Connex Group Australia Pty Ltd v Butt

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

002872/02 CONNEX GROUP AUSTRALIA PTY LTD v KENNETH ALFRED BUTT JUDGMENT - On Admissibility of Exhibits RP32 and RP33 1 HIS HONOUR: The plaintiff tendered as Exhibits RP32 and RP33 to the affidavit of Robert Christiaan Postema sworn 16 April, 2003 two file notes of Mr Postema prepared on 7 and 8 December 1999 of telephone conversations said to have been held on 19 November 1999. Objection was taken to the part of each of the file notes following word "Note". The admissibility of the notes raised the same issue. On 3 May 2004 I admitted the parts of the file notes that were objected to and gave brief reasons. (Transcript pages 9-10). 2 What follows is a full statement of those reasons. To explain these reasons it is sufficient to deal with the file note which is exhibit RP33 being a record of a telephone conversation held on 19 November 1999 between Mr Warrell of the plaintiff and Mr Butt, who is the defendant. The conversation was on speakerphone. Mr Parker of the Connex Group of companies, and Mr Postema, a solicitor engaged by the plaintiff, were present. The file note sets out what on its face appears to be a transcription of notes taken during the course of the conversation. No objection was taken to that part of the file note. It then continues as follows: " The gist of the conversation was that the parties would await the outcome of the meeting with the DOT. While my handwritten notes were not able to capture every word of the conversation, Ken Butt clearly left the impression he would sort the matter out and that it was not a big deal. Conversely, Kevin Warrell made it clear that CGEA wanted to proceed subject to the DOT issue being sorted out. Ken Butt did not say anything that suggested that he would not deal with CGEA or that the matter would not settle. While Ken Butt did not say much, I was left with the impression that at the least everyone would await the outcome of the meeting on the following Friday with completion to be postponed until at least that time or shortly thereafter. " 3 The note was tendered as evidence of the conversation. It was initially objected to on the grounds of hearsay and relevance. I was satisfied it was relevant. The statements objected to could be characterised as statements of both opinion and asserted fact. Although the rules of evidence often assume a dichotomy between fact and opinion and the distinction is unavoidable, there is a continuum, rather than a dividing line, between fact and opinion. (Australian Law Reform Commission, Interim Report on Evidence (ALRC 26, 1985) Vol 1 para 738; Ritz Hotel Ltd v Charles of the Ritz Ltd (No. 20) (1987) 14 NSWLR 124 at 127). Statements of asserted fact may potentially attract both the hearsay rule and the opinion rule. (Hadid v Australis Media Ltd (28/10/1996, Sperling J, unreported). Opinions are often used to assert facts. (Ringrow Pty Ltd v Ultimate Fuel Pty Ltd [2003] FCA 933, per Hely J at [16]-[20]). The note was tendered to establish the content or effect of the conversation. Its author was to be called as a witness. I could infer the note was made on 8 December 1999 when the conversation was fresh in the memory of the witness. Whether or not it was also a business record the hearsay rule did not apply. (Evidence Act 1995 (NSW), s 64(3)). The real objection was that the note contained conclusions as to the effect of the conversation which were inadmissible under s 76 of the Evidence Act 1995 (NSW) as opinion evidence. 4 I admitted the part objected to pursuant to s 78. 5 Before the Evidence Act 1995, the position at common law was that generally the opinions of lay witnesses, that is non-expert witnesses, were not receivable. Phipson on Evidence (14 Ed 1990) said (at para 32-01) that the opinions, inferences or beliefs of individuals were inadmissible in proof of material facts. The ground most commonly assigned for the rejection of such evidence was that if the opinions were founded on no evidence, or on inadmissible evidence, they were worthless, and if they were founded on admissible evidence, they tended to usurp the functions of the tribunal. 