Seafood Imports Pty Ltd (ACN 006 456 819) v ANL Singapore Pte Ltd

The temperature of our cold storage is always set minus 25 degrees centigrade.

(2) Stowed condition in the container No. CGMU2821902:

Nothing wrong was observed at the time of stowage, and the cargo was stuffed below the red line of the inside container.

(3) Date, time of the container No. CGMU2821902 stuffed:

Loading started on 4th November 2 o'clock 20 minutes (2.20 PM) 2005 and finished 3 o'clock 10 minutes (3.10PM) at the same day.

(4) Date/time of the container left the cold storage:

The container departed at 3.30PM immediately after the loading was completed.'

4 Mr Munemasa's affidavit contains, amongst others, the following paragraphs: '(2) The cold store maintains separate chambers for different classes of product, depending upon the requirements of the product. In particular the cold store maintains facilities for the storage of frozen products in which facilities the temperature is always set at -25ºC.

(3) When products arrive at the cold store they are always checked to confirm that if they are supposed to be frozen, they are frozen, and that if they are supposed to be chilled, they are chilled.

(4) Kohyo Co Limited is a customer of the cold store and regularly delivers into the cold store cartons of frozen seafood products, which we in the store either keep for some time (depending upon requirements) or load into containers in accordance with our customers instruction.

(7) Annexed and shown to me and marked with the letter 'C' is a condition report prepared by me on 5 March 2007 at the request of Aioi Insurance Co Limited which sets out the facts as known to our company from its records.

(8) I have no personal recollection of this particular consignment. However, I can say that the documents 'A' and 'B' are normal company records prepared in the normal course of our business, and I can also say that I have no knowledge of or any record of any refrigeration breakdown in the cold store during the first week of November 2005.

(9) From my experience, I estimate that the truck which left the cold store at approximately 3.30 pm on 4 November 2005 would have arrived at the Yokohama terminal within 30 minutes.'

5 After some indecision about the applicable provisions of the Evidence Act 1995 (Cth) ("the Evidence Act"), it emerged from submissions made this morning as common ground that the affidavit of Mr Munemasa is a document containing a previous representation within the meaning of s 63 of the Evidence Act. That section provides: '(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.'

It is also necessary to refer to s 64 of the Evidence Act, which provides: '(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(a) evidence of the representation that it is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document, so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(b) a person who saw, heard or otherwise perceived the representation being made.

(4) A document containing the representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.'

6 Clause 4 of the Dictionary to the Evidence Act deals with the availability of persons to give evidence and provides: '(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

(b) the person is for any reason other than the application of section 16 (competence and compellability, judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence but without success.

(2) In all other cases the person is taken to be available to give evidence about the fact.'

