IN THE FEDERAL COUPT OF ANSTPALTIA NEW SOUTH WALES DISTRICT PEGTSTRY ENEPAL DIVTS CON TRADE PPACTICES COMMI3STOt -and- T.N.T. MANAGEMEN'? PTY. CIMITED Plaintiff ~ ONES. ver hinth pete POME SUG iNes Oe elses YE OP ET IENCE re E EARTTES A, kuling? relatir'g' tt T..2 anm Pusinets FSertivgde. 3. been raised to its admission. The document purports to bea record made by a witness, Mr Frewen, of a conversation which took place at a meeting which he attended on 10 March 1976 between the persons present at that meeting. Mr Frewen has given evidence, but has not yet been cross-examined. He has refreshed his memory from the document and given further evidence of the conversation after so refreshing his memory. Reliance is placed upon the provisions of Part IIIA of the Evidence Act 1905 and it is submitted for the plaintiff that the statements in the document should be admitted in evidence. The document purports to be a record of the conversation which took place at the meeting. I consider that there 15 therefore a statement ot fact in the document to the extent that it 1s a record of what was said at the meetina. The statement of fact being what was said in the conversation was made by Mr Frewen, who appears to me to be a qualified person in that he was engaged in the relevant business at the time he made the statement. I refer to the relevant section of the Act, 3.7A(1). I consider that the statement was made either in the course of the business or for the purposes of the business, s.7B(1)(b). Although the document, so far as the evidence goes, has not been shown to form part of what might be called a record of a continuous kind kept in the business, I still think it "forms part of the record of the business" : s.7B(1)(a). TI consider the 4, document falls within the words of 3.7A(2) in that it falls at least within the words "otherwise produced by him; or recognised by him as his statement". I note the provisions of s.7H concerning the Court's power to draw inferences. In my opinion, the document would ordinarily be excluded because of the rule against hearsay, but s.7B(2)(a) negates this ground of inadmissibility. The record was made shortly after the conversation in March 1976 and it 1s common ground that some civil proceedings were commenced by Tradestock Pty. Limited 1n December 1976. section 7C( 1) excludes the statement from the provisions of s.7B 1f 1t was "made or obtained for the purpose of or in contemplation of any judicial or administrative proceeding". My attention was also drawn to s.7D(3) and (4). The effect of this section 1s that the statement may not be used in proceedings such as those now before me where it is made "in connexion with, or in connexion with any investigation relating or leading to" the proceedings at present before me. The proceedings before me were not commenced until 1978, and I consider so far as the evidence goes that the statement made under consideration does not fall within s.7D(3). I have some doubt whether the statement may not have been made in contemplation of judicial proceedings. No argument was directed to me on whom the onus lay of establishing this, and the 5. examination in chief of Mr Frewen has not yet been completed. I have decided the appropriate course is to rule that I will admit the statement in this document unless at the conclusion of Mr Frewen's evidence it appears that it was made or obtained for the purpose of or 1n contemplation of any judicial or administrative proceedings. I add that my ruling does not extend to the admission of anything, for example, an expression of opinion in the document which goes beyond a statement setting out what was said at the meeting. At present, unless 1t appears that the document was made or obtained for the purpose of or in contemplation cf any judicial or administrative proceedings, I will admit the document as against the first defendant and only as evidence of what was said at the meeting. This leaves open the question of whether anything stated by any person present at the meeting 1s evidence of anything other than the fact that 1t was said and by whom. 18 July 1983 Evidence - Business records - Whether statements ina letter are statements of fact - What is part of a record - Fule against hearsay - Safequards in Part IIIA of Evidence Act 1905. Written Ruling 6. This judgment concerns the admissibility of MFI 26 and @. purports to be a letter dated 19 February 1976 from N.E. Stock, Director of TIC Management Consultants, to D. Blaney, Victorian Manager of Ansett Freight Express. The whole of this letter 15 tendered with the exception of the last two paragraphs. Apart from the date, the description of the addressee and of Mr Stock, the other parts of the letter which are tendered read: "Dear Sir, We wish to thank you for your quotation dated 12th February. 1976 concerning the interstate cartage of products manufactured by Sylon International Limited, Mahoneys Road, Thomastown. We also confirm our telephone conversation today whereby we accepted your quotation in part as authorised on behalf of Sylon International Limited as follows: General Service. Melbourne to: A.C.T. Perth. Adelaide. Pocket Service. Melbourne to: Sydney/A.cC.T. Brisbane. Adelaide. Perth. Tasmania." The provisions of Part IIIA of the Evidence Act 1905 dealing with the admissibility of business records are relied upon. For admissibility under those provisions there must be a statement of fact in a document (s.7B(1)). It is the statement of fact which 15 admissible. The fact must also be one in 7. respect of which evidence is admissible. A statement of fact may be made by words or otherwise (s.7A(1)) and fact includes opinion (3.7B(3)). It was common ground that, in general, a statement of opinion was only admissible where the opinion was given by an expert who could give the opinion orally in the witness box. The document containing the statement must form "part of a record of a business" (s.7B(1)(a)) and it appears that this requirement may be sufficient to exclude a statement in a document which isa record but not part of a record. MFI 26 was a copy of a letter kept in a file of T.I.C. Management Consultants. Emilio Tirado (1974) 59 C.A.R. 80 was cited by senior counsel for the second defendant as authority for the proposition that a letter ina file was not part of a record. In that case the relevant statutory provision referred to the admissibility "of a record relating to any trade or business and compiled in the course of that trade or business from information supplied eee The members of the Court of Appeal did not record anv concluded finding 1n that case but expressed doubt whether a letter of complaint kept in a file of correspondence constituted a record within the relevant legislation. The Court at p.930 pointed out that: "The language of Section 1 seems on its face to contemplate the making or compilation of a record. That means the keeping of a book or a file, or a card index into which information 1s deliberately put in order that it may be available to others another day." 8. The words of the section there under consideration @ included the word "compiled" and they are different to those in Part IIIA. I do not think that case is siqnificantly relevant. R. v. Jones £19781 1 W.L.R. 195 was also cited. That case also referred to a record or part of a record "compiled". Watkins Products Inc. v. Thomas (1965) 54 D.L.R. 252 was also cited but here again, different words were under consideration. I propose to follow the decision of Hunt J. 1n Compafina Bank v. Australia & New Zealand Banking Group Ltd. £19821 1 N.S.W.L.R. 409. In that case his Honour held that a copy of a letter written by company X to company Y obtained from the records of company X satisfied the test of being part of a record in litigation between companies A and 8 under 3.14CE of the Evidence Act 1898, N.S.W. The wording in that section 1s the same aS in s.7B which 18 under consideration. A copy of a letter written by the director of a company conducting a business to a customer concerning business transactions between the company and the customer is, in my opinion, clearly "part of a record of a business" at least where the record of which 1t 1s part can be identified. If this be a requirement it was satisfied because MFI 26 came from an appropriate file of T.I.C. Management Consultants. The record need not be a continuous record. A loose leaf ledger card containing a statement of fact. at least where 1t 18 one of a 9. number of cards in a box, and which otherwise satisfies the provisions of Part IIIA, would also be part of a record within s.7B(l)(a). Attention was directed to the words "we accepted your quotation" and "as authorised on behalf of" in the second paragraph of MFI 26. My attention was directed to various cases including Tobias v. Allen (No. 2) (19571 V.L.R. 221 at pp.224-225, Milne v. Pope and Belair Cellars Pty. Ltd. (1972) 4 S.A.S.R. 45 at pp.54-56, O'Leary v. Lamb (1973) 7 S.A.5.R. 159 at pp.196-198 and Dass v. Masih (19681 1 W.L.R. 756 at 761. Those cases dealt with what is included in the word "fact" in somewhat similarly worded sections of other statutes. In general, it was said that to say that two parties "agreed" was not a statement of fact. In this case I am concerned with the words "we accepted your quotation in part". Mr Mason 9.C. submitted that, if a person says we agreed to go to lunch, that 1s hardly a matter of law but is really a statement which. whilst not in direct speech, was little more than recording an answer that the person said "yes" to an offer to go to lunch. Counsel for the sixth defendant cited Re Norman King & Co. Ltd. (1960) 60 S.R. 98 as an authority for the proposition that a document containing an acknowledgement of an authority is not a document setting out a fact or facts but rather a conclusion from facts not mentioned in the document. 10. I consider that in MFI 26 it is appropriate to regard @ . the words "we accepted your quotation in part" as being little more than saying "we said yes to your quotation in part". It seems that the meaning of the statement need not be clear or unambiguous for 1t to be admissible. Sometimes apart of a document, not being a statement of fact, has been admitted to explain a statement in the document (Re Marra Developments Ltd. £19793 2 N.S.W.L.R. 193 at p.202). I would reject the statement in that part of the letter which reads "as authorised on behalf of Sylon International Limited" because that is a conclusion, at least in part of law, un relation to a prior transaction between Sylon International Ltd. and T.I.C. Management Consultants. Some consideration was glven to s.7B(2)(d) which provides that a statement is admissible notwithstanding that it "1s in such a form that it would not be admissible if given as oral testimony". In my opinion this appears to relate, at least primarily, to a case where the statement in the document is not in direct speech. I note that the Victorian Act considered in Tobias v. Allen, supra, and the South Australian Act considered in Pope v. Belair, supra, and O'Leary v. Lamb, supra, did not contain any similar section. In some cases this section may permit the admission of phrases such as "we agreed" which would not be admissible in oral testimony. ll. Part IIIA of the Evidence Act is remedial legislation untended to remove the difficulty or, ir some instances, vell nigh umpessibility of proving certain tacts cn business Situations. In my azpinicn. 1f possible, it should ne construed liberally. (e.q. see Dass v. Masih. supra, Salmon 1.7. at v.765E and Re Marra Developments Ltd... supra. at o.2U02E). It 15 also relevant to nate s.7H as to drawing inferences. (See Albrighton vw. Poval EFrince Alfred Hospital Ci980] 2 N.S.W.L.P. 542 at p.544). The ieqiziaticon irciudes a mumber of safequards, for emampie, s¢ 77F)) and "Dit1, These rvov1312n5 restrict tue use of =.°c¢ in cerrain tictumetante:. In criminal oreceedings, which Aipyighton v. Foval frince Airred messitsal, tusea. at e.ieeet i) In the present raze cerivc wciums2i for tne Commission nas undertaken ta ttock, trys parE IN oin tne PBuzinese oof TT. Marpagdemen cancuitants wri appears ff. cava 12. provisions in 33.7M and 7N concerning cases heard before a jury. @ : In the present case it is a relevant fact that Mr Stock will be available for cross-examination as indeed is Mr Frewen. There is, of course, also the safeguard that the judge always has to assess the weight of any evidence against the background of the other evidence the parties have placed before him. In this regard certain special provisions are made by s.7F. In deciding whether a statement should be admitted, the court is entitled to draw inferences as provided in s.7H. I have not directed my attention to the provisions of s.7C(1) or s.7D(3). Although counsel did raise the question of on whom the onus lay to establish the facts relevant to either of these sections, no detailed submissions were made to me. I will follow the same course that I followed in relation to MFI 3. I rule that I will admit the statements in so much of the document MFI 26 as has been tendered (except the words "as authorised on behalf of Sylon International Limited") unless at the conclusion of Mr Frewen's evidence 1t appears that it was made or obtained for the purpose of. or in contemplation of, any judicial or administrative proceedings. 26 July 1983 (Transcript 3623-23624) Evidence - Business records - Whether record made by 13. qualified employee of a company of contents of an invoice of another company is admissible under Part IIIA of the Evidence Act 1905. Oral Ruling I am able to give an oral ruling on the admissibility of certain paragraphs of exhibit L which are now tendered, based on the provisions of Part IIIA, dealing with the admissibility of business records, of the Evidence Act 1905. The ruling I give is I believe in accord with the ruling I have already given in relation to MFI 3, which appears in the transcript at pages 2549 to 2551. I consider that if Mr Frewen looks at an invoice of X sent to Y, a client, at the premises of Y, and Mr Frewen makes a record of a statement from the invoice in a document, part of a record of Tradestock Pty. Limited, which was made in the course of or for the purpose of that company's business, then Mr Frewen 1s a qualified person in relation to that record. I can see no difference between this and an employee of the client whom I have calied Y in this case, making an entry in part of one of its records; for example, a transport ledger or a creditor's ledger. In both cases the person making the record seems to me to have personal knowledge of what was recorded in the invoice. However, the position is different if the record made 14. by, for example, Mr Frewen is really a conclusion drawn from various sources concerning Y's business, even though one of the sources used to reach the conclusion was an invoice of X. I see a distinction between a record made by Mr Frewen of what was said by an officer of X to an officer of Y, a client of Tradestock, and related to Mr Frewen by an officer of that client. I do not consider such a record would be admissible. In that case Mr Frewen would have no personal knowledge of the conversation but would have to rely on what he was told by the officer of the client and I consider that would not be admissible, apart of course from any question of being an admission by a party. Also, any statement of fact must be relevant. It must of course be a statement of fact. Consideration must also be given as to whether s.7M and s.7C(1) or s.7D(3) and (4) are relevant, and any rulings [ am giving in relation to any of the documents referred to in MFI 40 are only tentative rulings 1n so far as I agree that a statement 1s admissible, and will ultimately depend upon the conclusions I reach at the end of Mr Frewen's evidence in relation to the possible application of s.7C or 7D. Ultimately of course the weight has to be considered with reference to s.7F. Applying those principles to exhibit L, I propose to admit only the statement referred to on the righthand side against the figure 3. Some difficulty arises as to what 15 the appropriate way to do that, but I think the appropriate way 13 to 15. say that I will admit so much of paragraph 1 as is evidence of the fact set out in the righthand column under the figure 3. I do not propose to deal with each of the other statements mentioned in that column. The first statement, in my view, is not really a statement of fact and Ido not think the letter really says what that purports to allege. Most of the others, if not all the others, are rejected upon the ground that they do not fall within the tests I have set down, but are really conclusions about the Mindrill business reached by Mr Frewen as a result of his inspection, presumably, of a number of documents, and his conclusions from a number of statements, presumably made to him, and I suppose also some personal observations he may have made in respect, for example, to one or more of the categories of services used by Mindrill. 9 November 1983 Evidence - Business records - Whether an unincorporated body 1S a business within s.7A of Evidence Act 1905. Written Ruling Senior counsel for the Commission tendered the minutes of the National Freight Forwarders Association ("N.F.F.A.") for the following dates to the extent to which statements in those Minutes were admissible under the business records part of the 16. Evidence Act 1905 ("the Act"). Senior counsel also dealt with a r ) number of alternative grounds upon which he alleged the minutes were admissible. I decided that the most appropriate course was to consider their admissibility under the business' records provisions first. Two major questions arose; firstly whether the N.F.F.A. was a business within the meaning of s.7A(1l)(a) of the Act; and secondly, 1f 1t was, whether there are any statements of fact in the minutes which are admissible pursuant to s.7B of the Act and are not otherwise inadmissible or properly excluded because of some other provision in Part IIIA of the Act. The minutes purport to be for the dates of: (a) 12 February 1976 (b) 23 March 1976 (c) 20 May 1976 (d) 4 August 1976 (two meetings) (e) 11 November 1976 (f) 14 April 1977. Mr W.A. Levitt identified the book containing the minutes at p.6653 as being one of three minute books of the N.F.F.A. They were marked for identification 411 and some of the minutes of the meetings under consideration were separately marked for identification as MFI 384. Mr Levitt described his position with the N.F.F.A. as executive director (6648), although 17. he indicated there was some uncertainty about the correct description of his position (6675). He appears to have acted as the chief executive officer of N.F.F.A. He said that he attended all the relevant meetings and took notes during the currency of the meeting and then prepared the formal minutes therefrom. He said that he duplicated copies and arranged for them to be sent to the chairman and to each member (6693, 6827). To all intents and purposes the minutes of each meeting as signed were in reality a document prepared by Mr Levitt of what took place at meetings which he personally attended. As a matter of convenience, I decided to determine whether the N.F.F.A. fell within the definition of "business" within s.7A of the Act and then to allow submissions on the question of the admissibility of any statements under s.7B. This ruling does not go beyond the question of whether the N.F.F.A. fell within the definition of "business". So far as 1s relevant, s.7A(1) of the Act reads: "In this Part, unless the contrary intention appears - 'business' includes - (a) any business, profession, occupation, calling, trade or undertaking whether or not engaged in or carried on for profit and whether engaged in or carried on in Australia or elsewhere, including any business, profession, occupation, calling, trade or undertaking engaged in or carried on by the Crown in right of the Commonwealth or of a State; and (b) the administration of the government of 18. the Commonwealth, of a State, of a Territory or of another country, whether carried on in Australia or elsewhere." A great number of cases were cited to me by the parties and in particular by senior counsel for the first, fifth and seventh and the second defendants. The extent of the argument can be gauged by the fact that substantially a full day was spent on submissions in relation to the aspect now under consideration. I have already given a number of rulings on the admissibility of business records in this case and it is appropriate to refer to what I said in the reasons I delivered on 18 July 1983 in relation to MFI 26. At pp.6 and 7 I referred ta the fact that Part IIIA of the Evidence Act was remedial legislation intended to remove the difficulty or, in some instances, well nigh impossibility of proving certain facts in business situations and that, in my opinion, if possible, the Act should be construed liberally. I see no reason to depart from those conclusions. Senior counsel for the Commission referred me to a number of cases, the first of which was a judgment of the High Court in Rochfort v. Trade Practices Commission 43 A.L.R. 659 and to a passage in the judgment of Mason J. at p.667 where his Honour dealt with the rules relating to the publication of documents of unincorporated associations and used the expression: "The business of an unincorporated association 1s generally 19. conducted by an executive officer, subject to directions given by an executive committee". Whilst this is not a statement necessarily applicable to s.7A of the Act, it seems to me to be a very significant statement. Senior counsel also referred to a judgment of the Full Court of Victoria of Mather and Deegan v. Morgan (19711 Tas S.R. 192 where the question under consideration was whether the conduct of an athletic carnival conducted by the Burnie Athletic Club was a business within the meaning of s.40A of the Evidence Act 1910 which provided, inter alia, that "'business' includes a business, profession, occupation, calling, trade or undertaking whether engaged inor carried on by the Crown, or a_e state authority or by any other person". In a joint judgment Burbury C.J. and Neasey J. at p.209 said: "The only activity which could be qualified as 'a business' in the context of this case was the running of a carnival and we see no reason why that would not come within tne expression 'undertaking' in the definition of 'business'." That case also seems to be of assistance. I have been referred to so many cases by senior counsel for the defendants I have mentioned that it is impractical to deal with each one of them. In general, it was submitted that the word "business" "suits 1ts meaning to the context in which it 20. is found". See Town Investments Ltd. v. Department of the ®@ Environment £1978] A.C. 359 at p.383. I am prepared to proceed upon that basis. A number of cases were cited to me which arise under s.51 and 3s.26(a) of the Income Tax Assessment Act 1936. I did not find any of these cases of any significant help, if for no other reason, than because of the special definitions which are to be found in s.6 of that Act and of the fact that it deals so much with the question of profits. The same could be said of a number of the other cases cited to me where the words of the particular Act under consideration differed from the words of the Act I am now considering. One such difference found in more than one case was that 1t was not clear whether the wording of the Act under consideration only concerned activities carried on for profit. See, for example, R. v. Crayden (19781 1 W.L.R. 604 where 1t was held that to fall within the word "business" in s.1 of the Criminal Evidence Act, 1965 (U.K.) the activities must have a "commercial connotation". Mr Levitt's evidence was that the N.F.F.A. had an office, that an assistant director was on the staff together with two girls (6651), and that the Association kept books and a bank account (6652). The rules of the N.F.F.A. have been admitted in relation to the first, fifth and seventh defendants and they show that the objects of the N.F.F.A. are: 21. "The objects of the Association shall be to promote and further the interests of its members and the industry in which they operate." There is also some evidence from Mr Levitt concerning the activities of the N.F.F.A. It is necessary to approach the construction of s.7A upon the basis that it includes any "business ... or undertaking whether or not engaged in or carried on for profit". It 1s clear that no specific mention 1s made of unincorporated bodies in s.7A, but it seems to me, in the case of a remedial act which must be construed liberally, to be ridiculous to come to the conclusion that the word "business" did nct include a partnership carrying on what might be called a business or an undertaking whether or not 1t was carried on for profit. I cannot see any reason to exclude an unincorporated body from s.7A if it falls within the meaning of the words "business" or "undertaking" I cannot see how one would describe the N.F.F.A. except as a business or undertaking. Certainly, 1f one were entitled to look at the dictionary definition of "business". there would not be any doubt but, even 1f one is not so entitled, it seems to me quite clear that the N.F.F.A. 1s either a business or an undertaking within s.7A. It obviously acts on behalf of its members; it held regular meetings; the secretary prepared circulars to be sent to members and there is evidence that at least some of the people whom Mr Levitt said attended the 22. relevant meetings occupied a position with one or other Oo apparently relevant company and apparently purported to represent at least one company. A number of the defendants have admitted membership of N.F.F.A. and it is clear that all these defendants were engaged in business transactions conducted for profit and I think it is perfectly clear that the N.F.F.A. was a business or undertaking conducted by its members to further the business interests of those members although it itself did not appear to be conducted for profit. It may be that a question arises of the extent to which those defendants who have not admitted membership are involved with the Association but at this stage I do not think it necessary to deal further with this question. Statements of fact in business records are admissible against everyone. The objects of the N.F.F.A. are only in evidence at present against the first, fifth and seventh defendants and the first and seventh have admitted membership. At least in relation to the first and seventh defendants, I am satisfied for these reasons that the N.F.F.A. is a business. There 1s also the general evidence of Mr Levitt which does not depend on what is stated in the objects or on who are the members of the N.F.F.A. I have directed my attention to the word "business" rather than to the word "undertaking". I have done this because 23. I consider that the N.F.F.A. fell within the word "business". An argument was presented to me on behalf of defendants that the word "undertaking" had to be read ajusdem generis with the words which preceded it and therefore, if anything, it was a word of limitation rather than of extension. I note the statement of Sugarman Jd. at p.128 in Reference Under The Electricity Commission (Balmain Electric Light Co. Purchase) Act 1950 (1957) 57 S.R. (N.S.W.) 100 that "undertaking" 18s a word of variable meaning. However, I am by no means' satisfied that the word "undertaking" in s.7A(1)(a) 1s not to be read as one of the categories which fall within the word "business" which in s.7A(1) is said to include all those categories within (a) and (b). On this basis it would be even clearer that the N.F.F.A. carried on an "undertaking" within the definition of the word "business" in s.7A. I had my attention directed to Myers v. Director of Public Prosecutions (€1965] A.C. 1001 and in particular to the statement that, in the case of hearsay evidence, authority must be found to justify its reception within some established and existing exceptions to the rule because to countenance new exceptions thereto would amount to judicial legislation. Were it not for the provisions of Part IIIA of the Act the Commission would have to rely on i1ts other arguments to establish the admissibility of the minutes. I consider Part IIIA, as I have said, is remedial legislation which, inter alia, establishes a statutory exception to the hearsay rule in cases which fall 24. within it. It seems to me to be an attempt by the legislature to r meet the changing economic conditions which have arisen. It 1s not inappropriate to say at this stage that had this action been commenced when the present rules of the Federal Court were in operation it would have been possible to consider whether it might not have been appropriate to apply certain of the provisions of order 10 rule 1(2)(c). I propose to admit as business records under Part IIIA such of the statements in the minutes which have been tendered as fall within s.7B of the Act and should not otherwise be excluded. 