45 There is no specific provision of the Evidence Act dealing with how the existence of a document is to be proved. That depends on the common law as modified by the general provisions of the Evidence Act.
46 I think that it is more likely than not that there was some form of written agreement dated 11 December 1980. I say that largely because of the terms of the 1990 agreement and the caveat prepared at the same time. I deal below with the question whether the fact that Elie signed the 1990 agreement (and the wills) can be taken as an admission by him in relation to the 1980 agreement. However, even if it is not, in my opinion, the 1990 agreement and the caveat are admissible to prove the existence of the 1980 agreement. Mr Phair signed the caveat. He could not recall seeing the 1980 agreement. However, he gave evidence that it was his practice to satisfy himself that there was at least some basis for the claim made in the caveat. The likelihood is that he saw a document dated 11 December 1980 and it was that document that formed the basis of that claim. Mr Phair could not recall preparing the 1990 agreement. However, he signed the letter dated 23 March 1990 to Mr and Mrs Minas enclosing a draft of that agreement. Again, the likelihood is that he reviewed the draft agreement even if he did not prepare it himself; and, again, it is difficult to see where the reference to an agreement bearing a date of 11 December 1980 would have come from other than from a document bearing that date. It is possible that Mr Phair did not actually see the 1980 document but was relying on a description of it given to him by Mr Minas or George. But in that case the document still must have existed in order to be described. The only other alternative is that Mr Minas or George gave Mr Phair the date and some description of the document sufficient to permit the caveat and 1990 agreement to be prepared in circumstances where no such document existed. That strikes me as unlikely.
47 What, then, were the contents of the 1980 agreement? As I have said, s 48 of the Evidence Act determines what is admissible in answering that question. Mr Loofs made two submissions in relation to that section. First, he submitted that the 1980 agreement was "not available" to George within the meaning of the Act. Consequently, he said, s 48(4) applied. Second, he submitted that that subsection should be read as permitting the admission of all evidence admissible in accordance with other provisions of the Act which was relevant to the contents of the document, or that it should at least be interpreted as permitting admissible hearsay evidence of the contents of the document.
48 I am prepared to accept that the 1980 agreement was "not available" to George in the sense required by the Evidence Act. The likely location of the document was at Mr Phair's offices or among his parents' papers. A subpoena was served on Mr Phair to produce documents but he did not produce a copy of the 1980 agreement. Although George did not give direct evidence of the searches that he had made among his parents' papers, it is clear that he did search through those documents and he attached a number of them to his affidavit. I am prepared to infer that, as part of his searches, he also looked for the 1980 agreement and was unable to find it.
49 However, I do not accept Mr Loofs interpretation of s 48(4) of the Evidence Act. That subsection permits a party to adduce evidence of the "contents' of the document. That evidence could take the form of evidence from a person who has seen the document and who can give evidence about what it contained. It could also take the form of another document that purported to record the contents of the document that is unavailable: Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 337. However, I do not think that it includes evidence concerning people's intentions or beliefs from which the contents of the document might be inferred. That evidence is not evidence of the contents of the document.
50 For similar reasons, I do not think admissible hearsay evidence of the contents of a document (such as evidence from a witness that Mr Minas told the witness about the contents of the 1980 agreement) is admissible under s 48(4). That evidence is evidence of what one person said to another concerning the contents of the document in question. It is not itself evidence of the contents of the document.
51 There is some support for the conclusion of the previous paragraph in the Report of the Australian Law Reform Commission that led to the Evidence Act (ALRC 38). In its Interim Report on Evidence (ALRC 26), the Commission recommended adoption of similar principles to those contained in the US Federal Rules in relation to the proof of the contents of documents. That recommendation was adopted in the Final Report (see ALRC 38 para 231) and the legislation drafted by the Commission to give effect to that recommendation (see cl 125(3) of the draft legislation appended to the Commission's Report) was based, in part, on Rule 1004 of the US Federal Rules. That rule provides that "[t]he original is not required and other evidence of the contents of a writing, recording, or photograph is admissible" if certain conditions are satisfied. Section 48(4) is in substantially the same terms as cl 125(3). Rule 1004 does not state what "other evidence" is admissible to prove the contents of the document. However, Wigmore states the principle at common law in these terms:
"a person who proposes to testify to the contents of a document, either by copy or otherwise must have read it . He may not describe its contents merely on the credit of what another has told him it contains even though his informant purports to have read it aloud in the presence: Wigmore on Evidence , 1972 Volume 4, s 1278 (emphasis in original)."
52 It is hard to believe that the US Federal Rules intended to depart radically from the principle stated by Wigmore without expressly saying so. Similarly, it is hard to believe that the Australian Law Reform Commission in recommending adoption of a clause based on the US Federal Rules (cl 125(3)) intended to depart radically from that principle.
53 There is nothing in s 48(4) of the Evidence Act to suggest that it sets out the exclusive means of proving the contents of a document that it is not available to a party. It is still open to a party to prove the contents of a document not available to the party in accordance with subs (1) - and, in particular, by adducing evidence of an admission by a party concerning the contents of the document.
54 It follows from what I have said that the contents of the 1980 agreement can be proved either through admissions by Elie or through direct evidence of someone who saw the agreement.
55 Elie signed the 1990 agreement and, in the absence of an application to have it set aside, is bound by its terms: Toll (FGCT) Pty Ltd v Alphafarm (2004) 219 CLR 165. However, it is not a deed and consequently does not give rise to an estoppel in relation to the facts asserted in it: see J D Heydon, Cross on Evidence (7th ed) at [39160]. In any event, any such estoppel would only operate in proceedings based on the 1990 agreement. It would not operate in proceedings the 1980 agreement: Offshore Oil NL v Southern Cross Exploration NL 9 (1985) 3 NSWLR 337. The 1990 agreement, and the wills signed by Ellie, may amount to an admission by him in relation to the facts asserted in them, but the weight of that admission depends on the circumstances in which they were signed. As Ryan J explained in Australian Competition and Consumer Commission v Pratt (No 3) [2009] FCA 407 at [77]:
"An agreement does not ordinarily constitute a representation by a contracting party. One reason for that is the difficulty in attributing a particular statement in the agreement to one party or the other. It is also notorious that parties to an agreement may elect to conduct their contractual relations and, if necessary, enforce the rights arising from them on a basis which is contrary to fact. That is not to say that no statement in an agreement or contractual document can ever constitute a representation in the sense used in the definition of "admission" in the Evidence Act. A recital to a deed or other written contract may, in its context, be so expressed as to warrant the conclusion that both contracting parties intended it to operate as an assertion of actual fact. In that event, the recital, in my view, would be admissible in later proceedings as an admission against either contracting party."
See also Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143-4 per Rich, Dixon, Evatt and McTiernan JJ.