Official Trustee in Bankruptcy v. D'Jamirze & Ors. [1999] NSWSC 986

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

NO. 3593 OF 1997 OFFICIAL TRUSTEE IN BANKRUPTCY V. D'JAMIRZE & ORS. JUDGMENT (on admissibility of documents see page 10)

1 HIS HONOUR: During the reading of affidavits in this matter Mr Johnson, for the plaintiff, objected to the tender of certain documents: firstly, a document in Russian purporting to be an agreement by certain of the defendants to give their interests in the subject land to the cross-claimant in exchange for the equivalent of $700,000; and secondly, another document in Russian purporting to be a receipt for the equivalent of $700,000. 2 The objection then articulated was that the purported agreement was not stamped and was therefore inadmissible; and that no documents would be admissible to prove the transaction purportedly effected by that unstamped document. 3 Following that objection being taken, the cross-claimant undertook the stamping of the purported agreement, and that has now happened. 4 The tender of these documents has been renewed, and Mr Johnson has raised further objections to them. He has referred to evidence that, about a year ago, notices were given to the solicitor for the cross-claimant pursuant to s.167 of the Evidence Act, making a reasonable request for the purpose of determining a question relating to the authenticity, identity or admissibility of these documents, the request being that the signatories to both documents put on evidence in the case. 5 The situation now is that five of the eight signatories of the agreement have put on evidence, but the signatory to the receipt document has not; and no sworn evidence explaining the non-compliance with the request has been put on. 6 In those circumstances Mr Johnson submitted that those documents should be excluded, pursuant to s.169(1)(c) of the Evidence Act. The signatory to the receipt was apparently the only signatory to any document who was not a member of the family of the defendants, the cross-claimant being the husband of one of the other defendants. Only if that signatory was called could the authenticity of the receipt be properly tested. As regards the purported agreement, Mr Johnson submitted that there was no question of the availability of the other three signatories: indeed, a statement from the remaining three had been provided, two of them sworn, yet no explanation was offered for not calling them to give evidence. Mr Johnson submitted that the appropriate course would be to exclude the document or, alternatively, to admit it on the basis that it could only affect the interests in the property of the signatories who were called to give evidence. 7 Mr Moore, for the cross-claimant, submitted that I should infer that the signatory of the receipt was in Russia, and that it was reasonable for the defendants not to put on evidence from that signatory. He submitted that the evidence provided in relation to the other document showed that the persons principally involved had put on evidence, and that some of those less directly involved had also put on evidence. The plaintiff had been provided with ample opportunity through that evidence to test the authenticity of the document. He also indicated that, if the objection was maintained and the Court was otherwise minded to uphold it, the remaining three signatories would be produced for cross-examination. 8 Sections 166, 167 and 169 of the Evidence Act are in the following terms: 166. In this Division: "request" means a request that a party ("the requesting party") makes to another party to do one or more of the following:

(a) to produce to the requesting party the whole or a part of a specified document or thing, (b) to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing, (c) to call as a witness a specified person believed to be concerned in the production or maintenance of a specified document or thing, (d) to call as a witness a specified person in whose possession or under whose control a specified document or thing is believed to be or to have been at any time, (e) in relation to a document of the kind referred to in paragraph (b) or (c) of the definition of "document" in the Dictionary---to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept, (f) in relation to evidence of a previous representation---to call as a witness the person who made the previous representation, (g) in relation to evidence that a person has been convicted of an offence, being evidence to which section 92 (2) applies---to call as a witness a person who gave evidence in the proceeding in which the person was so convicted.

167 A party may make a reasonable request to another party for the purpose of determining a question that relates to:

(a) a previous representation, or (b) evidence of a conviction of a person for an offence, or (c) the authenticity, identity or admissibility of a document or thing.

169(1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:

(a) an order directing the party to comply with the request, (b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166, (c) an order that the evidence in relation to which the request was made is not to be admitted in evidence, (d) such order with respect to adjournment or costs as is just.

(2) If the party had, within a reasonable time after receiving the request, informed the other party that it refuses to comply with the request, any application under subsection (1) by the other party must be made within a reasonable time after being so informed.

(3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under subsection (1) (a) or (b) is not complied with.

(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:

(a) the document or thing to be produced is not available to the party, or (b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced, or (c) the person to be called as a witness is not available.

(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:

(a) the importance in the proceeding of the evidence in relation to which the request was made, and (b) whether there is likely to be a dispute about the matter to which the evidence relates, and (c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved, and (d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered, and (e) if the request relates to evidence of a previous representation---whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based, and (f) in the case of a request referred to in paragraph (g) of the definition of "request" in section 166---whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained, and (g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable, and (h) the nature of the proceeding. 9 Having regard to the considerations set out in s.169(1)(5), and dealing first with the purported agreement, in my opinion, if all signatories are at least produced for cross-examination, I should not exercise the power given by s169(1)(c) to reject the document. 10 I think the appropriate course is to admit the document, on the basis that all signatories will be available for cross-examination. Should that turn out not to be the case, for whatever reason, I will give further consideration as to whether the document should be excluded; or alternatively, whether I should order that it be admitted on the basis that it may only affect the interests of the signatories who have been produced for cross-examination. 11 Turning to the receipt document, Mr Moore submitted, not merely that should it be admitted, but that it should be treated as a business document, and thus as being evidence of the truth of the assertions made in it. 12 There is no sworn evidence as to how the document came into existence, and no evidence extrinsic to the document itself that it is part of the business records of any company or organisation. The document appears to be on a letterhead of Razvitie (Joint Soviet Australian Company) and bears what purports to be a common seal of that company. 13 In my opinion, in circumstances where there is no sworn evidence as to the origins of the document, when presumably such sworn evidence could have been given, and in circumstances where the signatory of the document has not been called, notwithstanding a request, I do not think I should admit the document as being a business record, and thus as being evidence of the truth of its contents. 14 However, it might be said that the absence of any receipt document is a matter positively counting against the evidence of the cross-claimant that he advanced a large sum of money in cash. In my opinion the document should be admitted into evidence, simply as a receipt document which the cross-claimant obtained, in so far as that fact may to some extent count against an inference that might otherwise be drawn against him. However, I do not admit it otherwise as any evidence of the truth of its contents. 15 So on those bases, I will admit both documents.

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