6 In his paper "The Relationship Between Relevance and Admissibility in the Law of Evidence" in Glass, Seminars on Evidence, p 53, Sir Richard Eggleston said: " …..in general, the opinions of non-experts are excluded. Generally speaking, it is for the tribunal of fact to formulate its own opinion on facts presented by witnesses who have perceived them by the exercise of their physical senses. Nevertheless, the opinion of an eyewitness who perceived the fact in issue might be of value even though the witness had no recollection of the fact perceived but only a recollection of an opinion formed at the time; and in some cases evidence is allowed to be given of an opinion formed by a non-expert. Age, identity, speed and now, it appears, intoxication are subjects on which non-expert opinion is admissible. " (At pages 69-70) (my emphasis) 7 In R v Wright (1986) 19 A Crim R 17, the Queensland Court of Appeal held (at 18-19) that although evidence that a witness had received an impression of a matter in the course of a conversation would not be admissible if that was all that the witness said, that was not so where the witness was referring to something which was said which impressed itself upon her so that she was thereby conveying the effect of the words used. The Court said that a witness could give the effect or purport or substance of what was said although unable to recall the precise words used. 8 It is against this background that the Evidence Act 1995 (NSW) was enacted. 9 Sections 76 (1) and 78 of the Evidence Act provide as follows: "76 The opinion rule

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 10 "Opinion" is not defined in the Act. In Allstate Life Insurance Co v Australia New Zealand Banking Group Ltd (No. 5) (1996) 64 FCR 73 Lindgren J said (at 75) that for the purposes of the opinion rule an "opinion" was "an inference from observed and communicable data". That definition has been frequently cited with approval. (e.g. Hughes Aircraft Systems International v Air Services Australia (1997) 80 FCR 276 at 279-280; Guide Dog Owners and Friends Association Inc v Guide Dog Association of NSW and ACT (1998) 154 ALR 527 at 532; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 529). 11 The definition adopted by Lindgren J had been referred to by the Australian Law Reform Commission in its Interim Report on Evidence (ALRC 26, 1985). The Commission referred to Wigmore on Evidence 3 Ed para 1917 and Wills on the Law of Evidence (3 Ed 1938) page 150 as the source of the definition. 12 Para 1917 of Wigmore summed up the rule relating to opinion evidence as follows: " The sum of the history is, then, that the original and orthodox objection to 'mere opinion' was that it was the guess of a person who had no personal knowledge, and the 'mere opinion' of an expert was admitted as a necessary exception; that the later and changed theory is that wherever inferences and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous; and that thus an expert's opinion is received because and whenever his skill is greater than the jury's, while a lay opinion is received because and whenever his facts cannot be so told as to make the jury as able as he to draw the inference . The old objection is a matter of testimonial qualifications requiring personal observation; the modern one rests on considerations of policy as to the superfluity of the testimony. In the old sense, 'opinion' - more correctly, 'mere opinion' - is a guess, a belief without good grounds; in the modern sense, 'opinion' is an inference from observed and communicable data. " (my emphasis) 13 According to Wigmore, the opinion rule was simply a rule for the exclusion of superfluous evidence. The opinion rule did not exclude lay testimony wherever it was based on inferences from observed and communicable data. To the contrary, if the lay opinion was based on personal knowledge of the witness, the opinion would be received if "his facts cannot be so told as to make the jury as able as he to draw the inference". 14 At para 2097 Wigmore discussed the application of the opinion rule to evidence as to the effect of conversations. He described the "universally accepted" general rule as being that: " the substance or effect of the actual words spoken will suffice, the witness stating this substance as best he can from the impression left upon his memory. He may give his 'understanding' or 'impression' as to the net meaning of the words heard. This rule was applicable to oral utterances in general including conversations whether as forming contracts or merely as admissions. If the witness could relate from memory the precise words used, the opinion rule would operate to prohibit him from condensing them into a summary statement of their substance or effect, because by that rule the data observed by the witness must be laid in detail before the jury, if they can be without his inferences based upon them. … if they cannot be laid before the jury, then the witness' inferences, or net impressions, are by that very rule allowable. Consequently, if his memory of the precise words fails him, his impression of their net meaning is not forbidden by the opinion rule. That rule does not require the impossible, it merely forbids the superfluous. " (emphasis in original) 15 The first sentence was quoted with apparent approval by McMurdo P and Pincus JA in R v Noble (2000) 117 A Crim R 541 at 542, 544. 