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[2026] NSWSC 1056
Supreme Court of NSW
2026-06-16
Cavanagh J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Baxter v Willis (No 2) [2026] NSWSC 1056
Hearing dates: 16 – 19 June 2026
Date of orders: 16 June 2026
Decision date: 16 June 2026
Jurisdiction: Common Law
Before: Cavanagh J
Decision: Objection disallowed; evidence admissible.
Catchwords: EVIDENCE — admissibility of evidence — exceptions to the hearsay rule — whether a client statement of account produced by a bookmaker is a business record within the meaning of s 69 of the Evidence Act 1995 (NSW)
Legislation Cited: Commonwealth Constitution, s 109
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 31.10
Evidence Act 1995 (NSW), s 69
Civil Procedure Act 2005 (NSW), ss 56, 58
Category: Procedural rulings
Parties: David Baxter (Plaintiff/Cross-Defendant)
Robert Willis (Defendant/Cross-Claimant)
Representation: Counsel:
D Reynolds with J Chen (Plaintiff/Cross-Defendant)
B K Nolan (Defendant/Cross-Claimant)
Solicitors:
Addisons (Plaintiff/Cross-Defendant)
Enyo Lawyers (Defendant/Cross-Claimant)
File Number(s): 2023/159221
HIS HONOUR: The plaintiff, a licenced bookmaker, sues the defendant in relation to an amount said to be owing by the defendant, in respect of bets placed by the defendant with the plaintiff during the relevant period, being 3 November 2020 to 2 October 2022.
The pleading in the statement of claim is relatively simple in that the plaintiff pleads that, pursuant to an agreement between the plaintiff and the defendant, the defendant placed bets with the plaintiff during the relevant period on credit. There are implied terms pleaded. It is then pleaded in par (8) of the statement of claim that as a result of the bets placed on credit by the defendant during the relevant period, the defendant is indebted to the plaintiff in the amount of $1,098,515.94.
There have been a number of versions of the defence, but in what I understand to be the final version of the defence, the defendant makes a number of admissions, including that the plaintiff provided wagering services in Australia and that the plaintiff provided wagering services to the defendant, and also that bets were placed orally via telephone.
In respect of the amount claimed, the defendant admits that the closing balance of his alleged betting account with the plaintiff as at 2 October 2022 shows a balance of $1,098,515.94 and also says the defendant did not receive statements, regular or otherwise, and was unaware of the alleged balance until November 2022, and thus does not admit the veracity of the account.
In the submissions filed on behalf of the defendant, the defendant raises a number of issues as to why the defendant is not liable to the plaintiff, including matters of statutory construction leading to allegations of inconsistency between State legislation and Commonwealth legislation and the application of s 109 of the Commonwealth Constitution.
At the outset of the case, the counsel for the plaintiff, Mr Reynolds, who appears with Ms Chen, provided an outline of the plaintiff's case and also maintained that many of the submissions of the defendant were not matters raised on the pleadings, in particular, pointing to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 14.14 and the requirement to plead the material facts supporting an allegation of illegality.
I asked Ms Nolan, who appears for the defendant, whether she wished to address the issues raised by the plaintiff, but she did not wish to do so.
The hearing then proceeded to the tendering of evidence. The plaintiff relies on a number of his own affidavits. In respect of the first affidavit, dated 6 September 2024, a number of objections have been made, including objections to matters which have been admitted on the pleadings.
The matter of substance which I am dealing with in this judgment is the objection to par (6) of the affidavit dated 6 September 2024, and in particular, the objection to the annexure to the affidavit which purports to be a copy of the defendant's betting statement.
Annexed to the affidavit is over 100 pages of what appear to be records relating to bets placed by the defendant with the plaintiff during the relevant period. The document is headed, "Client Statement 8 July 2020 to 9 November 2022" (“the Client Statement”). Opening balance is $0. The turnover is said to be $26,386,298. There is a closing balance of $1,098,516.