14 and 15 November 1983 Evidence - Business records - Part IIIA of the Evidence Act 1905 - Admissibility of minutes of unincorporated association - Whether meeting must be validly called - Whether particular facts should be specified before record 1s admitted - Whether maker of statement 1s a qualified person. Written Ruling This ruling relates to what, if any, parts of the minutes of the meeting of 12 February 1976, and on what basis, I will admit under Part IIIA of the Evidence Act 1905 ("the Act"). 25. As has been the practice in this case, what appears to have been every conceivable argument has been raised on the question now under consideration. It would be quite impractical to attempt to deal with each argument specifically but I am continuing, at least for the present time, the practice I have adopted of providing fairly detailed rulings on evidence rather than simply saying that I will admit or reject the evidence. Of course, I have carefully considered each argument that has been presented to me. I have said before in this case in relation to business records that Part IIIA of the Act was remedial legislation intended to remove the difficulty or, in some instances, well nigh impossibility of proving certain facts in business situations. In my opinion, 1f possible, 1t should be construed liberally. (See my ruling of 18 July 1983). I say this without having to rely on the specific provisions of s.15AA of the Acts Interpretation Act 1901. Because of the submissions made by counsel for various defendants, I feel 1t 15 necessary to reiterate what I consider to be the proper approach to this remedial legislation. IT set out some passages from the judgment of the New South Wales Court of Appeal in Albrighton v. Royal Prince Alfred Hospital £1980] 2 N.S.W.L.R. 542 where the Court was considering the provisions of substantially identical provisions in the Evidence Act, 1898 (N.S.W.). 26. Hope J.A. at pp.548-549 said: "Any significant organization in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate, The purpose of Pt IIC 1s to bring into the court room a method of establishing the truth which 1s relied upon by our. society outside the court room - to bring into the rules of evidence a reality which they otherwise lacked. A report of the Law Reform Commission which led to the enactment of Pt IIC shows how thorough was the consideration given to reforming the law to this end. Properly understood and applied, Pt IIC makes available to courts, 1n a way to be found in many other parts of the common law world, a most valuable source of evidentiary material which rules of evidence devised in another aqe would exclude." Hutley J.A. and Reynolds J.A. agreed with the views expressed by Hope J.A. on this aspect but Hutley J.A. added some views of his own. At p.569 his Honour said: "In fact, reference to the Report of the Law Reform Commission on Evidence (Business Records (LRC 17), which 1s available for the purpose of identifying the 111s which the Act was passed to cure: see Black-Clawson International Ltd. v. Papierwerkse Waldhof-Aschaffenburq AG £1975] A.C. 591 at p.614; Morosi v. Mirror Newspapers Ltd. C19771 2 N.S.W.L.R. 749 at p.805; Andrews v. John Fairfax & Sons Ltd. C1980] 2 N.S.W.L.R. 225 shows that 1t was the difficulty caused by And at p. And also 27. the rules against hearsay in a modern society that the Act was passed to overcome. When a document is admitted, a statement in that of fact (provided a fact is admissible) 1s evidence of the fact. It follows, in my opinion, that the whole of the documents produced in answer to a subpoena were admissible, unless his Honour ruled that they could not he relevant to the issue, either as going to liability or to damages for pain and suffering." 570: "One of the results of the enactment of Pt IIC of the Evidence Act 183 that, by making records admissible, persons against whom otherwise no case has been made out may be forced to enter the witness box to explain their part in the transaction recorded in the records. This is not the type of prejudice which can be relied upon to exclude evidence given under the Act, at least in civil proceedings." at p.571: "However, while 1t 18 on the statute book, the legislation has to be given its full effect, and escape sections, such as s.14CP, should not be applied so as to frustrate the evident purpose of legislation itself. The clear intent of the legislature is that the properly kept business records should be admissible in evidence, even 1f their admission does not fit in with the traditional philosophy for admissibility. The legislature has gone out of its way to emphasize that certain obstacles to admissibility, e.g. the hearsay rule, have to be disregarded entirely. This, in my opinion, means disreqarded in the assessment 28. of whether the admission of the documents would be unfair." I note his Honour's qualification in relation to criminal proceedings in the second last passage which I have cited and the provision in s.7D(4) of the Act providing that proceedings under s.77 of the Trade Practices Act 1974 are to he treated as criminal proceedings in relation to s.7D. Senior counsel for the Commission sought to tender as business records only certain parts of the minutes and he provided (MFI 483) a document in which he set out at least one construction of each of the statements of facts which he submitted were to be found in the records. Counsel for the defendants, except counsel for the sixth defendant, submitted that the Court must require the Commission to identify the construction of any statement tendered as a statement of fact and that it should be beund by the construction advanced in MFI 483. I reject this submission. Although 1t 1s clear that the Court can cnly admit statements of fact 1n a document, 1 seems to me that the practice qenerally in reported cases has been not to require the particular fact of which 1t 1s sought to have evidence from the document to be construed but simply to admit the document only as some evidence in support of the proof of the statement of facts 29. appearing in the document. See generally Compafina Bank v. The Australian and New Zealand Banking Group Ltd. £19821] 1 N.S.W.L.R. 409 and Albrighton's Case, supra. Senior counsel for three defendants argued that the minutes were not a business record because they were not minutes of the N.F.F.A. since it was said not to have been shown that the meeting was validly called by the executive (7111 to 7114). Senior counsel for the second defendant also argued that the meeting was not a proper meeting because, inter alia, he said no quorum was present (7145). I do not find it necessary to decide these questions because I do not think that the question whether a record of a meeting 1s a business record can depend upon whether there was any proof that the meeting was validly called in accordance with the rules of the organisation. The interpretation advanced on behalf of defendants can be summarised as senior counsel for certain defendants agreed (7127) that, in his submission, a record of something done outside the powers and objects of an incorporated body or outside the rules of an unincorporated body could not be a business' record of that body (7127). In my opinion that is a submission wholly without foundation and 1t would provide a ridiculous limitation upon the benefits provided by the Act. Senior counsel for three defendants also submitted that the question I have just dealt with was important in determining whether Mr Levitt was a qualified person within 3.7A(1). In my 30. opinion the statements were clearly made at least in the course r ) ; of the business of N.F.F.A. and I also find that it was made for the purposes of N.F.F.A. I am also satisfied that Mr Levitt was a qualified person in relation to what took place at the meeting because he was present, he heard what was said, andI am satisfied that he made any statement in the minutes in the sense of the definition in s.7A(2). I am also satisfied that, at the time when those statements were made, Mr Levitt was at least an agent engaged in the business if not a servant and also I would be disposed to find that he was a person retained for the purposes of the business (7104-5) even if he has not been shown to be a paid servant. What I have said in most cases goes only to. the statements in the minutes being admitted as evidence that certain things were said at the meeting. I am not prepared at this stage to rule finally whether Mr Levitt was a qualified person in relation to the truth of any of the facts to which the statements were directed with the exception of all that part of the minutes down to and including number 1 with the exception of the names of the companies or bodies named on the right hand side of the names of those said to have attended the meeting, together with the record of the date, the signature and description of the chairman at the end. I understand Mr Mason has not argued to the contrary (7180). I do not consider that the construction placed on the 31. minutes in the document MFI 483 should be treated as the only construction of a particular statement which the Commission would be allowed to advance. On this basis the statements (other than previously identified) which I propose to admit will be admitted only as evidence that they were made. I will be prepared to consider an application to renew the tender of any statements of fact in the minutes 1f 1t is desired to tender those on the basis that Mr Levitt was a qualified person to provide evidence that the facts were true rather than to provide evidence that they were made at the meeting. I add that the construction of any such statement in many cases will be a question of fact which would be left to a jury in many jurisdictions. This view appears to have been accepted, at least to some extent, by counsel for the sixth defendant (71€6). I mention also s.7H to which regard may be had in deciding questions of admissibility and s.7H(2)(c) and (d). Items numbered 2, 3, 4, 5, 6 and 7 were not pressed. I admit the statements of facts in item 1, the siqnature, date and description at the end, that part before the first 1tem except the names of the organisations or companies noted against the names of those recorded as attending as evidence of the truth of those facts and items 8, 9, 10 and 11 as eviderce that statements of facts therein were made at the meeting. The parts of MFI 411 so admitted will be exhibit KH on the basis of the above rulinda. a July 1984 Evidence - Business recerds - General requirements for admissibility - Whether letter from solicitors made in the course of, oar for the wurvose of the client's business - Admissibility of notation on document under Part ILIA of the Evitence Act 1905, Wreitten ruling Thies ealany ctinecernt the admissibiiitvy of two sets of The etter if March Lat? owirh the erelssurs Ae rendered py the se_ind aefercant and the lertlr cr 18 Tannal -279 was fendereg sy the tnira defeniant The wetter of f Maren .42°' with the enclosed fet a: tenditions was tendered as a ousiness rectord of Tranestace rt Ltd. ''Pradesteck'), Its admission v72e ocposed by tne Trade 33. Practices Commission ("the Commission") upon the ground that it was not admissible as a business record of Tradestock and also that it was subject to professional privilege. The second defendant argued that privilege had been waived but, because I take the view that it 1s not admissible as a business record, I will not express a view on the argument based on privilege. The following conditions must be satisfied for any statement of fact in this document to be admissible under Part IIIA of the Evidence Act 1905 ("the Act") as a business record of Tradestock: (1) The statement of fact must be made in the course of, or for the purposes of. the business of Tradestock (s.7B(1)(b)). (2) The statement of fact must be made by a qualified person (s.7B(1)(c)). The second part of that Paragraph does not appear to be relevant in the subject case. Sentor counsel for the Commission did not dispute that the solicitor signing the letter fell within paragraph (a) of the definition of "qualified person" in s.7A(1). I consider that any statement of fact in the letter or annexure was not made in the course of, or for the purposes of, the business of Tradestock. Any such statement was made in the 34. course of, or for the purposes of, the solicitors' business and I 9 reject the tender of the letter of 3 March 1977 and the annexure thereto. I pass to consider the letter of 16 January 1978 and the accounts forwarded therewith. In order to decide this question I will summarise certain principles. They are:- (A) In general, a statement of fact in a letter from A to B found in the files of B is not admissible as a business record of B merely because 1t was filed and kept by B. This 1S because statements in the letter are not made in the course of, or for the purpeses of, B's business. (B) If a person in B's business makes a note on the letter, a statement of fact in that note may be admitted as a business record of BH 1f the person making 1t was a qualified person and did so in the course of, or for the purposes of, the business. An example of this is the word "Paid" written on an invoice by a person whose duty it was to make payments. (C) An invoice may be a communication and, 1f relevant, admitted on the basis that it is not evidence of the truth of its contents. In the case of an 35. invoice filed in the records of B with the word "Paid" or other note written on it, the whole does not become a business record of B merely because the word "Paid" is written on it. The document should be treated as a communication, and any statement of fact in the note, if made by a qualified person, will be admissible as evidence of that fact under Part IIIA of the Act. Together they may justify certain facts being inferred. See generally my comments in relation to Exhibit 89 at pp.6340 to 6347. See also the transcript at pp.8463 and 8465 relating to Exhibits 200 and 205. I admit the word "Paid" together with the figures and initials on the first page of the letter of 16 January 1378 to the extent of any statement of fact therein under Part IIIA of the Act and I admit the letter and the accounts as a communication. No question of privilege was raised by the Commission in relation to this letter or the accounts. The exhibit number will be 514. 36. ADMISSIONS 5 July 1983 (Transcript 2705-2709) Evidence - Whether statement in annual report of holding company constitutes an admission against a wholly owned subsidiary. Oral Ruling I am ready to give anoral ruling on the question whether the two documents, Ansett Transport Industries Limited o 38th Annual Report and 41st Annual Report, can be admitted against the fifth defendant, Ansett Transport Industries (Qperations) Pty. Limited. Reliance 1s placed on the Printirg and Newspapers Act, 1973 (New South Wales). The first question 1s whetner these reports fall within the definition of "document" in 3s.2. A document is described as including "a book, pamphlet, leaflet, circular ... or magazine or other periodical publication ...". This definition 1s based upon naming certain articles included within the word ''document". In my opinion an annual report of this nature falls within the words "pamphlet, ... circular, ... or other periodical publication". Even if it does 37. not, it seems to me that it is clearly a document. One of the definitions of "document" inthe Shorter Oxford Dictionary, third edition, 1s: "Something written, inscribed, etc., which furnishes evidence or information upon any subject ..." I am satisfied that these two articles are documents within s.2 of the Act under consideration. Section 5 provides so far as is relevant that: "A document ... on which 1s printed a name purporting to be the name of - (db) the person for whom or on whose instructions the document was printed; shall be received by all courts ... in any proceedings ... as prima facie evidence that the person whose name 1s so printed 1s - (e) the person ... on whose instructions the document was printed". The documents under consideration bear the title "Ansett Transport Industries Limited" and both are marked "Annual Report". A list of the names of the various directors appears in 38. both, together with the name of the registered office of the @ company, being an address in Melbourne. The name "Ansett Transport Industries" appears in several places. Both contain directors' reports signed by R.M. Ansett, chairman and managing director, and R.L. Cooper, director. I am satisfied that s.5 of the Act applies to make the name "Ansett Transport Industries" prima facie evidence that the documents were printed on the instructions of that company. I would therefore admit both documents as against Ansett Transport Industries Limited. The next question 18 whether they are admissible against the fifth defendant, since Ansett Transport Industries Limited 1s not a defendant in these proceedings. The documents provide a considerable amount of information about the fifth defendant, which is referred to in various places in both reports as a wholly owned subsidiary of Ansett Transport Industries Limited, and various companies are set out as being divisions of the fifth defendant. In the statutory declarations verifying the balance sheet of the fifth defendant as a foreiqn company filed in the Australian Capital Territory and being exhibit AE there is evidence that as at 29 June 1974, 28 June 1975, 26 June 1976 and 2 July 1977 the fifth defendant was a wholly owned subsidiary of 39. Ansett Transport Industries Limited. The declarations aisao show thac tne balance sneer as at tne relevant dates was signed for and cn behalf of the boara of directors of the fiftn defendant bo authority of a reseliutisn of the directors, and the signatories are R.M. Ansett. chairman and managing diractor, and F.L. Cooper, director. Treretore, it appears that the gentieman R.M. Ansett was sooth the cnairman and dire fe) Lay a Lal tr Lam a Ht ra al it Loe en 1D rt iya wb "3 tT w =] fer ws ay pe a3 a oi) wT managing at t Transvart Industries Limited, fo have reen referred tao thea cusagment of Mr Justice sheppard in Trace rractices Vommissicn ~~. ALsied Milis iran Pov lamited ilo, 2: «lakhs Ti k.u.s - +t in that ctas2 nis ronour fOmtLtieread oa statement made ch 2 serson wnt /AS An exetutive aivector sf a osarent timeany ard oa oairpectets of oa eubsidiary., a:docuno arso - altheugh -ot an executive divetiie cf the msaursiazary company - certermed scatautivs aatielt in relation Sia Honcu: *8! 4 That che zriter aot sgq.e director of fae nolainc 2 meanvy couli ore cise tielumetances 24 "US@1 ag avidenie acainzh crne pirsiauiat. epee any I have ceean cerearret fa ar ore Tayvala rrovident Goidmining Company ' 1484: le Lh. b. 53°. which was refecrad to in s JT take the same vlew 43 nis iT tr 1Dc [oy 'Qiyot ID Lal = rs oy s m T r mo D us ea iD TS 'S pat) Ly LL 40. Honour took, and I find the judgment and the passage of Mr 'oe Justice Owen in Finance & Guarantee Co. Limited v. Federal Commissioner of Taxation (1970) 44 A.L.J.R. 368 at 370 very helpful. There Mr Justice Owen said in relation to the Devala Provident Goldmining Company Case: "With respect, I feel some doubt as to the correctness of the decision but, in any event, I am of opinion that at the present day, when it is common practice for a chairman's address to shareholders at an annual meeting of a public company to be supplied to the stock exchange and to the public through the medium of the press, it would be contrary to common sense to hold that such an address could not be used in evidence in proceedings by a third party, assuming of course it 1s relevant toa fact which the third party 1s seeking to establish." The documents now sought to be tendered were obtained under subpoena from the Sydney Stock Exchanae. One way the tender of MFI 15 is put by the Trade Practices Commission is that the statements in those documents were made by somebody who had actual authority to bind the fifth defendant. In my opinion this submission 1s correct, because in each case the same gentleman 1s the chairman and managing director of both companies, and tne statement is made inan annual report of the holding company wherein a considerable amount of material 1s provided for the beneficial owners about the wholly owned subsidiary, the fifth defendant. I am satisfied that the statements in the reports about 41. the fifth defendant were made by a person who had the authority of the fifth defendant to make then. I will admit the two reports against the fifth defendant which have been marked for identification 15 and they will become exhibit AK. 11 July 1983 Evidence - Whether statement in affidavit 1s an admissicn - Must person making statement be aware of true facts. Written Ruling I have considered the question of the admissibility <:t paragraph 5 1n the affidavit of Mr James Rodon King, sworn on 25 May 1983, last referred to at p.2673. The only question remaining 15 whether paragraph 5 1s admissible. I have already admitted paragraph 6, and the formal parts of the affidavit. as Ex. AJ. At p.2670 Mr Mason said: "T am prepared to indicate that the document 1s tendered against only the defendants for whom my learned friend Mr Capelin appears and is tendered only as an admission of those defendants as to the type of business carried on by Mayne Nickless Limited, and the relevant portions of the document are paragraph l(b) of the merger notice and paragraph l(a) of the lengthier document attached." I have therefore to consider whether paraqraph §& 42. including the annexure marked B is admissible against the first, @ fifth and seventh defendants "as to the type of business carried on by Mayne Nickless Limited". I was referred to Lustre Hosiery Ltd. v. York (1935) 54 C.L.R. 134. I also consider that Smith v. Joyce (1953) 89 C.L.R. 529, a case in which Lustre Hosiery Ltd. v. York was discussed, 1s the best place to start consideration of the question. In Smith v. Joyce a plaintiff A had sued defendants B, Cand Din relation to a physical injury which A had suffered as a result of an accidental wound from a knife used by 8B. C made a statement which had a clear meaning and was relevant to establish the negligence of B. C's statement was held to be admissible as against him although he had no personal knowledge of the way the accident had happened. The admission was, however, held to be admissible only against C and not against Bor D. At p.535 in a joint judgment Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. cited the following passage from p.143 in the judament of Lustre Hosiery Ltd. v. York: " 'If they disclose an intention to affirm or acknowledge the existence of a fact' they will constitute evidence of an admission 'whatever be the party's source of information or belief'." I also cite the following passage from p.143 of tne judgment of Rich, Dixon, Evatt and McTiernan JJ. in Lustre Hosiery Ltd. v. York: "But, although the meaning of his words or conduct may depend upon the state of his 43. knowledge, once that meaning appears and an intention is disclosed to assert or acknowledge the state of facts, its admissibility in evidence as an admission is independent of the party's actual knowledge of the true facts." In my opinion paragraph 5 of the affidavit only discloses an intention to affirm or acknowledge the existence of the copies referred to therein. It does not constitute an acknowledgment by the first, fifth and seventh defendants, through their solicitor, of the truth of the statements in para. l(b) of the notice or in para. l(a) of the attached submission concerning the type of business carried on by Mayne Nickless Limited. l therefore reject paragraph 5 in Ex. Ad. 5 and 6 September 1983 Evidence - Whether admission of counsel in other proceedings 15 admissible against a party in different proceedings. Written Ruling This decision 1s concerned with the admissibility of certain parts of MFI 342. 