Roach & Ors v Page & Ors

• 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List

20950/97 Walter Edward Roach & Ors v Brian John Downey Page t/a Freehill Hollingdale Page & Ors

Judgment No.26 - On tender of Table 4 in Oakes submission document 1 His Honour: On 5 November 2003, I rejected the tender of Table 4 in a document previously marked 11 for identification. These are my reasons. 2 The document is entitled "The Wingecarribee Swamp Peat Deposit". It is described as a submission to "The Chief Mining Warden's inquiry into the renewal of special leases 567 and 568 (Act 1906) at Wingecarribee Swamp". The author is G M Oakes, described as Senior geologist, Land use and resource assessment section, Geological survey division, NSW Department of Mineral Resources. There was no objection relating to the authenticity of the document. 3 There was previously admitted into evidence without objection (Exhibit AAAL) an extract from a document by the same author entitled, "Geological Survey of New South Wales, Department of Mineral Resources, Mineral Resources Audit Programme: The Status of the Construction Material, Industrial Mineral and Metalliferous Mineral Resources of New South Wales". That document includes a Table 25, "Recent production of peat in New South Wales" in which are recorded production figures for each of the years 1987-88 to 1991-92. The text of the document states that such production was "almost entirely derived from Amgrow Pty Limited's Wingecarribee Swamp mine". 4 Table 4 now tendered is entitled, "Peat Production from Wingecarribee Swamp". It includes production figures for the years 1968-69 to 1995-96. The figures for the years 1989-90 to 1991-92 are the same as those recorded in Exhibit AAAL for the same years, indicating that the figures for those years in Exhibit AAAL are for Amgrow alone. 5 The value of Table 4 would be to establish Amgrow's production figures to1995-96. Exhibit AAAL does not do so. Table 25 is for New South Wales as a whole and only to 1991-92. 6 Table 4 carries the following note: "source: ABS returns and NSW Department of Mineral Resources royalty returns". 7 Prima facie, the data in Table 4 is hearsay and inadmissible. 8 Counsel for the plaintiffs invoked s144 of the Evidence Act 1995. That, however, is not a provision facilitating the admissibility of evidence. It deals with what the court is entitled to treat as known without evidence of the fact. Nothing in s144 can make evidence admissible which is otherwise inadmissible. 9 Next, counsel invoked s82(1)(a) of the Supreme Court Act 1970 which provides as follows: (1) The Court may at any stage of the proceedings: (a) dispense with the rules of evidence for proving any matter which is not bona fide in dispute, also with such rules as might cause expense and delay arising from any commission to take evidence or arising otherwise; and, without limiting the generality of this power, dispense with the proof of handwriting, documents, the identity of parties or parcels, or of authority… 10 The section reposes a wide discretion in the court. It is not a discretion hedged in by conditions express or implied: Ishac v David Securities Pty Ltd (Young J, 13 December 1991, unreported). The court should act in the manner it considers best calculated to advance the interest of justice in the particular circumstances: Williamson & Anor v Mig Aero Pty Ltd (McLelland J, 27 June 1990, unreported). 11 I regarded the following considerations as being relevant:

(a) It is part of the plaintiff's case that, when Amgrow ceased to trade, there was an opportunity for the operators of the Swan Marsh deposit to pick up its share of the market. Table 4 showed what that was. The evidence could potentially advance the plaintiff's case significantly. The defendants were entitled to put the true extent of Amgrow's business in issue.

(b) Although made by a public officer, the document proffered was not an official government publication (as in the case of Exhibit AAAL). It could not be assumed that it was prepared with the same care and attention to detail as in the case of an official government publication.

(c) The information in Table 4 was not information in the direct knowledge of the author. It was a compilation from the specified sources without revealing the method of compilation. It was reasonable to assume that ABS data was obtained by survey, in this instance by survey of Amgrow. The reliability of Amgrow's production records was unknown. The reliability of royalty returns as an indicator of production was unknown. Whether the sources were reconcilable was unknown.

(d) The plaintiffs sought to tender Table 4 without calling the author or tendering the source materials. Accordingly, the defendants would not have the opportunity of testing the way in which the source information was collected or the way in which the figures in Table 4 were compiled.

(e) There was nothing to suggest that production of the ABS data and of the royalty returns was impracticable or would have involved any significant expense or delay. Whether objection would have been taken to that evidence and with what result was speculative. Whether production of the source materials would have supported or discredited the compilation in Table 4 was speculative.

(f) Nor was there evidence to show that proof of the way Amgrow produced information to the ABS and / or the way royalty payments were made and recorded would have been impracticable or would have involved significant expense or delay.

(g) Nor was it shown that proof of Amgrow's production figures by direct recourse to primary records kept by Amgrow was impracticable or would have involved significant expense or delay.

(h) In summary, this was not evidence of a kind that was very likely to be correct (as, for example, the printout of telephone calls in Williamson , or the record of unchallenged evidence given on oath on a prior occasion in Ishac .) Nor was it established that an alternative approach to proof of the same facts was impracticable or would have caused undue expense or delay. -o0o-

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