HIS HONOUR: These are proceedings for the winding up in insolvency of the defendant, Wollongong Coal Ltd. The original plaintiff RUS Mining Services Pty Ltd ceased to prosecute the proceedings and was replaced by a first substituted plaintiff, who has also now ceased to prosecute them, in circumstances where some resolution has been reached between the former plaintiffs and Wollongong Coal. In those circumstances the applicant PCL Shipping Pty Ltd applied, initially by interlocutory process filed on 20 June 2014, to be substituted as plaintiff.
The application was set down for hearing on 29 July 2014. At short notice before the hearing, the applicant sought to rely on additional facts and evidence that had not previously been notified. It was granted leave to amend its application to raise those additional matters, and an adjournment. The hearing on 29 July was vacated and the proceedings adjourned to today to enable the additional material to be advanced.
It has been clear, on the correspondence between the parties and the written submissions, that the authenticity of the "fixture note" that purports to have been made in May 2013 is in issue. The defendants' notice of objections took objection to it, and the written submissions elaborated in some detail why it was not probative.
The applicant's evidence is given by a Mr Bartlett, who is the general manager of the applicant in Melbourne, Australia. There is no evidence that he has had anything to do with the transactions at the heart of this case, nor that he has custody of any relevant documents or was engaged in the generation or receipt of any of the relevant documents. In paragraph 11 of his second affidavit, sworn on 21 July 2014, he deposes relevantly as follows:
On 20 May 2013, and further to the Wollongong Coal Charter Party, PCL and Wollongong Coal fixed the shipment by Wollongong Coal on the vessel of a consignment of 85,000 metric tonnes, plus or minus ten per cent of coking coal or coal in bulk. The relevant fixture note evidencing the fixture of the vessel for the carriage of the said consignment was signed by the executive chairman and managing director of Wollongong Coal, Arun Jajatramka. By this fixtured note, Wollongong Coal was identified as the nominee of Gujarat NRE Coke Ltd in accordance with the Wollongong Coal Charter Party. A copy of the fixture note is attached at tab 5.
There is nothing to suggest or indicate that Mr Bartlett has any personal knowledge of the matters there deposed to. There is no evidence as to when the fixture note was received by the applicant. There is no evidence as to when it was brought into existence, save that its heading includes a typewritten date, forming part of the body of the document, of May 2013.
The document could only be relevant if it was delivered prior to July 2013 or thereabouts. Although we have not yet come to it, the defendant proposes to adduce evidence that will cast doubt on the timing and signature of the document.
A number of cases in this Court hold that a document does not prove itself simply by being tendered. Before admitting a document, a Court must be satisfied that it is what it purports to be. Sometimes, that inference can be drawn from the document itself. In 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 (NSW) Evidence Act 1995 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.
His 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.
Rusu has also been cited with approval in Kingham v Sutton (No 3) [2001] FCA 1117, [127] (Goldberg J).
As I pointed out in In the matter of Maiden Civil Pty Ltd [2012] NSWSC 1618 at [16], Rusu has not been without controversy, and aspects of Bryson J's reasoning are criticised in Odgers, Uniform Evidence Law, (8th edition, 2009) 1.3.480, a criticism that was taken up by Madgwick J in the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305, [25]. Rusu was also questioned by the Court of Appeal of the Australian Capital Territory in O'Meara v Dominican Fathers [2003] ACTCA 24.
After reviewing those authorities and the judgment of Needham J in Re Marra Developments Pty Ltd and the Companies Act [1979] 2 NSWLR 193, which was endorsed in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, I concluded in Maiden Civil that while the mere production of a document cannot authenticate it, Marra Developments establishes, though Rusu might contradict, that production on subpoena from an identified source might suffice to show that it was produced from the custody of the entity whose business it is, which would facilitate an inference that it was a business record, and Rusu should not be taken to limit the way in which authenticity of the document can be proved.
I should add that Rusu has since not been followed in the Federal Court by Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355. His Honour identified a distinction between authenticity and relevance and pointed out that the test of admissibility was relevance, not authenticity, and indeed that in some cases it would be absence of authenticity that might make a document relevant. To that extent, I agree, but it will always depend on the purpose of the tender.
A transactional document that is not binding on a party against whom it is tendered to prove the transaction is likely to be irrelevant. In order to establish that it is arguably relevant, something needs to be proven to show that party's assent to the document. For example, where a party seeks to prove a commercial transaction and relief for that purpose on a document signed by the other, if execution is in dispute then there will need to be some evidence of execution. The document does not become relevant until that is established. It is in that sense, I think, that Bryson J was referring to the concept of authenticity.
In this case, there is a live issue as to the authenticity of the fixture note. That there has been such an issue has been evident for some time. In the course of ruling on objections, I have indicated that I am inclined to reject it on the basis that it has not been authenticated in a manner sufficient to make it relevant. That is because, to be relevant, it would have to be shown that it was received by the applicant some time in or about June or July of 2013. It seems to me that on the material presently available, this document is not shown to be relevant.
It would seem that the applicant has assumed that I would reach the opposite conclusion and admit the document and in that respect entirely embrace the reasoning of Perram J, disregarding that of Bryson J, Austin J, the Court of Appeal and my earlier judgment in Maiden Civil. That may be thought to be a bold assumption.
Where the plaintiff has effectively made a forensic decision to contest the case on the evidence as it is when the defendant has clearly given notice ahead of the hearing, of its objections to that document, it seems to me that it would be wrong to give the plaintiff a further opportunity to remedy the defects in its evidence. That conclusion is fortified by the circumstance that the hearing has already been once vacated and adjourned when the plaintiff first sought to rely on the fixture note.
I therefore decline the plaintiff's application for an adjournment.
HIS HONOUR: Application is made on behalf of NRE Resources Pty Limited and Mr Jagatramka, who claim to be creditors and/or contributories of the company, for a short adjournment to enable them to make an application for substitution as plaintiff.
Ordinarily, where a petitioning creditor ceases to prosecute proceedings, the Court will readily grant an adjournment of the proceedings to enable another person with standing to apply to be substituted. In this case, of course, that happened some months ago when the previous substituted plaintiff was excused from further attendance and the proceedings were adjourned to enable PCL to apply to be substituted, which application is now to be discontinued.
The present circumstances are not the ordinary case, because the six month period referred to in (Cth) Corporations Act 2001, s 459R, has expired, although the time within which the proceedings must be determined has been extended by order made pursuant to s 459R(2) up to and including today. There would only be utility in granting an adjournment to NRE and Mr Jagatramka if the Court were also minded to grant a further extension of time under s 459R, which it can do only if satisfied that special circumstances justify the extension.
One of, and probably the principal, policy that underlies s 459R is not simply to impose upon courts an obligation to deal with winding up proceedings expeditiously, but to limit the disruptive impact of the pendency of a winding up proceeding on the validity and effect of transactions entered into by the company, at least from the date on which the originating process is filed. That status should not continue unresolved for a lengthy period, lest persons who deal with the company be unduly prejudiced.
This proceeding has now been on foot for close to a year. NRE Resources and Mr Jagatramka appear today for the first time without having previously filed or served any notice of intention to appear, without any evidence of their standing as creditors or contributories, and in circumstances where they are not arm's length trade creditors of the company but in one way or another related parties. There is no explanation as to why they have not appeared on any earlier occasion.
It seems to me that a mere indication of an intention to make an application for substitution at a future date, unsupported by evidence of their standing to do so, in circumstances where they are apparently related parties of the company, does not establish special circumstances for the exercise of the power under s 459R(2).
As I am not prepared to make an order under s 459R(2), there is no utility in granting a further adjournment of the proceedings.
The Court therefore orders that the originating process be dismissed.
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Decision last updated: 20 March 2015