44. MFI 342 consists of certain pages of transcript of @. evidence given in the Federal Court in Tradestock proceedings, VG26 of 1977, a matter commenced in the Australian Industrial Court. Senior counsel for the Commission sought to tender certain selected passages 1n the transcript and photocopies of certain subpoenas as admissions by certain defendants. Two threshold questions arise, namely whether any objection is taken to the use of the transcript as proving what was said during the course of the proceedings and, secondly, whether statements made in those proceedings can be treated as admissions in these proceedings. It was not suggested by the Commission that any such admissions would be conclusive but only that they were vrima facie evidence against the person on whose behalf they were made. None of the defendants took any objection to the use of the transcript except the sixth defendant where an objection was taken to certain passages, to which I will refer later, because 1t was alleged that they were not accurate. Senior counsel for the first, fifth and seventh defendant= objected to copies of the subpoenas being admitted and araqued that it was necessary that the originals be tendered. He also argued that orders of the Court must be proved formally. The basic question of law that arises is whether 3 statement, which appears to be in the nature of an admission, can be received as prima facie evidence of the facts in different proceedings between parties, some of whom are different, where 45. that statement is made by counsel or a solicitor in proceedings which, it is conceded, were of an interlocutory nature. My attention was drawn to a number of cases and, in particular, to H. Clark (Doncaster) Ltd. v. Wilkinson [19653 1 Ch. 694. It is clear that the question in that case was whether a person was bound by an admission made by counsel in the course of interlocutory proceedings and it was held that such an admission could be withdrawn. Evidence was presented that the admission was made by a counsel "briefed at the eleventh hour and by the solicitor's clerk" and that 1t was made without instructions I have examined the views expressed in Phipson on Evidence, 13th Ed. at pp.398-401 and to the views of Hunt J. in Singleton v. John Fairfax and Sonz Ltd (1982) N.S.W.L.R. 38 at pp.48-51. In Sinagleton's Case his Honour regarded it as appropriate to treat pleadings in the same way as any other form of admission. In general, the passages sought to be tendered as admissions are statements made by counsel appearing in interlocutory matters and intended to be acted upon by the Judge. I can see no reason why they should not be regarded as prima facie evidence against the client on whose behalf counsel was addressing the Court. I will now deal with the various parts of the transcript which were tendered as admissions. I propose to indicate the extent to which any such 46. statements will be admitted and then to ask senior counsel for the Commission to mark by a line in red against each part of MFI 342 which he contends should be admitted pursuant to my ruling. It will then be necessary to ascertain whether counsel fer the defendant against whom the statement 15 admitted accepts those markings as giving effect to my judgment and for me to consider any inability to reach agreement. It 183 necessary to look at the transcript sought to be tendered in the light of the parties in that action. These are shown 1n Exhibit EO. I will admit the page marked 2. I would admit statements on pp.4, 5, 109, 467 and 470 as evidence of the counsel or solicitors appearing for the companies identified therein. I reject pp.6, 7 and 139 as being only submissions by counsel. I reject that part of p.9 tendered since I do not consider that the statement by counsel for Tradestock Pty. Ltd. can, in the circumstances, be accepted as an admission by Ansett Transport Industries (Operations) Pty. Limited. I reiect pp.107 to 111, except pp.198 and 109, because I consider that an order must be proved in a formal manner where it 18 put in issue as it 18 by certain defendants in this case. See generally orders 37 and 44 of the High Ccurt Rules and orders 33 47. and 36 of the Federal Court Rules. Notwithstanding the objections to the method of proof of a subpoena by tendering a photocopy of the document, I admit the copies of the subpoenas directed to defendants in this action which are included in MFI 342, excluding the affidavit of the process server in each case. I do this relying upon the requirement of s.4 of the Evidence Act 1905 and 3.34 of the Evidence Act, 1898 (N.S.W.). Each is admitted against the person named in the subpoena. I would admit against T.N.T. Management Pty. Limited the first paragraph on p.113 and the third paragraph on p.114 and against the fifth defendant, Ansett Transport Industries (Operations) Pty. Limited, the first two lines of p.131 (5392-3). I will admit against T.N.T. Management Pty. Limited the last half of p.115 dealing with the subpoena addressed to 1t and the first four lines of p.116. I also admit against the persons named in the relevant subpoeana the relevant parts of the whole of the rest of p.il4é and the first four paragraphs of p.117. I note it has been agreed by senior counsel for the Commission and the solicitor appearing for Interstate Parcel Express Co. Pty. Limited that the last sentence of the paragraph attributed to Mr Tonking snould read: "These documents came into my hands by another source and I produce them". 48. I admit the last seven lines of p.144 against the e. persons named therein. Page 159 was not pressed. I reject the last five lines of p.342 and the first eight lines of p.343 and I note the submissions made by counsel for the sixth defendant at pp.5271 and 5272 of the transcript and the course which senior counsel for the Commission said at pp.5283e and 5283f that he proposes to take. I reject the orders on pp.467 and 468. Iwill not admit any other parts of any other pages in MFI 342 at present but I will give leave to seek again to tender any specific words alleged to constitut2 an admission. I also aive leave to any party to seek any necessary clarification of this ruling. 2 November i984 Evidence - Whether statements ain affidavit by solicitor are admissions against client. Written Ruling This ruling concerns document MFI 412, being an affidavit of Mr J.R. Kang sworn on 21 September 1981 in 49. proceedings which could loosely be described as proceedings in this matter in which an application was made by Mr Rochfort, upon whom a subpoena had been served, to set aside the subpoena. Mr King's affidavit was filed in Court on 21 September 1981 and an effort was then made by counsel to read it. In the affidavit Mr King stated that he was the solicitor for the first, fifth and seventh defendants. The affidavit then purports to deal with certain matters in support of the application by Mr Rochfort. Senior counsel who appeared for Mr Rochfort also announced his appearance (1011) for the first, fifth and seventh defendants. That counsel then sought to have the Judge rely on the affidavit of Mr King now under consideraticn but senior counsel for the Commission objected to this affidavit being relied upon (1020). However, the learned Chief Judge, who was the Judge hearing the application, was not prepared to accept the evidence and information belief contained in the affidavit (1027) although he said that he had read the affidavit quickly (1020). I considered a somewhat similar case in the ruiing = gave on 11 July 1983 in relation to paragraph 5 of exhibit AJ which was also anaffidavit of Mr King. I rejected that Paragraph because I was of the opinion that it only disclosed an intention to affirm or acknowledge the existence of certain documents referred to un certain material which had been discovered and did not constitute an acknowledgement by the 50. first, fifth and seventh defendants, through their solicitor, of @ the truth of the statements which it identified. In the affidavit presently under consideration Mr King has sworn that he is the solicitor for the first, fifth and seventh defendants and, in paragraphs 2, 3, 4, 7, 9, 10 and ll, that he has been informed of certain matters by named people and that he verily believes those matters. Persons providing the information set out in paragraphs 2, 3 and 4 are all identified as being employees of either the first, fifth or seventh defendants and there 18 no suaqgestion that Mr King did not have proper authority to swear and file this affidavit nor indeed 18 there any suggestion that the counsel who sought to read it was acting 1n any way beyond his instructions. It 1s to be notea that this clearly distinguishes matters under consideration by me from those under consideration in H. Clarke (Doncaster) Limited v. Wilkinson (19653 1 Ch. 695. In my opinion Mr Kinda is seeking to place certain facts before the Court and asking the Court to accept on behalf of the first, fifth and seventh defendants those facts and to act upon them. It seems to me that this 1s a statement, in effect, made by a solicitor with proper instructions acting for a person and I cannot see any difference between this case and the person himself swearing in an affidavit to his belief of that statement. I am therefore satisfied, subject to the question which Sl. I will deal with later, that paragraphs 1, 2, 3, 4, 7, 9, 10 and ll are admissible against the first, fifth and seventh defendants. I cannot see that the fact that the trial Judge was not prepared to place any reliance on the affidavit makes any difference. It is clear that once an affidavit has been filed it may be used by the opposite party although the party filing it may decline to use it. It appears also that this applies to affidavits ain interlocutory proceedings in the same action although 1t is not strictly true to say that the application by Mr Rochfort was truly an ainterlocutory application. The admissibility of affidavits as admissions is dealt with generally in Williams 2nd Ed. Supreme Court Practice, Victoria, p.2030. At this stage I am not prepared to admit paragraph 8. I was not addressed upon it but if the applicant wishes to have me consider 1t further aut has leave so to do. Paragraphs 5, 6 and 12 were not pressed by the applicant. I will tnerefore admit paragraphs 1, 2, 3, 4, 7, 9, 10 and 11 against the first, fifth and seventh defendants, as exhibit KD. 52. PUBLIC DOCUMENTS 11 July 1983 Evidence - Annual return with matter not required by law - How much admissible as public document. Written Ruling It 1s now convenient to give an oral judgment on the admissibility of MFI 17. This document is the "form of annual return of a company having a share capital" of Ansett Transport Industries Limited made up to 21 November 1978 and lodded pursuant to the provisions of the Companies Act 1961 with the Commissioner for Corporate Affairs in Victoria. Included in the documents filed in purported compliance with this obligation was a copy of the Ansett Transport Industries Limited annual report for 1978 which has already been admitted to a limited extent as part of Ex. AK. In addition to the particulars required by the Companies Act, this document contains a great deal of material which goes beyond those requirements including, for example, photographs and moderately detailed descriptions of the various activities of the corporation and its various operating divisions or subsidiary companies. The question for determination is whether the form of 53. annual return or any part of it is admissible as prima facie evidence of any or all of the matters stated therein. I propose to deal first of all with the position in the authorities which were cited to me before this morning and then to deal with those cited today. The most recent leading case in this area in Australia or the United Kingdom is R. v. Halpin €19753 19.8. 907. Geoffrey Lane L.J., Wein and Stocker JJ. sitting as the Court of Appeal ina Criminal Appeal delivered a joint judgment in a Matter wherein Halpin appealed against his conviction on an indictment containing, inter alia, an account charging him, with others, of conspiracy to defraud. The critical question was whether the annual return of a company could be used to prove that the defendant and his wife were in effect the sole shareholders and directors of that comrany. It appears that the return was in fact signed by Halpin but that this does nat seem to have been a factor to which the Court gave any weight. The admissibility of the return was disputed on tne ground that it was hearsay. The Court considered the longa standing leading case of Sturla v. Freccia €18801 5 A.C. 623. That case was described by the Court of Appeal as the locus classicus and a passage from the speech of Lord Bl-eckburn at p.643 was set out. The question was whether a document was a public document in the = sense necessary to make 1t evidence of the facts stated therein. The Court considered that one important question was whether the —. 54. entry was made by a person having a duty to enquire and to @. satisfy himself as to the truth of the recorded facts. The passage cited from Lord Blackburn in Sturla v. Freccia included the sentence: "And an entry probably in a corporation book concerning a corporate matter, or something in which all the corporation is concerned, would be 'public' within that sense. But it must be a public document, and it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. It is meant to bé where there is a judicial, or quasi-judicial, duty to inquire, as might be said to be the case with the bishop acting under the writs issued by the Crown." After citing certain authorities the joint judgment continued at p.915: "It seems to be inescapable from those authorities that it was a condition of admissibility that the official making the record should either have had personal knowledge of the matters which he was recording or should have inquired into the accuracy of the facts." A little later the judgment continued: "But the common law should move with the times and should recognise the fact that the official charged with recording matters of public import can no longer in this highly complicated world, as like as not, have personal knowledge of their accuracy. What has happened now is that the function 55. originally performed by one man has had to be shared between two: the first having the knowledge and the statutory duty to record that knowledge and forward it to the Registrar of Companies, the second having the duty to preserve that document and to show it to members of the public under proper conditions as required. Where a duty 1s cast upon a limited company by statute to make accurate returns of company matters to the Registrar of Companies, so that those returns can be filed and inspected by members of the public, the necessary conditions, in the judgment of this court, have been fulfilled for that document to have been admissible. All statements on the return are admissible as prima facie proof of the truth of their contents." The first of the last three paragraphs cited points out that the common law should move with the times, and the second and third paragraphs point out the duty that 1s cast on the company. The ultimate view of the Court was that statements made in a return filed by a company in pursuance of a statutory duty to make accurate returns which are filed and can be inspected by the public are "admissible as prima facie proof of the truth of their contents". It 1s clear that the court's judament only extended to admissibility as prima facie proof. Halpin's case has been accepted by the recognised textwriters. See Phipson on Evidence, 13th Ed., para. 25-12, at p.513, Archbold Criminal Pleading Evidence and Practice, 41st Ed., para. 10-29, p.da3A: Halsbury Laws of England, 4th Ed., Vol. 17. para. 76, p.57; Cross on Evidence, 2nd Aust. Ed., para. 18.81, p.500.) Halpin's case does not deal with material in a return 56. other than that which is in compliance with the duty cast upon the company by statute and therefore, whatever might be the position with regard to other material, I will reject any part of the return which is not filed pursuant to a duty cast upon the company by the Companies Act. This leaves for consideration the question of the rest of the return. I have not been referred to, nor have I found, any judgment in which Halpin's case has been considered. Sturla v. Freccia is the basic case and I have already cited what I regard to be the critical passage in that case. That case has been dealt with frequently, for example, in Everingham v. Council of the Municipalitv of Penrith (1917) 34 W.N. 51, In Re Stollery C1926] 1 Ch. 284, Cariton United Breweries Ltd. v. Cassin (1956) V.L.R. 186. It was also mentioned in R. v. Clarke £1962] 2 Q.B. 91 at p.96 in a judgment of the Court of Appeal in a way which may show a somewhat expanded view of what 1s a public document. In Thrasyvoulos Ioannou v. Papa Christoforos Demetriou £19521 A.C. 84 the Privy Council considered whether a document recording the result of an inquiry conducted by one Salim was a public document. Sturla v. Freccia was discussed and the passage which I have set out from the speech of Lord Blackburn was considered and Their Lordships said at p.94 that they could "see no reason for attempting to qualify it in any respect". There 15 a passage at p.95 which might appear to support the view that for 57. a document to be a public document, the public officer must himself inquire into the truth of statements therein recorded but I think that a somewhat different question was under consideration to that with which I am faced. Sturla v. Freccia was also considered by the House of Lords in Myers v. Director of Public Prosecutions £19653 A.C. 1001. The question there under consideration was whether certain records kept privately by a company were admissible as public documents. It was held that they were not by a majority of three to two on the basis that they were not open to inspection by the public. This is a different question to the one now under consideration and somewhat varying views were expressed by Their Lordships. However, the majority, Lord Reid at p.1021, Lord Morris of Borth-y-Gest at p.1028 and Lord Hodson at p.1034, made it clear that at least it was very questionable how far a court could extend the limits of hearsay evidence which was admissible. I consider that there 18 a lot to be said for the view that R. v. Halpin extends the area in which hearsay evidence can be admitted in a way which might not accord with the views expressed in Myers v. Director of Public Prosecutions. I have been referred this morning to a number cf cases which had not been cited to me previously. In one, Potts v. Miller (1940) 40 S$.R. (N.S.W.) 351, the Chief Justice of New South Wales appears to deal with a somewhat similar question, 58. namely, whether a balance sheet of a company was admissible against the defendant because the Companies Act required a copy of it to be filed with the Registrar-General. His Honour said at p.363: "It 1s quite clear, however, that a balance sheet so filed 1s not a public document within the meaning of the authorities." The Chief Justice then cited Batlow Packing House and Cool Stores Rural Co-operative Society v. Commonwealth and Dominion Line Ltd. 37 S.R. 314, as authority for that proposition. The other two members the bench concurred with the judament of the Chief Justice without comment. Mr oorton Q.C., for the second defendant, who has directed my attention this morning to these cases stated that the Batlow Packing House case "does not seem to take the matter any further". Mr Justice Rogers said in the Batlow Packing House case at p.320: "T understand a public document there to mean a document that 1s made for the purpose of the public making use of it, and being able to refer to it." Reference is also made to Sturla v. Freccia. Other cases to which I have been referred are Huntley v. Donovan 117 E.R. 394, Attorney-General v. Osborne (1961! V.R. 477 at 478, Fvtinet eran Whe, as 59. Cohen v. MacDonough (1906) V.L.R. 521, two Canadian cases, and Liddell v. Harper (1874) 13 (N.S.W.) S.C.R. 129. R. v. Halpin is, however, a fairly recent decision of the Court of Appeal which may have extended the area of admissibility to some extent, but I express no concluded view on that question. It 18 a judgment which has been accepted by the text writers. As I have said, my attention has not been drawn to any case, nor am I aware of any case, which has distinguished it. The basis of the Court's judament in R. v. Halpin is clearly explained and it is a direct authority upon the matter now under consideration and I have decided to follow it. Iwill therefore admit so much of the document marked MFI 17 as was lodged in compliance with the obligation cast on Ansett Transport Industries Limited by the Companies Act. 12 October 1983 Evidence - Whether statements in annual return of hoiding company admissible against a subsidiary company. Written Ruling Exhibit FA was admitted at p.5298 of the transcript. It comprises annual returns of Brambles Industries Limited and 1t 60. was admitted as a public document to the extent that it was @ - lodged in compliance with the obligation cast on Brambles Industries Limited by the Companies Act. Brambles Holdings Limited 1s the second defendant and not Brambles Industries Limited. Oddly enough, Brambles Industries Limited 1s the holding company and Brambles Holdings Limited 1s a wholly owned subsidiary of it. Senior counsel for the Commission has sought to have exhibit FA admitted also to the extent to which 1t can be read as statements made by the second defendant. For this to be established 1t 1s necessary for me to hold that exhibit FA, which 1s mot a document of the second defendant, 15 to be read as containing certain admissions made on behalf of the second defendant. I had to consider a somewhat similar question in relation to exhibit AK. See my ruling at pp.2705-2709. The basis of this ruling was that. following a decision of Sheppard J. an Trade Practices Commission v. Allied Mills Pty. Limited (No, 3) (1981) 55 F.L.R. 174, and bearing in mind that beth the chairman and managing director of the holding and subsidiary company was the same person and that the annual report of the holding company had been signed by that person, I admitted statements in the report of the holding company concerning the activities of the subsidiary company. Senior counsel for the Commission pointed to provisions in the Articles of Association of Brambles Holdings Limited él. (exhibit EZ) giving Brambles Industries Limited power, inter alia, to remove and appoint directors of the second defendant and to the fact that, at least in relation to the years 1975 and 1976, exhibit FA had been signed by persons who were directors of both Brambles Industries Limited and Brambles Holdings Limited. He also argued that the entire board of the subsidiary company was under the control of the holding company (p.5305). Exhibit AH, being the annual returns of Brambles Holdings Limited, shows that there were twelve directors of that company in 1975, eleven directors in 1976 and eight directors in 1977 but no director is shown as a managing or executive director. Mr R.A. Dickson signed the directors' reports in exhibit FA for the vears 1978 and 1976 as chairman but he dia nov sign he 1977 report. The basis of my admission of exhibit AK to the extent that I ultimately admitted it 1s not satisfied with exhibit FA at least because it 1S not shown that anv of the persons signing the annual returns of Brambles Industries Limited held any executive position or performed any executive duties in the = second defendant, Brambles Holdings Limited. In addition, I note that 1t does not appear that exhibit FA contains a report to other than the shareholders of Brambles Industries Limited. I add that no further authorities beyond those I considered in relation to exhibit AK were cited in arqument. 62. I found great difficulty in reading exhibit FA but I understand this is no fault of the Trade Practices Commission. I do not feel disposed to extend the basis of the ruling I gave in respect of exhibit AK and I reject exhibit FA except to the extent to which it has already been admitted. 1 August 1984 Evidence - Whether statements in documents in public register under Trade Practices Act admissible against Trade Practices Commission. Written Ruling Senior counsel for the first, fifth and seventh defendants and senior counsel for the second defendant hoth tendered documents marked for identification 564. Senior counsel for the third defendant also argued in favour of these documents. These documents consist of: (1) An application made pursuant to s.88(1) of the Trade Practices Act 1974 ("the Act") for an authorisation under that sub-section to continue to be a party toa contract that 1s or may be in restraint of trade or commerce; Tha ee set, (2) (3) (4) (5) 63. An application made pursuant to s.92(1) of the Act relating to a contract that may be in restraint of trade or commerce; So much of pp.6 to 10 inclusive of a letter from Thomas Nationwide Transport Limited ("T.N.T.") to the Trade Practices Commission ("T.P.C.") as relates to a contract between General-Motors Holden's Pty. Limited ("G.M.H.") and T.N.T. A decision of 11 March 1977 of a member of the Commission under a delegation pursuant to s.25 of the Act in relation to an agreement of 23 January 1974 between G.M.H. and T.N.T. A letter from the Secretary of the T.P.C. to T.N.T. enclosing a copy of the decision of the Commissioner and a paragraph which inter alia reads "A copy of the member's decision granting clearance 1s attached". The argument proceeded upon tne basis that the documents tendered were upon the public register kept pursuant to 5.95 of the Act. Certain contidential email carts of certain of the documents had been excised from those in the public register. ss.92(1) The decision of the Commissioner was said to be under and 93(1) of the Act. The contract related to the tying 64, of all G.M.H. transport needs toT.N.T. for a period of 7 1/2 years. It appears that this contract resulted from a competitive tendering exercise and that T.N.T. had incurred considerable expense in acquiring certain specialised equipment. The Commissioner referred to some of the statements made by T.N.T. in its submissions in relation to certain aspects of the market which he was considering. Although I have not before me all the material which was put before the Commissioner, it would appear that these conclusions were substantially drawn from the information provided by T.N.T. The Commissioner concluded by saying: "I grant clearance in respect of the application under Section 92 of Trade Practices Act. As regards the application under Section 93 Trade Practices Act, the statutory clearance will stand." It was submitted for the defendants that the document was admissible because it constituted an admission by the T.P.Cc. as to the market in which T.N.T. operates and also as to the effect of the agreement upon competition and an acceptance by the Commission of the interaction of road, rail, sea and air competition. My attention was also drawn to $.92(3) of the Act and it appeared common ground that no attempt had been made to revoke the notice under that section upon the basis that any unformation provided was false or misleading in a material particular or that there had been a material change of circumstances since the notice was given. 