Supreme Court of SA|2001-03-16|Before: Lander J

SECL (IN LIQ) & ORS v BOND & ORS No. SCCIV-96-113 [2001] SASC 70 (16 March 2001)

Application by plaintiffs to tender transcript of examination and affidavits - whether evidence admissible under s 45a, s 45b, s 34c, s 59j of the Evidence Act and/or s 597 of the Corporations Law - conduct of examination - whether trial judge has residual discretion to exclude otherwise admissible evidence in proceedings - tender allowed as against each defendant but refused as against each other defendant - plaintiff may tender examination transcript and affidavits as prior consistent statement in evidence in chief provided they comply with s 34C(4) and witness not a "person interested".

Plaintiffs: SOUTHERN EQUITIES CORPORATION LTD, BOND CORPORATION PTY LTD AND MR RICHARD ENGLAND

Counsel: MR M HOFFMAN WITH MR M LIVESEY - Solicitors: FISHER JEFFRIES

Counsel: MR A DAL CIN - Solicitors: FISHER JEFFRIES

Defendants: TAMBAR PTY LTD, MR CRAIG BOND AND HULLMES PTY LTD

Counsel: MR R WHITE QC - Solicitors: DAVID DEAKIN DAVIES & CO

Counsel: MR J WELLS QC WITH MR J CUDMORE - Solicitors: COSOFF CUDMORE & PARTNERS

Counsel: MR A HARRIS QC WITH MR M HAMILTON - Solicitors: GROPE HAMILTON BROWN

Judgment No. [2001] SASC 70

SOUTHERN EQUITIES CORPORATION LTD (IN LIQUIDATION) & ORS V BOND & ORS

1 LANDER J. The trial of this matter commenced on 12 February 2001. Mr Hoffman, counsel for the plaintiffs, opened the plaintiffs' case and, at the completion of his opening, applied to tender some 21 lever arch files of documents.

2 I dealt with each of the documents individually and accepted or rejected the tender of each, after argument. These reasons are to explain specific rulings which I have made and for rulings which I am about to make.

3 The application for the tender of some documents gave rise to considerable argument and the need to undertake a close analysis of those legislative provisions which provide evidential aids for the admission of documents. However, I must say, in fairness to the defendants, the defendants did not object to many of the documents. Mainly they confined themselves to matters of principle and the more important documents.

4 The first plaintiff, Southern Equities Corporation Ltd, (SECL) was formerly known as Bond Corporations Holding Ltd. It was a public company incorporated in Western Australia and was the holding company of the second plaintiff. The second plaintiff was in turn the holding company of all of the companies known as the Bond Group. The third plaintiff, Mr Richard England, is the liquidator of the first plaintiff, appointed pursuant to an order of this Court. It is not necessary in these reasons to give any further description of the plaintiffs.

5 Alan Bond was the chairman and an executive director of the first plaintiff. The second and third defendants are the trustees of the bankrupt estate of Mr Peter Beckwith, who was an executive director and managing director of the first plaintiff. The plaintiffs have compromised their action with those trustees. The fifth defendant, Mr Craig Bond, is a son of Mr Alan Bond and is alleged by the plaintiffs to be the controller of the fourth and sixth defendants. Whether that allegation will be made out does not matter for the purpose of these reasons. Ms Caboche, the seventh defendant, was and is the secretary and financial controller of the fourth defendant. She was also the secretary and financial controller of Dallhold Investments Pty Ltd (Dallhold), which was a company controlled by the first defendant and, which in turn until its liquidation, held more than 50 per cent of the shares of the first plaintiff. The first defendant controlled Dallhold which controlled SECL which, through the second plaintiff, controlled the Bond Group.

6 The eighth defendant, Mr John Bond, is also a son of Mr Alan Bond and, of course, a brother of Craig Bond. He was a director of the first plaintiff although his profession is that of a barrister and solicitor.

7 The ninth defendant, which has not appeared in these proceedings, is a company incorporated in the Commonwealth of the Bahamas as an international business company. It is the plaintiffs' case that the ninth defendant is controlled by the fifth defendant, Mr Craig Bond. Although that is a matter seriously in dispute it does not need to be resolved at this time.

8 Each of the personal defendants was examined under Pt 5.9 of Chapter 5 of the Corporations Law and a transcript was taken of their examination; s 597(13). Each of them signed their transcript as they were obliged; s 597(13).

9 A number of other persons, some of whom were employed by the plaintiffs, but most of whom were independent of the plaintiffs, were examined pursuant to s 596B of the Corporations Law as persons who had taken part or been concerned in the examinable affairs of the first plaintiff. Again a transcript was taken of each of those witnesses' examinations and each of the witnesses signed that transcript.

10 Some other persons provided the liquidator with affidavits in lieu of being examined under the Corporations Law.

11 Two others provided affidavits in response to orders made in this Court and orders of courts overseas.

12 In his opening, Mr Hoffman, identified the witnesses who would be called to give evidence in the plaintiffs' case. Some of those witnesses are resident in Western Australia; one is resident in Queensland. Two others are resident in Texas in the United States of America; two others are resident in the Commonwealth of the Bahamas; and one is resident in England.

13 He advised the Court, in his opening, that the interstate witnesses would be brought to Adelaide for the purpose of giving their evidence. He said that Lady Angela Nevill, who is the witness resident in England, would also be brought to Adelaide. However, the Court would be obliged to travel to Texas and the Bahamas for the purpose of taking the evidence of the four witnesses resident in those two jurisdictions.

14 After he completed his opening and during argument on the admissibility of documents, Mr Hoffman indicated that he proposed to lead the evidence of those witnesses by simply tendering either the transcript of their examination under the Corporations Law or by way of an affidavit sworn by the witness. That would then allow the defendants to cross-examine those witnesses.

15 He indicated, in his opening, that apart from those witnesses he intended to call he also would seek to lead the evidence of other witnesses who had been examined under s 597, or who had supplied affidavits, by tendering the transcript of their examination or alternatively tendering their affidavits. He indicated that he would rely upon s 45A, s 45B, s 34C and s 59J of the Evidence Act 1929 (SA) for the purpose of that tender.

16 Further, he indicated that he would apply to tender the examinations of each of the personal defendants in this case as evidence against all of the other defendants. In that regard he indicated he would rely upon s 597(14) of the Corporations Law and s 45B of the Evidence Act.