7 The only grounds afforded by clause 4(1) on which Mr Munemasa might be taken not to be available to give evidence in this proceeding are those afforded by paragraph (e) or (f). There is no suggestion that the plaintiff's advisers have had any difficulty in "finding" Mr Munemasa. The question to be answered, therefore, is whether reasonable steps have been taken to secure his attendance but without success. The evidence of Mr Salter which is canvassed in detail below revealed that, although lawyers in Japan had been retained on behalf of the plaintiff, the collation of evidence in that country was undertaken by Mr Yokota, an officer or employee of the plaintiff's Japanese insurers. 8 It was Mr Yokota who identified Mr Munemasa as the manager of the cold store in which the subject goods had been kept before their removal to the shipping terminal at Yokohama. On the relationship between Mr Yokota and Mr Munemasa, Mr Salter deposed, at p 193 of the transcript: 'I don't think Mr Yokota was getting a great deal of cooperation in one sense because Mr Munemasa and the cold store wasn't that interested; they weren't Mr Yokota's client, they were just another party. But he worked on them and eventually said, "Well, yes, Mr Munemasa will sign a statement" and I prepared a sort of first draft of a statement which I sent over to Mr Yokota for Mr Munemasa to sign. And in fact I think he did sign it, but it wasn't - it wasn't in affidavit form; it was just a statement. It's the same as is presently in the affidavit.' 9 When asked about the source of the information from which he had prepared Mr Munemasa's statement, Mr Salter replied: 'Well, partly from Mr Yokota; partly from the file I already had, and partly - if I said guesswork that sounds a bit odd, but from knowledge. So I prepared a statement. I then - I think from memory Mr Munemasa might have just signed it as such, and then I basically said … …' After an objection, by Counsel for the defendant, Mr Salter's testimony continued with this passage, also recorded at p 194 of the transcript; 'It was clear to me that … Mr Munemasa was happy to sign a statement; hopefully that would be the end of it from his point of view; he'd sign his statement and get on with the business of running his cool store. So I thought, well, he's not going to - it was quite clear to me he was not prepared to come to Melbourne to give evidence about this matter and he was not at all keen about going to any studio to appear on a video-link, but he was prepared to sign a statement. So I then made the decision, for better or worse, to transform the statement into an affidavit on the basis that perhaps we would obtain leave to rely on that affidavit without having to trouble Mr Munemasa. It seemed to me that the evidence was simply about the systems and so forth; it didn't really add a lot. It was hardly - to me at that stage in any event, it was hardly very controversial and I thought, "Oh, well, we'll make an affidavit, and if we do that that will avoid any further hassle and aggravation for anyone." So I transformed it into an affidavit and asked Mr Yokota to have Mr Munemasa visit the Australian consul in Tokyo to swear the affidavit and that was what ultimately happened.' 10 Mr Salter acknowledged that he had never personally spoken to Mr Munemasa. However, he indicated that, after the present hearing had commenced: 'We've been hard at work since this matter arose several weeks ago trying via Mr Yokota, again to have Mr Munemasa make himself available.' 11 When asked what came of those efforts, Mr Salter replied (see p 195 of the transcript); 'Well, unfortunately nothing, because my belief is that Mr Yokota probably promised Mr Munemasa originally that that would be the end of it once he made his statement. So, I mean, I understand that in the way these things are done in Japan, when Mr Munemasa swore his affidavit he spent several hours travelling from wherever he is to the consul and back in company with three or four assistants, which seems to be the way in which all that happens and that was - he regarded that as more than enough to assist so that he wasn't prepared to take the matter any further.' 12 In my view, that evidence does not discharge the onus which is on the plaintiff to bring itself within either s 63 or s 64 of the Evidence Act: see Caterpillar Inc v John Deere Ltd (No 2) (2000) 181 ALR 108. In that case Heerey J observed, at 112 [18]; '… It was not for Mr Grawey to enter into negotiations. The onus was on Deere to show they have taken all reasonable steps to secure his attendance. …' and, further, at 114 [27]; 'I am not satisfied, therefore, that Deere has not [sc. has] brought itself within either s 63 or s 64.' 13 I agree with the gloss on the Caterpillar case suggested by Hamilton J in Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 at [17], that clause 4(1)(f) of the Dictionary to the Evidence Act is concerned only with steps taken to compel a person to give evidence and presupposes that the person's attendance to give evidence has been secured as contemplated by clause 4(1)(e). 14 In the present case, there is no direct evidence of any communication Mr Munemasa with a view to finding out whether it is reasonably practicable to secure his attendance to give evidence. The plaintiff was aware that facilities were available to enable Mr Munemasa to be called to give evidence by video link between Tokyo and Melbourne. There is no evidence of any attempt to persuade him to give evidence by that means, or of what might be required to enable that to be done. Nor has any attempt been made to quantify the expense which would have been incurred had that course been followed. 15 All that the Court has is Mr Salter's assumption, or intuition, that Mr Munemasa considers that by attending at the Australian Embassy to swear the affidavit, he has done all that he is prepared to do, and that he cannot be prevailed on by any reasonably practicable means to attend at a studio in Tokyo or otherwise cooperate in being called to give evidence by means of video link. In my view, the evidence does not discharge the onus imposed on the plaintiff by s 64(2). 16 Mrs Hartley of Counsel for the plaintiff, also invoked s 26 of the Evidence Act as conferring an independent discretion on the Court to admit the evidence of a witness embodied in an affidavit without requiring that witness to attend and be made available for cross-examination on his or her affidavit. Section 26, I think, is concerned only with the control available to be exercised by a court over the questioning of a witness whose attendance to give evidence has been secured, whether by compulsion or otherwise. It says nothing about the admissibility of evidence contained in an affidavit. 17 For these reasons I rule that the evidence contained in the affidavit of Mr Munemasa is inadmissible. This ruling says nothing about the admissibility as business records of annexures A and B to the affidavit, being the incoming report and the outgoing report.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Ryan.

Associate: Dated: 6 May 2009 Counsel for the Plaintiff: Mrs M Hartley

Dates of Hearing: 24 - 27 March inclusive; 28 - 30 April inclusive and 1May 2009