Christopher Murray & Anor v RentWorks Limited & Ors [2003] NSWIRComm 54 | Case summary

1 The background to the first matter dealt with in this interlocutory decision, that of a claim for client legal privilege is set out in the respondents' submissions as extracted with some minor editing, below: 1 The Applicants seek to inspect bills of costs, costs agreements and time sheets of the Respondents' solicitors for the period February 1999 to September 2000 relating to their provision of legal services to the Respondents' in defending these proceedings. The Respondents' resist this application on the grounds of client legal privilege, confidentiality and relevance. 2 The documents were produced to the Court on 13 February 2003 pursuant to a summons for production dated 16 December 2002. The Respondents' application to have that summons set aside was refused by the Commission on 20 December 2002, without deciding the issue of whether, once produced, the documents ought to be made available for inspection by the Applicants. This mode of proceeding was consistent with the position taken by the Applicants on that application. Description of Documents 2 The documents to which access is being sought by the applicants have been produced and, helpfully, copies of them provided in a working bundle to the Court. As described by the respondents those documents comprise 293 pages broken down as follows: a 52 pages of detailed memoranda of fees covering work done in relation to this matter from February 1999 to the end of September 2000. All of the work therefore postdates the point in time at which legal proceedings were threatened by the Applicants b 195 pages of printouts of detailed, electronic time sheets covering work done on the matter by 23 separate partners, solicitors or paralegals at Baker & McKenzie over the period from February 1999 to September 2000; c A 31 page printout of billed and unbilled time on the matter; and d 13 pages comprising copies of engagement letters in relation to the matter. The bills of costs contain details of date on which work was done, the lawyer who did the work, the number of hours spent on the work, the charge made and a detailed recitation of the nature of the work which was done. Submissions - Respondents 3 In relation to bills of costs in particular, the respondents submitted that bills of costs, time sheets and other such records are not themselves ordinarily confidential communications which themselves serve the purpose of communicating legal advice. It is clear on the authorities, however, that such documents are protected from disclosure by client legal privilege to the extent that they might, either alone or in conjunction with other documents or circumstances, allow one to infer the nature or content of such confidential communications - Commissioner of Australian Federal Police v Propend Finance Pty Ltd (Propend) (1997) 188 CLR 501; Packer v Deputy Commissioner of Taxation (Packer) [1985] 1 Qd R 275; Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 6) (Gough & Gilmore) (2001) 109 IR 11 at 14-16. 4 Moreover, it is submitted that the authorities indicate that a detailed bill of costs (and therefore, a fortiori, a detailed time sheet) will, at least ordinarily, have that character and therefore be protected from disclosure on the basis of client legal privilege. 5 There is a long line of authority, beginning with Chant v Brown [(1852) 9 Hare 791] and usefully summarized in the judgment of McPherson J in Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275 at 286, which supports the view that bills of costs are, at least in the ordinary case, protected from disclosure by legal professional privilege - Turton v Barber (1874) 17 Eq 329; Ainsworth v Wilding [1900] 2 Ch 315; Daily Express (1908) (Limited) v Mountain (1916) 32 TLR 592; Geraghty v Woodforth [1957] QWN 42. More recent authorities include the observations of Beaumont J (FFC) and Gummow J on appeal in Propend at 569 and Packer at 282, 286 and 295. In this jurisdiction, Maidment J stated in Re Australian Chamber of Manufactures, NSW Branch (No 2) (1994) 56 IR 298 at 303 that bills of costs were, as a general rule, privileged. It is submitted by the respondents that the bills of costs are sufficiently detailed as to allow arguments to be put as to inferences (regardless of how speculative) as to the nature and content of the work done in pursuance of those instructions and the nature and content of communications between the solicitor and the client. e Taken as a whole, the bills constitute a detailed chronological record of: i every step taken by the solicitors in the preparation of this matter for hearing during the period from February 1999 to September 2000; ii every legal issue the subject of detailed research by the solicitors; iii every person contacted by the solicitors in connection with the matter, whether at RentWorks or elsewhere; iv every partner or solicitor at Baker & McKenzie who worked on the matter; and v the amount spent by the Respondents on the preparation of the proceedings during the period in question, including the hourly rates charged by Baker & McKenzie to its clients. A fortiori , these things are true of the time sheets, which contain much the same sort of information except in even more detail. In addition, because of the nature of the records, the time sheet pages also contain extensive confidential information about matters for clients other than the Respondents, which would require extensive masking. The records of billed and unbilled time merely repeat, in slightly more summary form, the information contained in the time sheets. The engagement letters contain not merely the formal terms of retainer, but also some observations by the solicitors on the claim and on other matters relating to their engagement. It is submitted that inspection of the documents makes clear that they have the character spelt out in the authorities as rendering them