Third objection: minutes of BAR-CSC, EC and SWG meetings
40 AirNZ submitted that the minutes of these meetings did not fall within the business records exception to the hearsay rule in s 69 of the Evidence Act. In a nutshell, the submission was that the HK BAR-CSC and the EC and SWG were not businesses and that the mere fact that Cathay Pacific appeared to have had possession of the minutes did not mean that they formed part of a record or records kept by it. An allied submission was that, where the minutes contained statements such as '[i]t was agreed that the surcharge would be increased', the word 'agreed' was an inadmissible opinion not rescued from inadmissibility by being in a business record.
41 Section 69(1) and (2) of the Evidence Act provide:
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.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
42 It was not put in dispute on the present argument that the minutes in question had been produced by one or more airlines in response to various compulsory notices. I was told that the minutes had been retrieved in each case from the relevant airline's stored data. It is clear that the minutes were distributed to the airlines by email and I infer from the fact of production that each airline kept the emails received by its staff, at least for some period of time. I do not know whether - as is likely in most organisations - they were later archived on less expensive storage media or whether they persisted on the relevant airline's servers. But the relevant point is that the emails and their attachments had been stored by the relevant airlines.
43 About this Mr Owens had two slightly different arguments. The first was that the reference in s 69(1)(b) to something being recorded in a document for the purposes of a business meant that the recording had to be done by the business or entity whose business the records were said to belong to. In this case the preparation of the minutes was carried into effect by the HK BAR-CSC, the EC and SWG so that it could not be accepted, on this view, that the minutes had been recorded by an airline for the purposes of s 69(1)(b). The second argument assumed that a record prepared by a third party might nevertheless satisfy the requirements of s 69(1)(b) but pointed to the requirement in s 69(1)(a) that the records form part of the records belonging to or kept by a business. Here the contention was that mere receipt by an airline of an email attaching minutes was not sufficient to constitute either as a record of or kept by a business.
44 I do not accept the first argument. I do accept Mr Owens' submission that the business referred to in s 69(1)(b) must be the same as the business referred to in s 69(1)(a). The exception to the hearsay rule in s 69(2) only applies to the representation referred to in s 69(1)(b) so that it follows that s 69 will be of no utility even where a business record under s 69(1)(a) is accepted to exist unless the representation contained in the document which is sought to be tendered is of the kind described in s 69(1)(b), that is, it must be 'made or recorded in the document in the course of the business, or for the purposes of the business'. That requirement is not new, having first appeared (albeit worded slightly differently) in Part IIC of the Evidence Act 1898 (NSW) after 1976 and Part IIIA of the Evidence Act 1905 (Cth) after 1978: see Evidence (Amendment) Act 1976 (NSW), sch 4; Evidence Amendment Act 1978 (Cth), s 3.
45 It is clear that a representation made by a third party can still be said to be 'for the purposes of the business'. The learned author of the 8th Edition of Cross on Evidence (JD Heydon, LexisNexis Butterworths, 2010) notes that a valuation report prepared for a business would contain representations which were made for the purposes of the business: see [35215] (although quaere whether such a statement of expert opinion could be a representation about a fact under s 69(2)). The learned author also notes the decision of Needham J in Re Marra Developments Ltd and the Companies Act [1979] 2 NSWLR 193 at 205-206 which appears to deny the view that such a third party document would engage s 69(1): 'I do not think that statements by outsiders, such as an officer of the Bank of New South Wales, relating to matters which are of interest to Partnership Pacific Ltd can be said to have been made in the course of, and for the purposes of, that business. Therefore, I do not think that this document is admissible'.
46 There is a similar statement by Franki J in Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 659:
In general, a statement of fact in a letter from A to B found in the files of B is not admissible as a business record of B merely because it was filed and kept by B. This is because statements in the letter are not made in the course of, or for the purposes of, B's business.
