Evidence
63 Evidence in support of the third charge was given by Mr Kiley. As I have mentioned, there were numerous objections taken to his affidavit including various documents exhibited to it.
64 There are a number of provisions of the Act which are relevant to my consideration of the respondent's objections to the various documents exhibited to Mr Kiley's affidavit. In particular, s 48(1), s 55(1), s 58(1) and s 183 of the Act establish the basic framework within which the admissibility of these documents is to be determined.
65 Relevantly, s 48(1) provides:
A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
…
(b) tendering a document that:
(i) is or purports to be a copy of the document in question; and
(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;
…
(e) tendering a document that:
(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and
(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;
…
Section 55(1) provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 58(1) provides:
If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
Section 183 provides:
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:
(a) examine the document or thing; and
(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
66 Mr Kiley gave evidence that he is the General Manager of the Enforcement Brand of the applicant with responsibility for managing investigations into possible contraventions of the Trade Practices Act 1974 (Cth) and for proceedings taken by the applicant with respect to such contraventions. He also gave evidence that he was responsible for managing on behalf of the applicant the proceedings brought by it against the respondent. There was no objection to any of this evidence.
67 Mr Kiley also deposed in para 14 of his affidavit (there was no objection to this paragraph) that:
In the course of performing my functions as General Manager of the Enforcement Branch of the ACCC and in supervising the conduct of these proceedings I have learned that Deep End Investments Pty Limited (Deep End) is a franchisee of the respondent trading from a shop in Loganholme in Queensland. I have also learned that Jade Monkee Pty Limited is currently a franchisee of another Allphones franchise store.
68 On the basis of the evidence in para 14 of Mr Kiley's evidence I am satisfied that Deep End was a franchisee of the respondent trading from a shop in Loganholme Queensland at the time he made his affidavit in August 2009. The evidence he gave to that effect was not the subject of any challenge. I am also satisfied on the basis of that evidence that Jade Monkee Pty Limited (Jade Monkee) was, in August 2009, the franchisee of another Allphones franchise.
69 A company search which is in evidence shows that Trevor Anthony Mann was appointed a director of Deep End Investments Pty Ltd (Deep End) on 26 April 2005 and that Megan Mann was also appointed as a director of Deep End on 4 May 2005. Neither Mr Mann nor Ms Mann gave evidence.
70 This brings me to those parts of Mr Kiley's affidavit which were objected to by the respondent and which were received by me subject to the respondent's objections. In para 16 of his affidavit Mr Kiley states that "Deep End has provided the ACCC with the following documents". In paras 17-24 (inclusive) Mr Kiley exhibits various copies of the various documents which he says were provided to the applicant by Deep End. The respondent objected to paras 16-24 (inclusive) and I will now explain why in my opinion these paragraphs (and the documents referred to in them) are, subject to one exception (para 19 and the draft deed of assignment), admissible.
71 The first of the documents exhibited by Mr Kiley in the paragraphs of his affidavit which are objected to is what he says is a copy of the franchise agreement between Deep End and the respondent. I make the following observations in relation to this document.
72 First, the document appears to be a franchise agreement made between the respondent and Deep End, signed on 23 May 2005. What appears as the execution page of the document bears the signature of a person who I infer to be Matthew Donnellan. As I have already mentioned, Mrs Houghton's franchise agreement, which is in evidence, was also signed by Mr Donnellan. It and other evidence, including a company search of the respondent, establishes independently of what appears in the document that Mr Donnellan was, at all relevant times, a director of the respondent. The document also appears to have been signed by Mr Pompeii who was, as I have previously found, also a director of the respondent.
73 Mr Kiley's evidence is that the copy of what he identified as the franchise agreement between Deep End and the respondent was given to the applicant by Deep End. His evidence on that point is unhelpfully lacking in detail. On the other hand, Mr Kiley obtained the documents from somewhere and I think the evidence in para 16 is admissible to explain where they came from. In any event, and even in the absence of what appears in para 16, I consider that I am entitled to look at what Mr Kiley asserts is the franchise agreement between Deep End and the respondent in light of other evidence for the purpose of ascertaining whether or not the document is what Mr Kiley asserts it to be. Other evidence which is particularly relevant on this question includes the evidence of Mr Donnellan's and Mr Pompeii's position within the respondent at relevant times.