65. The defendants submitted that these documents were admissible ag public documents in accordance with a ruling I had given in these proceedings on 11 July 1983. Senior counsel for the T.P.C., Mr Mason Q.C., opposed the admission of the documents or any of them and submitted that the material on the public register was not in the category of a public record of the type where the record was evidence of the truth of the facts in it. The basis of this submission was that no obligation lay on T.N.T. to make the application for clearance nor to set out the facts which 1t had set out and further that there was no statutory duty to provide correct information. The only penalty for providing incorrect information was that, if tnat information was false or misleading in a material particular, a notice of clearance could be revoked under provisions of ¢.92(3). He submitted that no penalty 1S imposed upon a party who makes exaggerated or untrue claims. A considerable amount of the material submitted by T.N.T. in support of its application for a clearance consisted of a submission concerning the nature of the market and the effect on competition which the contract, in the opinion of T.N.T., might be expected to have. It was also submitted that nothing in the document constituted an admission on the part oof the Commission in relation to market or competition. He submitted tor the Commission that there was no clear finding by the Commissioner in relation tec market. Althouah [ have not yet 66. heard argument on the correct interpretation of s.45(2) and (4) before the amendments in 1977, it may be relevant to note that the word "market" is not used in those sub-sections. It was also submitted that the matter under consideration was a unique agreement between two persons who were not competitors and that the decision of the Commissioner was too remote from the present case for anything therein to consititute a relevant admission. It was also pointed out that all the relevant material upon which the Commissioner had acted was not before me. I hold that the documents are not admissible. I consider that it is irrelevant to know whether or not this particular agreement entered into in March 1977 was granted a clearance then. I agree with Mr Mason's submissions on the question of whether or not documents can be treated as a relevant admission by the Commission. I am satisfied that the documents comprising MFI 564 are not admissible as public documents to prove the truth of the contents. The issue with which I am concerned 1s not whether giving effect ta the contract with G.M.H. or entering into 1t was in restraint of trade or commerce and contrary to 3.45 of the Act. The material submitted by T.N.T. upon which the Commission's determination was made does not fall within the principles which I considered 1n my ruling of 11 July 1983 and which was based upon R. v. Halpin (19753 1 Q.B. 907. 67. ) Evidence - Minutes of unincorporated association - Whether admissible under common law principles - In particular through witness who prepared the minutes - Significance of signature by chairman of meeting - Effect of confirmation of minutes. 15 November 1983 Written Ruling The Commission also tendered minutes of certain meetings under varlous common law principles. For the purpose of considering these principles, I will at present consider only the meeting of 12 February 1976 and the admissibility of the record of that meeting in the minutes. I have already dealt with the admissibility of the same minutes under the provisions of Part IIIA of the Evidence Act 1905. The principles advanced by the Commission have been summarised in a precis prepared by senior counsel and I extract the following submissions which appear under grounds 2, 3, 4 and 5 and a reference to the grounds, as amended, which appear under ground 6. Ground 1 dealt with admissibility under Part IIIA of the Evidence Act. Ground 2: At common law the duly created record of the proceedings of a body 1s prima facie evidence that the body participated in those proceedings as recorded. 68. Ground 3: The critical portions of the minutes (in relation to @ - which Mr Levitt's recollection was clearly deficient, although he was prepared to swear to the truth of his minutes: 6745) are admissible on the principle established in various cases which were identified. Ground 4: The minutes are also admissible against such defendants as are ultimately shown to be members of N.F.F.A. on the ground that they are a record created by a duly authorised agent of such members. Ground 5: The minutes are also admissible on the qround that they are a document created and authenticated by a recoqnised business system and, as such, admissible under a common law exception to the hearsay rule based on "necessity" and common sense. Ground 6: Admissibility under this ground was broadiy based upon the possession of the originals of the minutes by agents tor such defendants as are ultimately shown to be members and upon certain other grounds. Grounds 4 and 6 are not pressed at present but they will be pressed iater (7254). Ground 2 The minutes of the meeting of 12 February 1976 were 69. signed by the chairman of that meeting at a meeting held on 23 February 1976. At present, I was not asked to rule on the admissibility under the second ground based upon authentication by the chairman of the meeting but upon the record having been created by Mr Levitt. The main authority cited appears to me to be McLean Bros. & Rigg Ltd. v. Grice (1906) 4 C.L.R. 835. In that case the question arose of what took place at a company meeting and whether the meeting was validly convened. I do not regard that case as being of much significance on the question of the presumption of the validity of the meeting, which purports to be ameeting of the N.F.F.A. of 12 February 1976, because the High Court had regard to the statutory obligation upon a company toa keep proper minutes and to send a copy of any resolution fo the Reqistrar General and publish 1t inthe Gazette. However, I regard the passage in the judgment of Griffith C.J. at ©.847, with which I consider Barton J. agreed at p.861 and O'Connor J. at p.863, 18 very much to the point. The Chief Justice said: "The best evidence of an aqreement is the production of a signed memorandum of it. 'So 1 take 1t that in the case of a meeting - i am dealing now with common law, apart from the Statute - the best evidence of an agreement come to by a body of persons assembled together would be a record of it signed by them or by their authorized agent, and I apprehend, in a case of this sort, the chairman of the meeting is the authorized agent of all of them, just as an auctioneer 1s the authorized agent of the bidder to sign the contract on his behalf." 70. There are statements by Joske J. in Egan v. Harradine (1975) 6 A.L.R. 507 at p.520-521 which appear to adopt the same approach. There also seems to be some modest support for the proposition advanced by the Commission in Rennie v. Clark £1850] Exch. 292 (155 E.R. 125 at 126) and Corpus Juris Secundum, volume 32, para 701. Senior counsel for the Commission has for the present tied himself to the submission that it 1s the creation of the records by Mr Levitt upon which it relies and not the signature of the minutes by the chairman so that I am not considering any submission that the minutes would be admissible upon the basis that they were signea by the chairman. I do not find myself attracted to the proposition that Mr Levitt was the authorised agent to adopt the minutes on behalf of the N.F.F.A. I reject the tender under ground 2 1n so far as reliance 1s placed on the position of Mr Levitt. Ground 3 I consider that admissibility under this ground cannot be founded upon what was referred to as "the necessity principle" referred to by Dixon J., as he then was, in Potts v. Miller 64 C.L.R. at pp.304-305. The position might be different if all other persons present at the meeting had been called as witnesses and they could not answer, or were excused from answering, questions 71. directed to what took place at the meeting. I have been referred to a number of cases on this question, namely R. v. Naidanovici £19623 N.Z.L.R. 334, Normandale v. Rankine (1972) 4 5.A.S.R. 205, Omand v. Alberta Milling Co. (1922) 69 D.L.R. 6, Beech v. Jones C18483 5 C.B. 695 (136 E.R. 1052) and to Wigmore on Evidence, para. 754. I have also been referred to Ares v. Venner 70 W.W-.R. 96. I consider that some doubt exists concerning the law on this question. Common sense suggests that, 1f a witness, as is in this case Mr Levitt, had personal knowledge of certain matters but inthe witness box states that. apart from what 1s ina substantially contemporaneous record that he made of those events, he has no recollection of them at all, the witness shouid be allowed at least to read from the notes he made at the time. This proposition appears to me to gather strength where there has been conside -ble lapse of time petween the happening <:f the event and the obligation to give evidence about it. In one view it might be said that, 1f there 1s no other available evidence, the reading of the witness's notes might fall into the categcry of the best available evidence. In R. v. Naidanovici, supra, at p.340 (the judgment of the majority), Normandale v. Rankine, supra, at p.207, and Gillespie v. Steer, supra, at p.202, reference was made to the proposition that the admissibility of a document as evidence depended, at least to a considerable extent, upon whether the 72. contents of the document was 'co-extensive" with the oral @- evidence of the witness or, to put it another way, the oral testimony was "co-extensive" with the contents of the document. In R. v. Naidanovici the Court was concerned very largely with the serial mumber on a machine and the numbers recorded in an invoice, in Normandale v. Rankine the Court was concerned with a record of a police officer whose opinion evidence was held to be admissible by the officer reading it from his notes, and in Gillespie v. Steer with the records of a medical practitioner which he had made when he examined a patient. The witness always must be prepared to adopt as a truthful record what has been written in his notes. In Omand v. Alberta Milling Co., supra, I consider that Stewart J.A. and certainly Beck J.A. at p.13 took the view that the fact that the document recorded various processes of testing flour, the records of those processes and reports compiled as a result of them and the copies of the various entries of data and of the reports was a relevant factor in deciding the admissibility of the document. Ares v. Venner, supra, was a case where, reading from the headnote, it was held that a nurse's records of temperature readings or pulse rates might have come within such an exception, but her written observations of a patient's condition, appearance, or symptoms generally were in a different category. 73. The last two cases were dealt with in argument. I have dealt with them although I am not attracted by concerning myself very much with such cases in deciding questions of admissibility of evidence, certainly at the trial level. The expenditure of time 1s a problem. I have also considered the passages in Wigmore on Evidence, para. 754. In my opinion, all these cases can be reconciled by applying the principle that, where a witness has no independent recollection of events which he witnessed but has to rely entirely on a written record that he made shortly thereafter to the accuracy of which he 1s prepared to depose, he may read from the record (and it seems to me probable that that part of the record may he tendered) provided that so doing does not result in introducing evidence from the document 1n a form which he would not be allowed to give 1f he had been able to remember what took place or could say without reading the document his memory was refreshed so that he could say what took place. This I think is the critical factor. I think the distinction 1s between reading verbatim from a document which simply records, for example, the results of tests conducted by the witness ina form which the witness could aive in evidence, or indeed an opinion in respect of amatter where the witness, if suitably qualified to give expert evidence, could have given such evidence in the same form as 1s recorded in the document he seeks to read and reading from 74, a summary of what took place ina conversation ina form not @. permissible where oral evidence is being given. I do not think evidence may be given in a form which a witness could not give in eral evidence. Applying these tests to those parts of the minutes of 12 February 1976 which I understand are pressed, I will admit all that part of the minutes down to and including the end of the paragraph headed "Confirmation of Minutes" (excluding the names of the companies or bodies the persons who attended are said to have represented) and the date, description and signature at the end of the document. However, I will not admit items 8, 9, 10 or ll, certainly in toto, because, in my opinion, they are not cast an a form which Mr Levitt could give in oral evidence. There 1s no principle that can be relied upon similar to that in s.7B(2)(a), (c) and (d) of Part IIIA of the Evidence Act 1905. The views which I have just expressed are quite consistent with those in my ruling on evidence given on 3.11.83 concerning the evidence of Mr Levitt and his use of the minutes. Ground 5 The cases cited, namely Potts v. Miller, supra, Re Montecatini's Patent (1973) 47 A.L.J.R. 161 at ».169 and Omand v. Alberta Milling Co., supra, may well support the proposition that the minutes might be admissible in evidence under "the necessity principle", if 1t was not possible to prove what was said at the meeting. However, this has not been proved. 75. Consequently, I reject the admissibility of the minutes under ground 5. 23 November 1983 Written Ruling This ruling deals with the tender of certain of the minutes of the N.F.F.A. to be found in MFI 411, the admission of which I considered ina ruling given on 15 November 1983 (7266) based on their admissibility under various common law principles. I there set out the grounds upon which their tender was based and certain parts of certain minutes were admitted as exnibit KJ. Hewever, the tender of the minutes of the meetings of 12 February 1976, 20 May 1976 and 4 August 1976 are now pressed (7434) on grounds 2, 4 and 6 of the summary previously considered. Grounds 4 and 6 were not previously pressed and ground 2 was pressed only on the basis that Mr Levitt was the authorised agent to adopt the minutes on behalf of the N.F.F.A. Ground 2 After some alight change in the arqument in support af the admissisnm on this ground, the minutes are now pressed first upon the basis that the chairman of the meeting at which the Minutes were confirmed, by virtue of his office as chairman of that meeting, was authorised by all members of the N.F.F.A. to 76. sign the minutes asa true record of the proceedings at the meeting of which they were minutes (7471). Secondly, it was submitted that the chairman of the meeting at which the minutes of the previous meeting were confirmed was the agent of each entity, whether a member of N.F.F.A. or not, which attended the second meeting by a representative and as such the chairman was authorised to sign the minutes, as confirmed, of what had taken place at a prior meeting whether or not the chairman of both meetings was the same person. It 1s submitted that the minutes were signed in accordance with a regular authorised pattern of conduct (7438). It was submitted by the Commission that it did not matter that some people attended the second meeting who had not attended the first meeting and that not all those who attended the first meeting were present at the second meeting. Reliance was placed upon the judament of Griffiths C.J., with whom Barton J. at p.861 and O'Connor J. at p.863 agreed, in McLean Bros. & Rigg Ltd. v. Grice (1906) 4 C.L.R. 835 at p.847 I cited the passage mainly relied on in my ruling of 15 Novempoer 1983. An examination of that case shows that the questicn to which his Honour was directing himself was not a case where minutes of a meeting had been signed by the chairman (see p.?44) but a case where the chairman had sianed a record in writing of a resolution passed at a meeting. I do not consider the fact that this signed resolution was sent to the Registrar General pursuant to a statutory requirement as being significant in the matter now under consideration although it would appear to have been 77. significant on the question of the validity of the meeting. It would appear that the chairman signed the memorandum under consideration in that case other than at the next meeting. There 1s evidence that a Mr Uniacke was the chairman of both the meeting of 12 February 1976 and the meeting of 23 March 1976, when the minutes of the meeting of 12 February were confirmed. There is evidence that Mr Heasman was the chairman of both the meeting of 20 May 1976 and the ordinary meeting of 4 August 1976, when the minutes of the meeting of 20 May 1976 were confirmed. There was evidence that Mr Heasman, who was chairman of the meeting of 4 August 1976, was present at the meetina of ll November 1976 but was not chairman of the meeting of 11 November 1976, when the minutes of the meeting of 4 August 1976 were confirmed. They were signed by Mr J. Wise, who was the chairman of the meeting of 11 November 1976. I consider that McLean's Case is authority for the proposition that the best evidence of an aqreement reached by a body of persons assembled 1s a record of the agreement signed by them or by their authorised agent. The essential question to determine is who was the authorised agent in the case under consideration. Whilst, in the absence of other factors, the 78. person who was chairman of the meeting the minutes of which were recorded may be said to be the authorised agent to sign the minutes, I have here to consider a case where an unincorporated body has adopted a course of conduct by which the minutes of a meeting are submitted for confirmation and confirmed by the next meeting and it was the practice of the chairman to sign and date the minutes so confirmed. In such a case I am satisfied that it is the chairman of the meeting which confirms the minutes of the previous meeting who 1s the authorised person to sign the minutes of the previous meeting. In one sense this may be very much the same as applying the principles set out in Potts v. Miller (1940) 64 C.L.R. 282 where Starke J. at ».292 relied upon the fact that it was a duty of an officer to keep and supervise books which were kept in the ordinary and regular course of business and the transactions of the business were duly reccrded therein. Dixon J., as he then was, at pp.3904-3205 referred to the case where a routine system is established for the very purpcse of ascertaining the financial result of business operations and to the record being treated as a consequence of a system and being receivable as the appropriate evidence. I am of the opinion that, althcugh financial records were being looked at ain Potts v. Miller, 1t 18 appropriate to regard McLean's Case and Potts v. M2zller as support for the proposition advanced by the Commission under the first basis on 79. which the minutes are tendered under ground 2. Passing to the second basis upon which the minutes are tendered under ground 2, I am not satisfied that the chairman of the meeting can be held to be an authorised agent upon this ground. The result is that I would admit under the common law principles which I have enunciated such of the minutes of each of the three meetings as are relevant as evidence against such entities as are ultimately shown to be members of N.F.F.A. Ground 4 I have dealt with this ground in considering ground < and I would also admit the minutes tendered to the same extent as I admitted them under ground 2Z. Ground 6 { now pass to consider the sixth around upon which the admissibility of the minutes 1s based. This ground may be considered upon the following three bases: fa} That mere possession of the original minutes by Levitt and Rochfort as aqents for such of the defendants as are ultimately shown to be members 1s sufficient to make the minutes admissible. 80. I reject this submission. Whilst there is some authority for the proposition that members of a body with access to the rules of that body are deemed to have knowledge of those rules, I do not think that the mere possession of minutes by Levitt or Rochfort is sufficient ground for their admission against defendants ultimately shown to be members. (b) That the minutes are admissible as against any company represented at a meeting at which the minutes of a prior meeting were confirmed whether or not the person representing that company or any other person representing it was present at the earlier meeting. Some reliance 1s placed on Lustre Hosiery Ltd. v. York (1935) 54 C.L.R. 134 at p.143 in support of this proposition. I consider that that submission 1s correct and that words or conduct amounting to an admission 15 receivable in evidence against a party i1f it discloses an untention to affirm or acknowledge the existence of the fact, whatever be the party's source of information or belief, and the admissibility in evidence as an admission 15 independent of the party's actual knowledge of the true facts. It is difficult to visualise any situation where a representative might be expected to speak up and disagree with a statement in a minute than when that minute 1s being considered for confirmation. Consequently, I will admit such minutes of these three 81. meetings as are otherwise relevant against any entity which was represented at the meeting at which the minutes of a prior meeting were confirmed, whether or not the entity or any other person was present at the earlier meeting and whether or not the entity is shown to be a member of N.F.F.A. I consider that paragraphs 21-09 to 21-11 in Phipson on Evidence, 13th Ed., Alderson v. Clay (1816) 1 Stark 404 (171 E.R. 511) and Ashhurst v. Mason (1875) 20 L.R. Eq. 225 especially at 234-5, support the admission of the minutes on this basis. (c) That such copies of the minutes as are ultimately shown to have been received by the defendants or agents cf the defendants were admissible against them. I rejyect this basis because, 1f for no other reason, I do not think that the mere receipt of the minutes of a meeting necessarily involves the organisation receiving or on whose behalf the minutes were received as having adopted the minutes in a case where that organisation 1s not represented at the meeting which confirmed the minutes. 82. CROSS-EXAMINATION ON DOCUMENTS AND OBLIGATION TO TENDER @ . 2 August 1983 Evidence - Whether obligation to tender document after cross-examination upon it. Written Ruling I now propose to give a ruling upon the call by Mr Mason Q.C. that Mr Capelin Q.C. tender MFI 41 and MFI 44 upon parts of which he questioned Mr Frewen. MFI 41 is a photocopy of some handwritten notes of a conversation said to have taken place between Mr Stock and Mr Shortell on about 26 July 1976. There is also evidence that Mr Frewen listened to the conversation. MFI 44 1s the original of the same notes. Mr Frewen says that he and Mr Stocx both made separate notes of the conversation and ultimately a typewritten record of that conversation was prepared and that 1s MFI 42. It 1S common ground that Mr Frewen refreshed his memory within the meaning of that phrase from the typewritten notes (3579a). He also says (3580) that he has not refreshed his memory of the conversation from other notes but he does concede that he looked at Mr Stock's notes over the years but that he 83. believed that he had not looked at them to refresh his memory (3581). Mr Capelin Q.C. showed him a photocopy of Mr Stock's handwritten notes of the conversation (3582) and cross-examined on part of those notes (3583). The photocopy of Mr Stock's handwritten notes was in Mr Capelin's possession as a result of discovery and it became MFI 41. Mr Frewen said he did not recall at any time this year using Mr Stock's handwritten notes or any copy of them to refresh his memory of the conversation. Mr Capelin (3624) asked for the original cf Mr Stock's handwritten notes which ultimately became MFI 44. Mr Capelin argued, inter alia, that, because Mr Stock's original notes, at least to some extent, were embodied in the typewritten notes, Mr Stock's notes had in a real sense been used by Mr Frewer to refresh his memory. Ido not accept this arqument and in ny opinion the evidence 15 that Mr Frewen did not refresh his memory within the meaning of that phrase at any relevant time from Mr Stock's notes. Iam satisfied that where a witness 1s cross-examined about a document, from which ne nas not refreshed his recollection, that document must be tendered by the cross-examiner if so requested by soursel for the apposind party, at least if this request 1s made during cross-examination. See generally Cross "Gn Evigence'' Tni Aust. Ed. p.251, Glass, "Seminars on Evidence" p.1?7, Serat v. Sanat Cly65] Pp. 172 at 177 and Hatziparadissis v. G.F.C. 'Manufacturing) Pty. Ltd. £19783 V.R. 181. I do not consider that the opligation, at least in relation to MFI 41 and MFI 44, jis limited to the parts upon which 84. Mr Frewen was cross-examined. A question may arise whether this rule applies where the documents have not been called for from the opposite party and initially a question arose whether MFI 44 had been called for. Ultimately this point was not pressed but, in any event, I am against Mr Capelin on it. Mr Capelin did not differentiate between MFI 41 and MFI 44 (3738). I am therefore of the opinion that since the witness was cross-examined on MFI 41 and MFI 44 those documents must be tendered by Mr Capelin as requested by Mr Mason. 17 October 1983 Evidence - Cross-examination on letter of witness - Whether obligation to tender. Written Ruling M.F.I. 33 as a copy of a letter of 2 June 1976 purporting to be siqned by Mr Frewen as a director of Tradestock and addressed to the General Manager, Express Freight Pty. Limited. Earlier in the case senior counsel for the Commission 85. sought to tender this document but it was rejected, inter alia, because there was insufficient evidence that it had been posted to the addressee. During the cross-examination of Mr Frewen by senior counsel for the second defendant, the following questions were asked and answers given. "Let me take you to a letter that you wrote on 2 dune 1976 to the general manager of Express Freight, which 1s number 15 in the file that you have in front of you?