Asden Developments Pty Ltd (in liq) v Dinoris

EX TEMPORE REASONS FOR JUDGMENT 1 Mr Erskine, counsel for the respondents, has sought to tender as a business record of Auctioneering Link Pty Ltd (Auctioneering Link) an invoice dated 21 April 2011, which Auctioneering Link received from a company called Private Equity Financial Services Pty Ltd (Private Equity). To make this tender, Mr Erskine has relied on the business records exception to the hearsay rule, as that exception is expressed in s 69 of the Evidence Act 1995 (Cth) (the Evidence Act). The apposite subsection for the purposes of this ruling is s 69(1). It provides: 69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (Emphasis in original) 2 To establish that the invoice met the requirements of s 69(1), Mr Erskine relied upon paragraphs 8 and 9 of the affidavit of Mr Paul Khoury, the Director of Auctioneering Link, dated 2 September 2015, as follows: 8. The Tax Invoice: (a) was received, and kept or stored, by me in the business file on behalf of Auctioneering Link in the ordinary course of its regularly conducted business; (b) is one that is and was routinely made, received or kept in the ordinary course of the business and in the business's usual practice; (c) was received by Auctioneering Link at or about the date of the Tax Invoice; and (d) was kept and stored by Auctioneering Link in the ordinary course of conducting the business. 9. The Tax Invoice: (a) forms, and at the time it was produced formed , part of the records of, and (b) kept for the purposes of, the business conducted by Auctioneering Link (which business is still in existence); (c) was received by email, and an electronic copy kept in the business file of, Auctioneering Link; and (d) was, or was caused to be, printed by me on a printer used by Auctioneer Link (sic) at the time for and in the ordinary course of its business. 3 Mr Martin QC, counsel for the applicant, has opposed the tender of the invoice on two grounds. The first is that the invoice is irrelevant to any fact in issue in the proceeding, because all the facts relating to it have been admitted on the pleadings. The second is that the "previous representation" in the invoice was not made or recorded in the course of, or for the purposes of, the business of Auctioneering Link and, therefore, does not meet the requirements of s 69(1)(b) of the Evidence Act. 4 On the first ground, Mr Martin has pointed to paragraph 31(b) of the amended statement of claim, which was admitted in the respondents' amended defence. Relevantly, paragraph 31(b) pleads: 31. Of the proceeds of sale [of the boat]: … (b) $9,790.00 was paid to Private Equity Financial Services Pty Ltd … 5 I reject this first ground. For present purposes, the critical fact in issue is not the amount that was paid to Private Equity but rather what work it performed to justify that payment. The invoice is plainly relevant to that issue, evidenced by, among other things, Mr Martin's second ground, to which I will now turn. 6 On his second ground, Mr Martin submitted that the "previous representation" or "asserted fact" (using the terminology in s 59 of the Evidence Act) contained in the invoice was the statement under the heading "description", as follows: DESCRIPTION Collection and repossession of boat. Negotiation with landowner to take possession. Transport to 3/34 Enterprise Street, Cleveland Renegotiation of finance with Yamaha Finance Organising payout of Yamaha Finance Liaison with Auctioneering Link for sale of boat (Emphasis in original) 7 Mr Martin submitted that the admission of this representation as evidence of the work purportedly performed by Private Equity, without him being able to cross-examine Mr Levis, the director of Private Equity, about the representation, would be quite unfair to the applicant. In this respect, he also relied upon s 135 of the Evidence Act to submit that, if the invoice were to be admitted as a business record, I should nonetheless refuse to admit it using my discretion under that provision. He submitted that the probative value of the invoice was substantially outweighed by the above-mentioned unfairness to the applicant. I will come back to this submission at the end of this ruling. 8 The issue to which the previous representation or asserted fact is relevant was, according to Mr Martin, that pleaded in paragraph 38 of the amended statement of claim as follows: 38. Private Equity was not entitled at any time to: (a) any part of the proceeds of sale of the boat; (b) be paid anything by the applicant. 