(h) Sections 60 and 77 give rise to special considerations. Unlike other exceptions to the hearsay rule and the opinion rule, it is not the objective of those sections to facilitate proof. They are there to avoid a distinction having to be made about evidence being used for one purpose and not for another. Where a document goes into evidence because the existence of the document is a relevant fact, the operation of these sections without a limiting order under s136 may have a consequence which the legislature cannot have intended. Any representation in the document which is probative of some other element in the tendering party's case becomes evidence of the content of the representation. Representations of fact become evidence of the truth of the representation, irrespective of whether they are first-hand or remote hearsay and irrespective of whether the source of the information is disclosed. Representations of expert opinion in the document are probative of whatever is the subject of the opinion expressed, irrespective of whether the author of the document is qualified to express the opinion and irrespective of whether the assumptions made for the purpose of expressing the opinion are specified. Such consequences cannot have been intended where the opposite party is disadvantaged by such consequences. Section 136 serves to avoid such unfairness."
8 The documents that are the subject of the plaintiffs' tender do not fall into a single category or even into a series of discrete categories that can easily be described. On the contrary, each document brings forth separate and different considerations. At the point when I originally admitted the documents into evidence I did so expressly upon the basis that, having regard to the need to manage this hearing as efficiently as possible, it was preferable, although by no means ideal, later to approach the second defendant's application pursuant to s 136 in the same general fashion.
9 Notwithstanding this approach, Mr Speakman of Senior Counsel, who appears for the second defendant, sought to draw my attention to some of the documents in particular in order to emphasise the iniquity that he contended would flow from their unconstrained use in the proceedings for all purposes. In this respect it should be noted that the primary, and possibly the only, issue to which these documents were directed was that of whether or not the Platinum Certificate, which is at the heart of these proceedings, was or was not genuine or valid. The plaintiffs contend that it is and the second defendant contends that it is not. The truth or otherwise of the contents of the documents was therefore at the centre of the present debate.
10 Some examples of the documents are as follows. Exhibit AAT is a letter dated 6 January 1995 from Hamock Investments Pty Ltd to Nicholas Wall, above the signature of the first plaintiff. The subject matter of that letter is a proposed sale of the Platinum Certificate. The letter contains material suggesting that there may have been potential buyers for the certificate, inferentially supporting the proposition that the certificate is valid. The letter is inherently self-serving. It contains other representations that are arguably incapable of verification.
11 Exhibit AAO is a copy of a page from the Australian Financial Review on 20 June 2006. It contains what is described an "expression of interest" with respect to the sale of the Platinum Certificate. The document contains the following statement, clearly authorised by the first plaintiff:
"I am the lawful holder of a Certificate of deposit of platinum bullion issued by the Union Bank of Switzerland on 27 October 1978, valued at today's prices for (sic) approx 170 billions USD."
12 The plaintiffs' attempt to rely upon that statement by the first plaintiff, as evidence of its truth, is a matter that the second defendant contends is prejudicial if admitted as evidence without limitation.
13 Exhibit AAAE is a document of some 213 pages. It is not possible conveniently or accurately to summarise its contents in any meaningful way. Pages 133 and following of that document, however, are portion of a statement by an unnamed person apparently given to the Australian Federal Police in the course of an interview on 20 September 1995 in Vancouver, Canada. The prejudice stemming from a document such as this by an unnamed deponent, if admitted into evidence without limitation, needs only to be stated to be understood.
14 Pages 19-21 of the same exhibit are a letter from the first plaintiff to Federal Agent Bishop of the Australian Federal Police, which contains, among other things, the following statement:
"I have recently received information and documents from overseas sources that confirmed that UBS AG did in fact breached (sic) the Trade Practices Act 1974 of Australia and did in fact commit criminal torts here in Australia including conspiracy to injury and fraud (sic) me and fraud (sic) Hamock Investments Pty Ltd from substantial amount of money."
15 That letter contains further similar statements. The second defendant contends that it would be prejudiced if such a letter were received in evidence without the limitation for which it contends.