immune from disclosure. In particular, it is submitted that the Commission could not be satisfied that they might not be used by the Applicants for any one or more of the following purposes, each of which, on the authorities, would constitute a denial to the Respondents of their fundamental right to the protection from disclosure of their confidential communications with their solicitors and counsel: a To obtain insight into the nature or content of privileged communications by: i extracting " clues " from the documents as to the nature and content of those communications - Lyell v Kennedy (1884) 27 Ch D 1 at 26; ii drawing inferences from the documents as to " the nature of the instructions or the advice " passing between solicitor and client - Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd ( Lake Cumbeline ) (1994) 126 ALR 58, per Tamberlin J at 68; Paker v Deputy Commissioner of Taxation [1985] 1 Qd R 275, per McPherson J at 286; and iii otherwise exploiting their " tendency to reveal " the nature or content of the privileged dealings between the solicitor and his or her client - Dalleagles Pty Ltd v ASC (1991) 6 ACSR 498 - on the basis, for instance, that " … disclosure of their contents … coupled with the surrounding circumstances, might reveal the nature of the advice that the client was seeking … " - Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, per McHugh J at 553. b Using them as " … a history of matters dealt with by the solicitor " - Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275, per Andrews SPJ at 282 and Shepherdson J at 295. Not only are the documents protected on the basis that they are capable of allowing one to infer the nature and content of confidential communications passing between Baker & McKenzie and the Respondents, but the evident purpose of the Applicants in seeking access to them is precisely to use them to try and draw such inferences. 6 Having taken the Court to the various authorities as set out in the written submissions but not all of which are now recorded, enunciating the relevant principles as to client legal privilege, the respondents submitted that: In summary then, it is clear that client legal privilege protects from disclosure, not merely confidential documents which directly reveal the nature or content of communications between solicitor and client in connection with legal advice or pending litigation, but also documents which " indirectly " (1) or " inferentially " (2), either alone or " in conjunction with the contents of other documents " (3) or " coupled with the surrounding circumstances " (4) or taken with some other evidence might reveal " or tend to reveal " (5) the nature or content of such confidential communication. 1 (see Lake Cumbeline Pty td v Effem Foods Pty Ltd (1994) 126 ALR 58 at 68; Packer v Deputy Commissioner of Taxation ( Packer ) [1985] 1 Qd R 275 at 286), 2 (see Commissioner of Australian Federal Police v Propend Finance Pty Ltd ( Propend ) (1997) 188 CLR 501 at 554 and 569), 3 (see Alfred Crompton Amusement Machines Ltd v Commissioners of Taxation and Excise [1972] 2 All ER 843 at 853, cited with approval by McPherson J in Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275 (FC) at 285), 4 (see Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1977) 188 CLR 501 at 553), 5 (see Dalleagles Pty Ltd v ASC (1991) 6 ACSR 498 at 506). Submissions - Applicants 7 Senior counsel for the applicants did not disagree with the legal principles as enunciated by senior counsel for the respondents. However, in relation to the authorities cited, the applicants placed particular reliance upon the decision of Boland J in Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Limited (No 6) [2001] NSWIRComm 135 [(2001) 109 IR 11] where access to a bill of costs was allowed. 8 He disavowed wanting to know each legal issue researched by the respondents' solicitors, the names of possible witnesses not called or the hourly rates charged. He suggested that the bulk of the material could be masked, leaving only the date, names of those solicitors/paralegals raising the bills of costs, length of time charged and a short note indicating the type of action eg research, telephone call, conference etc. 9 The applicants did not want any of the information relating to third parties or other clients of Baker & McKenzie. That information could be masked. 10 The manner in which such masked material could be approached had been demonstrated in the cross-examination of the applicant earlier in these proceedings. Consideration 11 As announced by the Commission on 21 February 2003 the objections by the respondents to the granting of access to the applicants to the documents described above produced in response to the Summons for Production dated 16 December 2002 are upheld. I now publish my reasons. 12 It is clear from statements by senior counsel for the applicants that the use which it is intended to be made of the documents is to try to demonstrate that Mr Kinghorn knew about the fact that the "5 year plan" had been sent to St George Bank at a date earlier than the time in late 2000 or early 2001 to which he attests in his affidavit. 13 Although senior counsel referred also to Mr Lander in the context of cross examination as to the St George Bank material, the evidence is already clear as to what and when Mr Lander knew of that matter. 14 If the applicants were provided only with the dates, such dates might be correlated with other evidence as to particular events in the course of the litigation. Names of solicitors/paralegals could indicate the seriousness of the matter dealt with. The length of time charged, correlated with the names and seniority of the solicitors involved on specific dates, with or without a note as to the type of the action could lead to the indirect or inferential or whatever similar term is used, disclosure of confidential information in terms of Propend, Packer and the other authorities referred to earlier. 