17 In due course he made all of those applications.

18 I set out in a schedule to these reasons the witnesses who Mr Hoffman indicated he would call and those witnesses whose evidence he indicated he sought to tender in transcript or affidavit form. The schedule also indicates their place of residence.

19 The liquidator has made extensive use of s 596A and s 596B of the Corporations Law. He has sought and obtained a number of orders for the examination of each of the personal defendants and has conducted examinations of those defendants by counsel over a number of years. He has also used the power in s 596B to examine a number of persons who were apparently involved in the examinable affairs of SECL.

20 It must not be understood that I am criticising the liquidator in the carrying out of his administration or the use of the powers given by the Corporations Law. I am merely observing what he has done.

21 A liquidator, of course, must not use the procedures available to examine persons under the Corporations Law for an improper purpose. It will be an abuse of the Court's process if the liquidator has as his or her predominant purpose an improper purpose: Re Southern Equities Corporation Ltd (In Liq); Bond & Another v England (1997) 25 ACSR 394.

22 A number of purposes have been identified in the authorities as improper. It is not necessary in these reasons to discuss those authorities or to identify purposes which have been held to be improper. It is enough to state that it is not necessarily an improper purpose for a liquidator to examine a person about a matter which is currently the subject matter of litigation between the company and that person: Re Hugh J Roberts Pty Ltd (In Liq) and Companies Act (1970) 2 NSWR 582; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486; New Zealand Street (Aust) Pty Ltd v Barton (1994) 13 ACSR 610; Re Southern Equities Corporation Limited (In Liq); Bond and Another v England (supra).

23 If a liquidator does obtain an order for an examination of an examinee for an improper purpose, the order is liable to be set aside on the application of the proposed examinee: Re Excel Finance Corporation Ltd (In Liq); Worthley v England [1994] FCA 1251; (1994) 52 FCR 69.

24 Mr John Bond did not apply at any time to set aside the order for his examination. Nor did he contend in this hearing that the liquidator was actuated by an improper motive.

25 However Alan Bond, Craig Bond and Delores Caboche each applied to set aside orders made for their examination upon the basis that the orders had been obtained by the liquidator for an improper purpose. Each of their applications failed. Each of them appealed to the Full Court of the Supreme Court to have the orders set aside. Their appeals failed; in the case of Craig Bond in Re Southern Equities Corporation Limited (In Liq); Bond v England (1997 Full Court Matheson, Perry and Nyland JJ, Judgment No. S6084.2); and in the case of Alan Bond and Delores Caboche in Re Southern Equities Corporation Ltd (In Liq); Bond and Another v England (supra). Mr Craig Bond sought special leave to appeal to the High Court but that application was abandoned after an application to stay his examination was refused by McHugh J. The application for a stay was refused on the ground that Mr Craig Bond's application for leave to appeal had little prospect of success. Mr Alan Bond and Ms Caboche also sought special leave to appeal. In their cases special leave was refused.

26 It is clear beyond doubt that this Court has found that the orders for the examination of each of those defendants were not obtained for an improper purpose. Although those defendants reserved their right to argue that the liquidator was actuated by an improper motive, no effort was made to identify the evidence upon which such a finding could be made. It was merely argued that an examination under this section, whilst litigation was pending against the examinee, was ipso facto improper. Such a submission is inconsistent with the authorities to which I have referred

27 Each of the defendants was represented by counsel, indeed senior counsel, on their examination and each was examined by counsel in the presence of a Master of this Court, Judge Bowen Pain. From time to time senior counsel for each of the defendants took objection to questions put by the liquidator's counsel and those objections were ruled upon. None of the defendants complained during their examinations that the conduct of liquidator's counsel constituted an abuse of process of the Court. None of them complained that the manner of the examination was improper.

28 However it was contended before me that the examination of Mr Craig Bond was conducted in an improper manner. It was submitted that the examination was a cross examination which amounted to an improper examination. That being so it was said that Mr Craig Bond's examination was an abuse of the process of the Court.

29 The liquidator seeks to tender the transcript of the examinations of each of the defendants not only against the respective defendants but also against each other defendant. The defendants argued that the application to tender the defendants transcripts against the other defendants was improper and also amounted to an abuse of process.

30 The liquidator's application requires a consideration of both the Corporations Law and the Evidence Act 1929 (SA).

"Subject to subsection (12A), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules, may be used in evidence in any legal proceedings against the person."

32 Subsection 12A is not relevant in these proceedings. It is only relevant to criminal proceedings. The transcripts have been signed by the respective defendants.

33 Section 597 (14) makes admissible a transcript of an examination of an examinee in civil proceedings against that examinee.

34 Mr Wells QC who appeared for Ms Caboche, argued that s 597(14) is not itself a discrete rule of admissibility, but merely operates to facilitate proof of the answers given in proceedings against the examinee and to remove a barrier to admissibility that might otherwise arise by reason of an examinee having made involuntary admissions. He argued that the answers given must still be admissible according to the general rules of evidence (whether common law or statutory).

35 Section 597 gives to the eligible applicant (in this case the liquidator) a power not enjoyed by an ordinary litigant: In Re John Arnold's Surf Shop Pty Ltd (1979) 23 SASR 222 at 230; Hamilton v Oades (supra) per Mason CJ at 497.

36 The power to examine a person about a corporation's examinable affairs is given to an eligible applicant. An eligible applicant includes a liquidator and other persons who, like a liquidator, would be reliant upon others to become aware of a corporation's examinable affairs. For the purpose of these reasons I shall confine myself to a liquidator's circumstances.

37 Part 5.9 provides for a mandatory examination (s 596A) and a discretionary examination (s 596B). If a liquidator seeks to examine an examinable officer, of the kind referred to in s 596A(b) the Court must summon that person for examination about the examinable affairs of the company. The examinable affairs of a corporation are very wide: s 9. An examinable officer includes the directors, secretaries and executive officers of the corporation which by definition includes any person who was concerned in or has taken part in the management of the corporation: s 9 Corporations Law.

38 The liquidator thus has a right to examine those persons who are most likely to be aware of the examinable affairs of the corporation.

39 The liquidator may also seek an order of the Court for the Court to summon a person who has taken part or been concerned in the examinable affairs of the corporation, who has been or may have been guilty of misconduct in relation to the corporation, or a person who simply may be able to give information about the examinable affairs of the corporation: s 596B.

