Roach & Ors v Page & Ors

• 4 - 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.15 - On AMGA Journal article 1 His Honour: On 17 October 2003 I admitted into evidence, as Exhibit AAAAC, an extract from the Australian Mushroom Growers' Association Journal, July 1995, containing what purported to be a contribution by Mr C Bass, who is known, from other evidence, to have been on the staff of Campbell's Mushrooms. Mr Bass was also named in the publication as a member of the journal committee. 2 The article can fairly be described as an "advertorial". According to the article, Campbell's Spawn & Supplement (presumably a division of Campbell's Mushrooms) were "the agents to the mushroom industry for Colac Peat Australia". In the article, Mr Bass is reported as speaking highly of Colac Peat, saying that chemical and biological analysis had shown that Colac Peat was very suitable for use as a casing blend (mentioning technical qualities), that extensive trialling and full commercial production had proven its value, and that one litre of Colac Peat created the same casing blend characteristics as approximately two to three litres of various European black peats. Colac Peat was also said to offer improved freight rates and easier on farm handling. 3 Counsel for the plaintiffs put the tender on two main bases: first, as a business record and, secondly, as a publication relevant as such. 4 The document did not satisfy the provisions of s69(1)(a)(i). It was not a record, nor did it form part of the records belonging to or kept in the course of, or for the purposes of, a business. 5 The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties. 6 On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business. They are the product of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business. 7 It was submitted that the document was part of the records of the Australian Mushroom Growers' Association Limited (the publisher), of Campbell's (it being submitted that they would have retained a copy of it) and / or of the State Library of New South Wales (to be inferred, it was said, from the ISSN number recorded in the publication). For the reasons I have given, the document did not qualify as constituting part of the records of any of these entities within the meaning of the section. 8 The approach may be tested in a commonsense way. It cannot have been intended that newspapers, magazines and journals (publication of any kind produced and / or received in the course of a business undertaking) would be evidence of whatever was stated in them. 9 If hearsay representations in the document were made admissible by operation of s69, the question then arose as to whether the evidence should be excluded pursuant to s135 or its use limited pursuant to s136. 10 It was properly conceded by counsel for the defendants that the document was admissible to prove the fact of its publication. The publication of the document was a relevant fact. Sections 60 and 77 then operated to make representations of fact in the document admissible, notwithstanding the hearsay rule, and to make representations of opinion in the document admissible notwithstanding the opinion rule, subject to the use of the evidence being limited pursuant to s136. 11 I refer to my judgment No. 11 in these proceedings, given on 10 October 2003, in relation to the meaning and ambit of the phrase "unfairly prejudicial" in ss 135 and 136. 12 I had regard to the following considerations for the purpose of deciding whether admitting the document as evidence of the facts and opinions stated in it might be unfairly prejudicial to the defendants:

a) Mr Bass, the ostensible author of the article, was not to be called by the plaintiffs. Accordingly, the defendants would not have the opportunity of testing whether the article was truly written by him and, if it was, of testing the statements of fact and opinion contained in the article by cross-examination. (In view of the "advertorial" nature of the article, there was reason to doubt that Mr Bass was truly the author and that he truly believed what was in it if he was.)

b) There was no evidence that Mr Bass was unavailable to be called by the plaintiffs, and there was no explanation for not calling him.

c) Insofar as the representations in the document were representations of fact, it was not apparent that these were matters of which Mr Bass had personal knowledge.

d) Insofar as the document contained representations of opinion, Mr Bass's qualifications as an expert with relevant specialised knowledge or experience was not established.

e) This was not the kind of evidence likely to have been in the contemplation of the legislature when enacting ss 60 and 77. Unsourced factual evidence and opinion evidence given without established qualification would be admitted against the defendants in consequence of the fortuitous circumstance that the document was relevant and admissible as a publication. 13 Having regard to these considerations, I was satisfied that, if admissible only pursuant to s69, the evidence should not be admitted because its probative value was substantially outweighed by unfair prejudice to the defendants (s135); and that, being admissible as a publication, with activation of ss 60 and 77, the use of the document otherwise than as evidence of the publication would be unfairly prejudicial to the defendants (s136). 14 Accordingly, I admitted the document into evidence and I limited the use of the document to proof of the fact of its publication. As I stated when announcing my ruling, the document would not, accordingly, stand as evidence of any representation of fact contained in it, nor as evidence of any opinion stated in it to prove the existence of a fact about the existence of which the opinion was expressed. In particular, it would not stand as evidence of the article having been written by Mr Bass, or, accordingly, of his state of mind concerning Colac Peat. -oOo-

Last Modified: 10/21/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.