15 As to the applicants' reliance upon Gough & Gilmore, his Honour's careful consideration of the authorities cited to him strongly suggests that although Packer and Lake Cumbeline were before him, by absence to a reference to it, Propend was not cited to him, nor, indeed, that submissions were made, as they were in this case, to the issue of indirect or inferential disclosure of privileged information. The decision does not assist the applicants in this matter. 16 As was said in Packer (at 279) by Andrews SPJ, "disclosure is no less disclosure if it occurs 'by little and little' ' and (at 286) by McPherson J "It is, I think, clear enough that a bill of costs will ordinarily disclose indirectly and more often directly instructions given by a client to his solicitor." Referring to Chant v Brown (1852) 9 Hare 790, 794, McPherson J had earlier stated: Having regard to the detailed form of bills of costs both then and now much might have been learned from the contents of the document about communications concerning exercise of the power that were protected by privilege. … … as was recognized by Eveleigh J in Alfred Crompton Amusement Machines Ltd v Commissioners of Customs and Excise [1971] 2 All ER 843, 853, "while the contents of one document alone may not be injurious, those contents in conjunction with the contents of other documents may be". 17 In Propend Finance Pty Ltd v Commissioner of Australian Federal Police [(1995) 58 FCR 224], the decision of a Full Bench of the Federal Court (Beaumont, Hill and Lindgren JJ) the subject of the appeal in Propend, Beaumont J (at 236-237) stated: The present question [privilege attaching to a copy document], was helpfully discussed by N J Williams in "Four Questions of Privilege: the Litigation aspect of Legal Professional Privilege" (1990) Civil Justice Quarterly 139. Williams noted that the privilege applies to the advice the client sought from the lawyer and to the advice the lawyer gave; it covers the actual words, oral or written, passing between the lawyer and the client; and it extends to any document prepared by one or the other from which the nature of the advice sought, or given, might be inferred, for instance, a draft pleading, a solicitor's draft letter to the other side, or a bill of costs. 18 That statement was referred to in the following terms by Gummow J (at 569) in Propend: It also is significant, as Beaumont J emphasised in the present case (291) that the privilege extends to any document prepared by a lawyer or client from which there might be inferred the nature of the advice sought or given. Examples include communications between the various legal advisers of the client, draft pleadings, draft correspondence with the client or the other party, and bills of costs (292). This identification of the privilege with communications, rather than merely with documents, is important for the first issue on the grant of special leave. 19 I formally restate that the respondents' objections to access by the applicants to the bills of costs and time sheets are upheld. 20 The 31 page printout of billed and unbilled time on the matter would fall to be decided in the same way. 21 I now deal briefly to the remainder of the documents produced in answer to the summons for production dated 16 December 2002. 22 I take the two "engagement" letters as complementing each other. Each contains what I believe would be regarded as uncontroversial material, for instance, reference to rights under the Legal Profession Act. However, additional material obviously reflects consideration that could not be so regarded. Masking such material would virtually leave the applicants with the information it already has - Baker & McKenzie have been retained to act in this matter. 23 Access is refused. 24 I now turn to the second matter, that being objections to the admissibility of documents tendered by the applicants. 25 The applicants seek to tender into evidence a number of documents published by the Australian Bureau of Statistics (ABS), the International Data Corporation (IDC) and the Reserve Bank of the Republic of South Africa, on the basis that such documents are "business records" and therefore admissible pursuant to s 69 of the Evidence Act 1995. Also sought to be tendered are graphs and tables based on those documents created by or for Mr Banks and also contained in Ex 119. There were also objections to the tender of three documents contained in Ex 18. 26 The respondents oppose the tender on the basis that the ABS and the other documents sought to be tendered in Ex 119 are not "business records". It was conceded by senior counsel for the purpose of the argument that the ABS, IDC and the Reserve Bank of South Africa each conducts a business. 27 On 11 March 2003, I advised the parties that I rejected the claim that the ABS, IDC and Reserve Bank of South Africa documents were "business records" in terms of s 69. I also advised of my rulings on the other outstanding objections to Ex 18 and Ex 119. 28 I now publish my reasons. Legislation 29 Set out below are relevant extracts from the Evidence Act 1995 (the Act): 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. … (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). … 159 Official statistics A document that purports: (a) to be published by the Australian Statistician; and (b) to contain statistics or abstracts compiled and analysed by the Australian Statistician under the Census and Statistics Act 1905 of the Commonwealth; is evidence that those statistics or abstracts were compiled and analysed by the Australian Statistician under that Act. Note: [Cth Act only] section 5 extends the application of this section to proceedings in all Australian courts. Note: [NSW Act only] section 5 of the Commonwealth Act extends the operation of section 159 of the Commonwealth Act to proceedings in all Australian courts. … 182 Application of certain sections in relation to