105Exhibit B was tendered by the plaintiff. Eire complains that Exhibit B was deployed against it in an impermissible way. Its contention is that Exhibit B was tendered by the plaintiff against Reed only, that it objected to it being tendered against it and that the judge admitted it against Reed only, with the result that it was not open to the judge to draw upon Exhibit B in finding liability on the part of Eire.
106The plaintiff accepted on appeal that the judge was in error in stating at [47] that Exhibit B was admissible against Eire. The plaintiff maintains, however, (as does Reed) that the court made no use of Exhibit B in reaching the conclusion adverse to Eire, with the result that any error did not contribute to the result of the proceedings.
107There are two preliminary points to be made about Exhibit B. First, the concept of a document being tendered "only against" one of two defendants so as to be admitted "against" that defendant to the exclusion of the other, although commonly encountered, is questionable as to its foundation. It is pertinent to refer to what was said by Austin J in Australian Securities and Investments Commission v Vines [2003] NSWSC 995; (2003) 48 ACSR 282. He began (at [21]) by referring to s 56 of the Evidence Act 1995 which, subject to other provisions of that Act, makes "admissible in the proceeding" evidence that is "relevant in a proceeding" and excludes from admissibility evidence that is "not relevant in the proceeding". Austin J continued (at [22]):
"It is notable that both s 55 and s 56 address the question whether evidence is admissible in a proceeding. Where a plaintiff seeks to make out separate cases against several defendants in a single proceeding, the question to which the Evidence Act provides an answer is whether evidence is admissible in the proceeding, not whether evidence is admissible to prove the plaintiff's case against a particular defendant. The answer it gives is that if the evidence is relevant, it is admissible. Once it is admitted, it is evidence in the proceeding, and therefore available to be used for any purpose, unless one of the exclusionary rules of the Act or any surviving general law exclusionary rule applies, or the Court makes use of its statutory discretions to exclude admissible evidence or limit its use." [original emphasis]
108That passage was approved by this Court in Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 at [102] where the point was made that the court is given by s 136 of the Evidence Act a discretion to limit the use to which evidence may be put if there is a danger that a particular use of it might be unfairly prejudicial to a party, or be misleading or confusing; but that such a limitation can only arise from an order actually made by the court.
109The present case was one of a "single proceeding" with the plaintiff suing both Eire and Reed. Evidence admissible and admitted "in" that proceeding was therefore available for use generally in the proceeding subject to any order under s 136 limiting the use to which it could be put. The judge did not make expressly any order under s 136. Nor is there any basis on which it could be said that he did so by necessary implication.
110The second thing to be said about this aspect is that the representations in the Exhibit B document could have been admissible only if the document itself satisfied the conditions for admissibility of "business records" in s 69 of the Evidence Act (the judge in fact referred to it as a business record). One of those conditions (s 69(2)) is that the representation in the document was made either by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (s 62(2)(a)) or on the basis of information directly or indirectly supplied by such a person (s 69(2)(b)).
111Exhibit B does not, on its face, identify the origin of its content in such a way as to show that the representations within it were made by a person within the s 69(2) description; nor was there any evidence going to that matter. Nowhere is there anything identifying the person or persons who, directly or indirectly, provided the information recorded in the document. The identification of Mr Jones and Mr Kennett in the document itself as "Witnesses to accident/incident" says nothing about the source of the content (including the part of the content referring to them as "witnesses"). Mr Jones said in evidence that he had written an "incident report" which "went for about five or six lines if not longer"; but when Exhibit B was shown to him, he said that that was not the incident report to which he was referring.
112The circumstances were thus relevantly the same as in Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352. The question there was as to the admissibility under s 69 of a report signed by two ambulance officers and containing statements about the alleged circumstances in which their patient had been injured in a fall. The report included information said to have been provided by "bystanders" who had found the patient. In relation to the s 69(2) criteria, French CJ, Heydon and Bell JJ said (at [17]);
"What is the 'asserted fact'? If the 'asserted fact' is 'the respondent fell 1.5 metres onto concrete', at once a difficulty arises which was not debated by the parties. Section 69(2)(a) cannot apply, because the makers of the representation, the ambulance officers, did not have personal knowledge of a fall of 1.5 metres onto concrete, and could not reasonably be supposed to have had it, since the fall had happened some time before they arrived. And s 69(2)(b) cannot apply, because even if it were the case that the ambulance officers were told by bystanders that the respondent fell in that fashion, the bystanders did not have personal knowledge of the fall, and could not reasonably be supposed to have had it: again, the fall took place before the bystanders arrived."
113Because there is no apparent explanation of the basis on which the s 69(2) condition was considered to be satisfied, it is not possible to understand the judge's reasons for admitting Exhibit B. The decision that it should be admitted is unexplained. Because no circumstance beyond those already noticed could have been relevant to the question of admissibility, the conclusion must be that the hearsay content was inadmissible and that the decision to admit it was in error.
114It is clear nonetheless that the judge treated the content of Exhibit B as evidence and made use of that content (although, as will be seen, the use was not extensive). I shall return to precisely what was done in that regard.
115Even if Exhibit B had been properly admitted under s 69, there is an obvious question as to the weight that should have been afforded to its hearsay content. Because it is not known who prepared the document or how that person obtained the information recorded in it, there is no way of judging the accuracy or reliability of the information. There is also the point that the document was a Reed document created by Reed for its own purposes after an episode that obviously gave rise to questions of potential liability of not only Reed itself but also Eire. Reed had an obvious interest in implicating Eire rather than itself. Thus, had Exhibit B been properly admitted, it would have been entitled to negligible weight.