That is the amount which the plaintiff seeks to recover from the defendant. At least on the plaintiff's case, over the relevant period, the defendant placed a large number of bets with his telephone betting service all leading to the net result at the end of the relevant period of a loss of $1,098,516.
The plaintiff seeks to tender the Client Statement to prove his loss.
The defendant objects on a number of bases. In particular, Ms Nolan submits that the document is not a business record within the meaning of s 69 of the Evidence Act 1995 (NSW). Ms Nolan submits that there is a conventional way of proving all these transactions. That is, through system evidence, because it may be that many of the transactions were undertaken through an agent, being a bookmaker’s clerk.
In other words, the person on the other end of the telephone when the defendant was placing his bets was not necessarily the plaintiff. Indeed, Ms Nolan submitted that contrary to the affidavit of the plaintiff, I would not accept that the plaintiff received any of the bets over the phone, I mean personally, as opposed to the clerk who appears to have been employed (not by the plaintiff) to do that work.
The defendant submits that I would not accept that the document is a business record because either s 69(3) applies or I would not be satisfied that s 69(2) applies.
Section 69 is in the following terms:
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.
(3) Subsection (2) does not apply if the representation—
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
(4) If—
(a) the occurrence of an event of a particular kind is in question, and
(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind,
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.
(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).
Notes—
1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of proof, and authentication, of business records.
2 Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records.
As can be seen, s 69(3) provides that s 69(2) does not apply if the representation was either prepared or obtained for the purposes of conducting or in contemplation or in connection with Australian or overseas proceeding or made in connection with an investigation relating to or leading to a criminal proceeding. As is apparent from the section, the section applies to a document. The plaintiff is seeking to tender a document.
However, the section itself refers to the content of the documents being the representations which are made. For example, s 69(2) says that the hearsay rule does not apply to the document, so far as it contains a representation, if the representation was made in the circumstances set out in either pars 69(2)(a) or 69(2)(b).
Subsection 69(3) commences, "Subsection 2 does not apply if the representation” and sets out the circumstances in pars 69(3)(a) or 69(3)(b).
The defendant submits that s 69(3) applies because either the document was prepared or obtained for the purposes or in contemplation of proceedings, or because the essential representation which is relied upon by the plaintiff, being the representation that the closing balance is $1,098,516, was also made, obtained or prepared for the purposes of proceedings.
The basis of that submission is that after the defendant did not pay the amount said to be owing, the plaintiff wrote to the defendant regarding his outstanding balance requiring the defendant to admit that he owed the money, and if not, by 5 November 2022, he said he would commence proceedings.
The defendant responded on 10 November 2022 by email to the plaintiff suggesting he was shocked at the balance of his account, as it was ludicrous that he was allowed to get that level and that he had not been receiving statements and requesting documents from the plaintiff.
Ms Nolan submits that as the document was prepared or obtained after the letter of demand was sent, in circumstances in which the plaintiff plainly contemplated litigation, that s 69(3) would be satisfied. If that submission is not accepted she made a final submission in reply that the representation was a representation as to the amount owing, and that was only obtained, prepared or made after the letter of demand.
To say the least, this is a novel proposition. The idea that a business which provides services to a client cannot rely on its statement of account because it has been prepared, that is, produced from a computer after a letter of demand was served is difficult to accept. As I raised with Ms Nolan, if that logic follows, it may be that banks which seek to sue mortgage holders based on their bank account statements could not rely upon the statements without calling direct evidence as to how they are prepared and who entered the amounts.
Certainly, the document, being the Client Statement, purports to be a compilation of all the information from the plaintiff’s records, and presumably a compilation of all of the weekly statements. The fact that it must have been compiled in the sense of produced, after a letter of demand was sent, does not mean that the document contains a representation which was prepared or obtained for the purposes of conducting or in contemplation with the proceedings or made in connection with an investigation relating to proceedings.
In the modern world, businesses keep their information on computers. When they seek to use that information or are required to have it in hard copy, they print it out. I do not require evidence from the plaintiff to say that this is what occurred. That is the only available inference other than perhaps some concoction or fraudulent behaviour. No submission was made that that has occurred in this case.