74 The document also appears to have been signed on behalf of Deep End by a director by the name of Trevor Anthony Mann which, as other evidence establishes, is the name of one of the directors of Deep End. It also appears to have been signed on behalf of Deep End by another person, also described as a director, by the name of Megan Trestrail. The company search of Deep End which is in evidence indicates that there were various documents received by ASIC in April and May 2006 advising of (inter alia) "Change to Officeholder Name or Address". There is also other evidence which suggests that Trevor Mann and Megan Mann are husband and wife. For example, the company search shows that they live at the same address. In the circumstances I infer that Trestrail is a former name of Megan Mann who, with Trevor Mann, are the directors of Deep End who signed the document on Deep End's behalf.
75 The document includes a schedule which specifies a commencement date of 1 June 2005. The term of the Deep End franchise agreement is stated in the schedule to be five years from the commencement date. The schedule identifies the franchised premises as a shop situated in Loganholme, Queensland.
76 The respondent's objection to the document which Mr Kiley identified as the franchise agreement, and the other documents exhibited to his affidavit to which the respondent took objection, was the subject of a detailed submission. In summary, the respondent argued that there was no evidentiary basis for finding that the documents in question are what they purport to be or that they are what Mr Kiley asserts them to be. In support of that submission the respondent relied upon the decision of Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309.
77 The respondent submitted that a proper application of the rules of evidence requires that the applicant adduce evidence to positively prove that all the documents exhibited to Mr Kiley's affidavit are what he asserts them to be and that they were sent and received by the persons identified within them and that this occurred on the dates identified in those documents. It was submitted that Mr Kiley is not able to give this evidence and what he has done is draw inferences from what appears on the documents and sought to put his own conclusions forward as evidence of fact. The respondent submitted that, to the extent that the contents of the documents were relied upon as evidence of these matters, such reliance is precluded by the hearsay rule.
78 So far as the business records exception to the hearsay rule created by s 69 of the Act is concerned, the respondent relied on what was said by Bryson J in Rusu at [17]:
Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the common law and under statutes for public registers and for many kinds of documents when certified in various ways: and see the method of proof provided in some cases by s 170 and s 171 of the Evidence Act 1995. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business' records, or can recognise it as one of the records of the business.
79 Rusu has been both approved and doubted in various cases that were analysed by Austin J in Australian Securities and Investment Commission v Rich (2005) 216 ALR 320 at paras [95]-[121]. At paras [116]-[118] Austin J said:
116. It would be absurd, according to Bryson J in Rusu (at 315), for the law to dispense on a general basis with the need to prove the authenticity of a document, for that would "put the court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect". On the other hand, it is important not to set the bar too high for the authentication of documents, because if too much is demanded, the authentication requirement will fight against the policy underlying the business records provisions which, as Hope JA remarked in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 (at 548), is "of great importance in the search for truth". That policy recognises that any significant organisation depends for its efficiency upon the keeping of proper records, to be used and relied upon in the everyday carrying on of the activities of the business and therefore likely to be accurate, and "likely to be a far more reliable source of truth than memory": Albrighton at 548-9 per Hope JA; see also Australian Law Reform Commission, Interim Report on Evidence, Report No 26, vol 1, at [709]. It is reflected in the terms of s 69, which makes hearsay representations in business records admissible without requiring evidence from their authors.
117. The law responds to these competing concerns in a commonsense way, bearing in mind the distinction between authentication and the weight or probative value of the documents. In Rusu, Bryson J did not deny that inferences may be drawn from the document itself, relevant to the question of authenticity. Apart from s 58(1), there is express statutory authority to do so in s 183, when a question arises about the applicability of a provision of the Evidence Act. But Rusu insists on the need for authenticity to be established, and asserts that authentication cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance. The other cases do not deny these propositions, in my opinion.
