Global Medical Imaging Management Limited (in liquidation) v Australian Mezzanine Investments Pty Limited & Anor

Objection is taken by the defendants, not only to the substance of the admission into evidence of the handwritten document, but also to the mode of reproduction or suggested reproduction by the plaintiff in the typed format to which I have referred. 3 The document is tendered as a business record pursuant to section 69 of the Evidence Act 1995. 4 The objection is that the document does not fall within that section. In the event that the document may be held to be a business record within the meaning of the section, an application is made for the court to exclude the evidence pursuant to each subsection of section 135 or to limit the use to be made of the evidence pursuant to each subsection of section 136. 5 In my view, the document is a business record within the meaning of the section. It appears to generally comprise a record taken by the author, Mr Kempen, of what he was told in a telephone conversation with Dr Meikle. It appears in the main record what the author was told had been said or had occurred at a meeting on 23 May 1997 attended by the author. In that sense, the document contains previous representations made on the basis of information directly or indirectly supplied by Dr Meikle, "who had or might reasonably be supposed to have had personal knowledge of the relevant asserted facts". 6 Dr Meikle's knowledge of the relevant facts [in particular what had occurred at the meetings; and also that he had sent a letter to the partners] may reasonably be supposed to have been based upon what he saw, heard or otherwise perceived [subsection 69 (5)]. 7 An asserted fact is defined in section 59 (2) to mean a fact the existence of which is intended to be asserted in the representation. Even a representation in the form of an "opinion" as to the existence of a fact may arguably fall within the scope of that term. 8 The sections of the document which may be thought to cause some difficulty concern differentiating between those parts of the document which may contain, not a record of what was said to the author by Dr Meikle, but the author's own statement of his thoughts gleaned during the course of the conversation or immediately thereafter. Dr Meikle has not been called by the plaintiff and is not available for cross-examination. 9 In what follows I shall as a matter of convenience refer generally to the typed version of the materials, being cognisant however of the objection which is pressed in relation to that version of the handwritten materials. 10 In particular, the section which appears at the end of the document as a "summary", whilst in part arguably recording what was said in one or other of the meetings, more likely is simply, as to the first three bullet points, the author's distillation of what Dr Meikle had given as his summary, but may simply record the author's own subjective summary of what he believed Dr Meikle's report to amount to in bottom line terms. Likewise the last bullet point appearing before the summary, appears to record what Dr Meikle said to the author about opinions, requests and a state of emotion of Dr Dempster, as well as a proposed course of action by Dr Meikle [see last sentence]. 11 Additional questions may be said to arise in relation to the portion of the document which follows the dashes in the seventh and tenth bullet points on the first page. 12 In relation to the section following the dash in the seventh bullet point, it has been submitted that this is simply be no more than a reflection of the author of his own opinion, as opposed to recording what was said to him by Dr Meikle. Even if this section includes what was said to the author by Dr Meikle, it is not clear whether Dr Meikle was reporting something which had been said that the meeting, or his own subjective opinion about the matter the subject of this seventh bullet point. 13 In relation to the section following the dash in the tenth bullet point, it has been submitted that clearly the words "however Ron doesn't know what this meant" amount to a recording of what Dr Meikle had reported to the author Dr Meikle's state of mind on that subject matter - that is to say, he was reporting that he did not know what was meant by the reference to equity shares and management shares. 14 To my mind a careful reading of the whole of the document makes clear that outside of:

the document is shown to be a record of the communication made Dr Meikle to the author about the meetings held on 23 May 1997 and attended by the author. Debate may take place as to which portion of the record relates to which of the meetings held on 23 May 1997. That debate is entirely proper but should ultimately take place during final addresses in the light of all of the evidence, bearing in mind the holdings to which I now come relating to the section 135 and 136 applications. 15 Turning then to the applications, a number of the considerations here of relevance are to be found in the reasons for decision given yesterday on like applications concerning the document appearing at PX 3/1072. Notwithstanding the difficulties, such as they are, faced by the parties and the court in endeavouring to understand precisely what Dr Meikle can be seen to have communicated to the author of the document the subject of this judgment, it is common to have business records [and often materials including second-hand hearsay] admitted into evidence as part of the whole of the evidentiary mosaic, which of course includes documents of many types as well as evidence given by statement and in the witness box. 16 Endeavouring sometimes with considerable difficulty to construe contemporaneous documents and/or to determine what may or may within proper application of principal, be appropriately inferred from all or part of such documents, is a commonplace occurrence with which the parties to litigation as well as the court have to deal. 17 Those considerations require always to be balanced in the light of the discretionary provisions entitling the court to refuse to admit evidence if it's probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, be misleading or confusing or cause or result in undue waste of time (section 135), and entitling the court to limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or be misleading or confusing (section 136). 18 A balancing exercise of a judgemental nature requires to be taken when these sections are sought to be invoked. The interests of each of the parties have to be borne in mind in relation to the proper exercise of the relevant discretion. 19 As was stated in the judgment dealing with the admissibility under challenge of the document at 1072, pursuant to these same sections, if the impossibility of challenging the veracity of hearsay statements by non- witnesses were generally to justify or were often to be a significant factor in justifying a decision to exclude evidence in the court's discretion, the result would be to write the hearsay exceptions out of the Act to a large extent. That outcome would be contrary to the legislative intention [see R v Clarke [2001] NSWCCA 494 at 1648 per Heydon JA]. 20 On the other hand, the balancing exercise involved in the discretion gives the court considerable flexibility [see R v Paterson [2001] NSWCCA 316 (comments as it seems to me perfectly and also appropriately applicable to civil proceedings)]. 21 I have reached the clear conclusion that the proper exercise of the court's discretion is to allow into evidence so much of the document as was earlier identified as shown to be a record of the communications made by Dr Meikle to the author about the meetings held on the day in question. 22 It seems to me however that a proper exercise of the court's discretion, by reason of the difficulties of endeavouring to work out whether particular portions were intended to be a summary of what was said during one or other of the meetings or may simply be a statement of the subjective state of mind of Dr Meikle or, in some cases, of the author, is: · to exclude the section following the dash which appears in bullet point seven on the typed version [I note that the eighth bullet point on the typed version is in fact part of the seventh bulled point on the handwritten version]; · to exclude the words, "However Ron didn't know what this meant", appearing as part of bullet point ten on the typed version; · to exclude the last bullet point appearing before the summary on the typed version; and · to exclude the whole of the summary on the typed version save for the fourth bullet point [the fourth bullet point clearly not being a report of a conversation]. 23 The above described exclusions are by reason of the holding that the probative value of those sections of the document is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendants or be misleading or confusing or cause or result in undue waste of time. It is possible that one or other of these sections which will not go into evidence, might have been regarded as, in any event, falling outside of the definition of "business records" within the meaning of the Act. That matter does not require further consideration, as it is effectively outflanked by the above holding. 24 It is to be of course recalled that this is a decision of an interlocutory nature in the course of a final hearing in terms of an admissibility of evidence issue. That is to say, in the usual course, all counsel will be fully heard on every parameter, not only of this document, but of all the materials which go into evidence, during final address. Whether or not, and if so to what extent, it may be put that this interlocutory hearing amounts to an adjudication for the purpose of the ultimate judgment can also be the subject of final address. 25 As to objection to the admission into evidence of the typed plaintiff's version of handwritten notes, the appropriate course is clearly to simply admit these notes into evidence with the same rulings as I have given, although I gave them apropos the typed piece of paper, the handwritten piece of paper. 26 To my mind, the typed plaintiff's version can go into evidence also as a typed plaintiff's version and a section 136 order should be made so that the evidence is to be regarded as no more than as constituting what the plaintiffs by their counsel or solicitors, suggest is a proper interpretation of the handwritten material. It could just as easily be marked for identification but, for the convenience, it seems to me, not only of this court, but if this matter goes to the Court of Appeal of that Court, the two documents should be stapled together. 27 Obviously the plaintiff's typed version is not a contemporaneous version. It was brought into existence for the purpose of the litigation and to assist, presumably, all concerned, in how the plaintiffs say the handwritten material should be interpreted.

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Judgment (13 paragraphs)

Parties

Cases Cited (2)