40 The liquidator not only has power to summon a person to give oral evidence but also summon a person to produce, at an examination, books that are in the person's possession and relate to the corporation or to any of its examinable affairs: s 596D(2).

41 In respect of examinable officers of the kind referred to in s 596A the Court also has a power to require those persons to file an affidavit about a corporation's examinable affairs if a liquidator applies for such an order; s 597A.

42 Thus the liquidator is clearly given very wide investigative powers.

43 However, those investigative powers are subject to the control of the Court. Section 596F empowers the Court to give directions about the matters to be inquired into and the procedure to be followed at any examination. It allows the Court to give directions as to who might have access to records of the examination: s 596F(1)(e). It also allows the Court to exclude from the examination any person or persons, even if the examination is held in public: s 596F(1)(d).

44 It allows the Court to prohibit the publication or communication of information about the examination including the questions asked and answers given at the examination: s 596F(1)(f).

45 Section 597 provides for the conduct of the examination. Particularly it provides that an examination is to be held in public, except if the Court considers that by reason of special circumstances it is desirable to hold the examination in private: s 597(4).

46 The Court has power to put questions itself to a person being examined or allow others to put questions about the corporation or any of the corporation's examinable affairs: s 597(5B).

47 The Court can direct a person to produce, at the examination, books that are in the person's possession and are relevant to matters to which the examination relates or will relate: s 597(9).

48 I will deal with the question of the transcript of the examination later.

49 It is clear that the widest powers are given to the Court to ensure that the conduct of the examination proceeds fairly and is restricted to questions relevant to the examinable affairs of the corporation.

50 The purpose of the power given in Pt 5.9 is to provide the liquidator with the means of discovering the assets of the corporation and their whereabouts, the identity of creditors and thereby the extent of the liabilities of the corporation, the reasons for the demise of the corporation and whether anyone, including those examined might be guilty of some civil or criminal wrong.

51 A person must attend if summonsed: s 597(6). He or she must produce any books required to be produced: s 597(7)(d).

52 A person who attends must take an oath or affirmation, must answer any question that the Court directs the person to answer, and must not make a statement that is false or misleading in a particular way: s 597(7)(a), (b) and (c) respectively.

53 A person is not entitled to refuse to answer a question in the examination on the ground that the answer might tend to incriminate the person or make the person liable to a penalty: s 597(12). Although the examinee must answer such a question, if the examinee before answering a question claims a privilege against self incrimination, and the answer might tend to incriminate that person the answer is not admissible in any criminal proceedings or any proceeding for the imposition of a penalty: s 597(12A).

54 The power is therefore given for the purpose of a liquidator investigating and carrying on civil proceedings and any relevant authority considering criminal proceedings.

55 The procedure is not only investigative but it also allows for the gathering of evidence. That is obvious from the provisions of s 596D and s 597(9).

The admissibility of the defendants' transcripts of examination

56 The procedure also provides for the making of a transcript of the examination of the examinee: s 597(13). The purpose of recording the examination is to obtain evidence which may be used in legal proceedings: s 597(14).

57 The liquidator is given the right to tender the transcript of the examination without further proof in any legal proceedings brought against the examinee. However the liquidator may not tender against the examinee, in any criminal proceedings, brought against that person that part of the transcript for which the examinee has claimed privilege against self incrimination during the examination: s 597(12).

58 The purpose of s 597(14) is to provide the liquidator with the means of obtaining relevant evidence from the examinee, including but not limited to admissions of the examinee. This enables the liquidator to prove a case on behalf of the company in any proceedings brought against persons who have taken part, or been concerned in the examinable affairs of the corporation, and who have been guilty of misconduct in relation to that company.

59 The intent of the section also is to facilitate the proof of criminal proceedings against any of those persons, although in those proceedings the examinee's privilege against self incrimination is preserved.

60 Therefore I do not accept Mr Wells' submission that s 597(14) does not make the transcript admissible. In my opinion, the clear intent of s 597(14) is to make the transcript admissible in proceedings against the examinee.

61 I think the transcript is admissible provided it is signed by the examinee or authenticated as provided by the rules in any proceedings against the examinee. In my opinion, the transcript does not have to satisfy any of the common law requirements for admissibility. Nor does its admission against the examinee depend upon any other statutory provision. It is admissible in its own right. Its admission, of course, will be subject to relevance. An irrelevant examination could not be admissible because it is irrelevant and in those circumstances it would not tend to prove any matter in issue in the proceedings: Re Norman Baker Pty Ltd (In Liq); ex parte Hillmann (1981) 6 ACLR 257.

62 Indeed I think the transcript would be admissible if tendered by the examinee in proceedings against the examinee: Walker v Wimborne [1976] HCA 7; (1976) 137 CLR 1 per Jacobs J at 15.

63 Mr Wells also argued that even if the transcript was admissible I had a discretion to refuse its admission. He argued that the Court had a residual discretion to refuse the tender of the transcript in circumstances where the liquidator had abused the Court's processes. In this case he argued that the liquidator had been guilty of an abuse of process in obtaining the order for the examination of each of the defendants. Furthermore, he said that the liquidator had been guilty of an abuse of process in the conduct of the examination of Craig Bond. Thirdly, he argued that the liquidator was guilty of an abuse of process in tendering the transcript in these proceedings.

64 The suggestion that the liquidator's counsel had been guilty of an abuse of process in the conduct of the examination could only be relevant to the admissibility of Mr Craig Bond's transcript of his examination against himself or the admissibility of Mr Craig Bond's transcript of examination against the defendants. The first question does not concern Mr Wells' client, Ms Caboche. The second question is not relevant to s 597(14) because that subsection does not purport to make any transcript of examination admissible against anyone but the examinee. The argument was not therefore available to Mr Wells in relation to s 597(14).

65 However, Mr White QC, who appeared for Mr Craig Bond, adopted Mr Well's submissions and in particular the submission that his client's examination had been conducted in such a way by the liquidator's counsel that it amounted to an abuse of process. In those circumstances the point does need to be addressed but only from Mr White's client's viewpoint.

66 It was not submitted by any of the defendants that any of the other examinations had been conducted in a manner which would amount to an abuse of process.