Commonwealth records, postal articles sent by Commonwealth agencies and certain Commonwealth documents [Cth Act only] (1) Subject to this section, the provisions of this Act referred to in the following Table apply in relation to documents that: (a) are, or form part of, Commonwealth records; or (b) at the time they were produced were, or formed part of, Commonwealth records; as if those sections applied to the extent provided for in section 5. TABLE Provisions of this Act Subject matter … Section 69 Hearsay exception for business records … Dictionary Part 1 - Definitions Commonwealth record [NSW Act only] means a record made by: (a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or (b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or (c) a person or body other than a Legislative Assembly holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth; or (d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose: (i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or (ii) by the Governor-General; or (iii) by a Minister of the Commonwealth; or (e) any other body or organisation that is a Commonwealth owned body corporate; and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned. (Note: Section 7, Interpretation, of the Public Service Act 1999, provides that "Department means a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency".) … document means any record of information, and includes: (a) anything on which there is writing; or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph. Note: See also clause 8 of Part 2 of this Dictionary on the meaning of document. (Set out immediately below) … References to documents 8 A reference in this Act to a document includes a reference to: (a) any part of the document; or (b) any copy, reproduction or duplicate of the document or of any part of the document; or (c) any part of such a copy, reproduction or duplicate. … Part 2 - Other expressions References to businesses 1 (1) A reference in this Act to a business includes a reference to the following: (a) a profession, calling, occupation, trade or undertaking; (b) an activity engaged in or carried on by the Crown in any of its capacities; (c) an activity engaged in or carried on by the government of a foreign country; (d) an activity engaged in or carried on by a person holding office or exercising power under or because of the Constitution , an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity); (e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; (f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature. 2 A reference in this Act to a business also includes a reference to: (a) a business that is not engaged in or carried on for profit; or (b) a business engaged in or carried on outside Australia. 30 Counsel for the applicants submitted that to understand the ABS documents it was necessary to look at the Australian Bureau of Statistics Act, 1975 (the ABS Act). The Act was relevant to consideration of a number of matters raised in s 69 of the Evidence Act, including the nature of the business (not really in issue), whether the documents are kept for the purposes of or in the course of business and personal knowledge of the asserted fact. 31 Insofar as they are relevant to the applicants' arguments, some sections of the ABS Act are set out below: 5 (1) There is hereby established a Bureau to be known as the Australian Bureau of Statistics. (2) There shall be an Australian Statistician. (3) The Bureau shall consist of the Statistician and the staff referred to in subsection 16(1). (4) The Statistician shall control the operations of the Bureau and shall have such other functions, powers and duties as are conferred or imposed upon the Statistician by or under any Act and such other functions and powers as are conferred upon the Statistician by or under any law of a Territory. Functions of Bureau 6 (1) The functions of the Bureau are as follows: (a) to constitute the central statistical authority for the Australian Government and, by arrangements with the Governments of the States, provide statistical services for those Governments; (b) to collect, compile, analyse and disseminate statistics and related information; (c) to ensure co-ordination of the operations of official bodies in the collection, compilation and dissemination of statistics and related information, … … 16 (1) … (2) Subject to subsection (2A), the Statistician may engage persons, including persons referred to in subsection (1), to assist in carrying out the functions of the Bureau. (2A) Persons referred to in subsection (1) may be engaged under subsection (2) only in relation to: (a) the taking of the Census mentioned in the Census and Statistics Act 1905; and (b) the collection of other statistics and related information. Business Records - Consideration 32 Background useful to consideration of s 69, and of the topic of "business records" in particular, is set out in Cross on Evidence, (loose leaf service) page 35,187 and following. Extracts from that publication are set out below: Business records [35540] Of profound importance is s 69, dealing with business records. The business records exceptions enacted in New South Wales in 1976 at Pt IIC of the Evidence Act 1898 and adopted by the Commonwealth in Pt IIIA of the Evidence Act 1905 in 1978 were among the most successful statutory reforms of the law of evidence ever attempted in this country. There is now a substantial body of case law construing that legislation. So far as s 69 corresponds with Pt IIC and Pt IIIA, that case law will have continued application. Section 69 is much shorter than Pt IIC and Pt IIIA, but that is largely because the definitions and ancillary provisions in Pt IIIA have been adopted on a more generalised basis throughout the whole Evidence Act. … [35550] The case law on various of the key expressions in s 69 will be of continued application, eg that relating to "business", "in the course of, or for the purposes of, a business", "records" and "record" and "statements". The case law on earlier equivalents to s 69(3) will remain relevant. 