9 This fact is not admitted by the respondents in their amended defence and, in submissions, Mr Erskine did not seek to challenge Mr Martin's submission that it is a live issue to which this representation may be relevant. I therefore accept Mr Martin's submission that the representation in the invoice is relevant to that issue. I also accept Mr Martin's submission that the business referred to in s 69(1)(a) of the Evidence Act is one and the same business as that referred to in s 69(1)(b): see Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 (Air New Zealand) at [44] per Perram J. 10 However, I do not accept the remainder of Mr Martin's submissions on this second ground. In my view, they fail to address the different purposes of s 69(1)(a) and s 69(1)(b) and, more importantly, the two alternatives that are open under the latter, which raise a different distinction between the businesses that are potentially engaged. As to the different purposes, s 69(1)(a) is directed to the way in which the document is recorded in the business concerned, whereas s 69(1)(b) is directed to the contents of the document in question, specifically the previous representation contained in it and how, or why, that representation was made in the document. It is the how, or why, the representation was made in the document that gives rise to the alternative expressed in s 69(1)(b), which I alluded to earlier. 11 Under s 69(1)(b), the representation can be made or recorded in the document in the course of the business - that is, how it comes into existence - or it can be recorded in the document for the purposes of the business - that is, why it comes into existence. In many circumstances, if not most, the means by which, and the purposes for which, the representation comes into existence will exclusively serve the same business, that is, the representation will be prepared in the course of a business and be solely for the purposes of that business. However, in some circumstances, the representation will be prepared in the course of one business and be partly prepared for the purposes of that business and partly for the purposes of another business. 12 Invoices are a classic example of this: see Air New Zealand at [48] and Tasmania v Tu Ai Lin (2011) 225 A Crim R 1; [2011] TASSC 54 at [27]-[29] per Evans J. 13 This is so because invoices are almost invariably prepared in the course of the business of A, for example, an invoice which describes the work A claims to have performed and the amount it claims to be owed for that work. And they are almost always prepared for the dual purposes of the business of A and the business of B, that is, the business for whom A did the work and to whom it usually sends the invoice. 14 That was so in this case. The invoice in question was prepared in the course of the business of Private Equity for the dual purposes of its business and the business of Auctioneering Link. In the latter respect, it therefore meets the requirements of s 69(1)(b). It follows that Mr Martin's second ground of objection must also be rejected. 15 It is appropriate to add that the paragraphs of the affidavit of Mr Khoury referred to above establish that the invoice, once it was received by Auctioneering Link, became part of the records kept by Auctioneering Link. Accordingly the invoice also meets the requirement of s 69(1)(a) of the Evidence Act. 16 Since it meets all the requirements of a document to which the exception in s 69(2) of the Evidence Act applies, I consider it is admissible as a business record under those provisions. 17 As to Mr Martin's alternative reliance on s 135 of the Evidence Act, I consider that Mr Erskine is correct in his submission that the unfairness raised by Mr Martin can be more appropriately dealt with in the weight I ultimately give to the representation in the invoice. In reaching this conclusion, I have taken into account the decisions on s 135 that question whether the inability to cross-examine on a hearsay representation in a business record constitutes unfair prejudice for the purposes of that section, because if that proposition were to be accepted, the exceptions to the hearsay rule would be significantly negated, if not rendered nugatory: see the authorities discussed in Odgers S, Uniform Evidence Law (10th ed, Thomson Reuters, 2012) pp 792-793. 18 Further, I do not consider that, in the circumstances of this case, the unfairness of not being able to cross-examine Mr Levis "substantially" outweighs the probative value of the representation in the invoice about the work undertaken by Private Equity. For these reasons, I do not propose to exercise my discretion under s 135 of the Evidence Act. 19 I will therefore allow the tender of the invoice as a business record of Auctioneering Link. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.