67 The first question that needs to be decided is whether in civil proceedings the Court retains a residual discretion to refuse the tender of admissible evidence in circumstances where it is said that the evidence had been obtained by an abuse of the court's processes.

68 The discretion, if it exists, lies outside the legislation. Section 597 does not provide for the exercise of any discretion in the Court in which the legal proceedings are brought against the examinee: Douglas-Brown v Furzer (1994) 11 WAR 400; Duke Group Ltd (In Liq) v Pilmer (1994) 63 SASR 364.

69 Mr Hoffman argued that in civil proceedings, at least where the judge is sitting without a jury, the court is not called upon to exercise the same discretions to refuse the tender of admissible evidence as practice requires in criminal proceedings. He argued that there is not the same need to prevent otherwise admissible evidence coming to the attention of the trier of fact as there is in criminal proceedings.

70 The circumstances in which a court will be called upon to exercise a discretion to refuse to admit otherwise admissible evidence in criminal proceedings has been identified recently in a decision of the Court of Criminal Appeal in this State in R v Lobban [2000] 77 SASR 24 [Martin J, Doyle CJ and Bleby J agreeing]

71 There are four separate circumstances where a court might be called upon to exercise a discretion to refuse to admit otherwise admissible evidence in criminal proceedings. First, when the probative value of the evidence is outweighed by the prejudice to the accused: R v Christie [1914] AC 545. Secondly where public policy would dictate that the tendered evidence should be refused: R v Ireland [1970] HCA 21; (1970) 126 CLR 321; Bunning v Cross [1978] HCA 22; (1998) 141 CLR 54; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19. In that case the evidence might have been obtained by illegal or improper means or the authorities might have engaged in unlawful conduct to procure the commission of the offence for which the accused is standing trial. Thirdly where it would be unfair to the accused to admit confessional evidence in the sense that the accused's trial would be unfair if the evidence was admitted: R v Swaffield (1998) 192 CLR 159. Fourthly where the receipt of otherwise admissible non confessional evidence would be unfair to the accused again in the sense that it would deny the accused a fair trial: Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517.

72 I have said that his Honour identified four separate circumstances in which the Court might be called upon to exercise a discretion. It would probably be more accurate to say that his Honour believed there were only three separate circumstances. The first category, that is the Christie discretion, his Honour suggested was a particular example of the fourth.

73 However, because the Christie discretion has been separately considered in the context of civil proceedings I shall proceed upon the basis that there are four separate circumstances. It should not be understood that I disagree with Martin J's analysis but for these reasons it does not matter whether in criminal proceedings there are three or four distinct circumstances when a discretion might be called upon to be exercised to refuse to admit otherwise admissible evidence.

74 Of course there are good reasons why the courts have developed rules of evidence which include residual discretions to refuse to admit otherwise admissible evidence. The Christie discretion will be exercised in favour of the accused so that a jury will not be exposed to evidence which has a tendency to mislead it or excite its prejudices: R v Morris (1995) 78 A Crim Reports 465 and 469.

75 The Bunning v Cross discretion has been erected to protect the administration of justice. If the Courts were perceived to allow prosecutors to perform illegal or improper acts for the purpose of obtaining evidence to secure a conviction, public confidence in the courts would be eroded. In Question of Law Reserved (No. 1 of 1998) [1998] SASC 6634; (1998) 70 SASR 281 at 288 the Chief Justice said of this discretion:

"It is founded upon the need to preserve the integrity of the administration of justice and the need to protect the processes of the courts of justice: see Ridgeway (at 30-32) per Mason CJ, Dean and Dawson JJ. An object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities: see Ridgeway (at 32): R v Swaffield (at 22) per Brennan CJ."

76 The exercise of the discretion requires the Court to weigh competing public interests; the public interest in the need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from unlawful and unfair treatment.

77 The third and fourth discretions are available to the courts so that they can ensure an accused person has a fair trial. Unlike the circumstances arising in the second discretion the discretion, in the third and fourth circumstances is not necessarily enlivened by any illegal or improper conduct on anyone's part. Rather the residual discretion is available to the court to ensure that, for whatever reason it would be unfair to the accused, in that the accused would not have a fair trial, to admit the otherwise admissible evidence.

78 In respect to the fourth circumstance, Gibbs J (Mason, Jacobs and Murphy JJ agreeing) said in Driscoll v The Queen (supra) at 541:

"It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused."

79 Assuming, as I have said, that the fourth circumstance is separate from the third, it is necessary to consider how an accused person might not receive a fair trial by the admission of evidence which is relevant, probative and not unduly prejudicial.

80 It might be that the evidence has little probative value but that its admission might allow the jury to place too much weight upon the evidence. It can be seen when the test is posed thus that Martin J was right to say that the first circumstance is no more than a particular of the fourth. It is difficult to conceive of circumstances where the court would exercise a discretion to refuse to admit otherwise admissible evidence, which has not been illegally or improperly obtained, which is logically probative of the accused's guilt and which is not unduly prejudicial to the accused, on the basis that if admitted it would interfere with the accused's right to receive a fair trial.

81 In any event I do not believe that the first, third and fourth circumstances which I have identified would allow, the court in civil proceedings to exercise a discretion to refuse to admit otherwise admissible evidence.

82 Of course, all parties in civil proceedings are entitled to the same basic right as the accused in criminal proceedings and that is the right to a fair trial. But where a judge is sitting without a jury as is the case in this State there is no need, in my opinion, for the erection of discretion to refuse to admit evidence which has been lawfully and regularly obtained, which is relevant to a matter raised upon the pleadings and which is probative of the party's claim or defence.

83 If that evidence happens to be prejudicial to the other party that other party is not denied a fair trial by its admission. The trier of fact in this State will be well equipped to give the appropriate weight to the evidence and to ignore any prejudicial effect attached to its admission.

84 Whilst the rules of evidence are the same in both civil and criminal proceedings the practices differ. In criminal trials with a jury, evidence which although admissible, has a prejudicial value which outweighs its probative value, may not be admitted. The same is not true in civil proceedings; R v Christie (supra) per Lord Moulton 559. The Christie discretion has no application to civil proceedings.