33 Elsewhere (at p 35,069) it was stated: [35195] The business records legislation is remedial legislation intended to remove the difficulty or, in some instances, impossibility of proving certain business facts by admitting material which in common experience is likely to be accurate, and should be construed liberally and not pedantically. In Albrighton v Royal Prince Alfred Hospital [(1980) 2 NSWLR 542 at 548-9] Hope JA said: Any significant organization in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate. … 34 In relation to the above material, I note s 3(3) of the Evidence Act: (3) Without limiting the effect of, and subject to, section 34 of the Interpretation Act 1987, material that may be used in the interpretation of a provision of this Act includes any relevant report of a Law Reform Commission laid before either House of the Parliament of the Commonwealth before the provision was enacted. 35 In the course of his Second Reading Speech in the Legislative Assembly on the Evidence (Amendment) Bill, 1976, Mr Maddison, Attorney-General and Minister of Justice advised members that: The Law Reform Commission Report on Evidence (Business Records) explains the length of the bill by reference to the fact that certain of its provisions may later be applied to all evidence and certain other provisions to all hearsay evidence. … First, I should again endeavour to allay any fears the honourable member for Penrith may have that the Government has departed from the principles set forth in the commission's report. Despite the noticeable changes in form between this bill and the draft bill prepared by the Law Reform Commission, let me inform the honourable member for Penrith and the House that this bill still incorporates the clear expression of the commission's recommendations. (Hansard. Legislative Assembly. 16 March 1976, p 4197) 36 In the Legislative Council, the members were similarly reassured during the Second Reading Speech there by the Hon F M Hewitt (Minister for Labour and Industry, Minister for Consumer Affairs and Minister for Federal Affairs): The bill is a product of the work of the Law Reform Commission of this State. In its report on evidence, business records, the commission proposed a statutory exception to the so-called hearsay rule of evidence. The Government has been pleased to accept the proposal. 37 He further advised that there had been changes to the form of the bill by the Parliamentary Counsel "but in no way have the clear recommendations of the Law Reform Commission been departed from". (Hansard. Legislative Council. 16 March 1976 at 4197). 38 Paragraphs 10 to 13 inclusive of the Report of the Law Reform Commission on Evidence (Business Records) (LRC 17) (printed 9 August 1973) are set out below: 10 In this report and in the proposed bill in Appendix A we use the term "business" with an enlarged meaning. It includes government activities and the pursuit or conduct of any profession, occupation, calling, trade or undertaking whether engaged in or carried on for profit or not, and whether within New South Wales or not. The purpose of using the term "business" with an enlarged meaning is to include within the application of the legislation we recommend the records of activities which, although not businesses in the ordinary sense of the word, can be expected to have a similar standard of reliability. Thus, the records of a hospital not carried on for profit, a doctor in private practice, a municipal council, and a charitable body would come within the legislation. 11 The following are examples of documents forming part of the records of a business, statements in which might be admissible under the draft Bill in legal proceedings as evidence of the matters stated: books of account; accounting records of all kinds; employment records; production, job and work records of all kinds; stock records; despatch, delivery or receipt of goods records; postage books; surveyors' field books; transport drivers' logs; hospital records; medical records of a doctor in private practice; interoffice memoranda; office diaries; files of correspondence. 12 In this Report we use the expressions "statement in a business record' and "statement in a document". In the draft bill "statement" is defined ( By s 14CA (1) of the proposed new Part IIB of the Evidence Act) as including "any representation of fact whether made in words or otherwise". It is in this sense that we use the word "statement" in this Report. 13 The following are examples of statements in the sense mentioned above which might be found in business records: an entry in a cash book "to rent $25"; an entry in a job card "repair lighting circuit, 4 hours, 30-in cable, 2 socket power point"; an entry in a postage book "W R Smith, 7 Close Avenue, Ryde - $1.20 express"; a table of motor vehicle traffic flow at a particular location in the records of the Main Roads department; a graph showing daily production forming part of factory records. It will be apparent that some statements will be self-explanatory. Others will be in an abbreviated or in a graphical, statistical or accounting form, the meaning of which will not be apparent to a court except in the light of other evidence. 