Mobileciti Pty Limited v Vodafone Pty Limited

CATCHWORDS : EVIDENCE [23] - Admissibility and relevancy - in general - other cases - Judicial discretion to exclude - Evidence Act 1995, s 135

Mobileciti Pty Limited (plaintiff) PARTIES : Vodafone Pty Limited (first defendant) Look Mobile Distribution Pty Limited (second defendant)

Mr M W Young (plaintiff) COUNSEL : Mr A S McGrath w. Dr H Bennet (first defendant) No appearance (second defendant)

Dixon Holmes du Pont (plaintiff) SOLICITORS : Henry Davis York (first defendant) No appearance (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

6445/05 Mobileciti Pty Limited v Vodafone Pty Limited JUDGMENT (ex tempore) 1 HIS HONOUR: Following on from my judgment of 26 August 2009 concerning the admissibility of survey material, I now turn to determining the objections to the Gemini material. 2 The Gemini material is so called because that is the name by which the system was known in the first defendant. It was a system kept to record telephone calls from customers. The records kept, as a result, were called Customer Service Records. The material, as tendered, was set out in a spreadsheet, which contained seven columns. The fifth column was headed "System Notes". In that was recorded the general nature of each call within categories that were pre entered in the system. The sixth column was headed "Manual Memo" and, in that, the operator who took the call recorded whatever further material he or she chose to concerning the content of the call. The calls recorded were numerous, ranging over seventeen pages. It can be perceived from the document which of a number of operators received which calls. 3 There are differences from the factual situation in relation to the surveys. First, this was a system of recording for the purposes of the business inward calls. It did not record inquiries made by the first defendant of customers and the responses to them. Secondly, the material recorded in the "Manual Memo" column was diverse both in subject matter and in the manner in which the material relating to each entry was recorded, unlike the survey. A difference is that, whereas in respect of the survey material the persons who made the inquiries did give evidence and were therefore available for cross examination (although the utility of this was limited by the fact that they said they could not remember the conversations), the operators who recorded the Gemini material were not called as witnesses and were not available for cross examination at all, any more than were the customers who telephoned in. As I have said, the material in the "Manual Memo" column was diverse. In many instances it included the expressions "contract" and "four month", quite often in the combined form "four month contract". This expression and others were sometimes placed within quotation marks. There were a limited number of entries in respect of which what was said by the customer telephoning in, was recorded at length and clearly in the words used by the customer or something like them. 4 I bear in mind, of course, the ruling I made in relation to surveys. It might be said in relation to the Gemini material that it was more in the ordinary course of business and not a special inquiry undertaken that related to the subject matter of these proceedings. Furthermore, in relation to the material in the "Manual Memo" column, what was recorded, even in the shorter instances, tended to be more ample than the very elliptical answers contained in the surveys. These matters have been pressed upon me as tending in favour of the admission of this material. However, Mr Marcus Young, of counsel for the plaintiff, submitted very strongly that in relation to the issue of the prejudice created, not only was the situation in relation to this material no better than, but it was worse or more problematical than, the situation with the survey documents, particularly in relation to the word "contract" and the words "four months". Mr Young said that in the majority of cases, we have a summary of what was said rather than a quotation in detail of what the customer did say or the context in which it was said. 5 To the proposition that the material in most cases indicated that the customer said something to the effect that there was a four month contract and it had now ended, Mr Young responded that what appeared in that column was the summary by the Vodafone operator of the general effect of his or her dealing with the customer. It could have been that the Vodafone operator was the person who used the expression "four month contract". One does not know who, if anyone, said those words. Mr Young draws attention to the fact that it varies from operator to operator how each call is recorded. Some operators recorded things fairly comprehensively, some very elliptically indeed. Even the fact that expressions such as "contract" and "four month contract" are put in inverted commas in the material noted, does not necessarily indicate that those words were used by the customer. The entries may just be the gloss of the operator, of whom we are not told the name and whom there is no chance to cross examine. However, it is sought to put that gloss into evidence as evidence of what the customer believed. At least in the case of the survey evidence, the communicants, on behalf of the first defendant gave evidence and were available to be cross examined, even if their evidence indicated that the content of the cross examination would be limited. Here, none of the operators is available to be cross examined as to what the practice was generally or of that operator and, of course, there is no opportunity to cross examine the customers themselves as to the fact of what was said. Not only should the entries not be admitted as to the truth of the facts stated in them; most of them are so unclear that they are not even good evidence as to what Vodafone was in fact told, that is, as to the fact of the communication itself. 6 Furthermore, the presence of quotes was, itself, equivocal. It could indicate that those very words were used by the customer, but it could be that the words were used by the operators to indicate the use of catch words or for other purposes. 7 Although I was at one stage somewhat attracted in favour of the admissibility of these records because of the more ample recording of what was said and perhaps the context in which it was said, I find Mr Young's submissions, as set out, compelling. I am well aware that the policy of the Evidence Act 1995 ("the EA") is to allow business records into evidence precisely to avoid the calling of large numbers of witnesses which was required under the common law. But I have already dealt in my surveys judgment with the fact that the convenience of the admission of a business record that deals with a large number of instances and a large number of people must be balanced against an unfair prejudice arising from the opposing party's inability to test the evidence, particularly evidence that is itself unclear and equivocal and that is put by the tendering party as of importance in relation to a central issue in the case. The balancing exercised must be carried out upon exercise of the Court's discretion under s 135 of the EA. In the end, I have come to the conclusion that the Gemini evidence also should be rejected. 8 I shall now proceed to deal with particular paragraphs of particular affidavits that are affected by this judgment. However, if there are particular entries that are of sufficient importance and escape the vices that I have identified, they may be re-tendered on their own. **********