85 In Sheldon v Sun Alliance (1988) 50 SASR 236 von Doussa J said at 247:

"The discretion which resides in a trial judge in criminal proceedings to exclude evidence where its prejudicial effect outweighs its probative value has no application in a civil trial: Ibrahim v The King [1914] UKPC 16; [1914] AC 599 at 610; Hurst v Evans [1917] 1 KB 352 at 358; Manenti v Melbourne and Metropolitan Tramways Board [1954] VicLawRp 19; [1954] VLR 115; David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516 at 531. There may be a discretion in civil proceedings to exclude evidence that has been obtained by a serious and deliberate infringement of legal rights of another, but that is a different discretion (and not one that is relevant to be considered in the instant case): see Mazinski v Bakka (1979) 20 SASR 350 at 361; Pearce v Button (1985) 8 FCR 388 at 401-403; Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1."

86 There is dictum in cases decided in England (Mood Music Publishing Co v De Wolfe Ltd (1976) 1 Ch 119; Berger v Raymond Sun Ltd (1984) 1 WLR 625) and a case in Queensland (Taylor v Harvey (1986) 2 Qd R 137) to suggest that there is a discretion to refuse to admit similar fact evidence which, although probative, would be oppressive or unfair if admitted. I think those cases are confined to similar fact evidence. They could not stand for the proposition that the Christie discretion is available to be exercised in civil proceedings. Christie's case itself shows that the rule there promulgated was only to apply to criminal proceedings: [559]. This Court has consistently stated that the Christie discretion has no application to civil proceedings: Evans v F (1964) SASR 130; Mazinski v Bakka (1979) 20 SASR 350 per Wells J at 380; Sheldon v Sun Alliance Ltd (supra) per von Doussa J at 247 and Duke Group Ltd v Pilmer (supra) per Mullighan J at 378.

87 In my opinion, it is well settled in Australia that a discretion of that kind is not available to a trial judge in civil proceedings.

88 In New South Wales the Court of Appeal has decided that a judge does not have the discretion to reject relevant and otherwise admissible evidence whether sitting with or without a jury: Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 per Kirby P (Meaghar JA and Handley JA agreeing). I think in that case the Court of Appeal not only decided that the Christie discretion and the unfairness discretion were not available but nor was the public policy discretion. In Victoria the Full Court of the Supreme Court in David Syme & Co Ltd v Mather [1977] VicRp 58; (1977) VR 516 approved a previous decision of the Court in Manenti v Melbourne and Metropolitan Tramways Board [1954] VicLawRp 19; (1954) VLR 115 concluding that in civil cases there was no discretion to exclude evidence relevant to the issues.

89 However that leaves for decision the question whether the Bunning v Cross discretion is available in civil proceedings. The Bunning v Cross discretion is often spoken of as public policy discretion. Indeed the passage which I have cited from Question Of Law Reserved (No. 1 of 1998) (supra) shows the foundation upon which the discretion is based. In Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 203 Deane J said that the Court should not be "demeaned by the uncontrolled use of the fruits of illegality in the judicial process".

90 In Ridgeway v The Queen (supra) at 35 in the joint judgement of the majority it was said:

"At this stage, it suffices to say that, for the reasons given above, it should be accepted that a trial judge possesses a discretion to exclude, on public policy grounds, evidence of an offence or an element of an offence in circumstances in which its commission has been brought about by unlawful conduct on the part of law enforcement officers."

91 There can be no doubt in my opinion that the Bunning v Cross discretion is based upon the need to ensure that the Court's processes are not defiled by a prosecuting party's improper or illegal conduct.

92 In both criminal and civil proceedings, the Court is alive to ensure that its processes are not abused. The Court cannot permit a party to abuse its processes and profit by it. It is essential for the maintenance of the administration of justice that the Court's processes are not abused and, if they are, the abusing party does not profit by the abuse.

93 It seems to me therefore that the same public policy is relevant in civil proceedings as in criminal proceedings. The public policy being as I have stated it, the protection of the integrity of the Courts and thereby the administration of justice.

94 In principle I can see no reason why the evidence which has been improperly or illegally obtained cannot in the exercise of the Court's discretion be excluded in civil proceedings.

96 In Reg v Leatham (1861) 8 Cox CC 498 at 501 Crompton J said speaking of civil proceedings "it matters not how you get it; if you steal it even, it would be admissible in evidence." In Helliwell v Piggott-Simms [1980] FSR 356 at 357 Lord Denning said: "even if it was unlawfully obtained, nevertheless the judge is right to admit it in evidence."

97 In Karuma v The Queen (1955) AC 197, Lord Goddard speaking for the Board of the Privy Council said:

"In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained."

"There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. This was emphasised in the case before this Board of Noor Mohamed v The King [1919] AC 182 and in the recent case in the House of Lords, Harris v Director of Public Prosecutions [1952] AC 694 and 707. If, for instance, some admission of some piece of evidence, eg, a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out."

99 However the English Courts have not recognised the Bunning v Cross discretion and those cases may be distinguished. This is clear from Karuma v The Queen (supra). Lord Goddard's speech recognises the traditional discretion in the criminal law recognised in Driscoll v The Queen (supra) to refuse the admission of otherwise admissible evidence where to admit it would be oppressive or unfair to the accused, but does not recognise the particular discretion identified in R v Ireland (supra) and Bunning v Cross (supra): see also King v R (1969) 1 AC 304 at 315; Jeffrey v Black [1978] 1 QB 490; R v Sang [1979] UKHL 3; [1980] AC 402. (Compare a recent decision of the House of Lords in Attorney General's Reference (No. 3 of 1999) [2001] 1 All ER 577.) The English authorities are no reason to deny the existence of a public policy to refuse to admit otherwise admissible evidence in civil proceedings.

100 The universality of the proposition that no discretion exists at all in civil proceedings was questioned by Pincus J in Pearce v Button (1985) 60 ALR 53 at 551-553. After referring to English authority and Manenti v Melbourne & Metropolitan Tramways Board (supra) he said:

"Both the Australian work just referred to, and some American cases, throw doubt upon the universality of the proposition that a civil court cannot exclude relevant evidence on the ground that it was improperly obtained. To take an extreme example, it is difficult to believe that in civil proceedings there could be no discretion to exclude, on policy grounds, admissions obtained by violence or threats of violence. If the Customs officers had extracted the documents from Mr Pearce by threatening to shoot him, one cannot see any real likelihood of the documents being admitted. That is, despite the apparent lack of authority in England or Australia supporting its existence, there must surely be a discretion even if in civil cases to exclude such evidence on policy grounds. Further, it is not clear why considerations of policy should necessarily be more favourable to the admission of the illegally obtained evidence in civil matters than in criminal matters. The public purpose to be served in the former may be trivial or non existent, whereas a prosecution usually has at least an ostensible public function. However, it cannot be unfair to the applicants to consider the admission of the evidence, assumed to be unlawfully obtained, as if there were such discretion as exists in criminal cases. Applying those tests in favour of the applicants, I am clearly of the view that the discretion should be exercised against them."