39 Counsel for the applicants submitted that the statistics that the ABS publishes are business records of the ABS. That was because the document of the Bureau is a document. It forms part of the records belonging to or kept by the Bureau. Those documents are kept for the purposes of the business of the Bureau, including, amongst other things, the dissemination of statistics. That is one purpose for which statistics are kept in the documents, or those facts are kept in the document. Analysing the next year's statistics will be another purpose for which the documents are kept. The document is a document to which s 69 applies. It is a record that is kept for the purposes of recording in a permanent and continuous way, facts about matters which include operating lease financing. It is a permanent record. It is meant to be kept as a record of the facts recorded in it and it is meant to be kept for that purpose to fulfil the functions of the Bureau which include analysis and which include dissemination of statistics. The Court may infer reasonably from the content of the document itself, and the Court may infer from the provisions of the Act itself, that documents of the kind that have been tendered, are kept by the Bureau for the purposes of analysing statistics and disseminating statistics. So s 69(1) applies to it. 40 In National Australia Bank Ltd v Rusu (Rusu) [1999] NSWSC 539 (4 June 1999), Bryson J stated (at [17]): 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 ss 170 and 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's records, or can recognise it as one of the records of the business. 41 In Atra v Farmers & Graziers Co-op Co Ltd (Atra) [(1986) 5 NSWLR 281], in relation to s 14 CE (4) of the Evidence Act 1898, Wood J said: In R v Jones (Benjamin) [1978] 1 WLR 195 at 199; [1978] 2 All ER 718 at 721, a record was given a wide meaning to include "a history of events in some form which is not evanescent". Even assuming this width, I am satisfied that the term "record of business" denotes documents which truly might be regarded as the internal records kept by or for that company in respect of its business such as its books of account, ledgers, employment records, stock records, postage books, its own correspondence, internal memoranda, and so on. It does not seem to me that documents relating to its affairs made by third parties for their own purposes, even though they may be carrying out services for it as bankers, accountants, solicitors and the like, and even though they may record facts concerning its operations, are documents forming part of a record of the business. A clear line can be drawn in my view in relation to the kind of documents here involved. It may transpire that a third party is engaged to physically keep and compile records for a business. For example an accountant may be retained to write up a company's cash books, ledgers and journals from primary records such as cheque butts, deposits, bank statements, invoices and the like, and even to keep those documents at his office. In such a case clearly those documents form part of a record of that client's business. Quite a different position however arises where in order to prepare annual accounts or a taxation return, or to carry out an audit, an accountant compiles his own working papers from the primary records of the business or from information supplied by its owner or servants. This kind of document seems to me not to constitute a record of that client's business, nor are statements contained in it made for the purpose of a business. Similarly, internal records of a customer's affairs kept by a bank seem to me not to be a record of the customer's business even though they purport to record facts concerning that business. They truly are records of the business of the bank, and not records of the business of the customer as well. 42 Section 159 does not assist the applicants in relation to the submission that the ABS documents are "business records". That section does neither more nor less than what it says. It does not, as does s 85A of the Reserve Bank Act 1959 in relation to statistical information published by the Bank, provide that judicial notice is to be taken of statistics and abstracts compiled and analysed by the Australian Statistician under s 159 of the Evidence Act 1995. 43 Section 182 together with the definition in the Dictionary of "Commonwealth record", were strongly relied upon by the applicants to support submissions that the ABS documents sought to be tendered are "business records". In my view that section and the definition have the enlarged meaning of the term "business" as set out earlier in the extract from LRC 17, which was intended to include government activities which were not businesses in the ordinary sense of that word. 44 That section simply has the effect of eliminating any preliminary arguments as to whether entities such as the ABS fall within the description of "businesses". In respect of s 69, it still has to be shown that the document sought to be tendered either forms part of the records belonging to or kept by ABS in the course of, or for the purposes of, a business and contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. 45 In my view, the business of ABS is to collect, compile, analyse and disseminate statistics and related information (ABS Act, s 6(1)(b) ). One way it disseminates those statistics is by publishing them. That area of the ABS as a business is as a publisher, whether that is in the traditional print form or via the internet or some other means. The ABS statistics sought to be tendered were contained in its publications via the internet. 46 Documents which would be properly described as "business records" of the ABS would be documents in the nature of those described in par 11 of LRC 17 set out earlier and in the many cases cited and/or referred to in my consideration. 47 In this case, the applicants are pressing each statistic or statement in the ABS, IDC and Reserve Bank of South Africa documents as a "previous representation" (s 69(1)(b) ) and as an "asserted fact" (s 69(2)(a) and (b) ). That is so even in the face of woefully inadequate evidence as to the compilation and collation of those "asserted facts" in accordance with s 69(2)(a) and (b). 48 I find that the ABS documents sought to be tendered are not "business records" in terms of s 69. 