16 Wigmore cited and quoted from judgments of Richardson CJ in Eaton v Rice, 8N.H. 378, 380 (1836) and Cooley J in Bathrick v Detroit Post and Telegraph Co., 50 Mich 629, 637; 16 NW 172, 175 (1883). In Eaton v Rice Richardson CJ was quoted as saying: " The recollection of a witness as to what an agreement between the parties was, according to his understanding of what was said by them at the time, may be very satisfactory evidence, although he may not be able to recollect distinctly one word that was said…. The credit that may be due to a witness in these cases may depend much on his being able to detail enough of the conversation to show that his understanding of the matter was probably right ." 17 Cooley J was quoted as saying in Bathrick v Detroit Post & Telegraph Co that: " It is not surprising that a man should remember the substance or the result of a conversation, and yet not be able to recall the words made use of; and it sometimes casts suspicion on the veracity of a witness that he assumes to remember the very words of a conversation, when there was nothing in the case that was likely to impress upon his mind anything beyond the general result ." 18 The Australian Law Reform Commission proposed that an exclusionary rule be maintained against opinion evidence even though the distinction between fact and opinion was artificial. (Report No. 26 para 738). It was proposed however to minimise the difficulty flowing from that rule by making the primary question for the Court whether the evidence, whether of fact or opinion, was based on the witness' personal perception. If it was, lay opinion evidence would be admissible "subject to other requirements". The Commission accepted that the ultimate criterion for admission of opinion evidence should be whether it would assist the trier of facts in understanding the testimony or determining a fact in issue. (para 739). The Commission continued: " To be of the requisite assistance, the lay opinion evidence must be based on the witness' personal perception of the matter or event. … It is proposed to admit lay opinion testimony where it is based upon the personal perception of the witness and it is necessary to obtain an adequate account of his perceptions. … The proposal therefore revives the original rationale based on the distinction between opinion based on the witness' perception and mere uninformed speculation ." (Paras 739 and 740) 19 The exception which the Commission proposed is now provided for in s 78. 20 It has been recognised that s 78 has altered the common law by expanding the scope for lay opinion evidence. (R v Panetta (CCANSW) 2/10/97 unreported at 4 per Hunt CJ at CL; Daniel v Western Australia (2000) 178 ALR 542 at 546-547). The admissibility of non-expert opinion evidence which is based upon personal perception is no longer confined to issues of age, identity, speed, or intoxication. (Compare Sir Richard Eggleston quoted in para 6 above). Section 76 and its exception in s 78 apply to evidence of an opinion whether given testimonially, or otherwise. Both sections apply to the document exhibit RP33. 21 The statements objected to were statements of Mr Postema's opinion, being inferences he derived from observed and communicable data. However, his opinion was based on what he heard and otherwise perceived about the telephone conversation. I include in his perception of the conversation his understanding of it. A person's perception includes what the person understands about the matter perceived of which he or she has gained knowledge through the senses. (Macquarie Dictionary 3 Ed, Revised). The conversation was a matter or event. The asserted outcome of the conversation is itself a "matter". In Guide Dog Owners & Friends' Association Inc v Guide Dog Association of New South Wales and ACT (1998) 154 ALR 527 at 530-531 Sackville J posed but did not answer the question as to whether evidence of a conversation in which a witness participated could constitute "matters" or "events" for the purpose of s 78. I see no reason why not. 22 As Sir Richard Eggleston acknowledged in the passage quoted in paragraph 6 above, and as the passages from Wigmore demonstrate, a person's opinion about a matter or event may be of value even if the person has no recollection, or an incomplete recollection, of the primary facts perceived. In my view the combined effect of ss 76 and 78 is to exclude non-expert opinion evidence if it is not based on personal perception (ss 76 and 78 (a)), or, if it is superfluous because all of the facts can be told to the tribunal so as to put it in as good a position to draw the inference as the person expressing the opinion. (ss 76 and 78 (b)). 