Judiciary Act 1903 s.79

Acts Interpretation Act 1901 (Com) s.15AA

Evidence - Admissibility - Documentary - Expert opinion - Valuer's report - Whether an expert opinion contained in a document is admissible as a "statement" pursuant to s 92 of the Evidence Act 1977 (Qld) - Whether the document formed part of the record of valuation business within the terms of s 7B(1) of the Evidence Act 1905 (Cth) - Document admissible under the State Act but inadmissible under the Commonwealth Act - Application of s 109 of the Commonwealth Constitution - Extent of invalidity of the State Act - Evidence Act 1977 (Qld), ss 92, 98 - Evidence Act 1905 (Cth), ss 7A(1), 7B, 7C(1) - The Constitution (63 and 64 Vict c 12), s 109 - Judiciary Act 1903 (Cth), s 79 - Acts Interpretation Act 1901 (Cth), s 15AA. Counsel for the applicants sought to tender pursuant to s 92 of the Evidence Act 1977 (Qld) (the State Act), a valuation report prepared by a qualified valuer who was unfit to attend as a witness, the report having been made or obtained for the purpose of, or in contemplation of judicial proceedings.

Held: (1) The written expert opinion of a valuer, including statement of inquiries made, the results of those inquiries and the methods adopted to arrive at the opinion, is a "statement" within the terms of s 92 of the State Act and in this case, apart from the operation of s 109 of the Constitution, was admissible pursuant to s 92 of the State Act.

Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642; Dass v. Masih (1968) 1 WLR 756; Warner v. Women's Hospital [1954] VicLawRp 59; (1954) VLR 410; Lenehan v. Queensland Trustees Ltd (1965) Qd R. 559; Morley v. National Insurance Co [1967] VicRp 61; (1967) VR 566, referred to.

(2) The document containing the valuation report was a document which formed part of the record of the valuation business within the terms of s 7B(1) of the Evidence Act 1905 (Cth) (the Commonwealth Act) but as the restriction in s 7C of the Commonwealth Act applied to the statement in the report, the report was inadmissible pursuant to that section.

Compafina Bank v. Australia and New Zealand Banking Group Ltd (1982) 1 NSWLR 409 and Bates v. Nelson (1973) 6 SASR 149, referred to.

(3) Section 92 of the State Act insofar as it relates to documents which come within Pt IIIA of the Commonwealth Act is inconsistent with that Part and is to that extent invalid by virtue of the operation of s 109 of the Constitution, Accordingly s 7C of the Commonwealth Act applied to the valuation report rendering it inadmissible.

Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 and Metal Trades Industry Association of Australia v. Amalgamated Metal Workers' and Shipwrights' Union (1983) 57 ALJR 639, referred to with approval.

Allen v. Allen and Bell (1894) P. 248; Re John O'Brien; Ex parte Allchurch [1923] SAStRp 35; (1923) SASR 411; In the Estate of Constantine, Deceased; Constantine v. Constantinides [1947] SAStRp 43; (1947) SASR 415, referred to.

Ruling upon a tender, pursuant to s 92 of the Queensland Evidence Act 1977, of a valuation report relating to land the subject of proceedings before the court.

Solicitors for the applicants: McCullough & Robertson.

Solicitors for the first respondent: Skinner & Smith.

Solicitors for the second respondent: F. K. Brown and Brown.

GFV

The valuation report prepared by Mr Harold Foster and sought to be admitted into evidence by the applicants not be so admitted.

The applicants seek to tender, pursuant to s.92 of the Queensland Evidence Act 1977-81, a valuation report relating to the land, the subject of these proceedings, prepared by a Mr Harold Foster. Mr Foster is a qualified valuer.

Mr Muir, who appears for the applicants, concedes that this report was made or obtained for the purpose of, or in contemplation of, judicial proceedings. The reason for the seeking of the tender of this report without Mr Foster's attendance as a witness appears from exhibit 54. This shows that Mr Foster is unfit, by reason of his bodily condition, to attend as a witness.

Shortly put, on 6 June 1984, Mr Foster suffered a moderately large inferior myocardial infarction in Cairns, and is being treated by a specialist on Wickham Terrace in respect of his heart condition. There has recently been increasing angina on effort, requiring further hospital review, and he is shortly to have a coronary angiogram to assess his coronary circulation.

His medical practitioner, who has had Mr Foster as a patient for approximately seven years, expresses the opinion that he will not be fit to attend court hearings for at least six months.