In my view, s 69(3) has no application.
The defendant also relies on s 69(2), suggesting that there is no evidence that the representation, being the amount of the bet, the winnings and all those sorts of things as recorded in the document, was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact or on the basis of information directly or indirectly supplied by a person who might reasonably supposed to have had personal knowledge of the asserted fact.
Ms Nolan correctly points out that even on the affidavit of the plaintiff, it is clear that he was not the person who answered every telephone call from the defendant when the defendant was placing a bet. It is thus suggested that he could not be the person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. The asserted fact obviously being all of that, the bet was placed, the amount of the bet, the odds and then the win or loss.
On the voir dire, the plaintiff tendered five telephone recordings of bets made on the first day of the relationship between the plaintiff and the defendant. The defendant objected to those recordings at least in part on the basis that they had not been served in accordance with UCPR, r 31.10. That may be so but as the plaintiff points out, nor had the plaintiff been given notice prior to today that there was going to be any issue about the admissibility of this document.
UCPR, r 31.10 permits the Court to give leave. Even absent compliance with that rule, it is difficult to think of a better circumstance than when a party, contrary to its obligations, does not give notice that it intends to object and then objects on the day. As such, I allowed the tender of the recordings on the voir dire.
They demonstrate that which would seem obvious from the documents, that is, that the defendant would ring up and, in a few words, place a bet. The person on the other end of the telephone line would confirm the race, stake and odds. The defendant would then hang up.
There is an issue between the parties as to why the defendant purports to not know what is on these telephone recordings. A notice to produce was issued on the plaintiff. The plaintiff responded by stating that the telephone recordings were not in their possession, custody or control. The defendant subsequently served a subpoena on Netscape, the third party said to be in possession of the recordings. That subpoena was produced and documents were produced.
I do not understand why they have not been accessed, although Ms Nolan says she was not able to open them on her computer. As I understand the thrust of what is being said by the defendant, it is that in order to prove that the document is admissible, it will be necessary for the plaintiff to prove each representation. It is submitted that even though the telephone recordings might tend to provide proof of the fact that the bet was placed, the plaintiff has not proved through other evidence what the result is.
That is, according to the defendant, the plaintiff is required to produce other evidence, presumably records from the Australian Turf Club or wherever the race was to the effect that the horse on which the defendant bet actually won the race or did not win the race. This would no doubt require the plaintiff to produce evidence of thousands of bets. I do not accept that submission.
It is plain from the recording that the representation, being the amount of the bet and what happened with it contained in the document, is based either on the personal knowledge of the plaintiff or on information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. That is, the bookmaker’s clerk.
Ms Nolan indicated that these matters were seriously in dispute. I then asked whether she had instructions as to any or which of the bets were in dispute. She initially was unable to indicate which of the bets were in dispute but said that the plaintiff was still required to prove that the bets occurred, which is so.
Ms Nolan then indicated that her instructions were that the defendant was drunk when placing the bets. I am not sure of the relevance of that as it is not contained in an affidavit. It has nothing to do with the admissibility of the document.
Evidence must be assessed having regard to the power of the party to prove asserted facts. This is a case in which the plaintiff is relying on his records as to the amount of the bet placed, what the result was and how much was owing at any particular time, all leading to a balance owing of over one million dollars.
The document was not prepared in contemplation of proceedings. It is a statement of account. It is no different, in my view, from any statement of account when someone is seeking to pursue a debt. It just so happens that the plaintiff is a bookmaker. The idea that the plaintiff should be required to prove independently of his own account what the result of each race on which the defendant betted might have been is, in my view, without any merit.
Cases should be conducted having regard to ss 56 and 58 of the Civil Procedure Act 2005 (NSW). Whilst the defendant takes the point, as he is entitled to, I understand he is not intending to adduce any evidence himself. Ms Nolan said so during argument. Thus, I understand that there will be a challenge by the defendant to the fact that the defendant placed each one of the approximately 6,000 to 7,000 bets.
In my view, the document is admitted and the objection is disallowed.
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Baxter
Willis (No 2)