49 That finding is also made in relation to the International Data Corporation (1DC) documents sought to be tendered. Those documents are publications issued by the IDC which is, as described by Mr Banks: A They're a professional research body with a head office based in the US that has branch offices in a range of countries around the world and they undertake research in respect of computers and similar information, information technology, around the world to assist manufacturers, wholesalers and retailers of computer equipment and anybody else that is generally interested in that field. They will do research for you individually as well as research which they produce in various volumes. 50 Since 1990 IDC has published on a regular, but not always annual, basis a document called "The Worldwide Black Book", that Black Book for 1998, for instance, containing the IDC's predictions for 1998 and forward. 51 The Reserve Bank of the Republic of South Africa is in the business of banking. In the course of that business it would appear that it publishes statistics and other material. Those materials are publications of the Bank, not "business records" of the Bank in terms of s 69. 52 The documents published by all three, the ABS, IDC and the RBSA, may be records "about" or describing business, but they are not "business records" in terms of s 69. 53 The dictionary definitions of "record" offered to the Court by counsel for the applicants did not take the matter further. The review by the Law Reform Commission as to the admissibility of business records was driven by the difficulties which had been experienced for some time previously in the tender of computer produced records as evidence. The Commissioners, however, found that limiting their consideration to computers could have the consequence that a document might be admissible if produced by computer, but inadmissible if it was produced by other reliable means (LRC 17 at par 4). They later stated that "the definition of "document" in S 14 CA(1) [of their proposed Bill] is intended to extend to all things used to record information which have been or may be devised … We prefer to define "document" in functional terms, rather than by including in the definition a list of things used for recording information based on the current, or perhaps some past, state of technology …" (Appendix B, par 11). 54 I do not deal with the further submissions put by counsel in relation to s 69(2) and s 69(5) because, in my view, the documents sought to be admitted fail at the first hurdle in s 69 in that they are not documents which are business records. For that same reason I have not dealt with the further objections raised by the respondents as set out in their updated Table of Objections to Ex 119 to the ABS, IDC and Reserve Bank of South Africa documents there listed. 55 There is one other objection to be dealt with in relation to Ex 119: Tab 19: Reserve Bank of Australia material 56 The Reserve Bank Act 1959 provides in s 84A: (1) All courts, judges and persons acting judicially are to take judicial notice of statistical information contained in a publication issued in the name of, by, or under the authority of, the Bank. 57 The material at Tab 19 of Exhibit 119 is admitted. 58 The objections by the respondents to three documents in Exhibit 18 are now considered. Tender Bundle Vol 7, page 1510: email from PricewaterhouseCoopers dated 28/9/99 59 Addressed to "Rob" [Medway] at email address stated on document. 60 Under cross-examination Mr Medway said the email address was incorrect and he had no recollection of having received it. Applicants - Submissions 61 The position of the applicants was that by reference to s 69, the email was part of the record of at least the business of PWC. It contains a previous representation made or recorded for the purposes of the business, one of those purposes at the time being the RentWorks valuation, and made by a person with personal knowledge of the facts therein. "Representation" includes a representation that for any reason is not communicated (see Dictionary, Part 1, definitions). Respondents - Submissions 62 The document was produced from the custody of PWC. The document was not in the respondents' discovery. The document would seem to fulfil the requirements of s 69 for admissibility. That, however, was not enough to allow it to be tendered to prove the email was sent. Outcome 63 The document is admissible. What the applicants seek to prove by its tender will become clear in submissions. It will then be considered as to its weight in the light of all the evidence adduced. 64 Document admitted. Tender Bundle, Vol 11 at pages 3127 and 3128 65 Two pages with handwriting, described, as was conceded by senior counsel for the respondents, as Item 335 in the List of Documents filed for the first respondent as being: 335 Original - Facsimile from Hugh Lander, Rentworks Limited 5 January 1999 to Christopher Murray, re Special Purpose Transactions with attachments. Consideration 66 It is obvious from the Fax Transmission Sheet at p 3126 that pages 3127 and 3128 in the List of Documents were not attachments to that fax when sent in that it is stated as to that fax that the number of pages sent, including "this cover sheet" was 1 (one). 67 In the face of the fax itself, and in the admitted absence of any evidence at all in relation to those pages, a description of them as "attachments" in the List of Documents made by someone (not identified) in the course of preparation for these proceedings, provides no basis for their admissibility into evidence. Outcome: Not admitted. Application to tender into evidence may be renewed if appropriate in the light of further evidence. Rulings Announced 20 December 2002 68 On 13 December 2002, the applicants filed a Notice of Motion seeking the following order and direction: 1 An order: (a) that the Respondents admit as facts for the purposes of these proceedings each "Assumption/Observation" described in schedules "A" and "B" hereto; or (b) that the Respondents identify any dispute and the grounds for any dispute in respect of the matters described in each "Assumption/Observation" that is not admitted by the Respondents for the purpose of these proceedings. 