Section 92 of the Queensland Evidence Act provides that:-

"(1) In any proceeding (not being a criminal proceeding) where direct

oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this Part, be admissible as evidence of that fact if -

(a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or

(b) the document is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding."

Sub-section (2) provides:-

"(2) The condition in sub section (1) that the maker of the statement

or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where -

(a) he is . . . unfit by reason of his bodily . . . condition to attend as a witness;"

Section 98 of the Evidence Act (Qld) provides that:-

"(1) The court may in its discretion reject any statement

notwithstanding that the requirements of this Part are satisfied with respect thereto, if for any reason it appears to be inexpedient in the interests of justice that the statement should be admitted."

Mr Muir asserts that the valuation report comes within s. 92 of the State Act, and the conditions for its reception have been met.

The respondents say that the statement contained in the document is covered by the provisions of Part IIIA of the Evidence Act 1905 (Commonwealth) dealing with the admissibility of business records. It is submitted that the evidence is caught by the provisions of s.7B of the Commonwealth Act and is subject to the restriction which exists by virtue of sub-s.7C(1), being a document which was prepared "for the purpose of, or in contemplation of," judicial proceedings.

It is said that the provisions of the Commonwealth statute dealing with business records evince an intention to cover the field and, by virtue of s.109 of the Commonwealth Constitution, s.92 of the State Act is, to the extent of its inconsistency with the provisions of Part IIIA of the Commonwealth Act, invalid.

It is further asserted by the respondents that the valuation opinion of Mr Foster is not a statement which satisfies the requirement of sub-s.92(1)(a) of the Queensland Act in that Mr Foster, the maker of the statement, did not have personal knowledge of the matters dealt with in the statement, it being submitted that the report, being a valuation report, consists of opinion and Mr Foster is not then to be characterised as a person who had "personal knowledge of the matters dealt with by the statement".

Before dealing with the major questions, I will deal first with this last submission. It is clear that a valuer, when called to given evidence, can properly give evidence of the inquiries made, and the results of those inquiries, which form the basis for the opinion at which he arrives. The position is similar to that of a medical practitioner who is entitled to state the medical history given to him by his patient in order to show the foundation of his opinion - see Ramsay v. Watson [1961] HCA 65; (1961) 108 C.L.R. 642.

In Cross On Evidence, Second Australian Edition, at paragraph 20.10, in dealing with the meaning to be attributed to the word "statement" in s.92, the learned authors say that there is no doubt that the word "fact" is wide enough to cover opinion.

Section 5 of the Evidence Act 1977 (Qld) provides that:-

"'statement' includes any representation of fact, whether made in

words or otherwise and whether made by a person, computer or otherwise;"

The authorities show that statements of opinion by an expert are admissible as "statements", to which s.92 refers, provided the requirements of that section are otherwise dealt with.

In Dass v. Masih (1968) 2 All E.R. 226, the Court of Appeal had to consider the reception, under the provisions of the Evidence Act 1938, of a statement of opinion by a handwriting expert. In that case it was indicated that statements of opinion were admissible under the Act. Support along similar lines can be obtained from Warner v. Women's Hospital [1954] VicLawRp 59; (1954) V.L.R. 410 per Sholl J. at p.415, and Lenehan v. Queensland Trustees Limited (1965) Qd.R. 559 per Hart J.

Closer to the facts of this particular case are the observations of McInerney J. in Morley v. National Insurance Co. [1967] VicRp 61; (1967) V.R. 566. Having referred to the two cases last mentioned, his Honour concluded that a document incorporating a statement of opinion of the now deceased maker, which opinion would be admissible in oral evidence if the person were alive and called as a witness, may be admitted as evidence of opinion, such opinion being a "fact" within the meaning of s.55 of the Evidence Act 1958 (Victoria).

It is clear that these evidentiary provisions are meant to have a facultative effect and are to be construed broadly.

In relation to the Commonwealth provisions and, in particular, the whole of the provisions of Part IIIA of the Evidence Act 1905, s.15AA of the Acts Interpretation Act 1901 (Commonwealth) cannot be ignored.

In my view it is not a bar to the operation of s.92 of the State Act that the statement which is sought to be tendered is valuation opinion evidence. This is so even accepting that there are, in the statement proposed to be tendered, statements of inquiries made, and the results of those inquiries, and the methods adopted to arrive at the opinion which the maker of the statement holds. Each of those latter statements would be admissible in evidence if given by Mr Foster and are not to be excluded by the construction contended for of s.92.

