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EX TEMPORE Judgment

1. During the course of the cross-examination, a witness called by the first defendant, Mr Dreverman, was shown a report concerning flooding that occurred in 2010 in the Tumut and Murrumbidgee Rivers. Mr Dreverman was asked questions about so much of that report that appeared to suggest that rainfall forecasts had been used during flood operations. Mr Dreverman did not appear to have any great knowledge of the document, although he broadly agreed with what was put to him as to what the document stated.
2. The plaintiff now seeks to tender that report on the basis that it is a business record admissible under s 69 of the Evidence Act 1995 (NSW). The tender is opposed.
3. The report is entitled "Review of Water Management during the 2010 Flood Events in the Tumut River and Murrumbidgee River". It was prepared by the "NSW Office of Water" which describes itself as the body that "manages the policy and regulatory frameworks for the State's surface water and groundwater resources to provide a secure and sustainable water supply for all users." It is also stated that that body also "supports water utilities in the provision of water and sewerage services throughout New South Wales."
4. At the beginning of the report is a statement signed by the relevant Minister stating that the report was prepared in response to concerns raised about the flooding. The Minister states that the NSW Office of Water was asked to "conduct a detailed review of water management in the lead up to the floods and responses by the relevant agencies to the floods" and that the purpose of the review was to "clearly describe the framework for flood management in this area and ascertain whether agencies implemented this framework."
5. Within the body of the report it is stated that the review was undertaken by the Legal Branch of the NSW Office of Water. The report states that the branch had no involvement in flood management operations but that its review was based upon an analysis of primary documents and hydrometric data, interviews with relevant staff and information obtained from State Emergency Services, the Bureau of Meteorology and the Tumut Shire Council.
6. In very broad terms, the report describes the flood management practices in place at the relevant dams in 2010 and then describes how flood operations were conducted.
7. Consistent with the operation of s 69, the plaintiff provided an annotated version of the report which identifies the relevant representations which are sought to be proved by its tender (Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd v Calleja [2018] NSWCA 26 at [88]).
8. The first basis for the objection to the invocation of s 69 is that it is said that the report does not satisfy s 69(1)(a) and in particular, it does not form "part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business;" The submissions in support of the objection seek to invoke a distinction noted by Middleton J in Hansen Beverage Company v Bickfords (Australia) Pty Limited [2000] FCA 406 at 133 ("Hansen Beverage"), between business records that are an internal record of a business compared to records that are the product of the business (citing Roche v Page [2003] NSWSC 939 at [5] to [6] per Sperling J).
9. It is not necessary to address whether that distinction still pertains in relation to s 69(1)(a). It simply suffices to state that the description of the regulatory functions of the NSW Office of Water and the purpose of the review means that, at the very least, it follows that the report is a record or part of the record belonging to that body in the course of or for the purposes of its business. In particular, while in one sense the report is clearly a publication of that business made for the purposes of the public, it also appears to be a record maintained for that business as to compliance with a particular regulatory framework. To adopt the language of Hansen Beverage, it is both an internal record of the business and a product of the business.
10. The second basis of objection is that s 69(2) of the Evidence Act is not satisfied in that it is contended that so far as the documents contain the relevant representations, the court could not be satisfied that they were made by a person who had or might reasonably supposed to have had personal knowledge of the asserted fact or on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
11. Leaving aside certain aspects of the representations relied on by the plaintiff, which appear to be opinions, which I will deal with next, the description of the process by which the legal branch of the NSW Office of Water carried out their function means that, at the very least, I am satisfied that the relevant representations were made on the basis of information indirectly supplied by persons who might reasonably be supposed to have personal knowledge of the asserted facts, specifically, the staff that were interviewed and the various agencies from which the information was obtained.
12. The third matter that arises in relation to the report concerns the extent to which it contains opinions which, even if they are found in a business record, must be proved by one of the other provisions of the Evidence Act, ss 77 to 81 (see Lithgow City Council v Jackson (2011) 244 CLR 342; [2011] HCA 36).
13. Of the representations identified by the plaintiff, two particular extracts appear to be more than simply a description of the procedures in place and what occurred during flood operations but instead appear to be expert opinions. On electronic page 0028 there is the paragraph that begins, "As the emergency procedure" which expresses an opinion as to the relative merits of conducting flood operations based on observed inflows compared to what is described as the forecast method. On electronic page 0034, under the heading "Operational decisions", there is a broad statement of opinion as to what must be undertaken during flood operations. In my view, both of those are clearly expert opinions. I am not satisfied that any of ss 77 to 81 are made out in respect to them and those parts are rejected.
14. Fourth, in relation to the balance of the document, the second defendant seeks its exclusion under s 135 of the Evidence Act. The first task in applying s 135 of the Evidence Act is to identify the probative value of the evidence. As stated, the report contains a description of the flood procedures and the manner in which they were implemented during the 2010 floods. Taken at its highest, the material appears to demonstrate that, as a matter of fact, rainfall forecasts were used to make operational decisions at the dams in question and, arguably, that action was consistent with the procedures in place.
15. In the scheme of this case that may not ultimately prove to be decisive given that, as I understand it, the plaintiff's case is focused primarily on the requirements of the manual for the operation of Wivenhoe and Somerset Dams. However, there is clearly an issue between the parties as to whether, leaving aside the particular requirements of some individual manual, reasonably competent flood operations either included, excluded, or accommodated, a consideration of rainfall forecasts in the making of decisions about dam releases. One aspect of the resolution of the debate over that appears to concern what practices were, in fact, adopted at other dams.
16. In those circumstances, I accept that the representations have some real probative value.
17. The next task in applying s 135 is to identify what the relevant prejudice is to determine whether that substantially outweighs the probative value of the evidence of the representations.
18. The second defendant contends that a relevant matter affecting the identification of prejudice is the absence of any identified authors of the review, given that the only identified persons referred to within it is the Minister. It also points to the fact that the NSW Office of Water is not the operator of the dams, the absence of any identification of the primary documents referred to in the review, the absence of any elaboration upon the type of forecasts used and the precise use that was made of them, and the fact that no witness was called concerning dam operations at the relevant dams. Overall it is said that there were no other means for the second defendant, and presumably for the other defendants, to fairly test any of the representations or opinions in the report.
19. In considering those contentions two matters must be borne in mind. First, in light of the findings I have made to date, the report is not to be otherwise admitted as evidence of any representation as to the appropriateness of using rainfall forecasts to conduct dam operations, but rather at most it would only be evidence of the fact that the procedures envisage that and that they were in fact used.
20. Second, as I understand it, notice that this report would be tendered was provided in April 2018 so that the defendants have had opportunity to at least undertake some of their own inquiries to test the factual assertions within the report as to the approach adopted at the dams and during that flood event in particular. This could have, for example, included the issue of a subpoena designed to obtain the relevant manual at Burrinjuck Dam.
21. That said, I accept that there are clearly some difficulties for the defendants in testing factual matters in the report, and this can fairly be described as prejudice. Nevertheless, that does not substantially outweigh the probative value of the evidence of the representations. The evidence of the representations will be admitted. [Discussion re how much of report to be admitted to give context to the representations.]
22. [The document identified as] MSC.010.286.0001 will be admitted save for the second paragraph under the heading "Emergency procedure" on 0028 and the passages under the heading "Operational decisions" on page 0034.