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[2011] FCA 625
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Federal Court of Australia
2011-05-30
Foster J
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REASONS FOR EVIDENTIARY RULINGS (REVISED FROM TRANSCRIPT)
Ruling No 1 1 The respondents object to paragraph 40 of the affidavit of Raymond Mark Beebe sworn on 7 April 2011 (Mr Beebe's affidavit) and to the document referred to in that paragraph (to the extent that it records the same representation) on the ground that the statements relied upon in both the affidavit and the document are hearsay. 2 Paragraph 40 of Mr Beebe's affidavit is in the following terms: In 1998, an independent study of 2,000 random US households showed that the Winnebago name dominated the brand awareness in recreation vehicles with a 90% awareness level (p 3, 1998 Annual Report). 3 The statement recorded at p 3 of the 1998 Annual Report of the applicant is in the following terms: An independent study of nearly 2,000 random U.S. households was conducted this year in which the Winnebago name dominated the brand awareness in RVs with a 90 percent awareness level. 4 Both statements relied upon are obviously hearsay. The observations of Mr Beebe made in paragraph 40 of his affidavit must be rejected as inadmissible hearsay. 5 However, the argument does not end there. The applicant tenders the representations in its 1998 Annual Report on the basis that that Annual Report (including the passage to which objection is taken) qualifies for admissibility under s 69 of the Evidence Act 1995 (Cth) (the Evidence Act) as a business record. 6 The respondents submitted that I should exclude the statement made in the applicant's 1998 Annual Report which I have extracted at [3] above because s 69 has not been satisfied and, in any event, because the admission of this material would be unfairly prejudicial to them (s 135(a) of the Evidence Act). 7 As far as s 69 is concerned, the issue for me is whether or not I am satisfied that the statement was made 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 or facts (s 69(2)(b)). The other conditions laid down by s 69 as to the admissibility of the representation to which objection is taken appear to have been satisfied. 8 Business records are admissible as exceptions to the hearsay rule. That rule is expressed in s 59(1) of the Evidence Act as follows: 59 The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. 9 The "fact" referred to in s 59(1) is an asserted fact for the purposes of Pt 3.2 of the Evidence Act. 10 The asserted facts in the material to which objection has been taken in the present case are: (a) The finding of the "independent study" referred to was that the Winnebago name had a 90% awareness level in the United States of America; (b) That level of awareness dominated the brand awareness levels in the recreational vehicles category in the study; and (c) (Possibly) The findings in (a) and (b) reflected the realities in the US market. 11 The source of the statement which was included in the applicant's 1998 Annual Report has not been identified nor is there any evidence before me that would support the proposition that the person or persons who decided to put that statement into that Annual Report based the statement upon information obtained from one or more persons who had the requisite personal knowledge of the asserted facts (as to which see s 69(5) of the Evidence Act). There was no evidence as to the basis upon which this statement had been included in that Annual Report. Obviously, I am in a position to infer certain matters concerning the source of the statement but, in my view, the applicant has failed to demonstrate that the statement was made upon the basis of information supplied by a person who had or who might reasonably be supposed to have had, personal knowledge of any of the asserted facts as required by s 69(2)(b) of the Evidence Act. 12 In any event, if the material is tendered to prove the truth of the asserted facts, I consider that the material should be excluded under s 135(a) of the Evidence Act because it is unfairly prejudicial to the respondents to have to deal with a statement made in such general terms without source and in a way which cannot now be tested. 13 For those reasons, I will limit the use to which the passage at p 3 of the applicant's 1998 Annual Report to which objection has been taken may be put. However, I do not think it is appropriate to excise material from the 1998 Annual Report of the applicant. The statement in that document to which objection is taken should stand but its use should be limited. It is admitted only to prove the fact that it was made in the applicant's 1998 Annual Report and not to prove the truth of any of the facts asserted thereby.