47 Despite those two statements, I agree with the observations of the learned author of Cross that an outsider may make a representation 'for the purposes' of a business even though separate from the business in question. And, indeed, Drummond J accepted as much in Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595 at 598-599. He doubted whether Franki J had truly meant what he said in the quotation above (noting that, a few lines later, Franki J may have accepted that a third party invoice might fall within s 7B(1)(b) of the Evidence Act 1905 (Cth)). In any event, if Franki J had said that, Drummond J thought it was wrong. He explained (at 599):
However, the question of admissibility of a document under s 7B [i.e. the predecessor to s 69] will depend in large part upon the nature of the document in question. There is a difference, it seems to me, between an invoice and a letter received by a business from an outsider. If the evidence shows that in the case of an invoice, for example, it was kept in a file of invoices sent by outsiders who have supplied goods and services to the business and that the invoice purports to record the supply of goods or services of a kind commonly used by the business in the course of its activities, that would, I think, be sufficient to satisfy s 7B(1)(b) [i.e. s 69(1)(b)]. Such a document could fairly be said to be made for the purposes of the recipient business although it was also made in the course of and for the purposes of the other business that supplied the goods or services listed in the invoice.
48 This approach seems, with respect, to have much to commend it. It is not unnatural to think of the statements contained in an invoice as being created by the entity issuing it not only for the purposes of its own business but also for the purposes of its intended recipient.
49 This is consistent with the approach taken in Cross and also with the decision of Evans J in State of Tasmania v Lin [2011] TASSC 54 at [27]-[29].
50 The question in each case will, therefore, be twofold. First, was the representation made or recorded in the document 'in the course of the business'? Secondly, was it made or recorded 'for the purposes of' the business? The first inquiry will largely devolve to an examination of the business involved. But the second will invite consideration of the purposes of the business which made the representation and here it should be accepted that one business may intend its documentary output to serve a record keeping function for other businesses. Invoices and receipts will be the paradigm examples.
51 The documents in question here are minutes of the HK BAR-CSC, the EC and the SWG. The purpose of a minute of a meeting is twofold. It performs a role as the official record of what occurred at the relevant meeting for the purposes of the organisation constituted or administered by the meeting in question. But it also serves a secondary purpose; as an official record of what occurred at the meeting for the persons attending the meeting or, as will often be the case, the organisations they represent.
52 That observation means that each of the minutes involved contains representations which were included in them, not just for the purposes of the BAR and its committees, but also for the purposes of the airlines who were the BAR's members. Accordingly, I reject Mr Owens' first argument.
53 I turn then to Mr Owens' second argument, that the minutes did not form part of the records 'belonging to or kept by the business'. It is useful initially to assume that the business here is the business from whose electronic records the minutes were retrieved. I struggle to see how electronic records recovered from an airline can be said not to be 'kept by' that business. But AirNZ submitted that support for this proposition could be found in TNT Management and Tubby Trout.
54 I do not think TNT Management assists. It was concerned with whether an outsider's document contained statements which could be said to have been made 'for the purposes' of the outsider's business. I do not read it as being directed to whether such a document is itself a business record of the receiving party.
55 On the other hand, AirNZ is assisted to some extent by Tubby Trout. It is plain that Drummond J explicitly considered the question in that case of whether a letter received by a firm from another firm was a record of the receiving firm's business (the question posed, at the time, by s 7B(1)(a) and, now, by s 69(1)(a)). Drummond J did not accept that mere possession of a document by a firm was sufficient to constitute the document possessed a record (at 597-598):
In my view, for s. 7B(l)(a) to be satisfied it is not enough that a document is in the possession of the operator of a business and it is not enough that the letter in terms deals with topics relevant to the conduct of that business. If the position were that the letter were received and passed on to [the recipient's] solicitors for advice and then retrieved for the purposes of the discovery exercise, it would not, as a matter of fact, be able to be said to be part of [the recipient's] records. If it was simply kept by the recipient in its office and not incorporated in some form of record system, similarly I do not think it could be said, as a matter of fact, that the letter formed part of a record of the business of [the recipient]. It is the fact that a document can be shown to be part of a store of information that can be said to be the records of a business that provides a sufficient acknowledgment by the operator of that business of the document's reliability as a record of facts concerning the business that justifies the use in evidence of otherwise inadmissible hearsay.