101 In Miller v Miller [1978] HCA 44; (1978) 141 CLR 269 at 277 Gibbs J, in a case which involved Family Court proceedings and the admissibility of evidence obtained in contravention of the Telephonic Communications (Interception) Act 1960 (Cth), said:

"However, if the sub-section does not render evidence of such a conversation inadmissible, the court would have a discretion to exclude it, since it was unlawfully obtained: Bunning v Cross."

102 His Honour assumed that illegally obtained evidence could be excluded in exercise of a judge's discretion in Family Court proceedings.

103 In Mazinski v Bakka (supra) the Full Court of this Court was concerned with the admissibility of blood analysis evidence which had, on one view, been obtained other than in accordance with the procedures under the Road Traffic Act 1961-1976.

"For the reasons given by Wells J I agree that the result of the analysis of the blood sample was probably admitted by the learned trial Judge. It was argued before us that the Judge had a discretion, similar to that which existed in criminal cases to exclude the evidence on the ground that its admission would be unfair to the party against whom it was intended, and that the proper exercise of that discretion would have resulted in the exclusion of the evidence. Even if a Judge in a civil trial has such a discretion, it is difficult to see how its exercise could have resulted in the exclusion of the evidence."

"It is therefore unnecessary to decide whether a judge in a civil case has a discretion to reject admissible evidence, particularly evidence which has been unlawfully obtained, and the extent of any such discretion. There has been a marked development of the law in recent years as to the basis and extent of the discretion in criminal cases: viz The Queen v Ireland (1971) 76 CLR 321; Bunning v Cross [1978] HCA 22; (1978) 52 ALJR 561. Perhaps a parallel development is to be looked for in relation to civil cases. Some of the considerations upon which the discretion is exercised in criminal cases have no counter part on the civil side, but the public interest referred to in Bunning v Cross in protecting the citizen's immunity from arbitrary and unlawful infringement of his rights is applicable to both. The courts cannot appear to condone the obtaining of evidence by deliberately illegally conduct which constitutes a serious infringement of legal rights. Whether by adapting the concept of abuse or process or by some other means, it seems to me that the courts must seriously consider assuming a discretionary power in civil cases to reject evidence which a party has obtained by a serious and deliberate infringement of the legal rights of another."

"This is a civil case and the rules of evidence to be applied to it, although, generally speaking, coincident with the rules that are applied in criminal cases, vary from the latter in certain important respects. Apart from statutory provisions that apply to civil, but not to criminal, cases - for example, s 34C of the Evidence Act 1929, (as amended) - the most important difference is to be found in the discretion given to a trial Judge in a criminal case to exclude evidence that is relevant and not rendered inadmissible by any exclusionary rule. As far as I am aware, no similar discretion is given to a judge trying a civil case, and counsel were unable to find any authority for the existence of such a discretion. One or two expressions and dicta were culled from earlier cases which, taken alone, might be used to suggest that a judge sitting in the civil jurisdiction has a discretion of that kind, but in every case what was being alluded to was the trial Judge's undoubted power to evaluate evidence to determine whether it is relevant: compare In the matter of a petition by Frits Van Beelen (1975) 9 SASR 163 at 192-197."

To the general rule there is, in my opinion, one qualification: although the discretion of the trial Judge in a criminal case is lacking in a civil case, there remains, as always, the residual power of any court to prevent abuse of its processes, whether in the criminal jurisdiction (see The Queen v O'Loughlin; Ex parte Ralphs (1971) 1 SASR 219 at 229, 281-282) or in the civil jurisdiction (Metropolitan Bank v Pooley (1885) 10 App Cas 210 at 214; Willis v Earl Beauchamp (1886) 11 PD 59; and Lawrance v Norreys (1890) 15 App Cas 210 at 216). It seems to me that if a piece of evidence was obtained by means of conduct that was deliberately and cynically criminal or otherwise outrageous, a civil court terms to whom such evidence was tendered, and who was made aware of the facts surrounding its intention, might be moved to say, modelling itself on Wilmot CJ in Collins v Biantern (1767) 2 Wilson 341 at 350:

"No polluted hand shall touch the pure foundations of justice. Whoever is party to felonious and wicked acts to obtain evidence shall not come in an unclean manner to ask a Court of justice to help him by using the evidence thus obtained. Procul, O! procul este profani: "In other words, a court might say that it would not allow itself to be placed virtually in the position of particeps criminis with respect to a person seeking the court's aid to complement his felonious conduct. But it would, in my view, require a strong case to warrant a court's taking such a course - for example, cases where acts of torture or extortion have been employed."

107 I have already referred to the passage in Sheldon v Sun Alliance (supra) where von Doussa J said that a discretion to exclude evidence which has been obtained in an illegal fashion might well exist.

108 In Duke Group Limited v Pilmer, (supra) Mullighan J after concluding that the Christie discretion did not apply, said that there might be two circumstances in which the Court had a discretion to reject admissible evidence. The first might be in the circumstances mentioned by King CJ in Mazinski v Bakka (supra) and the second if admitting the evidence would result in procedural unfairness.

109 I am inclined to the view that the Bunning v Cross discretion is available to the court in civil proceedings for the very reason it exists in criminal proceedings and that is to protect the administration of justice.

110 In my opinion a court would not sit idly by and allow its processes to be abused and then allow the person guilty of that abuse to tender the fruits of the abuse in those or other proceedings. The court has a duty to protect itself against such abuses. It will stay proceedings where otherwise a party will not receive a fair trial until a fair trial can occur. It will stay proceedings for all time where a party has brought proceedings for an improper or collateral purpose: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 If the Court will exercise those powers in civil proceedings it must have the power to refuse or accept the tender of evidence obtained by reason of an abuse of process.

111 In my opinion, there is a residual discretion in the court to refuse to allow the tender of otherwise admissible evidence where that admissible evidence has been obtained by abuse of the court's processes; Mazinski v Bakka (supra).

112 Not all evidence improperly or illegally obtained will be rejected. Improperly or illegally obtained evidence is not by itself inadmissible; Cleland v R [1982] HCA 67; (1982) 151 CLR 1. If evidence has been obtained in that way and is sought to be tendered in civil proceedings the Court has a discretion, which will be exercised having regard to the underlying policies which call for the discretion's existence, the circumstances in which the evidence was obtained and the potential prejudice to any party if the evidence is admitted or rejected.

113 There are however not the same competing public policies operating. In civil proceedings there is the public policy that all admissible evidence ought to be before the Court to allow it to arrive at the correct result. On the other hand there are the public policies in protecting the individual from unlawful and improper conduct at the hands of another and in protecting the integrity of the Court's procedures.

Should the discretion be exercised to refuse the admission of the transcripts of examination?

114 In this case, as I have said, the defendants apart from Mr John Bond relied upon three discrete circumstances which they said identified the liquidator's abuse of process.

115 Mr John Bond did not argue that the liquidator had been guilty of an abuse of process and so did not ask the Court to exercise any discretion to refuse to admit the transcript of his examination on that ground.

116 However, each of the other defendants did argue that the transcript of their examination should not be admitted against them because the liquidator had been guilty of three discrete abuses.

117 As to the first ground identified by Mr Wells, in my opinion, that is untenable. Each of the defendants complained in the winding up proceedings of the respective orders made against them for their examination. Each of them failed in that complaint. All of them appealed and all had their appeals dismissed by the Full Court of this Court. Two of them, Ms Caboche and Mr Craig Bond sought leave to appeal from the High Court. Mr Craig Bond abandoned his application and Ms Caboche's application was dismissed.

118 In my opinion, it is not possible for the defendants to argue that the liquidator was, in obtaining these orders, actuated by an improper motive. I understand that the defendants would wish to argue, in due course, that the improper motive was manifested by the orders being obtained after the issue of these proceedings. It will be argued that the decision of the Full Court in Re: Southern Equities Corporation Ltd (In Liq), Bond & Anor v England (supra) is wrong. The defendants reserve to themselves the right to argue that any order obtained after the issue of proceedings for the examination of a defendant was ipso facto an abuse of process. That argument could only succeed in the High Court and I would be surprised if it could succeed there; Hamilton v Oades (supra) per Mason CJ at 497.

119 The first ground relied upon for the exercise of a discretion in favour of a defendant therefore cannot be made out.

120 The second ground was only relied upon by Mr Wells and Mr White in relation to the examination of Mr Craig Bond.

121 I have read the examination. In my opinion, the conduct of the examination was not improper. The liquidator's counsel conducted a vigorous but, in my opinion, fair examination of Mr Bond. At times the examination included leading questions much in the nature of cross examination but that did not render the examination unfair. Some questions went to the credit of Mr Craig Bond, but that also does not render the examination unfair. Whilst it might be an abuse to conduct an examination for the predominant purpose of destroying a person's credit that does not mean that questions going to credit cannot be asked: In Re Hugh J Roberts Pty Ltd (In Liq) and Companies Act (supra), Street J said at 585:

"Very often the gathering of information quite properly involves testing the reliability or credit of the examinee from whom the information is being obtained."

122 Mr Craig Bond was represented by senior counsel who took objection to some questions but not to the examination itself. It was not argued, in the examination, that the conduct of counsel was improper. No complaint was made after the examination and the winding up proceedings to the conduct of liquidator's counsel. The examination was conducted in the presence of a judicial officer who had the obligation of ensuring that the examination was fair. The Master needed to ensure that "the examination is not made an instrument of oppression, injustice or of needless injury to the individual": Rees v Kratzmann (1965) 114 CLR 63 at 66. In my opinion he fulfilled that obligation.

123 Therefore there is nothing upon which Mr Craig Bond can presently rely for the proposition that the conduct of the examination was unfair and thereby an abuse of process by the Court.

125 The third ground is a little difficult to understand. I think it is the three defendants' complaint that the mere application to tender the transcripts in these proceedings evidences an abuse of process.

126 There is no doubt that the transcripts are relevant. The examination was directed to the very matters raised in the pleadings. It is difficult to understand how it can be said that the application to tender relevant and admissible documents can be evidence of an abuse of process.

127 In my opinion there is nothing in the application to tender these documents which would evidence an abuse of process.

128 In my opinion the transcripts are relevant and admissible against each of the examinees in these proceedings. Whilst I accept that I retain a discretion to refuse to accept the transcripts if the evidence was obtained by way of an abuse of the Court's processes, in my opinion, there is nothing to suggest that there has been any abuse of the Court's processes.

129 It was for those reasons that I admitted each of the transcripts against the respective defendants.

Are the transcripts of the examination of each defendant admissible against the other defendants?

130 The plaintiffs sought the admission of the transcripts of examination not only as against the particular defendant, but also against each other defendant.

131 The defendants argued that if I concluded the transcripts were admissible and should be admitted against each of the respective defendants I should not admit the transcripts of each of the defendants against each other.

132 The plaintiffs cannot rely upon s 597(14) for the cross admissibility of these transcripts. Section 597(14) is clearly limited in its terms to the admission of the transcript of an examination in legal proceedings against the particular examinee.

133 If the transcripts of the examinations are admissible against other defendants it must be because of some other provision outside the Corporations Law: Wily v Lo Presti (1998) 16 ACLC 82 at 83.

134 Sections 45A and 45B were introduced into the Evidence Act (SA) in 1972. Section 45C was enacted in 1984. Section 59J was introduced in 1992.

135 All four sections are remedial in character and were enacted for the purpose of facilitating the proof of evidence in both civil and criminal proceedings. Because they are remedial, they should be given the most liberal construction and any technical construction should be eschewed.

136 The purpose of s 45A, s 45B and s 45C is to facilitate the proof of evidence and in the case of s 45A and s 45B the proof of documents without the requirement that the author of the documents need be called; Hillier & Carney v Lucas [2000] SASC 331; The Queen v Calabria (1982) 31 SASR 423; Burnside Sub-Branch RSSLA Inc v Burnside Memorial Bowling Club Incorporated (1990) 58 SASR 324.

