Australian Competition and Consumer Commission v Air New Zealand Limited

REASONS FOR JUDGMENT 1 The Commission seeks to tender certain parts of magazines produced by Singapore Airlines and Cathay Pacific to prove the truth of the statements contained therein. These magazines are promotional journals dealing with cargo and topics that are, to a greater or lesser extent, cargo-related. It is accepted that this is a hearsay use of the material and that, subject to the operation of s 69 of the Evidence Act 1995 (Cth), the extracts are inadmissible for that purpose by reason of s 59(1). For completeness, it is to be noted that I have admitted certain other parts of the magazines on a non-hearsay basis (Australian Competition and Consumer Commission v Air New Zealand Limited (No 2) [2012] FCA 1363 at [20]-[26]), but that presently has no relevance. 2 The question which arises under s 69 is whether the magazines are, or form 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'. There is no dispute that Singapore Airlines and Cathay Pacific are conducting businesses within the meaning of the Act. The argument of the Commission is that it may be inferred from the fact that the magazines were produced by each relevant airline that they formed part of its records. 3 I am prepared to infer that each airline kept a copy of each edition of its cargo magazine for archival purposes. Further, it is difficult to avoid the conclusion that, in keeping each copy of the magazine for that archival purpose, this was done for the purposes of its business. Those observations, which are I think irresistible as a matter of common sense, formed the basis of Mr Halley SC's submission that this was sufficient to constitute each magazine as a business record. In this regard, he reminded me of my own words in Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 at [50]. There, in the course of discussing whether one business' records could form part of the business records of another business (answer: yes), I said this: 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. 4 Here, so Mr Halley submitted, an affirmative answer to those questions led unavoidably to the conclusion that the magazines were business records. 5 I raised with Mr Halley what appeared to me to be an undesirable consequence of his argument. This was that it had the effect that the output of any publishing company - including, for example, a tabloid newspaper - would be business records. Since preparing these reasons, it has also occurred to me that it would be likely to apply to internet publications. The idea that all such records would be business records (and, therefore, capable of being evidence of the truth of the representations contained therein) is perhaps a surprising one. 6 Mr Halley sought to allay these concerns by submitting that there was a difference between a mainstream publishing company, such as a newspaper publisher, and a publisher who publishes only as a collateral aspect of some other business. In this case, if the distinction be sound, there is a difference between tendering a magazine about cargo produced by an airline and a newspaper produced by a general media outlet. 7 I accept, of course, that there is a difference between the two examples, but I do not think, ultimately, that it is a relevant difference so far as s 69 is concerned. As I understood it, the nub of the argument was that, where a publication is a collateral aspect of a business, then there are good reasons to believe that the ensuing publication will be reliable, proceeding as it will from an organisation which can be expected to be informed about its subject matter. Thus, to take the example of the present case, one might legitimately expect that an airline in the cargo business would be more likely to make accurate statements about cargo-related matters than one might expect of a general news publisher. 8 That concern, however, is more likely to bite at the level of s 69(2) which provides: 69 Exception: business records … (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. 9 That is, the lack of personal knowledge in the person making the representation (scil: the journalist) impacts at the level of the representations contained in a business record rather than at the level of whether what is present is a business record. 10 Of course, to reject Mr Halley's argument that there is no analogy between magazines published by businesses whose principal business is not publication and magazines or newspapers published by those whose business is, is not to reject his principal point. What it does mean, however, is that the conclusion that a magazine or newspaper is a business record of the publisher is likely to have far-reaching and apparently unpalatable consequences. 11 The efforts of counsel were only able to unearth two decisions in which this topic has been discussed. In the depressingly entitled decision in Roach v Page (No 15) [2003] NSWSC 939, Sperling J was confronted with an extract from the July 1995 edition of the 'Australian Mushroom Growers' Association Journal'. The particular article (described by his Honour as an 'advertorial': [2]) referred, in positive terms, to a particular brand of peat and its suitability for the purpose of growing mushrooms. The author was on the editorial committee of the journal and was a member of the staff of the company that supplied the peat (Campbell's). Counsel for the plaintiffs sought to tender the article on grounds which included the fact that it was a business record. 