23 There is a number of cases in which it has been suggested that s 78 has a relatively narrow operation. In R v Leung and Wong (1999) 47 NSWLR 405 Simpson J said of s 78 that the section assumes that the matter or event as perceived by the witness is the primary evidence, and that the witness's opinion is admissible as being incidental to an understanding of the primary evidence. (at 411-412). (Spigelman CJ and Sperling J did not find it necessary to express an opinion on s 78). In Australian Securities and Investments Commission v Vines [2003] NSWSC 1237 Austin J held at [25] that s 78 was not intended to apply to opinion which was itself an articulation of the witness' perception of the matter or event referred to in s 78 (a). His Honour drew this conclusion from the language of the section. In Guide Dog Owners and Friends Association Inc v Guide Dog Association of NSW & ACT (1998) 154 ALR 527 Sackville J (at 531) expressed the same idea. His Honour said, obiter, that it was difficult to describe a person's opinion about a vehicle's speed or a person's age as necessary to obtain an adequate account or understanding of the first person's perception of the matter or event. Rather, his Honour said, the opinion would be formed by reason of that perception. 24 With the greatest respect I think the interpretation of s 78 in Australian Securities and Investments Commission v Vines [2003] NSWSC 1237 and that suggested in Guide Dog Owners and Friends Association Inc v Guide Dog Association of NSW & ACT (1998) 154 ALR 527 is too narrow. The interpretation suggests a dichotomy between the opinion of which evidence is given and the witness' perception of the matter or event. However a witness' perception of the matter or event will typically be formed and expressed either as opinion or as a mixture of fact and opinion. As the Australian Law Reform Commission noted at paragraphs 350 and 351 of its Interim Report, a witness when testifying cannot aspire to a perfect and non-modified reproduction of the data perceived. People customarily express themselves in terms of opinion and belief when testifying as to their perceptions. 25 The opinion may be the only evidence of the perception. In R v Van Dyk [2000] NSWCCA 67 at [129-133] evidence that the accused "had a look of wanting" was admitted as the only evidence of the perception. That opinion was admissible under s 78 even though there was no evidence of the primary facts on which the witness' opinion was based. 26 Frequently the opinion will be part of a witness' perception. Even in a traditional category in which a lay witness could express an opinion, such as one about a person's age, the opinion of age would typically be accompanied by whatever evidence the witness could recount as to what the person being identified looked like. The opinion about another's age would undoubtedly be "formed by reason of his or her perception of the relevant matter or event", (Re Guide Dog Owners and Friends Association Inc v Guide Dog Association of NSW & ACT supra) and be "itself the articulation of [the witness' perception] of the matter". (ASIC v Vines supra). Nonetheless, if that opinion is necessary for the tribunal of fact to get a full account of what the witness saw it is admissible. 27 The file note of Mr Postema was said not to capture every word of the conversation. Therefore, Mr Postema's opinions about the effect of the conversation were not superfluous. It was necessary to receive the opinions to obtain an adequate account or understanding of what he perceived of the conversation. His perception in December 1999 has probative value. His opinions were based on what he personally heard. In my view if the person giving the opinion had the opportunity to form a correct understanding of the effect or outcome of the discussion so that there is a rational basis for his or her understanding to satisfy the test of relevancy under s 55, and provided the witness has exhausted his or her recollection of what was said so that s 78 (b) is satisfied, (see also LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31 at 33), s 78 operates so that the witness's opinion about the effect or outcome of the conversation is not excluded by s 76. 28 No submission was made that the opinion should be excluded under s 135 of the Evidence Act. 29 For these reasons I admitted the passages objected to in exhibits RP32 and RP33.

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