---Yes. It is also marked for identification 33. Io will not trouble you witn much of this letter because it 1s much the same as the letters that later on went in June to some of the other transport people, do you follow?---Yes. I aust want to draw your attention to the last line of the first page - a copy of ycur letter of appointment, 1e., by Shovelton-Storey 1s enclosed?---Yes. And, of course, you enciosed that for the same reason that you had enciosed the copy of the Shevelton-Storey letter in your letter to Altrans on 14 May, i take 1t?---Well, yes. I certainly thought that it would be beneficial to do that. Well, may I take it that when you penned this letter, you were still of the view that 1t was appropriate, at all events. to send aliona a copy of your letter of appointment as vou had thought when you were writing to Ailtrans?---Ye5." Senior counsel for the commission has now retendered the document relying on the cross-examination to which TI have referred. In my opinion, the combined effect of ss.54 and 55 of 86. the Evidence Act, 1898 (N.S.W.) is that a witness who is not a @. party may be cross-examined about his own document without showing it to him and without any obligation to put it into evidence unless in the document the witness has made a statement inconsistent with his present evidence and does not distinctly admit that he made such a statement. See generally Alchin v. Commissioner for Railways (1935) 35 S.R. 498 at pp.509-510. In this case Mr Frewen was not cross-examined for the purpose of showing any inconsistency between his evidence and MFI 33 nor indeed was 1t suggested in cross-examination that any such inconsistency existed. I note also the judgment of Smithers J. in The Queen v. Weatherstone (1968) 12 F.L.R. 14. I do not think this is an appropriate case for the Court to exercise any powers it may have under the proviso to s.55(1) cf the Evidence Act. I do not consider there 1s any obligation on senior counsel for the second defendant to tender MFI 33 nor do I think that there 1s any power for senior counsel for the Commission to tender it or require that it be tendered at this stage of the proceedings. In these circumstances I do not have to consider how much of the document might have fallen to be tendered nor whether 1t would provide any evidence of the due dispatch of the letter. I add that I consider my ruling is not inconsistent with that which I gave in relation to MFI 41 and 44. These documents 87. were not the documents of the witness and the circumstances under consideration were substantially different. I reject MFI 33. 16 and 27 April 1984 Evidence - Cross-examination - Document shown to witness but not identified - Whether cross~examiner must tender. Written Ruling The document marked for identification 531 1s a document which was shown to Mr Shortell. It was shown to him and at p.1134la senior counsel for the Commission, Mr Mason said: "I show you a document, Mr Shortell", and so on and then Mr Shortell was invited to read as much of 1t as he liked. Then he was sed, at p.11342, whether he still adhered to a previous answer. Without going into the ramificaticns of the law on tnis matter to any unnecessary extent, 1t seems to me that in this case there was not what might be reaqarded as true cross- examination on the document. The witness did not have read to him anything out of the document, he was not asked to listen to a question like this: "Listen to what 1s in this document, do you still say so-and-so?" There was no attempt made to put before the court what was in the document. The witness said the document was not his document. 88. The real question, it seems to me, is first whether the document was ever identified. I do not think it was. I have had a look at the cases that we have looked at before in this case and the cases that were cited to me on 16 April, the case of Birchell v. Bullough (18961 1 Q.B. 325 at p.326, which is referred to by Wilson and Dawson JJ. in Alister v. The Queen (1983) 50 A.L.R. 41 at p.70. I consider that this document has never been identified in any way to this witness by Mr Mason, I think that 1s probably sufficient to determine this matter. The question I am considering 1s whether Mr Mason has to tender the document, not whether the document can be tendered by Mr Cole, senior counsel for the first defendant. I nave considered the argument that, if a document 1s used only in this way and 1t 15s an admissible document, it must be tendered by the person who has used it in relation to a witness he 15 cross-examining. I reject that argument completely. So f have reached the conclusion that there 1s no cbiigation on Mr Mason to tender that document marked MFI 531. 89. DOCUMENTS USED TO REFRESH MEMORY 3 November 1983 Evidence - Contemporaneous record used to refresh memory - Whether passages may be read from 1t 1f document does not refresh memory. Wratten Ruling The admission of evidence given by Mr Levitt, a witness called by tne Commission, concerning the initials and names of persons attending certain meetings was challenged. Mr Levitt gave evidence (6648) that, at least during 1976, he was in effect the Executive Directcr of the National Freight Forwarders Association ("the Association") whether he was called by that name or not. Mr Levitt attended meetings of the Association and took notes of "decisions made, aaqreements made or consensus arrived at". (6693) He then said that he prepared draft minutes, a co ne) Vv of which was sent to the chairman of the meeting for consideration and, after any discussion which was necessary, a copy of the minutes was forwarded to each member ot the Association. The confirmation of the minutes was usually the 90. first item on the agenda for the next meeting where they were either confirmed or amended and confirmed and they were signed by the chairman. (6694) Mr Levitt was asked about four meetings, namely those of 12 February 1976, 23 March 1976, 20 May 1976 and 4 August 1976. On the last date he said there were two meetings, one an annual meeting and the other an ordinary meeting. (6706) Mr Levitt was asked by senior counsel for the Commission whether he could recollect the persons who were present at each of these meetings. Mr Levitt said he was present at each of these meetings and that he had prepared the minutes of each meeting. Mr Levitt said that he had no independent recollection of who was present at any meeting although he said three reqular attenders in 1976 (6705) were a Mr Uniacke, a Mr Heasman and a Mr Wise. Mr Levitt was shown the ocriaginal of what he said was the record in the minute book of each of the meetings but he stiil could rot say that his memory was refreshed and he had to rely upon what was in the minute book to establish who attended eacn meetina. I expressed the view that I would admit the evidence of Mr Levitt which he gave by reading who was said in the minutes to have been present at each meeting unless I was satisfied that the rules of evidence prevented this course being adopted. To some extent I had regard to the comments of Dixon J., as he then was, in Potts v. Milier (1940) 64 C.L.R. 282 at pp.303 and 305 whicn I consider support a view that the Court, unless prevented by a 91. rule of law, should not lightly abandon its common sense in relation to the admissibility of obviously relevant evidence. Up to this time I had not been referred to any authorities which showed that the course I have taken was wrong and indeed senior counsel for the first, fifth and seventh defendants submitted that there was a divergence of authority on the question. (6709) Senior counsel for the second defendant submitted that the course I had allowed was inadmissible because, inter alia, it amounted to giving oral evidence of a written document. (6701) I offered counsel the opportunity to cite any relevant authorities next day. Next morning I was referred to a number of authorities by senior counsel fcr cne or other of the defendants. The key question is whether a witness can refresh his memory, 1f necessary, 1m stages by reading from a document where he says the document does not refresh nis memory but ne 15 satisfied that the document was cne in reaiity prepared by him as a contemperaneous record of an event and that that event ius correctly recorded in the document. It is clear that a witness can refresh his memory from a document but a question arises whether it 18s in a real sense a refreshing of memory 1f the witness honestly says that he has no recollection of the incident but that, having looked at the document, it records the event which he personally observed and 92. he has no doubt it is correctly recorded in the document. Senior counsel for Mayne Nickless (6739) drew my attention to a problem which does not exist in the matter now under consideration, that is that there may be a distinction between refreshing memory as to the initials and names of persons attending a meeting by, in effect, reading those initials and names froma record of the type now under consideration and prepared in a like manner and reading a passage from a record of a Similar type which purported to record a conversation but placed a construction upon the words of the conversation. An extreme illustration of this matter would be an entry ina record such as "There then ensued a lengthy discussion in which the accused virtually confessed he committed the crime". It 1s, of course, clear that, at least in an appropriate case, a person who heard a discussion and who had set out his conclusion of the effect of what was said but who had no independent recollection of the details of what was said would be allowed to read his notes to help him to refresh his memory. However 1f, having done that, he still could not give evidence of the conversation in an admissible form, he would not be allowed to read his notes as evidence that "the accused virtually confessed he committed the crime". However, I am not called upon to rule on that issue and, as I understood it, senior counsel for the Commission accepted that my ruling on the question now under consideration, which was 93. limited strictly to the initials and names of the persons present at the various meetings, would not necessarily extend to the question of the admissibility in a similar way of at least many other statements in the minutes. No attempt was made to tender the minutes as a whole so that I am not concerned to consider the effect of the judgment of the Court of Appeal of New Zealand in The Oueen v. Nardanovici (1962) N.Z.L.R. 334 where there was a divergence of opinion. I must say the views of the maiority appear to me to have some considerable force. This case was noted ina judgment of the Fuli Court of Victoria in R. v. Alexander and Taylor £1975] V.R. 741 but the Court refrained from expressing any view upon 1%. Mary of the cases to which I was referred relate to criminal proceedings and I tonsider that it 1s by no means clear that the same approach should ove taken fo evidence tendered in ro 'Tv Q this case. The cases which were cite me by senior ceunsel for the first, fifth ard seventh defendants were criminal cases dealing with alleged confessions made by accused persons. In R. v. Harvey Jones (1979) 5 Perty Sessions Review 2059 a judqment of the Judges of the Court of Criminal Appeal in New South Wales is reported. This cas concerned the verbatim reading of the whole of the contents of an incomplete record of interview which was not shown to the appellant at any stage nor was 1t shown that he had adopted its contents. The appellant 94. denied in evidence having made any admissions whatsoever to the @. investigating police. Street C.J. expressed the view at p.2062 that the irregularity was that the witness had expressly and openly read out the document verbatim and that what was placed before the jury was the contents of the document as distinct from oral evidence of a recollected conversation. His Honour referred to two cases to which I have been referred, namely Prestage v. The Queen (1976) Tas. §.R. 16, particularly to passages on p.27, pp.34-37 and p.39, and to a decision of the Full Court of Victoria in R. v. Baffigo £1957] V.R. 303 at p.304. The record of interview was initially tendered by the Crown. Nagle C.d. at C.L. agreed substantially with the reasons of the Chief Justice. Cross J. agreed in substance. The Court quashed the conviction and ordered a new trial. In my opinion this case 1s to be distinguished from the matter under consideration by the fact that 1t was a criminal case and that the document had nat heen made available to the defence at the time the evidence was given, although 1t does not appear whether the defence asked for it or not. Prestage v. R. dealt with an wunsianed record of interview of am accused person and the first irreqularity which Chambers J., with whose judgment Crawford J. so far asis_ relevant appeared to aqree, pointed out at p.34 was that the person who read from the record of interview had not indicated how much of the interview ne could remember pefore he had in fact read from his record of the interview and his Honour pointed out that this was a significant matter. Chambers J. at p.37 appears te have drawn a distinction between reading what to the jury purports to 95. be a_ record of interview and a doctor giving a medical history from his notes or a police officer reading from his notes a series of measurements he has made and recorded. Nettlefold J. agreed with the judgment of Chambers J. The Queen v. Baffigo, supra, was also a criminal case where the question of the use of notes of an interview with the accused arose, but it did not appear to directly concern the question of a witness reading his notes. I cite the following passage from the judgment of Smith J. at pp.304-395: "On the other aspect of this ground which was mentioned by H1s Henour the Chief Justice, 1t 1S in my view clear from the transcript that the witness here was not merely reading the document ain front of nim in the sense of confining ris evidence to an assertion as to what was in the document. It seems clear on the transcript that he was swearing to what happened, using the document ir aid of his recollection. I io mot tnink that 1t was necessary that the document should have been taken from him befare he was allowed to give his aided recollection and then handed back to him when his memory failed and then taken away again, so that his evidence wouli be given in a series of short passages each based on memory separately refresned. It aprears to me that 1t was permissible to allow him to have the document befor>= him and refer to ut continuousiy for the pureos2 cf aiding his recollection throughout that vart of his evidence tnat he agave after he had received permission to refresh his recollection trom the document." I was also referred to Ex parte Bennett; Re Cunningham (1967) 86 W.N. (Pt. 2) (N.S.W.) 723 at p.333. a passage in the Joint judament of Wallace P., Walsh and Holmes JJ.A. I cite part 96. of this passage: ""... there can be no infiexible rule as to the extent to which a witness may be allowed to look at contemporary notes for the purpose of refreshing his memory. It was not suggested 'that the prepared statement' in question was not contemporaneous, whilst on the other hand the evidence given by Inspector Headland was very lengthy, and at a fairly early stage it was apparent that his memory of detail was exhausted and he was properly allowed to refresh his memory by reference to the statement. Whilst it may be thought that ina sense he read from the statement we do not think that the course pursued was in the circumstances such as to render the proceedings abortive. It was on more than one occasion made quite clear, as the transcript before us shows, that the inspector was at all times aiving evidence of what had happened, that 1s to say he was Pledging his oath that the conversations had in fact taken place in accordance with his evidence. He was not merely asserting that he was reading accurately from the document in his nand." I was also referred to Shaw v. Lindsey 33 E.R. 799. However, this case refers to a situation comparable with the use by a witness of a proof of evidence or similar document settled by, for example, a legal adviser of the witness from tne witness's recollection of a past event and does not seem to me to be relevant to the matter I am considering, I have also examined the authorities mentioned in the Australian Law Reform Commission's Evidence Research Paper No. 2 at pp.22-24 and Research Paper No. B at pp.104-105, to Driscoll 97. v. R. (1977) 137 C.L.R. 517, to Alexander v. R. (1981) 34 A.L.R. 289 and to R. v. Alexander and Taylor £19757 V.R. 741. The last case, which is a joint judgment of the Full Court of Victoria, contains some helpful statements although that case was an application for leave to appeal from a criminal conviction. The Court dealt with the question of a witness who had no independent recollection of the events in question. I refer to the facts at pp.746-747 and to the statements of law at pp.749-752. Althoudh this case dealt basically with a question which does not arise in the present case, namely whether a record upon which the witness has relied must be produced to the opposite party or his counsel, there 1S a general statement of principle at p.749 which I set out ana respectfully adopt: "It 1s of course well established by decided cases, including the authorities to which Mr Redlich referred, that a witness may properly give evidence of events of which he no longer has any independent recoliection, simply by reference to some written record which he made or adopted shortly after those events occurred and at a time when he did recall then, provided that the witness is prepared to swear to the accuracy of the record. Indeed unless this was allowed, 1t would often be impossible to prove the occurrence cf past events, such as the details of a routine ccmmercial transaction, except in cases falling witnin special statutory provisions such as s.55 of the Evidence Act 1958. ' I also cite the following passage from p.751: "OQur conclusion that evidence given by a witness entirely in reliance on a past record made or adopted by him and without any 98. independent recollection, is admissible without production of the record, unless production is asked for by an opposite party, 1s, we think, supported by the rule that secondary evidence of a document 1s admissible, unless an opposite party objects on the ground that the original document {assuming 1t not to be lost or destroyed) ought to be produced." At the conclusion of the submissions made tome I reserved my final decision on the question but indicated that I did not feel disposed to strike out any answers which had been given to the questions about the initials and names of persons attending the meetings given by Mr Levitt. (6744). However, senicr counsel for the Commission then asked further questions concerning the persons attending these meetings which I allowed. Io am satisfied that, apart from what Mr Levitt said about the three reyular attenders, ne had no independent recollection of who attended any meeting in 1976 but, having exhausted h2s memory and after having read the minutes. he was prepared to pledve his oath that tne versons he named had attended the relevant meetings. Iam satisfied that atl the questions whicn I allowed were properly allowed and properly answered nut I reiterate that Iwas not conternea with any questions orher than tne initials and names of persons attending the meetings under consideration, that Mr Levitt attended each meeting and that the minutes were documents which in every real sense were frepared by him 99. contemporaneously with each respective meeting. 12 April 1984 Evidence ~ Whether use of proof of witness to refresh memory waives any professional privilege. Written Ruling This ruling reiates to a call made by senior counsel for the Commission to be aliowed to inspect without penalty a document which a witness, Mr Shortell. called by the tirst defendant said he had used to refresh his memory in the 'ast month. There 1s no dispute about the facts. At 12117 tne witness was asked about any documents which he had referred tao to refresn his recollection and he said he had looked at certain documents. He then aqave the following evidence: "Q. Did you have any cause ts look at a summary of your own evidence for that purpose? A. Yes, your Honcur. When I made a statement about a month aqo to my legal advisers, I refreshed my memory at various times from that document. Q. When you say various times, various times last week? 100. A. Within the last month. Q. Yes, and with a view to giving evidence in relation to the matters referred to therein? A. That 18 correct, your Honour." Senior counsel for the first defendant at p.11192 said in relation to the statement: "Your honour, there was no disagreement about this I am sure between us, 1¢t was typed in the office of my instructing solicitors and a copy was made available by my instructing solicitors to Mr Shortell." Senior counsel for the Commission said that he accepted that statement. Senior counsel for the first defendant also said in relation to the statement that "1t was prepared for my briet so I could lead the witness in chief" (11159, 1115A8a, 11344). It wag conceded by senior <scounsei for the Commission that the statement to which the witness had referred to refresh his memory was the subject of legal prof2ssional privilege. The only question which arises from my determination is whether or not that privilege had been waived by the witness having"... refreshed my memory at various times fram that document within the last month' before givina evidence. I was referred to a number of cases but no counsel referred me to any authority which was directly on the point. It 101. @ is clear that the statement was given to the witness and left with the witness by the solicitors acting for the first defendant, that the witness used the statement, as he said, to refresh his memory at various times before he was called by the first defendant. Previously in this case (3588-9) I had made available to senior counsel for the first detendant a copy of a oroof of evidence by the first witness for the Commis3ion from which that 'tlitness had refreshed his memory but no claim for privileqe was made by the Commigssicn. provided to the witness. There 1s no dourt that the solicticors fcr a party have the cower to waive legal errofessional privilede 'for example, Great Atlantis Irsurarce "a. v7. Home insurance wo. C1391] 1 ALL.F. 929 §9p.527H and T40E-Fo, T alec doubt whether, if tne Commitzion 13 eantitiar ts tas the document, anv discretion exists t2 ratuse insrerticn. Yoyeyer, 1f thiz be vur\ina, I wold rot exertize my discretion ot "mtthhold tne statement in thia rase, This i3 cne of the almost innumerable major quegfion® if the admissibility of evidence whith have been raised in this caze which I have allowed to be arqued and which I must decid2 without 102. delaying the hearing of the case at all. Counsel provided me with a number of authorities which I have examined carefully but only one or two appear to me to be relevant. I was referred to Maddison v. Goldrick (19763 1 N.S.W.L.R. 651 and to the judament of the High Court when it refused special leave to appeal (1976) 50 A.L.J.R. 637, I consider that this case is not directly relevant on the question of waiver, which is the only question I have to consider, but I notice at p.667D Samuels J.A. does use the expression "unless the witness had used it to refresh his memory". It appears to me that this case is certainly no authority for any propositicn ina case where a document has been used in order to refresh the memory of a witness. There 18 w ome reference in Req. v. Pachonick C1973] 2 N.S.W.L.R. 96 at p.37 to a witness refreghina his memory from 3 privileged document but I do not think the two cases cited estaplisn that any privilege may not ce walvec. Certainiy there 13 2 reference ain the vadament of Burbury C.J. and Neasey J. in Mather v. Morgan £19713 Tas. $.R. 192 at o.206 tc a situation 'here a document may be part of the brief of the opposing side. However, I do not consider that there 13 anything in that case which deals with the question of vaiver of privilede. ir it ke dealt with in the vassage I have referred to, 1t would seem to me to be more obiter dicta which I would be disinclined to follow. 103. I was also referred to the Research Paper No. 8 of the Australian Law Reform Commission at pp.104, 115 and certain other pages. The American position is examined at p.121 where reference is made to United States v. Nobles 422 U.S. 225 (1975). Although dealing with the position in the United States, it does suggest 'pp.236-249), for example, at p.239 that the privilege there under consideration could be waived and 1t was said: "Respondent. by electing 9 present the investigator as a Witness, waived the priviledge with respect t> matters ccivered in his testimeny". T have also made some examination of Wismere on Evidence, Chadrcurn Edicien, and in fartitular paragrapn "42 (FoLr. TTT, 0.125', and the tase of Farns .irstruction Company v. American c tase and it 1g based upon iccal etatutes, at o6.79-77 if Zz 2ald that .eqal crofegsional crivilede nar reen waived where a witness had used ctertain documents to rite nis tastimonc and "{t would ce '~sicnecierasle ta crevert tne adverse party iecm seeing and srialrind -oples of them. ie tenelude there was ao occarver if any crivilede cnith may hava exited. Although I nezitate fo mention these two American cases which are not orecr2zely _n all fFour2 1th "nat T am considering, they appear fo me t> be based upon tne sound general crinciple 104. that, if a witness uses documents to refresh his memory in the way that Mr Shortell has in this case, privilege is waived, at least where the circumstances are such as they are in this case. I consequently hold that the statement that Mr Shortell used to refresh his memory is to be made available to counsel for the Commission without penalty. ethene me we 105. SUBPOENAS DUCES TECUM Evidence - Resolution purporting to provide that officer of unincorporated association has no authority to make its documents and records available to any person or entity - Whether subpoena to officer to produce documents of that body affected by resolution - Importance of prompt dispatch of Court business ~ Question of affording members of wninccorporated association Opportunity to make anv relevant representations - Subpoenas subsequently served cn members - Whether privilege against exposure £0 pecuniary oenalty applies to coroorations - Extent of Court's discretion - Effect of ctbiaction by some only of members cf unincorrcrated aggsociaticn - Who nag property in the mol Auaust 1282 tne Traqde Fracti.