Turning now to the question of the inter-relationship or inconsistency between provisions of the Commonwealth Evidence Act and the State Act, the test to be applied has been variously stated. In Ex parte McLean [1930] HCA 12; (1930) 43 C.L.R. 472 at p.483, Sir Owen Dixon said:-

"When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v. Palmer [1926] HCA 50; (1926) 38 C.L.R. 441). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter."

More recently, in Metal Trades Industry Association of Australia v. Amalgamated Metal Workers' and Shipwrights' Union (1983) 48 A.L.R. 385, in the joint judgment of the Chief Justice and Wilson and Dawson JJ. at p.392, their Honours say:-

"The problem therefore is to be approached on the basis that the alleged inconsistency is between the Commonwealth Act which authorizes the making of the awards and the State law, and the solution is to be found in the application of s.109 and the well-established doctrine of inconsistency derived therefrom. At the heart of the doctrine is the call to take the law or the award with which the State law is alleged to be inconsistent and to discern precisely the matters which it is the intention of the Parliament, or the Commonwealth arbitrator as the case may be, are to be exhaustively determined thereby."

"A law of a State will be inconsistent with an award and consequently with a law of the Commonwealth if 'its effect, if enforced, would be to destroy or vary the adjustment of industrial relations established by the award with respect to the matters formerly in dispute': per Isaacs J in Clyde Engineering Co Ltd v. Cowburn [1926] HCA 6; (1926) 37 C.L.R. 466 at 499. Another helpful formulation of the relevant test of inconsistency was expressed by Dixon J in Victoria v. Commonwealth [1937] HCA 82; (1937) 58 C.L.R. 618 at 630: 'When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.'"

The Commonwealth Evidence Act provides, so far as is relevant:-

"7A.(1) In this Part; unless the contrary intention appears -

'business' includes -

(a) any business, profession, occupation, calling, trade or

undertaking whether or not engaged in or carried on for profit and whether engaged in or carried on in Australia or elsewhere, including any business, profession, occupation, calling, trade or undertaking engaged in or carried on by the Crown in right of the Commonwealth or of a State; and

. . .

'document' includes -

(a) a book, plan, paper, parchment, film or other material on which

there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them;

. . .

(c) any other record of information;

. . .

'qualified person', in relation to a statement made in the course of,

or for the purpose of, a business, means a person who -

(a) at the time when the statement was made, was -

(i) an owner of the business or a person carrying on the

(ii) a servant or agent employed or engaged in the business;

(iii) a person retained for the purpose of the business; or

(iv) a person associated with the business in the course of

(b) at that time -

(i) in the case of a statement that is not admissible in evidence

unless made by an expert on the subject matter of the statement - was such an expert; or

(ii) in any other case - had, or may reasonably be supposed to have had, personal knowledge of the facts stated;

'statement' includes any representation of fact, whether made in words or otherwise."

Section 7B(1) provides -

"(1) Subject to this Part, where, in any proceeding, evidence of a

fact is admissible, a statement of the fact in a document is admissible as evidence of the fact if -

(a) the document containing the statement forms part of a record of a business, whether or not the business is in existence at the time when the question of admissibility arises;

(b) the statement was made in the course of, or for the purpose of, the business; and

(c) the statement was made by a qualified person or reproduces, or was derived from, either or both of the following descriptions of information:

(i) information in one or more statements, each made by a qualified person in the course of, or for the purposes of, the business;

(ii) information from one or more devices designed for, and used for the purposes of the business in or for, recording, measuring, counting or identifying information, not being information based on information supplied by any person."

Sub-section 7B(3) provides -

"(3) In this section, 'fact' includes opinion."

Then, s.7C provides in sub-s(1) -

"(1) A statement is not admissible under section 7B in a proceeding if

it was made or obtained for the purpose of, or in contemplation of, any judicial or administrative proceeding."

There are documents which are within the definition of "document" and which contain statements which form part of a record of a business within the meaning of the Commonwealth legislation, and which are also documents forming "part of a record relating to any undertaking and made in the course of that undertaking from information supplied" within the meaning of s.92 of the Queensland Act. It therefore follows that there are areas in which both laws can have effect.

Section 7C imposes a restriction on the admissibility of any such document which is "made or obtained for the purpose of, or in contemplation of, any judicial or administrative proceeding." That restriction is not echoed in the State Act, and it therefore follows that the simultaneous operation of both statutes would result in documents which would be admissible by virtue of the Queensland Act being inadmissible by virtue of the Commonwealth Act.