56 So one would not expect a copy of a newspaper kept at a business' reception to be a record in this sense. And, although I do not need to decide it, there may be many items of correspondence received by a firm which do not get filed and hence do not ever form part of a record. Advertisements for office stationery, invitations to Christmas parties and thank you notes are all examples of the documentary correspondence received by a business which would not normally be expected to be business records.
57 The question of email, however, is somewhat different. Because the email system is built on a highly formalised file system, all the communications which take place over it are kept, at least for some time, and often permanently. In that sense they are records and, where an email system is maintained by a firm, it is natural to see the records thus maintained as records of that business. Textually, it is difficult to see that records of that kind are not ones which are 'kept by' a business, the critical wording in s 69(1)(a).
58 Although there seems to be no direct treatment of this question, the modern practice of courts in relation to email points in this direction. It is known that 'kept by' in s 69(1) means 'retained or held': ASIC v Rich (2005) 191 FLR 385; [2005] NSWSC 417 at [190] per Austin J; Roach v Page (No 15) [2003] NSWSC 939 at [5] per Sperling J; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [122] per Barker J. This has led to the assumption - implicit until AirNZ submitted to the contrary - that emails are records retained by a business: see, for example, ASIC v Rich (2005) 54 ACSR 28; [2005] NSWSC 471 at [42]-[44] per Austin J; Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 at [12] per Bathurst CJ (Allsop P concurring) and especially at [18] where Macfarlan JA said that he thought that 'it should be inferred that a copy of that email was retained by [the company], for at least a short period, as part of the records of its business'; see also Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 4) (2011) 194 FCR 479 at [10] per Collier J; Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978 at [20] per Harrison J.
59 Of course, not every email sent or received by an employee to or from his or her work email address will be for work purposes but this does not mean that it ceases, as a result, to be a business record. One justification for email retention is to ensure and/or encourage responsible email use and this, by itself, is probably a purpose of the business. In practice, the communications contained in a personal email from a work address are unlikely to satisfy the requirements of s 69(1)(b); that is, the representations contained in them will not have been made in the course of or for the purposes of the business, but this does not mean that they are not business records.
60 In those circumstances, I conclude that emails received by a firm (including attachments) that are stored even for a brief period by the firm are business records. I infer that the minutes in question were so stored because of the fact of their retrieval. In those circumstances, I accept that the minutes of the HK BAR-CSC, the EC and the SWG are all business records containing representations which, in principle, satisfy the requirements of s 69(1)(b).
61 I reach that conclusion for another reason, too. The HK BAR is a business within the meaning of s 69. From the documents I have been taken to concerning the HK BAR, it is apparent that one of its functions is to provide a forum for members to discuss issues of concern to the international airline industry in HK. It also lobbies on behalf of airlines with the CAD and makes applications on the airlines' behalf. This is plainly an 'undertaking' within the meaning of cl 1(1)(a) of the definition of a 'business' in the Dictionary to the Evidence Act. It does not matter that it is not conducted for profit or that it is conducted overseas: cl 1(2). Each of the HK BAR's subcommittees are, in consequence, part of the same business. All that being so, the records of the HK BAR (and its various committees) are records created for the purpose of the HK BAR's business.
62 Mr Owens then submitted that, even if that were so, s 69(1) did not have the effect of rendering statements of opinion appearing in the minutes as admissible. He gave as an example a sentence in one set of minutes (ACCC.009.097.0125) which contained this statement; 'Member airlines agreed that there would be no reduction to the ISS charge'. It was said that the word 'agreed' was a statement of opinion, that s 69 applied only to asserted facts and, therefore, that it was inadmissible. It was also submitted that, quite apart from that problem, the requirements for the receipt of lay opinion evidence had not been satisfied.
63 A considerable body of first instance decisions have concluded that an opinion as to the existence of a fact falls within the scope of the term 'asserted fact' in s 69: ASIC v Rich (2005) 191 FLR 385 at 433-434; [2005] NSWSC 417 at [206]-[207] per Austin J; Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [3] per White J; Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2012] NSWSC 177 at [95] per Stevenson J; Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 at 573 per Hely J; Supetina Pty Ltd v Lombok Pty Ltd (1984) 5 FCR 439 at 442 per Spender J; Investmentsource v Knox Street Apartments [2007] NSWSC 1128 at [19]-[21] per McDougall J; Street v Luna Park Sydney Pty Limited [2007] NSWSC 688 at [5] per Brereton J; SPAR Licensing Pty Ltd v MIS QLD Pty Ltd (No 2) [2012] FCA 1116 at [238] per Griffiths J.