=3 Ccimmiazion ' cr Tommission') obtaired a zubrcena in tnis matter dfirecrad to Faeter Fochfort to produce certain documents. Mr Pechfort 13 the re Ex D Sutivye uL Assitc1lation ''N.F.F A oo} It appears that the main purrese benind tne izeaue of -ne subpoena was to lay the ground for adducina tertain secondary 106. evidence in the proceedings currently before me. An application was made by Mr Rochfort that he be relieved from any burden to produce any documents in response to the subpoena. Mr Rochfort filed an affidavit sworn on 15 August 1983 in support of the application and he was also cross-examined, In 1981 in the same proceedings the Commission served a subpoena cn Mr Rochfort to produce certain documents. Thi? subpoena came first before Bowen C.J.; C1982] A.T.P.R. 40-280. His Honour on 2 October 1981 upheld Mr Rochfort's objecticn to producing those dortuments which were the property of an organisation, the Australian Poad Transport Federaticn ("ALPLT.F."), on the zround that Mr Rochfort was an employee of that Federation and tnat he nad no authority to voroduce its documents. The learned Chief Jadae relied uron the maiority judaments in Eccles & To. v. Lowrg :iie and Nasnvilie patircad Company Ci9ls] 1 K.2. 135. However, niz bonour crderad > production of the documents of the N.F.F.a. on the arcuna that Mr Pochfort was not an employee of that Ecdvy. The N.F.F.A. is an unincorporated body. Mr Pochtort appealed to the Full Tsurt of 'tnis Ctur. The Full Court on 4 November 1991 dismissed the appeal: (1982) A.T.P.R. 40-283. In the appeal <Zheopard J. expressed icudts concerning the majority judaments in Eccles Case. 107. @ Undeterred, Mr Rochfort, by special leave, appealed to the High Court which dismissed the appeal; €19823 A.T.P.R. 40-322. The evidence given by Mr Rochfort before me established that on 20 October 1981 a aeneral meeting of members of the N.F.F.A. was held, at which a majority of members was present, and at which certain resolutions were passed including a resolution: "That the records of the Association shall be un the custody of Mr. Rochfort as the employee of the Association ag aforesaid and that he shall have no authority to make auch documents and records available to any persctn or entity whatsoever or to aive anv information concerning the affairs of the Association to any person cr entity whatsoever save in either case with 'the express approval of the Committee of the Association or it3 Chairman for the time beinad," The minutes of that meeting 'vere tendered and they showed that seven persons were present at the meeting including the Chairman, Mr J.A. Wise. 'Ansett), Mr RR. Bourke 'TPEC-REX), and Mr E.B. Prebble 'T.N.T.). The minutes also show that a Mr Flaxland attended apparently t9 wrovide tleqal advice. The minutes of that meeting also aet out, inter alia: "Mr Rochfort gave a backaround ta the situation which had arisen because of a recent Court ruling regarding his status with the Association. Mr Rochfort considered that it was necessary that it be clarified what his position was." ad of which 108. @ | They also record that: "Mr Rochfort said that his estimates would have to be based on the basis of his recollection, because all financial records were presently the subject of a Subpoena with the Federal Court ...". This reference must have been to the subpoena in respect the Chief Judge had given judgment on 2 October 1981. Mr Rochfort's evidence also showed that he had asked the Chairman of '.F.F.A. what were his directions in relation to the i subpoena cf 1 August 1982 and that the Chairman had told Mr Pochtort to "advise our leqal advisers to obtain their legal advice and advise him on that advice". Apoarently Mr Rochfart then sought the advice of Messrs Dawsen Waldron and. after cecelving such an advice, Mr Wise, the Chairman, sent a telex to My Pochfort. This telex wag admitted in avidenc® and it read: Rochfort 'Following the discussicns with cur legal representatives, sur advice is zlear thar you have no authority to priduce anv material required pursuant fo the sub auron vou and returnable in ifth Audqust noe do vou have any authcrity to discu th any person other than our tsqal cer natives any matter pertaining to those do nts." OD wt'O It wag tucmittead by genice ctuns2i an bhenaif of Mr that, because of the position resulting from the resolution, Mr Rochfi:rt nad no obligatiscn to produce the 109. @ subpoenaed documents to the Court because not only did he have no authority but also the resolution of 20 October 1961, whilst giving him custody of the documents, clearly denied him the authority to "make such documents and records available to any person or entity whatsoever". Senior counsel for the Commission arqued first that where an unincorporated association such as N.FP.F.A. dives custody of documents to a servant that servant is the appropriate person to whom a subpoena should be issued and. secondly, that the Court ais not a perscn or santity within tne meaning of the resolution. Lo owill congider tne second arqument first. Enere 13 tonsiderabie ocdy cf authority in support if tne proposition that a Tourt 1g mot a cerson but [ am not clear wnether a Court might nok be an "entity" and no argument was diracted to the aestion af wheths. this Court was an "entity". dowever. I think that rag D iD foundation uncon which a servant may seek to estarlish thar ne nas no oblization to produce his master 3s jocuments depends upen tne relationship existirs cetween the employee and the emplover ana not upon the position of the eurt. In the tituation whicn Mr Rochfort was on 29 Gcrrber 1981. ar indeed when the present iP] sunoeena was served on him, it would nave been 32 have orqanisation which was prepared t> cass A resolution fcr aw a Hat p specific purpose of avoiding production of documenta to a Court — 110. Senior counsel for the Commission did not submit that there was any element of impropriety in the conduct of the N.F.F.A. in passing the resolution of 20 October 1981. It will be seen that after the resolution the position of Mr Rochfort did not remain as it was at the time of the earlier subpoena but had been changed to a position where he was an employee of N.F.F.A. subject to the resolution of 20 October 1981. I now pass to the critical question which involves an examination of the reasons aiven in the judqments of the Justices of the High Court against the changed background that now Mr Rochfort was not only an emplovee of N.F.F.A. but he was an employee who was specifically denied authority to produce any iB) s B wa ra) mt, Z ™» documents or rec A, "to ary person or entity whatsoever". In my opinion the majority of the Judges in the Kidgh Court emphasised that the expeditisus conduct of the Tourt 3 business was the erevailing consideration. Mason J. at p.42,348 said: "Of course "he crotection =f 'the snployer 3 interests must give way to the cublizt interest in the err FU adminittration cf tuscice in case 2 between che two. So, if 1t 1s "9 zerve a supccena he employer, 9.q.. by reason of absente over incapacity or his whereabouts being unk the Court will aunsist on producticn of the documents by his emplcvee or adent who holds them. In these circumstances tne prompt dispatch of Court business must prevail over the protection of the employer's interests." lll. @ His Honour also pointed out difficulties arising ina case where the production of documents of unincorporated associations is sought. At p.43,949 his Honour said: "The business of the Courts would qrind toa halt if a party to litigation was expected to serve a subpoena on all the members of an association or even all the members of its executive committee." Murphy J. at pp.43,950-1 said: "But even if 1t appears that the verson summoned has no possession or power, the Court must be satisfied that another identified person (natural oF artiricial' has the possessicn or ocwer, sr the obiyection fails. Here Mr Pochfort at most asserts that some amorphous group or large and floating body of ocersons has possession or power as his empliver. The precise oersons «ere not. and apparentiy could net be, identified. Again, even 21f£ some cerson cr versons are identified as having the possession cr power, unless the Tort 1s gatistied that that cerson or those persons can as a oracrical matter be summoned to prcduce documents then the sapiec which it would if the perzon haz d or 18 not within the quriedicticr, amorencus group, or avery large number of persons, or 4% company tnat is ako of the harbour' - that 13, witn non-existent Or straw directors ana 2 operating at the reqistered 5 rote If there 13 doupt whether a summons to produce 1ssued £9 some parson or persons identified as having tne cossession or power, would pe effective, one practical course is to allow an opportunity tor service of a summons on that person or persons. If this ce done, and the person or persons do not appear and admit possession or power. the Court should order production." 112. Wilson J. at p.43,951 agreed with the conclusion of Mason J. and said that he also agreed "generally with the reasons which lead to it". The majority of the High Court took the view that at that time, if Mr Rochfort had been an employee of N.F.F.A., he might still have been obliged to produce its documents. Although this was not put to me, it does appear that the N.F.F.A., apparently on leaal advice. must consider that it is a matter of considerable importance to resist this subpoena. There 1s evidence that five members of the N.F.F.A. constitute a maiority of members, otherwise the resolution would not be a valid resolution. It therefore aroears that the maximum number of members of N.F.F.A. is nine, so that 1t seems practical, if costly. for all the members to be subpoenaed. In these circumstances I think 1t would be reasonable to refrain at present from ordering Mr Rochfort to produce to the Court the documents the subiect of the subpoena in order to afford the Commission an oppertunity to issue subpoenas to the members of the N.F.F.A., should the Cemmissicn 30 desire. This would afford the members of N.F.F.A. an opportunity to make any relevant representations to the Court. I indicate, however, that 1f this proves impracticable, to use the words of Mason J.,. "... the prompt dispatch of Court business must prevail over the protection of the emplover's interests", and I would expect to 113. order the production of the documents to the Court. I will therefore do no more than adjourn Mr Rochfort's application to be relieved from any burden to produce any documents in response to the subpoena toa date which I will now fix. 6 September 1983 Written Ruling This is a further tadament upon tne question sf the subocena dated 1 August 1333 issued to "re Pocnfort. In mv Rochfart to ce relieved from any curden t: creduce any dccuments in response fo the zubeoena to e#nanle whe Teommission {2 serve The Commissicn nas now served a further thirceen subpoenas in all avainst a number of corpcraticns to ercduce the same documents wntluding a specific ferereance fo ctertain documents beina in the ecstessicn or custody of Peter Fochfort. The subpoena also iovers certain documents received from N.F.F.A., copres of whicn were included in the subpoena issued toa 114. Mr Rochfort. In view of the discretion mentioned in the judgment of the High Court in Rochfort v. Trade Practices Commission (1983) 57 A.L.J.R. 31 and £19823 A.T.P.R. 40-322, I invited senior counsel who appeared on behalf of Mr Rochfort to obtain instructions whether N.F.F.A. wished to offer the names of its members who had not been served so that they could be served to enable them to have an opportunity to make any representations. Senior counsel obtained such instructions and, without making any admissions that the perscens served were current members, said tnat there were no current members of N.F.F.A. who nad not received subpoenas. I set out next the representations made by parties who received subpoenas. T.N.T. Management Pty. Limited produced three pages of documents under protest to the Court but obiected to so doing. in so doirg the first defendant admitted memrership of N.r.F.a., as 14 had done in the pleadings, and adopted the submissions af Zenmicr counsel for the third defendant to which i will refer later. Senior counsel for Thomas Nationwide Transport, which 15 not a party, in answer to a suppoena served on it, said that 16 had no documents referred fo in the s3uppcena. Senior counsel for the second defendant, Hrambies Holdings Limited. wag not in a position fo indicate what documents, if any, his clients had and that question was 115. @ adjourned. Senior counsel for the second defendant, however, adopted certain submissions made on behalf of the third defendant. Senior counsel for Mayne Nickless Limited, the third defendant, said that it had ain its possession certain of the documents referred to in paragraphs 1, 2 and 3 of the subpoena but submitted that some were irrelevant and in respect of some privilege was claimed. "his claim for privilege extended to any of the documents held by Mr FPochfaort. The liquidater tor Younas Trans: rt Pty. Limited, the fourth detendant, forwarded certain documents to the Court Reaistry, toqgether with a letter which t7ated that he had no other documents which feil within the subroena in his possession and he had no obiecticn t2 Mr Rochfort producing to the Court any aocuments which he may have in answer to the subooena addressed So him. The fifth defendant. Ansett Tranazoart industries (Ovsrations) Pty. Limited. by senior ccungsel, tated teat in rad eo documents which fell withir the subctena out ombrected fe tne subpoena naving been resued. The sixth diefendant., Express Freight Pry. Limited, through counsel, denied that it was a memoer of N.F.F.A. and accordingly it made no representations in relation to the 116. subpoena served on Mr Rochfort. It also claimed that it should be excused from any answer to the subpoena issued to it on the ground that any answer might tend to assist in establishing its jiability to a penalty in the proceedings and it did so without saying whether or not it had any documents in the subpoena in its possession. The seventh defendant, Associated Steamships Pty. Limited, through senior counsel, said that 1t had no documents referred to ain the subpoena in 1ts possession and said that the subpoena should not have been issued. The eighth and ninth defendants. Ipec Holdings Limited and Interstate Parcel Express Co. Pty. Limited, through their solicitor, claimed that they should be excused from answering the subpoena "as it would tend to establish that the eighth and ninth defendants are liable to penalty". Tt also refrained from claiming whether or not either ct tnese defendants had any jocuments within the subpoena or indeed whether e1ltner was a member of N.F.F.A. The solicitor added, iowever, it appeared that none of the documents were held by either defendant. Subpoenas were also served on United Freight Holdings Limited, which 1s not a defendant. This ccmpany avopeared hy counsel and produced the three documents which fell within the subpoena. No claim for privileqe was made in respect of those documents nor in respect of any documents neld by Mr Rochfort. L117. A subpoena was also served on Tradex Pty. Limited and a letter from the solicitors acting for that company was sent to the Registry of this Court. A number of documents said to fall within paragraphs 1, 3 and 4 of the subpoena were sent with the letter. The letter referred to paragraph 2 of the subpoena and expressed the view that any documents held by Mr Rochfort were held om behalf of members of the Association and were not documents which Tradex Transport Pty. Limited could produce. No claim for privilege was made in respect of any documents held by Tradex Pty. Limited. Senior counsel for the Commission identified three 1ssues. The first was whether the privilege against self incrimination existed in respect of a corporation. This question nas been most recently considered in Pyneboard Pty. Ltd. v. Trade Practices Tommission (1983) 57 A.L.J.R. 236, where at p.238, Mason A.C.J., Wilson and Dawson JJ. in a joint judgment said that they were"... content to assume, without deciding, that tne privilege against exposure to ... a civil penalty is availaple to a corporation in Australia". This view was in accord with that exvressed in a judgment of Bowen 7.3. cn 18 September 1981 in proceedings in the case now before me. I intend to proceed upon the basis that this privilege against exposure to a civil penalty 1s available to a corporation and thererore., 1f seems, to an unincorporated body and to sits members. ancluding corperate members. an 118, Secondly, it was submitted that the judgment of the High Court in Rochfort v. Trade Practices Commission, supra, made it clear that the Court had a discretion and that I should exercise this discretion and order Mr Rochfort to produce the documents. Thirdly, it was submitted I had to pay regard to the fact that it would appear that certain persons who were likely to be members of N.F.F.A. raised no objection to the production by Mr Rochfort of the documents subject of the subpoena to hin. This then raised the question of what the Court should do where property is held by a person, such as Mr Rochfort, on behalf of a number of persons in whom the pogsession custedv and control are vested and at least some of whom claim that the proauction of the documents would expose them to a civil penalty. Senior counsel for the Tommissicn, although the claim was maa2 informally, accepted that, if it te a relevant matter, it nad ceen made sufficiently. This last question 1s tne critical one. The underlying ecrinciple of tne tudaments in Pochfort v. Trade Practices Tommission, supra. was that Me Fochfort was the person who had the physical abiiity to ofird tne accuments to Court and produce them. Mr Rochfort was rot then a servant of N.F.F.A. Gibbs C.J.. at ».22, said in v@lation to a servant: "The auestiton 13 whether tne servant has such possession, cugtcdy ar qontrol oof the documents that he may bring then to Court in obedience ts the subpeena without violating his duty to nis master. ' + +. qnneenimntees 119. @ Mason J. at p.34 pointed ot that the true effect of the subpoena was that "- it binds a person who can produce the documents to do so" and at p.35 his Honour said: "In the case of N.F.F.A. 1t is the appellant who has the immediate physical ability to bring their documents to Court and produce then." His Honour also pointed out at pp.35 and 36 that the purpose of the principle that the owner should be subpoenaed, unless there 1s some good reason to the contrary, 1s to enable the owner to object to produce a document on the around that it had a tendency to uncriminate nim. Murphy J. dealt with the question at p.36 and Wilson J at 9.37, Of course since the judgments in the nigh Court the resolution of 29 ctoper 1991 haa been passed. I was referred to Watson v. J. & A.G. Johnson (1936) 55 C.L.P. 63 and In Re Sick and Funeral Society of Saint Jonr 2 Sunday School, Colagar £19733 1 Ch. 51. These cases are authority ror the er oO position that the oroperty of an unincorporated clup ov association belongs t 2 all the members fer rhe time being sven though vested 1n a trustee. These tases show that the veccrds of N.F.F.A. are the oroperty of tts members for the time being. I was also referred to Fearzley v. Ehilings C1243) Lu 9.B.D. 465 and Coomes and Son v. Hayward (£19131 1 K.B. idl. These two cases establish that an order cannot be made where 120. discovery of documents or an order for inspection of property is sought in a case where the documents are not inthe sole possession or power of the party called upon to produce them or the property is not in the possession of the person against whom the order tis sought. In my opinion it is necessary that subpoenas should be issued to all parties who have possession of the documents sought by a subpoena. In my opinion the documents, the subject of the subpoena to Mr Rochfort, are the property of all the members of N.F.F.A. for the time being and Mr Rachfort does not have the necessary possession, custody or control of the documents for him to be cequired to produce the documents the subject of the subpoena. I can see no reason why anv valid claim fcr privilege aqainst exposure 0 a civil penalty snould be ianied +9 a person in respect of a subpoena to produce property sf which 1t 1s an owner together with other sersons. Accepting as I do that such a ciaim may be made, the next question 13 whether a claim is t> 08 dereared because tne other or other owners raise n> cbiection. In my opinion this would be illogical and I would urheld a valid claim aqainst exposure to a civil wenaity by anv member cf the N.F.F.A. Such claims have been made cy at least cattain of the members of N.F.F.A., who are defendants in this acticn, and the validity of these claims has been conceded by 'he Commission. In the circumstances I am prepared to accede to Mr Pochfort's request 121. @ that he be relieved from any burden to produce any documents in response to the subpoena of 1 August 1983. I pass now to consider a question which arises asa result of the service of the thirteen subpoenas since my judament of 22 August 1983. Any documents produced in answer to any of these subpoenas by any person to whom a subpoena was issued without any claim for privilege are available in the ordinary way as documents wroduced in answer to a subpoena. Any claim for privilege raised by a defendant in relation to a document in it3 gossessicn which has been treated as a valid claim by the Commission I accept as a reason for relieving any such defendant from any burden to produce documents in response to the subpoena. All defendants have relied upon this claim ard therefore I am nor prepared to order that any defendant take any further steps in answer to the subpoena issued to ut. The first defendant has produced under protest three documents. In view of the decision I have reached, those documents wiil be returned by my associate ro that defendant. 1 March 1984 Evidence - Suppoena duces t4¢tum £3 ccorpcration in actiin ta recover a penalty - Whether subpoena enould be set asiite - Whether privilege against self-incrimination exists. 122. Written Ruling Almost at the conclusion of the case for the Trade Practices Commission, a subpoena duces tecum was served on each defendant, with the exception of the fourth defendant. Each required the defendant served by 1ts proper officer to produce certain documents. Each of the defendants so served then made application that the subpoena served on it be set aside. With the consent of all the parties I commenced to hear all these applications together but, because of difficulties which arose, I subsequently separated the hearings but it is convenient to deal with all applications in this judgment. Senior counsel for the Commission outlined the reasons for the issue of the subpoenas at 9015-93016. I proceed to an examination of whether or not a subpoena duces tecum may de issued against a defendant in an action fora penalty where the purpose of the issue of tne suppoena must Le to assist the plaintiff aun ats acrion. Counsei for the second iD nN defendant submitted that the 1ssue cf the subpoena was improper (9196) and its use constituted a serious improoriety in the conduct of the case (9279), So far this case has been noteworthy for the determination with which 1 has been fouaht ny the defendants. This is clearly evident from the number of interlocutory applications and appeals which have been made. [ consider that it was not reprehensible to issue these subpoenas sO aS to raise the question of whether they had to be answered Nr 7 est eee 123. @ and. if so, how. Until they were issued the case had proceeded upon the basis that discovery could not be obtained nor answers to interrogatories compelled from a person against whom proceedings for a penalty had been brought. Indeed this was common ground in an action by the second defendant against the Commission and its Chairman in which [I delivered judgment on 27 October 1980 ((1980) A.T.P.R. 40-179). On 6 September 1983, im an unreported judgment in relation to earlier subpoenas which had been issued to the defendants in this tase, I referred) to Oyneboard Pty, Ltd. v. foal trade Practices Commiseion (1983) $7 A.L.I.R. 236 at p.238 where Mason 4.C.3,, Wilson and Dawson JJ., tn a joint judgment, said they were "... ccntent tc assume, without deciding, that the privilege against exvosure to ... a tivil seralty 18 availiaple to a corporation in Australia". I said that i intended to proceed "ypon the basis that this privilege against exposure toa civil eenalty 1s available to a corperaticr. r o tel my 7 m4 ty 7 -* 4 = i. 5 + ee B22 7. (eo a werk" Davies in Trade Fractics: Uommiseion v. George Weston Foods Ltd, (1979) A.T.P.R. 4¢.