queensland Excavation Services ("QES") loan account, and Scott McLean loan account, all for the period 1 January 2000 to 7 September 2012. 10If admitted, this material would have the potential to prove that the 320D excavator was an asset of Maiden Civil. It might also prove that the funds advanced by Maiden Civil to QES had been advanced by way of loan, as distinct from contribution to the purchase price of the equipment, but also that the 320D had at some stage been purchased by Maiden Civil from QES. 11The document is tendered pursuant to s 69, as a business record of Maiden Civil. Objection is taken ultimately on two grounds; first, that the document is not proven to be a business record of Maiden Civil; and, secondly, that it is excluded by s 69(3). 12The first objection is that it is simply not established that the document tendered is or forms part of the records maintained in the course of or for the purposes of a business. There is no evidence of the provenance of the document that is tendered. It is submitted that, pursuant to s 58, and/or s 183, I should draw an inference from the face of the document that it is what it purports to be. 13In National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309, Bryson J, as he then was, held that neither s 69 nor any other part of the Evidence Act had the effect of causing a document to be self-authenticating, or permitted authenticity to be established simply by inference from the form or contents of the document. In that case, his Honour held that a third party production in response to a subpoena was insufficient to authenticate a document on the balance of probabilities. 14His Honour's approach was considered in some detail by Austin J in Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 53 ACSR 752, particularly at [93] - [117]. His Honour observed that Rusu was approved by the Court of Appeal in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, where Heydon JA, with whom Priestley and Sheller JJA agreed, observed (at [46]): If the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant. The Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances [citing Rusu]. 15Rusu has also been cited with approval in Kingham v Sutton (No 3) [2001] FCA 1117, [127] (Goldberg J), and in Citibank Ltd v Chiu Wah Liu [2003] NSWSC 236, [3] (Hamilton J). 16Rusu has not been without controversy, however. Aspects of Bryson J's reasoning are criticised in S Odgers, Uniform Evidence Law, 8th edition, Thomson Reuters, [1.3.480]. That criticism was taken up by Madgwick J in the Federal Court in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305, [25]. At first instance, Hely J had held that a note was admissible under s 69, notwithstanding that the person who made the note, and the person in Australia Post who supplied the information, were unknown. Madgwick J, obiter, said: In Rusu, his Honour may have meant no more than that there may be cases in which, as a matter of fact, no inference as to authenticity of a document may be properly drawn from the document itself. If he meant to say more than that, it is by no means clear to me that the way is open for a court to read some unexpressed limitation into a grant of power to courts: such grants are generally very liberally construed [citations omitted]. Such an approach may be particularly apt where, as here, the provision aims at putting another nail into the coffin of unmeritorious technicality in litigation and s135 provides ample safeguards against possible abuse of the section. 17The Court of Appeal of the Australian Capital Territory also considered Rusu in O'Meara v Dominican Fathers [2003] ACTCA 24, saying: In that case, his Honour appeared to hold that the fact that a bank had produced copy bank statements on subpoena did not prove that they were bank statements of the relevant account that was identified on them, and that further proof of authenticity was required. We have considerable doubt as to the applicability of that decision to the present circumstances. Admissibility of evidence is to be judged on the balance of probabilities (s 142), with the benefit of the inferences to which we have already referred (s 183), with the facilitating provisions of s 48 and (in the present case) s 146, dealing with evidence produced by processes, machines and other devices. Rusu may also be at odds with the thrust of the judgments in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, per Hope JA at 547-550 and Hutley JA at 565-571, although the text of the legislation there in question differed from the Evidence Act. Albrighton does not seem to have been cited to Bryson J in Rusu. 18Having considered those authorities, Austin J in ASIC v Rich observed that in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, there had been authenticating evidence given by a hospital administrator, as Hutley JA had noted (at 565). Austin J said (at [113] - [115]): [113] The issues in the Court of Appeal related to such questions as whether the authenticating evidence should have been taken in the absence of the jury, and whether it should have been rejected because it contained medical opinions expressed by persons who may have been unqualified, or because it contained unintelligible or ambiguous entries. I can see no inconsistency between Albrighton and Rusu on these matters. [114] In my opinion, the suggestion that Rusu may be at odds with Albrighton relates to Bryson J's unwillingness, in the case before him, to draw inferences as to authenticity from