118. Hidden J's reasoning in New South Wales Crime Commission v Trinh [2003] NSWSC 811, distinguishing between authenticity and accuracy, identifies part of a wider distinction, between matters of authenticity going to the adducing of evidence, and matters going to the credibility and weight of documentary evidence once it has been authenticated and judged admissible. Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves …
80 In the present case the applicant does not simply rely upon the contents of the documents themselves for the purpose of establishing their admissibility and it does not suggest that the documents "prove themselves". It relies upon other evidence in support of its contention that the documents are what they purport to be. It asks me to examine the documents in question and draw inferences as to their identity and authenticity in light of the other evidence. As explained by Austin J in Rich, the decision in Rusu does not preclude this approach.
81 I have decided that what Mr Kiley describes as a copy of the franchise agreement between Deep End and the respondent is admissible and that the document is what it purports to be. In particular, I am satisfied, on the balance of probabilities, that the document is admissible under s 48(1)(a) and (e) of the Act. In coming to this conclusion I have had regard to the fact that the proceeding in which the document was tendered is a proceeding for contempt of court which is, of course, a serious matter. I am also mindful of the fact that the document is a critical part of the evidence upon which the applicant relies in support of the third charge. Nevertheless, taking those matters into account, I am well and truly persuaded that the document is what it purports to be and that it ought to be admitted as such.
82 There are other documents exhibited to Mr Kiley's affidavit to which the respondent objects which are also critical to the third charge. They are the three letters said to have been sent by e-mail dated 13, 16 and 20 February 2009 respectively which are referred to in the particulars to the third charge. Each of them appears to be on the letterhead of the respondent and to have been signed by Ms Silbert who again describes herself in each letter as "General Counsel".
83 I am satisfied that each of the letters is admissible under s 69 of the Act. There is other evidence before me, including the letter from Ms Silbert to Mrs Houghton, which satisfies me that what appear to be letters sent by Ms Silbert to Deep End on or about 13, 16 and 20 February 2009 are likely to be what they purport to be. In my view each of them is admissible.
84 I am also satisfied that the document which appears to be a letter sent by HopgoodGanim Lawyers (HGL) to Ms Silbert, copied to Mr Mann, dated 19 February 2009 is also admissible as a business record under s 69. In arriving at this conclusion I have had regard to the letter written by Ms Silbert dated 20 February 2009. Ms Silbert's letter of 20 February 2009 is addressed to HGL and in the first paragraph of her letter Ms Silbert herself refers to HGL's letter of 19 February 2009.
85 Another document exhibited to Mr Kiley's affidavit to which objection was taken is what appears to be a copy of a draft Deed of Assignment between Deep End and Jade Monkee. The correspondence between HGL and Ms Silbert which I referred to suggests that there may have been various versions of this document. When this particular version was created, or whether it was even sent to the respondent, is not disclosed in the evidence save for in para 19 of Mr Kiley's affidavit. In these circumstances, I am not satisfied that para 19 of his affidavit is admissible nor am I satisfied that the document referred to therein is relevant in the absence of admissible evidence that it was sent. Accordingly, I do not think it is admissible.
86 The only other documents referred to in Mr Kiley's affidavit to which objection was taken (see para 22 of his affidavit) appear to be copies of e-mails between Ms Silbert and "Trevor" sent on 16 February 2009. The "Trevor" referred to is clearly a reference to Mr Mann. These e-mails are also admissible under s 69. One such e-mail sent by Ms Silbert to Mr Mann attaches what is described as "Allphones disclosure document_31Oct2008.pdf". Mr Kiley has also exhibited to his affidavit a copy of that document. It is dated 31 October 2008 and signed by Matthew Donnellan. I am satisfied this document is also admissible under s 69 of the Act.
87 In summary, with the exception of the draft Deed of Assignment referred to by Mr Kiley in para 19 of his affidavit, I am satisfied that each of the documents referred to by him in the remaining paragraphs that were objected to (paras 17-18 and 20-24) are admissible. I will also admit into evidence each of the paragraphs of Mr Kiley's affidavit which refers to these documents but solely on the basis that these paragraphs conveniently record what Mr Kiley asserts the documents to be.