BestCare Foods Ltd v Origin Energy LPG Ltd [2010] NSWSC 1304 | Case summary

(iii) the statement should be excluded in the exercise of the court's general discretion under s 135. 3 The statement commences with the following: "This Statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness. This Statement is true to the best of my knowledge and belief, and I make it knowing that if it is tendered in evidence, I shall be liable to prosecution if I have willfully [sic] stated anything in the Statement which I know to be false or which I do not believe to be true." 4 The statement discloses that Mr Alexander was an inspector attached to the NSW Fire Brigades Fire Investigation and Research Unit in his capacity as Fire Investigation Officer. His duties included attending courts to give evidence in regard to his investigation. His role was to investigate the fire in relation to both area of origin and possible cause. 5 The statement includes an account of Mr Alexander's observations of damage to the plaintiff's factory from the explosion and fire on 25 January 2003 made during investigations on 26, 27 January and 19 February 2003. 6 I turn to the first objection under s 69(3) which provides: "(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."

The Dictionary of the Act provides: "Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court". "Australian court means: … (e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence". 7 The defendants submitted that, on the face of the document, it was plain that it was prepared in contemplation of a proceeding. They also pointed to evidence of the investigations then being undertaken by, for example, WorkCover which corresponded with the references made in the statement to meetings and discussions with other investigators including Sergent Cook, Mr David Pearson, and Mr Arthur Donnelley. It was put that the evidence supported the inference that the statement was prepared in contemplation of a coronial inquiry and/or civil proceedings resulting from the fire and explosion. 8 In reply, senior counsel for the plaintiff submitted that the evidence did not support a finding that the statement was prepared for the purpose of, or in contemplation of, an Australian proceeding. In particular it was put that there was nothing to indicate that Mr Alexander knew anything about, or had in contemplation, any civil proceedings, including the present proceedings. In response to the contention that it was probably prepared in contemplation of a coronial inquiry it was submitted that such an inquiry is not an Australian proceeding within the meaning of subs (3)(a). It was submitted that the term "proceeding" should be construed as meaning a civil or criminal proceeding and, accordingly, did not include a coronial inquiry. Reliance was placed on the conclusion of his Honour Justice Sully in Green v State Coroner of New South Wales (Supreme Court of New South Wales, Sully J, 19 November 1997, unreported) that a coronial inquiry did not come within the description of "civil or criminal proceedings" as contemplated by s 6DD Royal Commissions Act 1902 (Cth). 9 In Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 Hamilton J stated the following propositions which flow from the proper construction of s 69. He said: "4 In my view, the following relevant propositions flow from the section considered in the light of that authority: (1) It is important, as is general in exercises of statutory construction, to construe words in s 69 in the context of the section and of the EA generally. In doing this, it should be borne in mind that the EA supersedes not only the common law but the provisions as to admissibility of business records previously contained in Part IIC of the Evidence Act 1898. What must be concentrated on are the words of this section in the context of the EA. (2) It is important always to bear in mind that what may be tendered as evidence which evades the hearsay rule under the provisions of s 69 is not documents but representations in documents. In this regard, it is only in relation to the penultimate paragraph of the letter, to which I have referred, that tender is made by Mr Motbey under s 69. (3) The cases in general terms indicate that the inclusive provisions of subss (1) and (2) of s 69 should be regarded as being of wide import and construed accordingly: Schipp v Cameron (No 3); ASIC v Whitlam at [155], both supra. Equally, the exclusory provisions of s 69 ought be construed as sections of wide import. In particular, it should be borne in mind that the expression contained in s 69(3)(a), "in contemplation of" and the expression contained in both s 69(3)(a) and (b) "in connection with" should be regarded as words of wide meaning: R v Rondo supra at [96] per Smart AJ. (4) It should also be noted that what is referred to in subss (3)(a) and (b) respectively is not the proceeding in which the tender of material is sought to be made, or a proceeding to which the investigation referred to in (b) has led, but simply a proceeding or an investigation. (5) This links with what Barrett J has said to be the policy of the section in Vitali v Stachnik supra at [12]: "The purpose of the exclusion is, as I see it, to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings." (6) The point, as I apprehend it, is that the contemplation or existence of any proceedings may lead even persons of good intent to make purely self serving statements that may, without the exclusory provisions of subs (3), be admissible through the scheme of s 69. From this natural tendency to make self serving statements springs the policy that statements made in those circumstances ought be excluded from the ambit of s 69 which is, in general terms, generous towards the admission of statements contained in documents that meet the criteria of the section. (7) It is not, as Mr Motbey has suggested to me, a requirement of subs (3) that a conclusion be reached that the creator of the document had the purpose of making self serving statements, whether true or false. It is, rather, that the possibility, bearing in mind human nature, to make self serving statements in such circumstances, leads the Act to exclude all statements made in such circumstances as a precaution against purely, and particularly false, self serving statements being taken into evidence. (8) Whilst, as was said by Hope J in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548 - 549 (cited by Einstein J in Schipp v Cameron (No 3) supra), the business records provisions have the tendency to make the law of evidence approach reality, it is in the interests of reality that the old rule against self serving statements is preserved to the extent that I have indicated, even when such statements are made in business records." 10 Turning to the facts of this case, it is settled that the form and contents of the tendered document may provide an adequate basis for the drawing of the inference that the representations contained therein were prepared in contemplation of a proceeding (Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, p 548). In my opinion, the form and contents of Mr Alexander's statement give ample support for the finding, which I make, that it was prepared in contemplation of a proceeding. The terms of the opening paragraph quoted above taken alone, or read with the whole of the statement, make that plain. Furthermore, it may reasonably be assumed that a person of Mr Alexander's standing and experience would have been well aware of the coroner's jurisdiction and duty to hold an inquiry concerning a fire or explosion which had destroyed or damaged property (s 15(1) Coroners Act 1980). Accordingly, I find that the statement sufficiently indicates that it was written with the possibility not only of a coronial inquiry, but also of civil proceedings, in mind. 11 As Hamilton J said in Lewis (par 4) the expression in s 69(3)(a) "in contemplation of" should be given a wide meaning. I also respectfully agree with his Honour's opinion (Lewis pars 7, 8) that a proceeding in contemplation when the document was prepared or obtained includes a proceeding which had not then been brought or was on foot, but was in mind. 12 Consistently, in my opinion the words in subpar (e) of the definition of "Australian court" namely "a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence" are words of wide meaning. The "proceeding" in a court so defined is not one confined to proceedings which involve the determination of a suit or action, civil or criminal, between opposing parties i.e. proceedings which can be regarded as a lis inter partes. It cannot be doubted that a coroner is a person within the definition of subpar (e). It follows that a coronial inquiry is a proceeding under s 69(3)(a). The following passage from the judgment of Fullagar J in R v Registrar-General; Ex parte Lange [1950] VLR 45 p 51, 52 is apt. "Alike in the case of a coroner's inquest and in the case of a magisterial inquiry what is produced is, in form and in substance, a finding, a decision. The finding or decision is the result of a process of inquiry, which involves the taking of evidence on oath, and which must, one would think, be conducted with due regard to certain essential requirements of justice. The finding or decision, though it may carry no immediate legal consequences, may directly and profoundly affect the interests of persons." 13 The decision in Green affords no assistance to the plaintiff. It was concerned with the construction and application of a statutory provision which contained the description "civil or criminal proceedings". 14 Accordingly, the tender of the statement is rejected. It is unnecessary to decide the other grounds of objection.

BestCare Foods Ltd v Origin Energy LPG Ltd

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