-114 consiaered tn th) rr c o wv a rw 5S) =] cs) my whether the deferdant. in an w efion for a penalty for 43 tontravention cr = 45 of Ene Act, shoulit se ordered t> «give discovery or 9 ansver questions cy way cf interrogation. dis Honour decided that the ordinary cules of discovery and interrogation did not apply because 1t was improper to call upon the defendant tc disclose facts which make it liable to payment ae 124. of a pecuniary penalty. Although his Honour used the word "improper", I doubt that his Honour was saying that there was anything reprehensible in the Commission seeking discovery and answers to interrogatories. At least in the subject proceedings the likelihood of an appeal by one party or another is real and 1t 1s not unreasonable for all parties to keep the possibility of appeal under consideration. In Pyneboard Pty. Ltd. v. Trade Practices Commission. supra. Mason A.C.J.,. Wilson and Dawson JJ. at ».238 had referred to the decision of the Enqlish Court of Appeal in Triplex Safety Glass Co. Ltd. v. lLanceaaye Safety Glass (1934) Ltd. €19391 2 K.B. 395 and said: "The Enaglish Court of Appeal has held that the privilege of refusing tc answer a question on the aground that the answer may tend to incriminate 183 available to corporations". Their Honours had referred cto tne sesition in An 'D fey rica and te the position in relaticn rc the Fifth Amendment to tn iD Tonstitution. Brennan J. at p.248 3a1d 1t was unnecessary to consider the question of whether the privilege adainst seif-incrimination applied 9 corporaticns. Murphy 7. Likewise did not have to decide the aguestion aithough he expressed the view that the history and reasons for privilege did not tustify its extension to artificial persons such as corporations out accepted that a different view had been taken in Triplex Safety Aan em 125. Glass Co. Ltd. v. Lanceqaye Safety Glass (1934) Ltd., supra. His Honour also referred to the decision of the House of Lords in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation (19787 A.c. 547, a decision in which Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. had been applied. In an interlocutory appeal in this case which was ultimately determined by the High Court, Rochfort v. Trade Practices Commission (1983) 57 A.L.J.R. 31 at p.36, Mason J. said: "However, in England 1 * has been affirmatively decided that the crivile c lleqe 13 available to corporations 'Triplex Safety 'Slas3 Co. Ltd. v. Lanceqaye Sar 'L = £1939] 2 K.B. 395; Fico Tinto Zinc Corporation) ..." Sitting as a sirczle Judge of the Federal Court, I consider that I am bound by the cases of Triplex Safety Giass and Rio Tinto Zinc Corporation. Sentor counsel for tne 'Tommi3s2zis said at one commencement of my "earing these applications (9175) tnat, wnen each subpoena was zerved, the Tommisaicn ient a rtovering le'ter which informed the defendant that. 1f 'tne isfendant intended ta arque that it snouid be relieved from ansvering the supcoera on the around that it was incriminating, tne Commission would rea prepared to argue the point without requiring the production of the relevant documents at that staqe. The Commission also saii 126. that it was not seeking any documents to which professional privilege applied or any documents which had been discovered by the Commission. Senior counsel for the Commission submitted (9181) that "the existence of privilege against self-incrimination could never be a ground for setting aside a subpoena, for the very reason 1t is only when the privilege is invoked and the court rules on it that the question arises". He also said he would accept such a claim without proof if made by counsel and that any such claim could be made while reserving the right to arque that 1t was not necessary. Senior counsel for the Commission also said that it would accept what might be called a 'notional" claim for orivileqe which did not involve a defendant exposing itself to any comment for making the claim (9246). Counsel for certain of tne defendants took what might be described as a reserved position that, ir tnev had to answer tne subpoenas, they would make a claim for privilege, whilst comnsal for certain other defendants retused to maxe such a claim savird that 1t was not necessary (9182, 9198). All the subpoenas were, in aeneral. ina similar form. They sought to require the defendants to produce to the Tourt a qreat number of documents. all of which presumably were tnough* eee, 127. r by the Commission to be documents relevant to prove its case. A number of questions received some consideration, particularly in relation to Mayne Nickless, which ultimately do not require any detailed consideration by me, for example, whether, if the subpoena was properly issued and had to be answered. it was oppressive in one way or another. Counsel for the second defendant summarised his argument as: "It 1s a deeply entrenched rule that the courts will not lend the aid of their processes for discovery or production of documents in proceedings for a penalty. This rule 1s separate and distinct from, although nistorically related to, the exis tence of the privilege against exposure to a penalty." I agree with the first sentence of this argument but not with the second sentence. I consider that there is binding authority, at least in the absence of waiver. fror the view that the Court will not lend aid of its process for discovery or production of documents in proceedings for a penalty, but that this rule rests on the existence of privilege aqainst exposure to a penalty. A case where the whole action is one for a penalty must be distinguished from a case where the question of a penalty dces not arise directly in the action. This question was dealt with - 128. by Deane J. in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation (1979) 42 F.L.R. 204. In that case the applicant sought injunctive relief and damages based on alleged contravention of the provisions of Part IV of the Trade Practices Act 1974 but it was not a claim for a penalty. Deane J. distinguished the two cateqories and said at p.207: "It 1s a well-established principle that a defendant in proceedings which are solely for the recovery of a oecuniary penaity should not pe ordered to disclose information or produce documents wnicth may assist in establishing his liability to the penalty (see , generally, per Isaacs J. in R. v. Associated Northern Collierties (19201 Ll C.L.R. 738, at pp.741-748, Naismith v. McGovern (1953) 90 C.L.R. 336, at pp.341-342 and Martin v. Treacher (1836) 16 9.B.D. 507).' After distinguishing that category of cases from that where the proceedings were not far the recovery of a penalty but to prevent and redress ¢ivil iniury, his Yonour said at p.208: "In the former case, that 13 72 Fav in & mecea action for a penalty, a court should, in the absence art skatutory provieicn to che contrary, refuse fo make anv order at all against "ne detendant fer discovery or production of documents 'empnasis added) or provision of airformation for the razon "nat fhe whole and avcwed abject of tne proceedings being the impositicn and tne recovery of a penalty, an arder for the production of documents cr provision of information against the defendant can, so far as the prosecutor of the action is concerned. properly nave no other intended consequence 'see RR. vy. Associated Northern Collieries (1910) 11 C.U.R. at p.742). This 13 a broad and a 129. unqualified rule whose origins are apparently to be found in a reluctance on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see Mexboro (Ear of) v. Whitwood Urban District Council €18971 2 Q.B. 111, at p.115 and Heimann v. Commonwealth (1935) 54 C.L.R. 126, at p.130)." In R. v. Associated Northern Colliteries, supra, the applicant sought penalties against various defendants in a civil action under ss. 4 and 6 of the Australian Industries Preservation Act 1906, No. 9, Tsaacs J.. as he then was, drew the distinction between a civil action to prevent or redress a civil wrong or redress a civil injury on the one nand and a civil action to recover a penalty on the other. At ».742 his Honour "Tt does not require in such a tase the oath af the tefenaant to esrablisn the fact that tne production of the documents would tend to penalize him. The Court can gee the effect of discoverv from the nature of the ortceeding." At -747 his Honour referred to Martin v. Trearner 'D ,1886) 16 9.B.D. 507 at p.f12 and Mexboreugh v. Whitweed Vroan District Council £1397] 2 9.8. Lli, at o.121 and said that the Le proper course was "to stop tne matter in livnine". At p.745 nis Honour, after maxing reference to an American case, said: "The case 18 an illustration of the rule that, at whatever stage it appears to the Court the discovery may expose the defendant to penalties, no crder will be made." 130. As a single Judge it may be sufficient to do no more than refer to the words which I have quoted in the judgment of Deane J. which were quoted and accepted without qualification by Mason A.C.J., Wilson and Dawson JJ. in Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 57 A.L.J.R. at p.238 to reach the conclusion that there 1s no difference between the principles applying to an order for discovery, production of documents or the provision of information in a case in which a penalty is sought, However, I have dealt more fully with the various submissions because of the detailed aarguments presented tao me and because of the zeneral history of apoeals in this case. Senior counsel for the Commission also submitted that I was not concerned with pre-trial proceedings out with a subpoena issued during the conduct of the case and that tne Tommission wished to test the question of whether privileqe applied to a corporaticn. None of these cases dealt with the possible effect of waiver. The category of cases where tne obiertt of the action is Oo aumpose and reccver a penalty an 2 Zetendant is to be distinguished from cases such as Triplex Safety Glass Co. Ltd. *. Lancewave Safety Glass 11334) Led.,. guera, ard Pio Tinto Ginc Corporation vv. Westirghciuse ELectryis Tirsaraticn, Supra, cases very relevant to the question of wherher orivilege against self- uncrimination extends t9 a corporation. ane 131. Senior counsel for the Commission sought to distinguish an application for discovery or to answer interrogatories from the issue of a subpoena. In my opinion I can see no difference in principle. In Cavendish v. Cavendish £19261 P. 10, Lord Merrivale considered the case where a subpoena duces tecum had been served on a husband respondent in a petition for divorce requiring him to produce certain documents. In that case the only issue was one of adultery and it was held that the subpoena must te discharged on the ground that an order for discovery could not be made against a party to the divorce proceedings where 1 was sought for no other purpose tnan to prove that party quilty of adultery. The decisizn ain this case was passed upon the reasoning in Pedfern 7. Pedfern C1291] P. 129 where an application for discovery was refused. It was hela that a oarty in a oericticin for divorce, where the only issue was tnat of adultery, mayo net pe called upon by compulsory ororess ft: srvride evident? in support of the charge in that case py yivirg disctovery. In Nast v. Nast and Walker C1972] 2 W.L.R. 901, Paitein v, tedfern, supra, was neld to be no longer the law in Englani. This was upon the pasis that then discovery and interrogatcrie a could be obtained in such an action. 132. Wigmore on Evidence, McNaughton Revision, Vol. VIII, para. 2264, deals with the question of production of documents and expresses the view that production of documents in response to a subpoena may be refused under the protection of privilege. Senior counsel for the Commission referred toR. v. Adams (19651 V.R. 563, a decision of the Full Court of the Supreme Court of Victoria, in which it was held that an accused person who had elected to give evidence may be compelled to produce relevant documents which are in his possession and his control. In my opinion the judgment in that case rested upon the 3tatutory provisions in s.399 of the Crimes Act 1958 (Vic.) which contained a provision that a person cnarged with a criminal offence who had czhosen to enter a witness box and aive evidence may be asked any question in cross-examination notwithstanding that 1t would tend to incriminate him as to the offence charged. It may be that Adams' Case, inthe light of 3.399, is some authority for the proposition that. once a defendant in criminal proceedings chooses to give oral evidence, he is required to produce documents which are in nis custody and under his control. I note that at p.565 9'Bryan J.. with whom Hudson and Adam JJ. agreed, said: 'Where notice to produce nas been aiven and the defendant is not a witness the proper course is for the prosecution to give secondary evidence of a document of which notice has been given and which 1s not produced." 133. O'Bryan J. referred to the case of Trust Houses Ltd. v. Postlethwaite (1944) 109 J.P. 12. In that case, in a joint judgment, Viscount Caldecote C.J., Humphreys and Birkett JJ, considered the question of whether a defendant in a criminal action could be compelled by a court against his own wish to produce a document. The Court said that the defendant could not be called upon to "make any admission or any statement or to produce any document which, in his opinion, may tend to incriminate him". No distinction was drawn between the production of a dcecument and any other evidence sought froma defendant. I made 14 clear during the hearing of these applications and I reiterate that I waz nor and an not considering the questicn of the position if a witness nas chosen to anter the witness box and Jive evidence. That may or may not arise for consideration iater in this case. loads mot tnirk 1t 1s necaseary "a a2al at length vitn the suestion ct waiver. The only varver alleged wad by tne third defendant. It was arquei that the terder cf axnibits 23, 29 and 20 constituted a waiver of privileze. Fenrtor icunsel for rhe Commission nad raterrad me co Great Atlantis Unsurance 5. Vv. + Home Insurance ">. (£19213 2 All E.F. 4685, a case relating to discovery, where two paragraphs of a document had heen read to the Court by a voarty and that party was neld to have waived any leqal professional privilege in relation to the whole of that 134. document. Exhibits 28, 29 and 30 are letters from Tradestock Pty. Ltd. to the third defendant. The subpoena which was issued was of such a general nature that, whether or not the tender of exhibits 28, 29 and 30 could support some limited form of waiver, I think that it could not support a claim that all privilege had been waived. Senior counsel for the Commission said that, if I held that a partial waiver was not sufficient to destroy all privilege in relation to the production of documents, he would not ask me to attempt to dissect out what part of the subpoena might have to be answered because of the act of waiver (9293, 9296). I express no view on whether or not exhibits 28, 29 and 30 could constitute any partial waiver cf privileqe against exposure to a penalty. In the circumstances I crder that 2ach subpoena be set aside. I will allow submissions to be made concerning costs. 27 April 1984 Subpoena duces tecum cannot be issued against detendant corporation in a-case for a penalty - Privileqe against exposure to a penalty cannct be waived. Written Ruling 135. The plaintiff wishes to issue a subpoena duces tecum to the first defendant to produce certain documents. I indicated previously to all parties that I wished any party wanting to issue a subpoena to seek my approval to its issue before a request wag made to the Registry for its issue except in quite exceptional circumstances, The plaintiff has submitted as MFI 533 a document setting out the schedule to the subpoena it wishes to issue. The first defendant has called a Mr Lewis, one of its officers, and duriny nis avidence ih tendered a number of communications passing between Kwikasair. a division of the first detendant, and one or other of two firms of what might loosely be called transport consultants or pernaps rrckers, namely Freight Brokers Intercontinental Pty. Ltda. and T.F. Henderson & Associates. It has also tendered certain correspondence between the defendant or the brokers and certain corporations for whom evidence as communications. seeks to have the first defendant eroduce what an substance is any other corresgordanze cf the sam2 nakurc2? az the documents admitted into evidence, toaether with anv memorandum cr file note made by certain emnplsvees of kwikasalr, all of wnem 'vere involved, or reaterrea te, in the tommunicaticons whicn had reen tendered. 136. The question of the obligation to answer a subpoena has been raised in this case ona number of occasions including an occasion in which the High Court granted special leave to appeal (Rochfort v. Trade Practices Commission (1983) 57 A.L.J.R. 31). I have also given a number of rulings since then and on 1 March 1984 I gave a ruling on the question of whether a defendant served with a subpoena to produce certain documents was required to do so. In that ruling on p.7 I said: "I consider that there 1s binding authority, at least in the absence of waiver, for the view that the Courr will not lend aid cf its process for discovery or preduction of documents in proceedings for a penalty, but that this rule rests onthe existence of privilege against exposure to a penalty". I reterred to a number cf cases and pointed out that none of those cases dealt with tne possible effect of waiver. I also mentioned that senior counsel for the Commission sought to distinquish an application for discovery or to answer interrogatories from the issue of a subpoena bur that I could net ri eolinted sat tnat I was not see any difference in principle. sonsidering the question of the sositison 1f a witness haa chosen to enter the witness box and waive evidence nor iid I express anv final view on tne auestion of waiver. The matter now under consideration may involve a consideraticn of the follcwing questions. The questions are: noe 137. (1) Is there an absolute bar to the issue of a subpoena or may the privilege against risk of exposure to a penalty in a civil action be waived in whole or in part? (2) Has any such privilege been waived and, if so, to what extent? (3) If a claim for privilege against exposure to a penalty 15 subsequently made, will it be sustained? I have oreviously held in the ruling of 1 March 1984 and in earlier rulings that I would proceed upon the basis that privilege against exposure to a peralty existed in favour of a corporation. Senior counsel for the Commission still formally supmits that this privilege does not exist but I proceed upon the rasis that it does exist. There is a difference between legal ovorofessicral oriviiede, privilege against exposure to a penalty and privilege against 2xposure to conviction for a crime. This was made clear in Pyneboard Pty. Ltd. v. Trade Practices Commission (1933) 57 A.LLJ.R. 238 at pp.238-239 in the Joint juaament of Mason A.v.J., Wilson and Dawson JJ and at p.244 1n the judgment of Brennan J. Indeed, counsel did not arque to the contrary before me. The Commission's argument is that the privileae against risk of exposure to a penalty can be waived wholly or in part in —- 138. the same way as legal professional privilege can be waived wholly or in part. (See e.g. Great Atlantic Insurance Co. v. Home Insurance Co. £19813 1W.L.R. 521). The plaintiff submitted that the Court should not permit the possibility of being told half truths. The basic argument advanced by the defendants now is that the relevant privilege is incapable of waiver. A considerable amount of authority was cited to me in support of this proposition but the cases to which I was referred appear to relate to the question of waiver of privilege against exposure to conviction for a crime. Not only is it clear that these two Privileges are distinct bur. as the dissenting judgment of Murphy J. in Byneboard, supra, at p.243 mentions, tne privilege against compulsory self-incriminaticn 15 in tircumstances where nai freedom. fa) conviction may resuit in tne loss cf cers I menrion several of tne cases in ralation to privilege against @xoosurs to conviction fcr a crriea co shicn Tf was veferred and in particular Reqina v. Gacper7 2 Tar. ard K. 474, 175 E.R. 196, particularly at 2.205. Tret: also Trust douses Ltd. v. Postlewaite '.344) Lust J.P. ia. The aefendants placed considerable reliance on Fing of tne Tyo Sicitiies v. Willcox i Sim. (N.S.) 301, sl E.R lls. No case of which I am aware, nor which wag cited to mé, 18 precise authority for the proposition that privilege against me 139. ®@ exposure toa penalty cannot be waived either in whole or in part. In my ruling of 1 March 1984 I held that the privilege against exposure to a penalty continued beyond the stage of interlocutory proceedings. This conclusion is supported by certain statements in Pyneboard. supra. Although all the cases cited in the majority judament deal with pre-trial situations, the judgment at p.239 accepts that the construction of s.155 of the Trade Practices Act 1974 is not confined in its application to discovery and interrogatories and that the privilege is distinct from, although often associated in discussion with. the privileage against #xposure +0 conviction for a crime. It is clear that a different situation may arise where the action 1s one in which the question of a eenalty does not arise directly (see Deane J. in Pefrigerated Exnress Line: (A/Asia) Pty. Lei. v. Australian Meat and Livestock Corporation i979) 42 F.L.R. 294). The judament in the King of the Two Sicilies v. Willoox. supra, 18 difficult to follow. There 1s no dount that at p.loo, their Loriships followed the decision of the majority of the sudges in Jarbett's Case. surra. hnoiding that 1t made 19 difference to the right of the witness te crotection that he had cefore answered in cart. Their Lordships were of the opinicon that he was entitled to claim privilege at any stage of the enau1ry. The real difficulty exists in deciding wnat "ias the nature of the privilege sought to be claimed. The headnere refers to an allegation that the production of the documents would expose the applicant to criminal prosecution in his cwn 140. country but the matter is discussed at p.128 and consistent reference is there made to "penal consequences". Although 1t would appear that the introduction of the Civil Evidence Act 1968 in the United Kingdom may have some effect on the question of liability toa penalty in a foreign country, nevertheless it seems tome that their Lordships in following Garbett's Case probably were not drawing any distinction between priviledge against exposure to the risk of incurring a penalty and exposure to the risk of self-incrimination. Were it not for the judgment cf Isaacs J. in The Kina v. The Associated Northern Collieries (1910) 11 C.L.R. 738, I might have been inclined to hold that there was no authority on the question of waiver of the privileqe against sxposure to a penalty which was oDinding upon me and that, if waiver could be established, privilege would be losr tc tne extent of the waiver. The «wajyority dwudament in Eyreboard, supra, at 0.242 it tnakh befor ccurts Ou ch) 1310 and at the 'time when Nortnern Cosllerres sunra was decided, 3.148+4) caterved ro the orivilede against incriminatizn only and did rece rerer to exposure toa penalty. This, of tsurse, wag befirs the amendment sf s.14Bi4) in 1910. A'rhoudn the Ate under cansideration oy Isaacs J. provided only for eecuriary penalties [Isaacs J. at p.742 posed as tne essential questicn fs tne claintiff in a civil action ftr eenalties entitled to an crder for discovery of documents?" At p.745 his Honour referred to the rule that, at whatever stade 1t 141. appears to the Court that discovery may expose the defendant to penalties, no order should be made. At p.747 his Honour pointed out that the proper course was to "stop the matter in _limine". At p.748 his Honour said: "Nothing short of distinct legislative provision to the contrary can overcome a principle s0 deeply rooted and consistently enforced, andas there is no such relevant position, I must take the law as I find it." His Honour also pointed out that, even though the action before him was also for an iniuncticn, the 1ssues were not independent. Had T not had the benefit of the authorities to which I have been reterred. I might have felt that 1t would be somewhat rllogical to allow a defendant to tender a certain amount <f evidence on a voint and then to claim privilege in resvect cf other aspects of the same point where the action i3 a ctivil action seeking a penalty. This 1S vSartizulariy s¢ since tne basis of this orivileqe appear3 to flow from a disincliraticr tc assist an action by a common informer. If seens C9 me that tre view I have expressed as possible might be surported, at ieast "2 some extent, by the fact that the claintit®S in this aztion 1.3 14 'S wu at statutory body performing what 1t deem 3 re a public functicn committed to it in a fairly recent Act and that this Functiin must have been regarded by Parliament as one of importance. In relation to privilege against exposure to convicrian 142. for a crime, it seems that, until provision was made by legisiation, an accused person could not give evidence on his own behalf and that, when provision was made to enable him so to do, 1t was at least frequently the practice to make a provision somewhat similar to that under 3.399 of the Crimes Act 1958 (Vaic.). That section provides that, where an accused person enters the witness box and gives evidence on his own behalf, he may be asked any question in cross-~examination notwithstanding that 1t would tend to incriminate him as to the offence charged. Consideration was given to this section by the Full Court of VYicteria in R. v. Adams C1965] V.R. 563 where an accused person went into the witness box and gave evidence. In that case documents which were admissible documents and which were relevant bo matters in aussue at the trial had to be produced Ly tne accused. So far ag I am aware, no restriction has ever existed bo prevent a person against whom a ovoenalty was sought giving evidence. newever, particularly pecause of tne judgment in Northern Collieries, supra, I answer the first question [I nave formulated as follows: In the circumstances there 18 an absclute bar to the 1ssue of a subpoena and this bar cannot be removed by waiver. Questions (2) and (3) therefore do nct arise. I refuse to permit the issue of the proposed subpcena. 143. MISCELLANEOUS 7 November 1983 Evidence - Communication by solicitor to party - Whether claim for legal professional privilege can be raised by another party. Written Ruling This cult deals with two letters marked for identification 294. Tha first 13 a letrer of 12 Gersber 1976 from Ellison, awison Tradestock Pty. Ltd., fo tne Secretar', founds Transport Pty. Limited, the fourth derendant, anda renly thereto dated 29 October 1976 from P.C. Wilkins as Manazirg Director of that ccmpany. k Cennission seexs fo nanaer cae letters net e 3icn see x we CL etters nct aga cusiness records Dut ac a teonmunicaticr ts fauras Transport Pty. Limited and a reoly from ctnat company from "nicth 1b 13 sought to draw admissions. "he fourth defe ntois mew in liquidation and nas not been rercretented in these proresaine ts. The Liauidator of 1t has produced ai nmurcer of documents vithout any claim for privilege. The liquidator >-f Tradestock Pry. Ltd. nas done the came. 144. It will be noticed that the communications took place in October 1976 some six weeks before the writ (Ex. EO) was issued in the proceedings which were commenced in the Industrial Court in Melbourne being No. 196 of 1976. It will thus be seen that the letters were written before the proceedings commenced but senior counsel for the Commission accepted that without prejudice negotiations can take Place prior to the commencement of litigation (6718). A number of 2biections were raised by various defendants to the admission of noth of these two letters. It was put by counsel for one or other of the defendants that, in effect, privilege had to be expressly waived before documents tnat would otherwise be priviieged could te admictted in evidence. T consider that a claim for privilege cannot se put forward by any defendant other than the fourth defendant cor Tradestock Pry. Ltd. in relation to these two letters or either of them. There is certainly no claim before me for orivileg= ky aither the fourth detendant or Tradestock Pty. Lrd. Indeed, if Ll felr oun necessary, [ would be crepared t2 hold that tners nad teen an implied waiver of that privilege if I thought that was a questier cequiring an answer. I would te extraordinary in ay opinion if, as in this case. where the fourth defendant is nor rx iD 1D is) nbhed, s iB Q 1D rm another defendant could maxe a claim [For privii r roa communication from the fourth defendanr to a third person. I was not referred to any authority which dealt with the sae a 145. need for an express waiver of privilege before a document could be admitted into evidence even in a case where privilege existed. I refrain from making a finding that privilege does or does not exist in relation to these letters but, if it does, I am satisfied that there has been no claim for such privilege by either the fourth defendant or Tradestock Pty. Ltd. I also consider, without finding it necessary to s0 decide, that I would be prepared to hold that the proper inference to be drawn was than there had been an implied waiver by both the fourth defendant and Tradestecn Pty. Ltd. in relation to the letters. Io will thnererora admit the Letters MFI 394 but only against the fourth deferdant cin the $tasis that they are communications as a ster in Aastapirshicy an admissicn ov the fourth defendant. They will beccone exhibit KG. = July 1393 «Transcript 2795-2704) Evidence - Printira ani Newsrapera Aon, L377 MLS. - 0 Ahan 1s a document. See ruling of S July 1992) reproduced under heading of "Admissions". —~_ 146. 