(1) It is important, as is general in exercises of statutory construction, to construe words in s 69 in the context of the section and of the EA generally. In doing this, it should be borne in mind that the EA supersedes not only the common law but the provisions as to admissibility of business records previously contained in Part IIC of the Evidence Act 1898. What must be concentrated on are the words of this section in the context of the EA.
(2) It is important always to bear in mind that what may be tendered as evidence which evades the hearsay rule under the provisions of s 69 is not documents but representations in documents. In this regard, it is only in relation to the penultimate paragraph of the letter, to which I have referred, that tender is made by Mr Motbey under s 69.
(3) The cases in general terms indicate that the inclusive provisions of subss (1) and (2) of s 69 should be regarded as being of wide import and construed accordingly: Schipp v Cameron (No 3) ; ASIC v Whitlam at [155], both supra. Equally, the exclusory provisions of s 69 ought be construed as sections of wide import. In particular, it should be borne in mind that the expression contained in s 69(3)(a), "in contemplation of" and the expression contained in both s 69(3)(a) and (b) "in connection with" should be regarded as words of wide meaning: R v Rondo supra at [96] per Smart AJ.
(4) It should also be noted that what is referred to in subss (3)(a) and (b) respectively is not the proceeding in which the tender of material is sought to be made, or a proceeding to which the investigation referred to in (b) has led, but simply a proceeding or an investigation.
(5) This links with what Barrett J has said to be the policy of the section in Vitali v Stachnik supra at [12]:
'The purpose of the exclusion is, as I see it, to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings.'
(6) The point, as I apprehend it, is that the contemplation or existence of any proceedings may lead even persons of good intent to make purely self serving statements that may, without the exclusory provisions of subs (3), be admissible through the scheme of s 69. From this natural tendency to make self serving statements springs the policy that statements made in those circumstances ought be excluded from the ambit of s 69 which is, in general terms, generous towards the admission of statements contained in documents that meet the criteria of the section.
(7) It is not, as Mr Motbey has suggested to me, a requirement of subs (3) that a conclusion be reached that the creator of the document had the purpose of making self serving statements, whether true or false. It is, rather, that the possibility, bearing in mind human nature, to make self serving statements in such circumstances, leads the Act to exclude all statements made in such circumstances as a precaution against purely, and particularly false, self serving statements being taken into evidence.
(8) Whilst, as was said by Hope J in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548 - 549 (cited by Einstein J in Schipp v Cameron (No 3) supra), the business records provisions have the tendency to make the law of evidence approach reality, it is in the interests of reality that the old rule against self serving statements is preserved to the extent that I have indicated, even when such statements are made in business records."
15 One element brought out there is that the "in contemplation of" and "in connection with" tests imply that a legal proceeding or possibility of it must represent, in whole or in part, the pretext or motive or reason for the creation of the document or, at least, must play some part in the decision to prepare it. I am unable to find a connection of that kind between any of the documents to which objection is taken on the basis of s.69(3) and these proceedings (or, for that matter, any other proceedings).
16 With the exception of the circular notice of meeting and associated documents produced for the purposes of Pt 5.3A, each of the relevant documents is a signed or unsigned set of financial statements prepared by a company in what must be regarded as the ordinary and ongoing course of the accounting and reporting functions that companies habitually undertake. The evidence does not disclose whether the companies concerned are or are not "large proprietary companies" for the purposes of the present Corporations Act and its immediate predecessor. That concept was introduced by amending legislation that became effective in December 1995. Before that, there was a requirement applying to all companies that the directors cause to be a made out a profit and loss account for each accounting period and a balance sheet as at the end of each such period. This requirement arose from ss.292 and 293 of the Corporations Law as it existed from the inception of that law on 1 January 1991 until the December 1995 amendments to which I have referred.
17 Having regard to the form and content of all the documents concerned, with the exception of the fourth, I readily conclude that the impetus for the preparation of those documents and the occasion and need for their preparation lay in a combination of compliance with the statutory requirements and ordinary and prudent corporate procedures. I say this in relation to not only financial statements that are in what I might call a final, formal and signed state but also those that do not bear handwritten signatures and the one stamped "draft." Documents produced along the way to completion of final signed accounts are nonetheless a relevant part of the business records of the relevant company.
18 The same reasoning holds good in relation to the fourth document consisting of the circular and other materials forwarded by the administrator to the creditors of the third plaintiff. This document was produced and dispatched in compliance with the specific statutory requirements contained in Pt 5.3A.
19 These factors of statutory compulsion cause me to conclude, in relation to all of the third, fourth, fifth, sixth, eighth and ninth documents, that they should not be regarded as prepared in contemplation of or in connection with these proceedings, much less for the purpose of these proceedings. They were prepared, in the ordinary course of events, to satisfy reporting and disclosure requirements of general application, regardless of legal proceedings.
20 Mr Forster next says that his client will be unfairly prejudiced if the nine documents in question are admitted and that under unfair prejudice substantially outweighs their probative value. He therefore calls in aid s.135 and the discretion of the court to reject. Mr Sullivan says, quite rightly, that Mr Forster has not sought to lead any evidence of prejudice. Mr Forster says that he has no way of testing the content of the documents. I do not accept this. He will have the opportunity to cross-examine the first and second plaintiffs, who are the two directors whose signatures, whether written or typed, are on the various sets of accounts. He will also have the opportunity to cross-examine Mr Rosenfeld, the accountant by whom the accounts purport to have been prepared. That will provide a meaningful opportunity to test the documents by close questioning of the three persons who have accepted responsibility for them.
21 It is true that Mr Forster does not have available to him the source records from which the accounts were compiled. But then he has never sought them, whether through discovery or by notice to produce, at least until very recently. Mr Forster notes that by letter dated 5 June 2003 his instructing solicitors put the solicitors for the plaintiffs on notice that the s.135 objection would be taken unless source documents were made available. But that cannot be regarded as the equivalent of direct action to obtain the documents.
22 I am not satisfied that the defendants will suffer unfair prejudice if all of the documents in question are admitted. This extends to those without signatures or with typewritten signatures only. Those aspects can be explored in cross-examination. Nor is it to the point, so far as prejudice is concerned, that some of the documents are not referred to in any affidavit. The apparent authors will be available for cross-examination. Any prejudice, and I am not sure there is any, cannot be regarded as unfair prejudice.
23 There can be no doubt that the probative value of some of the documents is questionable. I am particularly conscious of the fact that one of them is marked "Draft" and that some appear to be contradictory. Again, however, the authors will be available for questioning and the uncertainties will, in the long run, remain or be resolved or be made more acute.
24 I refer finally to s.1305 of the Corporations Act 2001 (Cth). That section makes admissible, in any legal proceedings, a "book" kept by a body corporate under a requirement of that Act. Such a book is made prima facie evidence of any matters stated or recorded in it. I am satisfied that those of the documents with which I am presently concerned that are copies of signed original accounts are "books" that fall within this section. It is true that all of them were created before the Corporations Act commenced on 14 July 2001 and that the statutory provisions by reference to which they were produced are no longer in force and cannot, in direct terms, be characterised as the source of "a requirement of this Act." But as is explained at paragraph 6 of the judgment of Blow J in R v Turner [2002] TASSC 18, the transitional provisions of the Corporations Act cause requirements arising from the earlier relevant enactments to be equivalent to the requirements of the Corporations Act for these purposes.
25 The elements of s.1305 are discussed in the judgment of Brownie AJ in Linfox Transport (Aust) Pty Ltd v Arthur Yates & Co Ltd [2003] NSWSC 281. Having regard to the analysis in that case, I consider s.1305 to be applicable to the signed accounts to which I have referred. The position in relation to them is that a provision of Commonwealth legislation makes the documents admissible and causes their content to be prima facie evidence of the matters stated, apart altogether from provisions of the Evidence Act of this State.
26 In the result, therefore, all nine documents I have identified will be admitted.