137 Of course the sections have different work to do of course. Section 45C was enacted to allow the proof of a document without the party tendering the document being called upon to produce the original. It relieves parties from the rigours of the best evidence rule. Section 45A was enacted to facilitate the proof of business records. Section 45B was enacted for the purpose of proving a statement of fact contained in a document.

138 Section 59J has a different function. It does not provide for facilitating the proof of evidence. Rather it provides for dispensing with compliance with the rules of evidence. It also is not confined in its operation to documents as are ss 45A, 45B and 45C.

139 Section 45C is not important for the purpose of these reasons. It needs no further discussion.

140 I turn to sections 45A and 45B which I set out:

"45A (1) An apparently genuine document purporting to be a business record -

(a) shall be admissible in evidence without further proof; and

(b) shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).

(2) A document shall not be admitted in evidence under this section if the court is of the opinion -

(a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or

(b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or

(3) For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.

"business" means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;

(a) 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; or

(b) any reproduction of any such record by photographic, photostatic, lithographic or other like process.

45B (1) An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred shall, subject to this section, be admissible in evidence.

(2) A document shall not be admitted in evidence under this section where the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document.

(3) A document shall not be admitted in evidence under this section if the court is of the opinion -

(a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document;

(b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or

(4) In determining whether to admit a document in evidence under this section, the Court may receive evidence by affidavit of any matter pertaining to the admission of that document in evidence.

(5) For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.

(b) any reproduction of an original document by photographic, photostatic or lithographic or other like process."

141 Although in the end it was s 45B which was relied upon by the plaintiffs for the tender of the transcripts of the examinations of each of the defendants against each other defendant, s 45A was relied upon for the purpose of the tender of other documents.

142 I need therefore to consider and decide upon the construction of both sections.

143 Sections 45A and 45B have some similarities. Because they have different work to do they also have dissimilarities.

144 Both sections incorporate the same scheme whereby an apparently genuine document, which otherwise satisfies the requirements of sub-section (1) in each section, will be admitted subject to the safeguards provided in the section itself.

145 Both sections apply only to documents and indeed "apparently genuine documents." It is a prerequisite therefore for the operation of both sections that the document which is being tendered is apparently genuine.

146 Both sections provide for the admissibility of an apparently genuine document which otherwise complies with the requirements in sub-section (1) of each section.

147 Both sections provide safeguards to protect the party against whom the document is sought to be tendered. In both cases the Court may refuse to accept the tender of an apparently genuine document which otherwise complies with the respective sections. First if the Court is of the opinion that the person by whom or at whose direction the document was prepared can and should be called by the party tendering the document. Secondly, where the Court is of the opinion that the evidentiary weight of the document is outweighed by the prejudice which might result to any of the parties. Thirdly where the Court concludes that it would be otherwise contrary to the interests of justice to admit the document in evidence.

148 Both sections provide guidelines by which the Court will assess the evidentiary weight that should be given to the document on its admission.

149 There are however marked dissimilarities. Section 45A only applies to business records and in that regard only applies to any document "prepared or used in the ordinary course of business for the purpose of recording any matter relating to the business."

150 Therefore s 45A does not apply to a document unless it is prepared or used in the course of business for the particular purpose which I have identified. It follows that the following threshold matters are required to be established before s 45A can operate. First the document sought to be tendered must be an apparently genuine document. Secondly it must purport to be a business record, being a document which is prepared or used in the ordinary course of business. Thirdly if it is an apparently genuine document which has been prepared or used in the ordinary course of business it must have been prepared or used "for the purpose of recording any matter relating to the business". All three matters need to be established before the document can be admitted. If those matters are established then the document is admissible without further proof, and may be used as evidence of any facts stated in the record, or any fact that may be inferred from the record. That inference can arise wholly from the record itself or from the record and other evidence.

151 If a business record is admitted under s 45A, its evidentiary weight shall be determined after a consideration of the source from which the document has been produced, and the safeguards if any that have been taken to ensure its accuracy and any other relevant matters; s 45A(3).

152 Those matters must be matters relating to the accuracy of the record itself. Before s 45A(3) has any part to play it must have been established that the document which has been tendered is an apparently genuine document. It therefore follows that s 45A(3) is not concerned with the genuineness of the document, but more with the accuracy of the contents of that apparently genuine document.

153 Even if the document passes all of the threshold requirements the document will not be admitted in evidence if the Court is of the opinion that it should not be admitted for any of the reasons in s 45A(2).

154 Whilst the matters in s 45A(2) have been described as safeguards, in a sense they are discretions. In The Queen v Calabria (supra) at 430 King CJ described the provisions in s 45A(2) as both safeguards and discretions. They are both, in that discretions have been enacted to provide safeguards to the party against whom the document is sought to be tendered against the capricious use of the section. The same can be said of s 45B. (But see Mullighan J in Duke Group Ltd v Pilmer (supra) at 375).

155 Section 45A(2) recognises that the document is otherwise admissible, having been made admissible by the document conforming with the matters in s 45A(1). However whilst the document might be otherwise admissible by virtue of s 45A(1) the Court has a discretion in s 45A(2) to refuse the tender of that document for any of the reasons in s 45A (2).

156 By way of an example, the matter in s 45A(2)(b) is the Christie discretion applied to a document which is otherwise admissible by virtue of s 45A(1). Parliament has seen fit to include the Christie discretion to allow the Court to reject the tender of an otherwise admissible document in both criminal and civil proceedings. There can be no doubt that this safeguard or discretion applies to all legal proceedings when documents are sought to be tendered under s 45A or s 45B.

157 Section 45A(2)(c) would give rise to questions of oppression and unfairness, and any other matter relevant to the question of the interests of justice. That is not unlike the discretion identified in Driscoll v The Queen (supra).

158 Section 45A(2)(a) requires the Court to consider whether the person by whom or at whose direction the document was prepared should be called. In that consideration the purpose of the section should not be overlooked. The section has been enacted to provide for the admissibility of documents without the need for the calling of the person who prepared the document. It is not enough therefore for the party opposing the tender to insist as a matter of form upon that person being called.

SECL (IN LIQ) & ORS v BOND & ORS No. SCCIV-96-113 [2001] SASC 70

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SECL (IN LIQ) & ORS v BOND & ORS No. SCCIV-96-113 [2001] SASC 70 (16 March 2001)

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Cases Cited (46)