16 Exhibit AX is a document of 79 pages that also defies convenient or accurate description. Page one of that exhibit is a letter dated 11 March 1994 from Hamod Holdings Pty Ltd to Michael Brendan O'Dowd. That letter commences with an opening paragraph that includes the words "I wish to confirm that the Buyer's mandate had authenticated the Platinum Certificate". The letter is signed by the first plaintiff. It is unnecessary to elaborate upon the obvious prejudice that the second defendant says flows from the unlimited reception into evidence of such a document.
17 It was urged upon me by the second defendant that if my original decision to admit the documents under consideration into evidence was made having regard to the need to manage the present hearing efficiently, my adjudication of its application for a limitation upon that evidence pursuant to s 136 ought also to be informed by a similar approach.
18 Mr McKeand of Senior Counsel, who since 2.00pm on 10 June 2008 has appeared for the plaintiffs, argued that what he described as a "blanket approach" was not appropriate. Mr McKeand contended that notwithstanding the approach taken by me to the reception of the documents that he tendered, limiting the use of the documents pursuant to s 136 should be dealt with on what amounted to a case-by-case basis. Whereas such an approach undoubtedly conforms to principle, it seems to me that the documents tendered by the plaintiffs are so offensive to the notion that they should be admitted as evidence of the truth of their contents that a general approach in this case is warranted. In other words, special considerations apply. This is particularly so in my opinion having regard to the overriding principle described in s 56 of the Civil Procedure Act 2005.
19 Alternatively, Mr McKeand contended that the documents were business records falling within s 69(2) of the Evidence Act 1995 and that as such should be admitted as exceptions to the hearsay rule. It will be immediately apparent that such a submission itself draws upon the need to reply upon generalities or what Mr McKeand earlier described as a "blanket approach" to make it good. However, even assuming that the documents in question form part of the records belonging to or kept by a person or organisation in the course of, or for the purposes of, a business, it is not possible with sufficient confidence to generalise, having regard to the wildly variable provenance of all of the documents, about whether or not representations contained in them were made by persons who had or might reasonably be supposed to have had personal knowledge of the facts asserted or on the basis of information supplied by a person who did.
20 The second defendant also contends that the plaintiffs ought not to be entitled to the benefit of s 69(2) because it does not apply to representations "prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding": s 69(3). In aid of this submission the second defendant relied upon the fact that s 69(3)(b) extended as well to a representation "made in connection with an investigation relating or leading to a criminal proceeding". Having regard to the fact that the criminal proceedings against the first plaintiff spanned the period from 20 January 1995 until April 1998, and that the present proceedings have themselves been on foot since 2000, much of the documentation sought to be tendered would be excluded under the relevant subsection. Detailed submissions permitting me to make an accurate appraisal of this argument were not provided.
21 In my opinion, a limitation upon the use of the documents in the terms sought by the second defendant is appropriate. Accordingly, what I have earlier described as the "usual document limitation" should apply to Exhibits AT to AAAK inclusive.
Transcript of Local Court proceedings
22 Secondly, the plaintiffs sought to tender the whole of the transcript of the proceedings in the Local Court before Magistrate Horler. That transcript was Exhibit AH146 to the first plaintiff's principal statement in the proceedings and I am informed that it extends to four lever arch volumes of material. Mr Maconachie of Queen's Counsel who, with Mr Hutchings of counsel, appears for the first defendant, opposed the admission of that material upon the basis that it is irrelevant, is hearsay, and upon the further basis that it infringes principles of witness immunity.
23 One of the plaintiffs' causes of action against the first defendant is malicious prosecution. It was principally in the context of that cause of action that the contest about the application to tender the transcript was heard. The elements of that tort have been recently described in A v New South Wales [2007] HCA 10; at pars [54], [57]-[59] as follows:
"[54] It is on this basis that the tort has hitherto been understood as requiring proof of two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). The two requirements meet the two different kinds of case posited in Johnstone v Sutton - maliciously taking up a prosecution "for real guilt", and proceeding upon apparent guilt from circumstances which the prosecutor "really believes". That is, the positive requirement of malice, and the negative requirement of absence of reasonable and probable cause, each have a separate role to play in the tort. A conclusion about malice does not render irrelevant the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution."