During the formulation of the Act in its final form, the provision was expanded, so that it now applies to previous representations generally, rather than only to documents tendered as business records. I ought say, looking at the definitions of "previous representation" and "representation" in the Dictionary to the EA and comparing those definitions with the provisions of s 59(1) of the EA, it seems to me that "previous representation" as used in Division 1 of Part 4.6 may well be wider than the "representations" comprehended in s 59. There the ban is on previous representations where their use is to prove the truth of what is represented. The purpose of the tender in this case may well be to prove the making of a representation in the terms alleged, rather than the proof of the truth of the content of the representation; nonetheless, it seems to me that "previous representation" is used in a wide sense in Division 1 and is not limited to previous representations tendered as proof of their contents. That may be relevant to the representation at present under consideration, but does not lead to the applicability of the provisions, because it does not detract from the proposition that it is only where one party proffers the representation in evidence against another that the latter may ask for an order under s 169. A party cannot himself or itself proffer the representation, then ask some other party to call the maker of it.
7 A third matter that confirms my conclusion that that is the pattern of this part of the Act comes from the fact that that is the way in which the provisions have in fact been used in practice: see, for instance, the decisions of McLelland CJ in Eq in Telstra Corp v Australis Media Holdings NSWSC 18 March 1997 unreported and Hodgson CJ in Eq in Official Trustee in Bankruptcy v D'Jamirze [1999] NSWSC 986. The same was so in an earlier case decided by me, Commissioner of Taxation v Karageorge (1996) 22 ACSR 199, although there I denied operation to Division 1 by reason of the fact that the document had in that case been tendered under s 1274 of the Corporations Law and not under the provisions of the EA.
8 My conclusion is also reinforced by the fact that the EA provides another avenue for dealing with the situation which the plaintiff faces in this case. It will not be left in a situation where it is impossible for it to cross examine the relevant witness or investigate the state of his recollection. The EA in s 38 contains a wider provision than was available under the common law for dealing with witnesses who give unfavourable evidence. That section provides that a party who called a witness may, with the leave of the Court, question a witness as though the party were cross examining the witness about evidence given by the witness that is unfavourable to the party or where the witness has at any time made a prior inconsistent statement. This legislative provision replaces the pre-existing common law as to hostile or adverse witnesses. The full ambit of the concept of unfavourable evidence under s 38 has not yet been explored, but it is plain that the concept is wider than the notion of adverse or hostile evidence at common law: see the decisions of the Full Court of the Federal Court in Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 429 - 30 and the decision of the Court of Criminal Appeal in R v Kneebone (1999) 47 NSWLR 450 at 461 - 2. Whilst I do not bind any future exercise of my discretion, it seems to me highly likely that the plaintiff, if it chose itself to call Mr Potter, would be able either from the outset of his evidence or shortly thereafter to examine him as if cross examining him, at least if he denied making or failed to concede the statement deposed to by Mr Lamb in his affidavit.
9 Be that as it may, it is my view that the application is simply not within the structure provided by Division 1 of Part 4.6 of the EA and the application by the plaintiff that the liquidator be ordered to call Mr Potter as a witness is refused. The plaintiff's application was made on a formal notice of motion filed 31 January 2002. I order that the plaintiff pay the liquidator's costs of that notice of motion.