Ruling No 2 14 Objection is taken to paragraph 41 of Mr Beebe's affidavit and to statements made in the Annual Reports of the applicant referred to in that paragraph on the ground that this material is hearsay and also upon the basis that it is unfairly prejudicial to the respondents (s 135(a) of the Evidence Act). 15 Paragraph 41 of Mr Beebe's affidavit is in the following terms: In fiscal year 2002, the Company achieved the highest combined market share in the US in Class A and C motor homes (p 3, 2002 Annual Report). This research was conducted by Statistical Surveys, Inc, a research company which provides RV industry data. In the past 10 years, the Company has maintained this achievement of being the manufacturer with the highest combined market share in Class A and C motor homes (p 3, 2003 Annual Report; p 3 2004 Annual Report; p 9, 2005 Annual Report; p 3, 2006 Annual Report; p 3, 2007 Annual Report; p 4, Form 10-K, 2008 Annual Report; p 5, Form 10-K, 2009 Annual Report; p 12, Form 10-K, 2010 Annual Report) 16 The observations of Mr Beebe made in paragraph 41 of his affidavit should be rejected as inadmissible hearsay. 17 The passage to which objection is taken at p 3 of the applicant's 2002 Annual Report is in the following terms: According to Statistical Surveys, Inc., an independent retail reporting service, Winnebago Industries' retail market share of the total U.S. Class A and C motor home market leads the industry at 21.0 per cent for the calendar year to date, through August, compared to 18.8 per cent for the same period in calendar 2001. 18 Substantially similar statements are made in the applicant's Annual Reports for the 2003 to 2010 years. 19 Counsel for the respondents submitted that the representations made in the Annual Reports which are sought to be tendered are of the same character as those in the 1998 Annual Report with which I have already dealt and that therefore I should deal with this material in the same way. However, it seems to me that the representations made in the Annual Reports specified in paragraph 41 are representations as to the retail market share of the applicant based upon statistics gathered and analysed by an identified corporation operating as an independent retail reporting service (Statistical Surveys, Inc). It does seem to me that, for that reason, I should be satisfied that the conditions specified in subs (2)(b) of s 69 of the Evidence Act have been met because it should be inferred that the source of the information upon which the statements were based was an employee of Statistical Surveys, Inc and that the person who wrote the relevant report for each of the specified years on behalf of that corporation had personal knowledge of the results of the research conducted by that corporation. 20 In addition, because the material identifies its source quite clearly, I do not think there is sufficient prejudice under s 135 of the Evidence Act to justify excluding the material altogether. Therefore, I will admit it.
Ruling No 3 21 Objection is also taken to paragraph 42 of Mr Beebe's affidavit upon the same grounds as were advanced in respect of paragraphs 40 and 41 of that affidavit. Paragraph 42 must also be rejected as inadmissible hearsay. 22 For the same reasons as I gave in respect of the document referred to in paragraph 40 of Mr Beebe's affidavit (the applicant's 1998 Annual Report, esp p 3 thereof), I will limit the use to which the statements made at pp 9-10 of the applicant's 2004 Annual Report may be put. Those statements cannot be used to prove the truth of the facts asserted thereby. Those statements are admitted only to prove the fact that they were made in the applicant's 2004 Annual Report.
Ruling No 4 23 The applicant tenders a letter from a Mr Smith to Dale Hartigan of the applicant dated 3 February 1985 which is found at tab 22 of volume 1 of the exhibits to Mr Beebe's affidavit. It appears from the letter that Mr Smith was someone who lived in Boulder City, Nevada, in the US, who was contemplating a trip to Australia in 1985 and who had telephoned an officer of the applicant shortly before setting out on that trip in order to discuss certain matters of which he had become aware concerning the use of the name "Winnebago" in Australia. The letter contains the following introductory paragraph: Here is a picture of the Australian Winnebago that I was looking at when I was talking with you on the phone today. 24 In his letter, Mr Smith then goes on to record information given to him by what he described as "the rental agency that advertised them" (referring to the Australian Winnebagos typified by the picture). He finishes the letter with the following statement: I am certain that you folks could improve on this design quite a bit - maybe you should get more involved with the Winnebago production in Australia. Thanks muchly for the good help. 25 Counsel for the applicant presses the tender of this letter upon the basis that it is a business record of the applicant. The submission was that the only real hurdle that the applicant had to overcome in order to have the letter admitted was that placed in the way of the tender by s 69(1)(b) of the Evidence Act. Section 69(1)(b) provides that one of the pre-conditions which must be satisfied before a document can be admitted as a business record pursuant to s 69 is that the relevant representation contained in the document sought to be tendered must have been made in the course of, or for the purposes of, the business. 26 In support of the tender, the applicant referred me to The Tubby Trout Pty Ltd v Sailbay Pty Ltd (1992) 42 FCR 595 at 598-599. Counsel for the applicant submitted that, when regard is had to the terms of Mr Smith's letter and to the circumstances in which it came to be sent to the applicant, I should be satisfied that the letter had been, in effect, created at the request of the applicant for the purposes of the applicant's business. The applicant submitted that, if I was satisfied of those matters, then the letter should be admitted as a business record. 27 It does seem to me that the letter was written in response to a request likely to have been made by the officer of the applicant who spoke with Mr Smith by telephone (Mr or Ms Dale Hartigan) that what had been conveyed by Mr Smith to Mr or Ms Hartigan over the telephone should be put in writing and sent to the applicant for its further consideration. That seems to me to be the most sensible explanation of why the letter was brought into existence. If that view be correct, applying the reasoning of Drummond J in The Tubby Trout Pty Ltd, the letter (and the representations contained therein) was created in the course of, or for the purposes of, the applicant's business. The requirements of s 69(1)(b) are satisfied. 28 For that reason, I will admit the letter as a business record.
Other Rulings 29 I also make the rulings in respect of certain additional objections to Mr Beebe's affidavit and in respect of objections made by the respondents to other evidentiary material in accordance with the agreement reached between the parties and recorded in MFII. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.
Winnebago Industries, Inc
Knott Investments Pty Ltd
(1992) 42 FCR 595