the face of the document and circumstances of its production. Hope JA emphasised (at 548) that in deciding questions of admissibility under the business records provisions then in force (Evidence Act, 1898 (NSW), Pt IIC), the court was entitled to draw inferences from the form or content of the document and other matters from which inferences may lawfully be drawn. The Court of Appeal was prepared to allow inferences as to the expertise of persons making statements noted in records, to be drawn from the form and content of the tendered document itself: at 548 per Hope JA; 568 per Hutley JA. [115] It therefore seems to me that the point made about Rusu in O'Meara is essentially the same as the criticism made by Madgwick J in Lee and by Mr Odgers, namely that authentication may be established by inferences, including inferences from the form and contents of the document tendered. 19Austin J said that Rusu did not lay down that authentication of a document by evidence from its creator, or someone who superintends the maintenance of business records that include it, is necessary, but established that there must be something more than the mere tender of the document itself where the tender is contested. 20I have referred to these cases in some detail, and in particular the discussion in them of Albrighton, because Albrighton endorsed the approach taken by Needham J in Marra Developments Ltd and the Companies Act [1979] 2 NSWLR 193, one of the first cases on the former business record provisions in this state. There, his Honour observed that then Evidence Act, s 14CL, provided that the Court may, for the purpose of deciding questions of admissibility under the relevant Part, "draw inferences as well from the form or content of the document in which the statement is contained as from other matters from which inferences may lawfully be drawn". In that case, a document was produced by a company under subpoena. His Honour was prepared, pursuant to s 14CL, to draw inferences that the memorandum, though not a financial record or an accountancy document, was a document which formed part of the record of the relevant business, and was made in the course of and for the purposes of the business, and that the general manager who made the relevant entry was a qualified person for the purposes of the then legislation. 21His Honour said (at 197): The first objection is that the mere production of the document, albeit from the possession of Partnership Pacific Ltd., does not establish either that the document forms part of a record of a business or that it was made in the course of or for the purposes of the business. 22His Honour observed (at 198): This document comes from the custody of a company carrying on financial activities, purports to be signed by its general manager, and is a report to its board. I think it follows that it is a document which forms part of a record of a business, and was made in the course of, and for the purposes of, the business within s 14CE(5). 23As in other cases in which a Rusu objection has recently been taken before me, so in this, Needham J's judgment in Marra Developments has been in the back of my mind, and I have used this opportunity to consult it more fully in the light of Rusu. In my view, the position shortly stated is, first, that the mere production of a document cannot authenticate it; secondly, Marra establishes, although Rusu might contradict, that production on subpoena from an identified source might suffice to show that it is produced from the custody of the entity whose business it is, which would facilitate an inference that it was a business record; and thirdly, Rusu should not to be taken to limit the way in which authenticity of a document can be proven. For my part, I would respectfully doubt whether production on subpoena by the entity whose business the document is alleged to be a record of would always be insufficient to found the requisite inference; however, Rusu has been endorsed, subject to the minor qualification of the words, "save in limited circumstances" in the Court of Appeal and by Austin J in this Division, and on that basis, I should follow it. 24In any event, even applying the wider approach of Needham J in Marra Developments, here the document is not shown to be produced from the custody of the entity whose business record it is said to be, but is merely tendered without any evidence whatsoever of its provenance. In those circumstances, I could not be satisfied that it was, as required by s 69, a document that is or forms part of, or at any time was or formed part of, the records belonging to or kept by Maiden Civil. 25There is a further objection under s 69(3), which provides that the exception to the hearsay rule that otherwise applies to a business record so far as it contains a previous representation does not apply if the representation "was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding". 26The document in question here was produced as at 7 September 2012. It evidences the balance sheet of the company as at 7 September 2012. Maiden Civil's receivers and managers were a party to these proceedings as at that date. These proceedings were plainly contemplated as at that date. It must follow that the representation in this document was obtained or prepared in contemplation of the present proceedings, which were then pending, and I would exclude it under s 69(3) also. 27For those reasons, I reject the tender of MFI 04.

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