64 I should not depart from this view of s 69 unless persuaded that it is plainly wrong. I am not of that view. It is true that French CJ, Heydon and Bell JJ described this approach to the construction of s 69 as a 'little strained' in Lithgow City Council v Jackson (2011) 244 CLR 352 at 362 [11], but I reject the submission that that statement should be characterised as considered dicta of the High Court binding on me. I take that course because in the same paragraph their Honours also said:
However, it was not argued in this Court that the authorities which state that "asserted fact" includes an opinion in relation to a matter of fact are wrong. It is not necessary further to deal with this point, which the parties did not debate at any stage.
65 I would not, in any event, accept that the mere fact that an interpretation is 'strained' means inevitably it is wrong. Here the legislation was always intended as a beneficial reform. If 'asserted fact' does not extend at least to lay opinion as defined in s 78 then an important, reliable and common form of business record will be inadmissible. For example, a building site log recording that the site is 'slippery due to rain'; a hotel incident report that a patron was 'drunk'; a police pocket note that a person was 'angry' and so on.
66 I reject also the submission that the word 'agree' did not satisfy the requirements of s 78. It was not suggested that s 78 was inapplicable to non-testimonial evidence, an issue foreclosed by Lithgow. Instead the debate was whether s 78 was satisfied: It provides:
78 Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
67 It was submitted for AirNZ that, in the present case, the exemplar lay opinion outlined at [62] was not 'necessary to obtain an adequate account or understanding of the person's perception of the matter or event' (that is, s 78(b) was not satisfied). The ACCC submitted that this approach was contrary to the way the High Court had approached the critical minutes in ASIC v Hellicar [2012] HCA 17 at [69] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at [210] per Heydon J where the minutes had recorded that the critical press release had been approved and where the High Court said that those same minutes had been admitted as business records.
68 I am not sure that too much can be drawn from that, as the issue was not argued in Hellicar.
69 The approach to be applied by me is dictated by the language of s 78 and the High Court's decision in Lithgow. The lay opinion rule in s 78 clearly needs to be accommodated to the business records provision in s 69. Should the relaxation in giving testimonial evidence about facts in the form of opinions permitted in court be the same as the analogous relaxation about similar statements in documents? That question, interesting though it may be, is not for this Court. The tasks for me are:
the identification of what the person saw, heard or otherwise perceived (s 78(a));
an inquiry into whether the opinion is necessary to give an account of what he or she saw (s 78(b)).
70 For reasons later to be given, I may draw inferences about these matters from the documents themselves: see below at [92]-[104].
71 On the s 78(a) question, I infer that the author of each minute was present, saw a number of people speak and finally assent to an agreed position. On the s 78(b) question, French CJ, Heydon and Bell JJ in Lithgow at 371-372 [46] approved this passage cited by Wigmore (Evidence in Trials at Common Law (Little Brown, 1978), Vol 7 at 13) from Sydleman v Beckwith (1875) 43 Conn 9 at 12-14:
[O]n the ground of necessity, where the subject of the inquiry is so indefinite and general as not to be susceptible of direct proof, or where the facts on which the witness bases his opinion are so numerous and so evanescent that they cannot be held in the memory and detailed to the jury precisely as they appeared to the witness at the time.
72 In my opinion, the distillation of the events at a meeting leading to agreement are so numerous and evanescent that it would be unrealistic either to require an explication of them in a minute of the relevant meeting or in the testimony of a witness giving evidence as to what happened at the meeting.
73 In those circumstances, I conclude:
(a) the committee minutes contain representations made for the purposes of each member airline's business (and also of the HK BAR);
(b) statements such as 'its was agreed' are admissible as lay opinions under s 78;
(c) such statements are also representations about asserted facts to which s 69 applies; and
(d) the minutes are business records of each airline because they were received as emails on each airline's email system. They are also business records of the relevant BAR.
74 It follows that the various minutes are admissible.