The Queensland Act, putting aside for one moment the operation of s.109 of the Constitution, would have effect by virtue of the provisions of s.79 of the Judiciary Act 1903 which provides:

"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

It follows, in my view, that s.92 of the State Act, insofar as it relates to documents which come within Part IIIA of the Evidence Act 1905, is inconsistent with that Part and is to that extent invalid.

It therefore becomes necessary to determine whether the document sought to be tendered in this case is a document containing the statement which forms part of a record of a business. In addressing that question, one has to have regard first of all to the wide definition of business and to the definition of "qualified person" in s.7A of the Commonwealth Evidence Act. When regard is had to the words contained in para (b) of the definition of a "qualified person", it is clear that opinion evidence could be included as part of a record of the business. That this is so is also clear when one has regard to s.7B(3). In addition, the words themselves "part of a record of a business" suggest that no narrow view is to be taken in their interpretation.

Shortly put, the question is whether a valuation made by the valuer is a document which forms part of a record of a valuation business. There is no doubt that it was made in the course of and for the purposes of the business; nor is there any doubt that it was made by a qualified person because there was no question but that Mr Foster was a person carrying on a valuation business and, also, because Mr Foster was an expert on the subject matter of the statement.

In Compafina Bank v. Australia and New Zealand Banking Group Ltd (1982) 1 N.S.W.L.R. 409, Hunt J. was concerned with the question of whether a copy of a letter sent by one non-party company to another non-party was admissible in evidence. At p.412 his Honour held that:

"A copy of a letter sent by a company where it is part of that company's business to write such letters appears to me therefore to amount to a record of that company within the general meaning of the word 'record' in s.14CE(4) (of the Evidence Act 1898 (N.S.W.).)"

At p.411 of that report, Hunt J. refers to a number of cases where decisions have been made concerning the admissibility of various documents. In particular, he directs attention to Bates v. Nelson (1973) 6 S.A.S.R. 149, at p.155, where a copy of a report by a psychiatrist to a solicitor kept in the records of a hospital was excluded. That exclusion by Mitchell J. was based on the provision of sub-s. 45a(4) of the Evidence Act 1929 (South Australia), which defines a business record as, inter alia, meaning "any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business". That much narrower definition was determinative of the question in that case, but it is not of much assistance in relation to different statutory provisions.

In my view, giving s.7B the wide interpretation it should be given, I am of the view that a valuation made by a qualified person in the course of, and for the purpose of, his business, would be admissible by virtue of the provisions of s.7B. The valuation, however, is within the restriction contained in s.7C. Having been obtained for the purpose of, or in contemplation of, judicial proceedings the statement is not admissible.

If I were wrong in that conclusion, it would be necessary then to consider whether, in the exercise of a proper judicial discretion, the evidence ought, nonetheless, be rejected by virtue of the provisions of s.98 of the Evidence Act (Queensland). Relevant to that question are a number of considerations including, but not limited to, the following. The document relates to a central question in these proceedings. Next, it is evidence of a nature which is susceptible of great subjectivity. Already valuation evidence yielding widely differing conclusions has been given in this case. There is also the difficulty of a true assessment of the weight of the evidence, depending, as it does, on the impression one forms of the opinion-giver.

Crucial to the task of assessing evidence is the assistance one gets from the testing in cross-examination. The general rule is that no testimony is proper to be considered as against the interests of a party unless that party has had an opportunity of submitting an opponent to the test of cross-examination: Allen v. Allen (1894) P. 248, at p.253; In Re John O'Brien; ex parte Allchurch [1923] SAStRp 35; (1923) S.A.S.R. 411; In the Estate of Constantine, Deceased [1947] SAStRp 43; (1947) S.A.S.R. 415, at p.424.

Because of the evidence not being able to be evaluated or tested by the ordinary methods, and the inherent subjectivity of the evidence, the weight of the evidence would undoubtedly be very light.

I confess some difficulty as to whether, in the exercise of a proper discretion, the evidence ought to be admitted, leaving the question then to be assessed as a matter of weight, or, whether the important considerations to which I have referred, particularly the centrality of the material to this litigation, is such that it would not be fair to the respondents to allow this evidence to be admitted untested. It is not necessary to make a decision in that respect, but probably I would have received the evidence with all its limitations, but have indicated that the weight that would be given it, due to the considerations that I have mentioned, would be quite small.

I am comforted in one aspect, in any event, in the conclusion which I have reached in that it will be open to Mr Muir, on behalf of the applicants, to use the material contained in the valuation to test any valuation evidence sought to be led by the respondents, both as to methodology and as to conclusions.