2 To the extent that any of the following "Assumptions/Observations" are not admitted for the purposes of these proceedings pursuant to order 1 hereof, a direction that an expert valuer nominated by the Respondents confer with an expert valuer nominated by the Applicants with a view to: (a) agreeing upon each such "Assumption/Observation", and failing such agreement; (b) agreeing upon the authenticity of the documents identified in respect of each "Assumption/Observation", and (c) agreeing upon the accuracy and reliability of the content of each document identified in respect of each "Assumption/Observation". 69 There were some fifty three paragraphs against which assumptions/observations were referred to in Order 2. However, on examination the actual number was much larger, (139 at least according to the respondents), when one takes account of the individual assumptions/observations involved in each of the paragraphs/sub-paragraphs listed in the applicants' Notice of Motion. 70 The respondents on 18 December 2002 filed a Notice of Motion seeking the following orders: 1 This motion be returnable instanter. 2 The Summons for Production to Baker & McKenzie dated 16 December 2002 and served 16 December 2002 be set aside. 3 The Notice to Produce to the First, Second, Third and Fourth Respondents (the Respondents) served 16 December 2002 be set aside. 71 Submissions in relation to both Notices of Motion occupied 18 December and part of 19 December. On 20 December 2002 (the last day of term), I announced that I had dismissed both Notices: HER HONOUR: The ruling in the two matters before the Commission at the moment is the notice of motion filed by the applicants on 13 December 2002 seeking orders as to admissions, and an experts' conference, is dismissed. However, I recommend the applicants indicate as a matter of urgency their position as to the 17 matters proposed as agreed by Baker & McKenzie in their letter dated 5 December 2002. The notice of motion filed by the respondents seeking orders to set aside firstly the summons for production to Baker & McKenzie dated 16 December 2002 and served that date and secondly the notice to produce to the first, second, third and fourth respondents served 16 December 2002, is dismissed. Documents in response to categories A, C and D are either to be delivered to the Industrial Registry on or before 4pm, Monday 10 February 2003 or to the Industrial Relation Commission, Court 3, at 10am on Thursday 13 February 2003. In setting out the above mentioned categories I do so on the understanding that those within category B have been produced earlier. Should the parties request them, reasons will be provided in due course. 72 Reasons have not been sought, but I set out very briefly the matters that led me to decide the Notices of Motion in the way announced on 20 December 2002. I do not even attempt to deal with, though they were all considered, the full oral and written submissions by counsel. Applicants' Notice of Motion (13 December 2002) 73 On examining the assumptions/observations as to which orders 1 and 2 were sought, I formed the view that to make such orders would not, as was contended by the applicants facilitate the efficient conduct of the proceedings, minimise costs and delay and assist in clarifying the areas of genuine dispute in the proceedings. 74 The matters advanced were not such self-evident truths that it would have been unreasonable not to admit them, although that was a possible inference that could be drawn as being advanced from the terms of the proposed order 2. Examples of those matters about which it was suggested that experts could agree are: Para Assumption/Observation Comments Additional Document References 40.46(i) That the historical growth of demand for computers and telecommunications and information technology in Australia in the last 4 years has increased at a rate greater than the nominal Gross Domestic Product. That the growth of demand for operating leases for office equipment in Australia in the period from July 1991 to March 1999 has increased at a rate greater than the nominal Gross domestic Product. These are matters which should be able to be agreed between the experts. Tab 5 and Tab 6. 40.46(ii) That the growth of demand for operating leases in Australia in the period from July 1991 to March 1999 has increased at a rate greater than the nominal Gross Domestic Product. This is a matter which should be able to be agreed between the experts. Tab 5 and Tab 6. 85 That the market risk premium of 6.5% adopted by Credit Suisse First Boston, Westpac, the Commonwealth Bank of Australia and BHP in submissions which those companies made in May 1998 to the Office of the Regulator-General Victoria regarding the WACC for revenue determination were correct and reliable. This should be agreed between the experts unless there is some genuine basis for disputing it which is identified. Tab 8 87 That the conclusions as to the size premium that are set out in Annexure B (published studies undertaken by PwC in the United States in 1998) are correct and reliable. This should be agreed between the experts unless there is some genuine basis for disputing it which is identified. See annexure B to Exhibit 116. 90 That the information about the adjusted Beta's of US Leasing Companies set out in Table 8 of the Second Report is correct. This should be agreed between the experts unless there is some genuine basis for disputing it which is identified. Tab 55 at page 856, Tab 61 at page 877, Tab 74 at page 950, Tab 79 at page 968, Tab 84 at page 922, Tab 89 at page 1007, Tab 65 at page 899B. 75 Matters such as those examples would appear to me to require research even by experts.

Christopher Murray & Anor v RentWorks Limited & Ors

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Cases Cited (12)

Cited By (3)