12 Sperling J rejected this argument as follows (at [5]-[8]): 5 The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties. 6 On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business. They are the product of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business. 7 It was submitted that the document was part of the records of the Australian Mushroom Growers' Association Limited (the publisher), of Campbell's (it being submitted that they would have retained a copy of it) and / or of the State Library of New South Wales (to be inferred, it was said, from the ISSN number recorded in the publication). For the reasons I have given, the document did not qualify as constituting part of the records of any of these entities within the meaning of the section. 8 The approach may be tested in a commonsense way. It cannot have been intended that newspapers, magazines and journals (publication of any kind produced and / or received in the course of a business undertaking) would be evidence of whatever was stated in them. 13 The critical feature in this reasoning is the distinction it draws between the documentary products of a business (such as magazines and journals) and records which record the business' activities. (This distinction has also been drawn in relation to the statistics published by the Australian Bureau of Statistics, which Glynn J found were not the business records of the Bureau in Murray v Rentworks Ltd (No 5) [2003] NSWIRComm 54 at [39]-[48].) 14 Sperling J returned to the same theme in the second decision to which I was referred, the alarmingly entitled Roach v Page (No 27) [2003] NSWSC 1046, in the course of rejecting the tender of extracts from certain websites operated by Irish and Dutch peat exporters. Undaunted by defeat in Roach v Page (No 15), the plaintiffs sought to argue that the websites were the business records of the peat exporters. In adhering to his prior ruling, Sperling J said (at [9]-[12]): 9 So far as is presently relevant, it is the recording of business activities in the course of carrying on the business which is critical. The publication of a book by a business providing a history of the business may record details of the business carried on but it is not a "record of business" within the meaning of s69. Similarly, a flyer or a media advertisement or a website publication, extolling the virtues of the business in the way such publications do, is not a record of a business merely because it purportedly records activities of the business. 10 It is necessary to place such a restrictive construction on s69 because it cannot have been intended that publications of this kind would qualify, any more than it would have been intended that - in the ordinary course - books, magazines or newspapers published by the business would be covered by that section. 11 The thinking behind the section is clear enough. Things recorded or communicated in the course of the business and constituting or concerning business activities are likely to be correct. There is good reason for the courts to afford to such records the same kind of reliability as those engaged in business operations customarily do. The same is not true of publications made for wider dissemination, for entertainment, for advertising or for public relations purposes. Such publications are justifiably received with healthy scepticism. 12 The publications now tendered are not business records within the meaning of s69. 15 Mr Halley accepted, correctly in my opinion, that he was obliged to argue that these decisions ought not to be followed because they were, in the requisite sense, 'plainly wrong'. But I do not think that the conclusions of Sperling J are wrong at all, still less plainly wrong. They have been cited on a number of occasions: see Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 at [133] per Middleton J; National Telecoms Group Ltd v John Fairfax Publications Pty Ltd (No 1) [2011] NSWSC 455 at [70]-[71] per Davies J; Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 at [39] per Gzell J; McMahon v John Fairfax Publications Pty Limited (No 4) [2012] NSWSC 216 at [18]-[33] per McCallum J; and Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675 at [101] per Collier J. It may be admitted that it may be possible, at the level of theory, to imagine a document appearing to have the qualities both of a recording of the information of a business and also of a publication and that, in such cases, some care may be required. Compare, for example, (a) the status of a copy of the accounts of a company sent from an email account maintained by the company with (b) a copy of a publication such as a magazine, in pdf or similar format, sent by similar means: see Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) at [53]-[60]. The answer to that conundrum may not be straightforward. In any event, generally speaking, the published output of a business by way of journal, website or other literary form will not be a business record. 16 It was for those reasons that I rejected the tender of the magazines for hearsay purposes. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.