9 Mr McGrath, for the first defendant, contends for a course whereby portions of the survey evidence and perhaps the Gemini evidence should be admitted in some form. He indicated early in the process of my dealing with the matter that this would be his submission. I have made it quite clear that I do not regard this application on his part as in any inappropriate way cavilling with my rulings. He conceded that he must abide by my rulings that the content of what was said in the telephone conversations will be rejected. However, he contended that relevant to his case is the very fact that customers were contacted and contacted on particular dates. In addition, in relation to the Gemini records, the fact that the customer requested disconnection is clearly indicated by the material recorded. This material is not equivocal so that he says he ought be allowed to prove by that material, that a particular customer by telephone requested disconnection upon a particular date. It seems to me that those requests on his part are reasonable. I think the appropriate way of dealing with them, if this can be achieved, is not by having to go to all of the survey material or all of the Gemini material and picking out these facts. I already suggested yesterday that in relation to the survey evidence, Mr McGrath and those with him should prepare a schedule which sets out the dates of calls, the identity of the person who called and the identity of the customer. In relation to the Gemini material, a similar list can now be prepared of the name of the operator, the date of the call, the name of the customer and the fact that disconnection was requested. Those should be submitted to Mr Young and those lists, by agreement, should be able to be admitted and, although prepared especially for this purpose, should be agreed by the parties to have evidentiary effect in the case. **********

10 An application is made for leave to call as witnesses the operators who received the Gemini calls. That application is refused. That course was deliberately followed in the case of the surveyors - if I may call them that. However, the decision was made in the case of the operators who received the Gemini calls not to call them. It appears to me that to call them now would greatly protract the trial and I am of the view that that ought not be allowed at this stage. The application is refused. 11 Whilst doing that would take a great deal of time and incur a great deal of costs on both sides, I am far from certain that it would, in any event, make any difference to my ruling about the Gemini evidence. Whilst the absence of the operators has been a factor, it has not been the single determinative or dominant factor in the rejection of the material and I remain doubtful whether the calling of those witnesses at this stage would in any event change the ruling as to the admissibility of the material.

12 There is an outstanding ruling as to the admissibility of evidence. It is a ruling as to paragraph 12 of the affidavit of A L Kerr of 25 November 2008. The words concerned are in the paragraph at the top of page 5. They are the words, "They have no problem with your ads." It was plain earlier that those words would be admitted but there is an outstanding application for a limitation under section 136 of the EA to limit their use so they may not be used to prove the truth of what is said in that sentence. 13 Mr Young does not oppose the imposition of that limitation. In those circumstances, without further ado, I shall impose the limitation in relation to those words. They are not to be used to prove the truth of what was said.

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