7 November 1983 Evidence - Whether Printing and Newspapers Act, 1973 (N.S.W.) applies to proceedings in the Federal Court. Written Ruling This ruling concerns the admissibility of documents MFI 420 tendered by the Commission as against the third defendant fcr the purpose, 1t was said, of identifying a Mr M.G. Davies. [t 2 a tendered to the extent to which 1t may be evidence of positions Mr Davies held by way of admission. Two documents are tendered, the first entitled 'Mayne News, Volume ll, No. 2 for May 1972", and tne second entitled 'Mayne News, Volume 12, No. 1 for March 1373". Thre wD pages only of the first document have been tendered and two only of the second document. Peliance is olaced upen th2 crovigiin: of s.& of tne Printing ang Newspapers Act, 1972? 'N.E.LH.* 6 tna Ron't, TL save orevious.y comsidered this Act in relaricn tc axhicit Ar wnera © gave a ruling at pp. interpretation of this Acr ain relaticr tl eenibit AL cnere [ save a ruling at o.i7L: In tne firet cr these races If cconsiiareat what articles were embraced in the *erd 'irctutant" in =. ac interpreted by s.2 of the Act and I have ro isubh that both tre articles that have been marked for identification 420 fall sr1thin the definition of "document". When I was considering tne 147. admissibility of exhibit AL, counsel for the second defendant argued that the Commonwealth Evidence Act covered the field and reliance could not be placed upon the provisions of the Act. This appeared to me possibly to raise a question of the necessity to notify the Attorney-General for the Commonwealth and the Attorney-General for the State of New South Wales as provided by 3.78B of the Judiciary Act 1903, although all counsel took the view that the only question arising was the interpretation of s.79 of the Judiciary Act. This was done and I was subsequently advised that neither Attorney-General wished to intervene \pp.3239, 3286). I held that the submission in relation to the interpretation which was advanced by counsel for the second jefendant d24 not cut down the operation of the Act so far as wags Oo t oz oOo relevant. That aissue was again presented in relation ¢t documents now under consideration but I again reject it. Th was submitted by wz4anicr counsel for the second defendant that the documents were in fact Pusiress ceacerds and that the Tcommonweaith Evidence Act "atnerwise provided" within the meaning sf those words in 3.79 sot the Judicrarv Act. However, I am relieved from reachina a final conclusion on this question because the document was not tendered as a business record and so far as I can see there 1s nothing in the Evidence Act, 1898 (N.S.W.) with which I am concerned. I have to consider whether there 18s any law of the Commonwealth which provides otherwise than that a law relatina to 148. evidence in force in the State of New South Wales under the Act is applicable to a Federal Court exercising federal jurisdiction in the State of New South Wales. I have not been directed to any such law. Therefore, I consider that there is no law of the Commonwealth which otherwise provides. It was not suggested by any counsel that any tonstitutionmal questicn was involved although I took the precaution to again issue an instruction that. 1f any counsel hook the view tnat such a2 questicn was involved, a further notification under s.725 must be given by the party intending to raise the question. Mo a1etarled argument was oresented to me by any Tounse. az ft tne secpe wf 3.79 of che Judiciary Act but 2 *e, inter alia, toa , 40 ALOLR. 179. At pp.121-132 hit dsoncur tick the view cnat » grecad appreach shouid be given to tne application cf ¢,.73. Tk would rar iD D mM 09 me quite extracrainary tc construe the Commonweaith Ervide ry ha 2 Ast im such a way ag tt iwany tne use 1r 3.8 or the Act in relation "9 a protescdina in a 7 tmonwealtn Trurt in rhe State of New Scurn Wales. Tht 1¢ cerfecriy ctlaar that the Act enuli not apoly f° 3urin cesceeadirgs, apact from the orovisions of ua 79 of ral ne Jucitiacy Act, bur thah fhe ricoose cf 3.73 135 t9 ra ensure that anv iaw ce Federal Court exercising jurisdiction in the State of New South Wales unless 1t 1s so "otherwise provided | by a law of the ating fo evidence 15 availabie in a 149. Commonwealth. It was also argued that the Mayne News of May 1972 was probably printed before the commencement of the Act but. since the Act is a law relating to procedure and evidence, it would apply to the proceedings before me irrespective of the date at which the particular document was printed. It was also arqued that there was evidence, at least in the Mayne News for May 1972, that 1t was printed in Victoria. Be that as 1t may, although there may well be a limitation to the State of New South Wales in relation ta the erovisions of $3.32 and 4, 1f for no other reason than recause 2f the specific provisions of s.3(3) and s.4/3), no such limitation, however, 1s made in relation to s.5. I am satisfie H that tne document of May 1972 contains what purports to ob a the name of tne person for whom or on whnese instructions the document was printed namely: "The Mayne Nickless Group cf Tompariss dead t£fice: York Street, Fouth Melrourne, Victoria." I am therefore prepared to admit that document a- exhibit KF but only against the third deterdanc, Mavyre Nicclass Limited, as a step in astabiishing an aamission ky trav defendant. This dees not involve a finding at present that Mayne Nickless Limited 18 part of what is described as the Mayne Nickless Group of Companies. 150. I am not prepared to admit that part of MFI 420 which is dated March 1973 because nowhere can I find on it any name purporting to be the name of the person by whom or on whose instructions the document was printed. However, I give leave to retender this document if some other part of it contains matter which satisfies the requirement of s.5. Evidence - Evidence given in closed Court - Use of transcript marked "Transcript-in-Confidence", 29 March and 2 April 1984 Written Ruling This ruling deals with che questicn of the use of some restricted transcript of some proceedings befere the learred Thief Judge in i381. No formal scrier "as taken sur in reLarian to the matter now under consideratiin. nowave Ley .a P 7)tw2 wv unusual and I maké ro criticism of 1t. I must do the besr I tan with the transcript caying prctcer regard to the auesticn of wnether or not I zhould ite at frarscrirt macned 'Transcript-in-lonftidence'. Section 17.4) sf the Federal lrouet of Australia Acr deals vitn tne auescisn cf crlosinag tne rcur-, Section 50 of thar Act aeals with the ourlication 2f evidence. The only order tnat I can find in tne transcript which 1s nic marked "Transcript-in-Confidence" 1s that relating 'a the closing ee 151. @ of the court. It appears at page 1031. I may say that I asked Mr Waddy last night to present me with a draft at the beginning of today's proceedings concerning what ne said was the effect of the orders which the Chief Judge made both within and apart from the transcript marked "Transcript-in-Confidence". Mr Waddy was junior counsel in the proceedings before the Chief Judge, but he contended that it was not open to me to examine the transcript-in-confidence for the ourpose of ascertaining what orders, 1f any, the Chief Judge made abcut the restricticn rn the use of evidance., In substance at nv direction "Mr addy produced tz me the sneet of paper wnith I will marx for idectification 526, anil cass that to my Associate et an MAK. Tne entries un ink are antries which ere made ov me duriraq wae 79 c igse of today's proceedirgs ts yrecord pages referred to ov My Waddy. Tre only devant ctrder ain velaticn ts tne matrears ca7 under consideration Feems to me t2> ce what .3 the eflfartc tf cre ceaer rtiasing the mmartoupon wnat TL call the 'erceer usa' cr oavyvrainag tnat was said "ollie the caurt wart rirsed. Acart fycm any seecifie order f the court is .nlv tre factir to cre taken inte account. The authority for this is tlearizy cto be fcund ain the yudament of the House it Lerds in Srote v. scott £13137 A.C. 417 and in particular in what was 3aid at op.443 5 and 449.8. Ds 152. This case concerned a situation where there was no specific power to hear the proceedings in camera or any specific provision with regard to preventing the subsequent publication of the proceedings. The Federal Court of Australia Act, section 17 subsection (4) clearly deais with one aspect and section 50 the second aspect. Scott v. Scott was considered by the House of Lords in Attorney-General v. Leveller Magazine £19791 A.C. 440. The Full Court. of this Court considered section 17(4) and section 50 in some detail in Australian Broadcasting Commission v. Parish 3 A.T.P.R. 49-154 and I do not think it necessary to refer to any Particular part cf thar judament. I have therefore decided that I can see no reason at the acment why I should restciet the use sof anv avidence given by Mr Wise in the transcript marked Transcric™-in-Confidence" t73 any extent that 16 orcper in these oracesedings. I nave examined the two pages of the transcript-in-ccnfidence to which Mr Waday has referred me, namely, pp.1038 and 1964.2. That carn st ruose pages in which nis Honour dealt witn tne wuestioar of puriicaticon "You age nct oblided t2 answer tnem Ir voa do answer them, I will crder that nro use ne made cr vour answers 1" any ercceedinas, civil or criminal, avainst you. pa 0 u donour then saii: 153. "IT am not extending that any further to other parties." At p.1064.8 his Honour was asked, in relation to some evidence given by Mr Wise, to make the same order with respect to the use of this evidence "as your Honour made previously". Sentor counsel for the Commission then said: "That it be not used against Mr Wise personally". His Honour then said: "This may not be used for civil or criminal proceedings aqainst Mr Wise". Senior counsel for Mr Wise and others then said: "I make p the wider application, that your Honour no doubt will deciine'. His donour then said that he did so decline. Iam therefore of the cpinion "here is nothing in tne order made by his Honcur concerning tne ure of any evidence given py Mr Wise in the proceedings before the Vhief Judge cther than the order that "no use be made of your answers in any proceedinas livil or criminal against you". 'The proceedings I an new hearing are mot proceedings azainst Mr blise. I consider therefore chat the crit costacle to natting to Me Wise any cf tne ctatement= made oy nim durinaz tns reciii when the court was tiosed arises from tna rlitiey cf "ne tliart. I cannot see that that is a bar EL car"ain 4aestions biing cut 3 Mr Wise in these eroceedings apoun ocv.at one faid oin "'a croceedings before the Chief Tudge. The auestion nas teen arqued om the basis ot the general positicn and nit on the basis of a 154. particular question although senior counsel for the Commission indicated the general nature of the questions he would be asking. That makes my attitude clear in a general way with regard to the use which can be made of the evidence during the period that the court was closed. That concludes the ruling. I want to say something more by way of an addendum to the ruling I gqave on 29 March 1984 on the question of transcript-in-confidence, and this is the addendum. I am now in a position to identify the case in relation ko Tooheys wnich I mentioned during the submissions in respect of *he use of the transcript marked "Transcript-in-Confidence", on a) tn which I azave my ruling on 19 March 1984 ar co.i97€4 to 1N76 The case I had in mind was a decision of the Full Court of this Court in The Queen v. Trade Practices Tribunal: Ex oarte Toonevs Ltd. (1977) 31 F.L.R. 1. This was a tudagment of the Pull Tourt in whirth the mnembers cf tne court veached a wnaninctus result. I was a member of that Court and in that case I considered in detail the provisions of section 106 of the Trade wD ys Practices Act 1974, which are verv similar to the srovisi1ans in section 17 subsection (4) and section 50 of the Federal Court of al} echicn are to be fteound fe) ui Australia Act 1976. My views on the particularly at pp.10 and ii. Mr Justice Northrop, at xe] 155. agreed with my reasons. Mr Justice Blackburn, in the Supreme Court of the Australian Capital Territory, dealt with a somewhat similar question in Re a Barrister and Solicitor, re Leqal Practitioners Ordinance (No. 2) 1970 (A.C.T.) (1979) 40 F.L.R. 316. At p.319 his Honour aaqreed with certain of the observations made in The Queen v. The Trade Practices Tribunal: Ex parte Tooheys Ltd., supra. Some light may also be thrown upon the question by an examination of section 80 of the Supreme Court Act, 1970 (N.5.W.) ard the notes wnich are to be found in kitchie's Supreme Court Pracrice, New South Wales. In the cases o which i have referred, so far as 15 relevant, the same conclusion was reached as that which was reached by me an the ruling =I gave on the auestion of tne mranscrint marked ''Transcript-in-Conitidenca' IT may add that the natur2 of the arders to wnich i "ave veterred, made by the Chief "uize, concerning some iimitation on 'he future use cf the evidence yiven wnil2e tne court was closed. clearly shews that nis Honcur contemplated that 1t was permissible to maxe some further use or the evidence. 156. @ Evidence - Whether written statement of expert admissible - Section 14B of Evidence Act, 1898 (N.S.W.) and s.47(6) of Federal Court of Australia Act 1976. 14 February 1984 Written Ruling Professcr Kolsen is a Professor of Economics at the University of Queensland and, inter alia, holds the degree of Dozter af Philosophy from the University of London. He hag also had considerable exposure to the transport industry being a Fellow of the Chartered Institute of Transport, a member of the Transrort Adviscry Touncil sinc? 1977, a spec1ralist aivisar of the House ct Seoresentatives Standina Committee on Puplic Expenditure im connection with ats ainquiry into Australzan National Paliways between 19739 and 1982, ard an adviser ina ramper cf sther roles rela «Tt ed to transrcirt ratters Fro rh esscr rolsen has beer talied as a witness anc, after Tiving his qualifications, a folder 'MFI 5092) consisting of perhaps 200 pages was tendered by tne Trade Practices CTomm1i3sion Section 14B:(1){1) and (11) provides: een 157. "(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, he admissible as evidence of that fact if the following conditions are satisfied, that 1s to say - (i) iff the maker of the statement either - (a) had personal knowledge of the matters dealt with by the statement; or (b) ...3 and (ii) if the maker of the statement is called as a witness in the proceedings: Senior counsel for the Commission asked Professor Kolsen 'Is that the cridginal of a statement, the final preparation of WALlin omly <ti3k place 'last weeKk?". Professor Kolsen saii "It 13'. He also said that his signaur?® was on the front page ard senior counsel then said 'I tender that iocument" (1.e. MFI €02 (p.85R6). The tolder was eantitled 'Statement if delmur Max kolsen' and ccmprised 147 pages and the folder ale: tontains perhars a further 200 pages of information said ta nave deen orsviaed tc Frofessgor Kolsen setting cut fhe rarttis wnicn tne Vommission save if hopes to establish and upon which Frotesssy rolsen 13 asKec "2 base nis evidence. 'Olsen 13 aivided inte parts entitled by him: 158. (1) Personal. (2) Basic assumptions concerning the issues in the case. (3) More detailed factual information relied upon by me. (4) Concept of competition. (5) The relationship between competition in the structure and competition in the process sense. (6) The market. (7) Intermediaries. (8) The definition and structure of the market in which the defendants were operating. (9) The etfect of the alleged agreement upon competition in the national rreiaht forwarding market and in intermediaries' ser Pa) 1ces. (1) General ctenclusions. This folder was first made availiable 9 the defendant: when the matter resumed before ne on Monday, 5 February L3d4 defendants ana myself to a?s422 tae general nature cf che material tendered. Upon vesumption., semice <sounsel for the cCommissi_r referred met a number of tases ana. at che request "f ili defendants, I adiournea the matter until Thureday, 9% Feoruary 1984, so that the defendants could study the folder anda cprain such expert advice as was feit appropriate and argqumert "cher 159. proceeded. It was submitted by senior counsel for the second defendant that economic evidence was not admissible but I ruled against that. It has been the practice in matters such as this to allow expert economic evidence to be gqiven and the framework within which that is to he considered has been clearly astaplished sy the judgment of the Full Court of this Court in Munboard Marine Australia Pry, Lrd. vy. Hecar investments (No. 4) Pty Ltd. C1982) A.T.P.P. 40-327. In a joint judament Bowen C.J. and Fisher J. considered the meaning of tne words "competition in a market" appearing in 5.47(10) cf the JIrade Practices Ac= 1:74 ,inne Act'). At 0.43,293 their Honours aid: "It would seem that 'competition' for the purposes of sec. 47/13. must be read as referring t2 a process or state cf affairs in the market. In considering tna srate oor competition a detaried Aavaluatiin af tne market structure seems "o be required." Their Horsurs had yeferrar fr a namcer cf races mentioned on that cade and fo tne evidence sr a De Norvan, a "The economic meaning must be applied ina 160. practical way to accommodate the concern of the Act with business and commerce." It was also submitted that the proceedings were not civil proceedings. that 3.7D of the Evidence Act 1905 was relevant and that Professor Kolsen was a "person interested", [ ruled against these submissions. The questicn also arase whether a statement of expert opinion was a statement tending to establish a fact. I proceaded upon the basis that .5 was. There 1 of doubt upon that question and i) w Fey " 'D w a pep Han che oroblem is referred to in Cress 'un Evitence", 2nd Auzr id., va Aas unere referred tc, na Ga eara. 20.10, am azaitior £2 tne treluding those in tne rolostnote, IT hav peen referred to a 1D decision of tne New Ssutn Wales Courr of Appeal in Manmzgour +. standard Telernines ari Tables Ftv. Limired, wunrsoorted, delivered cn 17 Detemrer 1976. Ir tnat tase the Itart if Aooeal admitted rertain 72d.ia. ceports cinath tincanied .. @xeressions eft opinion as weli az statemerts as «tia wnat cas diistevered cn examination". The ates cited therein ana in there 1S conslideracie® ounzertainty on the 'mestion and I ioubt dhe whether 1t is eestiple ts lav town anv clear rules exceon to gay frat there is no why 1n an aperropriate cas@ the word 'fact" in the section should be not ose read to include the soinion of a duly sualified expert. Ine can see the strength of @ "Ae 161. an approach of this nature in looking at a statement of a qualified medical practitioner containing expressions of opinion as well as what was discovered on examination (Mansour's Case) or indeed the opinion of a handwriting expert a8 was properly admitted in the opinion of Lord Denning and Salmon L.J., provisionally, but tentatively wrongly so admitted in the opinion of Edmund Davies L.J. in Dass v. Masih (19681 1 W.L.R. 756. I note the statement in that case by Salmon L.J. at p.765 that a Similar section in the English Evidence Act should be givena liperal constructicr 1f possible. I proceeded upen the pasis tnat 'facrh" ccula inctlude the ooinzon cf a duly aualifiled expert. may be admittad. T tonsider this 15 ape.csviately delineates. cy the statement cf Slass J.2. in pov. Easter FuacrlI i u.s.r.uer. aW9 abt ll4 where .22 -inour sais. 'The true mie, , 242 That "9 avyiderte can ne 17a acs auestion, fne answer ro which iunvcives toe avolicatian cf a lewal standard. 7 12 c21t t22r.15lea, frr example, to tender evidence that a4 tefendant was reqiizant, shar A teczsrec lacked restamentar" capacity sr that the accused was provoked, ile! ns, "8 anmzwerg to which car he vwury after 'he he ..u.e if law qudae has whiin th: Hayvina weciymined che erincisl=-s applicable to oral w xperh evyidente ov Feitesscr rilseq, Le iio necessary fo examine Fhe tontention advanced by che U-mmissior chat the statenent of is 162. Professor Kolsen can be tendered under s.14B of the Evidence Act (N.S.W.). Another question which was raised 1s the extent to which an expert witness can rely upon hearsay opinicn he has obtained. In R. v. Abadom C1983] 1 W.L.R. 126 the Court of Appeal took the view that an expert was entitled to take account of opinion stemming from the work of others in the same field of expertise. This material could also extend to unpublished material provided the expert made reference to that in nis evidence. Similariry, Gowans J. in Borowski v. Quayle €1964] V.R. 382 held that an expert reta1ll oharmacist was entitied te give expert evidence based, inter alia, om sources commonly relied upon in the oractice of retall pnarmacy. Tnless 'he groceedings are before a jury, it appears tnat 'the Court nas no discretion to reiecth evidence which 15 otherwise admissidle urder this s.idz. In a situation «nere fnere 13 moa question of whetner a statanent 15 a2 statement bten.ing to establisn a fact. 15 if cermiisibie to ¢imely tender an unsworn statement by tne witness so that in 2ffact he mal sive substantially all nis avidenze in chief by means of an cinewoen statement provided he 15 talled as) a witness ani tie foem cf cc statement is one whicn would se Admissioi2 in cvral avidence? I ruled (3644) that I would not admit the wnole wf "MFT £02 under $s.14B and that I would give my reasons later. The 163. basic reason for this was that, although Professor Kolsen would be available for cross-examination, I considered that this was really an attempt to get substantially the whole of Professor Kolsen's evidence-in-chief by means of an unsworn statement. Then an attempt was made to tender the first paragraph of Professor Kolsen's statement wherein he said "I am now and have since August 1968 been the Professor of Economics at the University of Queensland". I rerected that because 1t was an unsworn statement and I considered that 1t was mereiy a step in getting Professor Kolsen's evidence in chief by an 'answorn statement. a a After luntn, after I nad given is ruling, senior etansei for tne Timmissicn refercea me t- iwo wudgments <2f sirals udges of the Hian Jsark. They ver2 vuciments of Nindevyer J. in deals with evidente2 in preceedings i% «125 ceads: 'Subyech tt tne flyreqeina crcviiions crf thre geetion api without erequaize to ary other law that would, if this sub-zection nad not sean enacted, 2xoressiy permit any testimony to Le otherwise aiven, testimony at the trial af causes shall be given oraliy in court." 164. No detailed argument was presented to me upon the effect of this section. In Ferguson v. Union Steamship Co. of New Zealand Ltd. Windeyer J. considered a letter written by a person in New Guinea and tendered under the provision of a South Australian Act which was in similar terms to 3.14B. His Honour rejected the letter for two reasons, one being s.21 of the High Court Procedure Act 1903-1966. That section provided that testimony at the trial of causes shall be given orally in oven court and in my opinion. 30 far as is relevant, 13 in similar terms to that in s.47(6) of the Federal Court of Australia Act except that s 47(6) is without prejudice to any other law that would expressly permit any testimony to be otherwise given. Walsh J. in Eisner v. Commissioner of Taxation admitted statements 1m a document relevant as to a taxpayer's intention when he purchased a oroperty. Having been referred to tnese two studgqments, I decided a w re uae. w er the judqment of Walsh J. was mot iirected to the quest f P ua n Qa why iD tner cr not substantially the wnole at a witness's evidence in chief extending over many pages could Fe given py tendering his statement under s.14B. Evidence - Whether witness can give evidence of anv intertion to raise an expectation in the mind of anv person presennr ara meeting. 165. 5 March 1984 Written Ruling The first defendant has called in evidence a Mr E.W.W. Prebble, at present Managing Director of T.N.T. Transport (New Zealand) Limited. Early in his evidence he was asked the following question: 'Did you, in anything you said at the meeting in February 1376, intend to raise an expectation in the minds of any vcerson present that vou or your company would act in a particular WAV in relation te T.I.c. 'onsultants?" Fericy counsel fac the 'Tommicizicn sbsected to cris question on the following grounds: (1) That tne question was leading; 'l} That the iuntentiin if Mr fyreboles was not relevant. me arqued that, wnilst tne .ntenticn cf Mey Prerbie was relevant, the question at issue 13 what evidence 12 aduissibie to establish intention. He cenceded tnar ctnere was mo general prohibition against proving a past Dellef. purpose or intenticn y evidence of the person whose belief, cucccse or intention 'va3 relevant. He submitted, however, that where a bilateral or multilateral transaction, as distinct from oa unilateral transaction, was under consideration the ywiestion of whether rhe 166. transaction had taken place was to be decided objectively. (9356d) The question at issue was whether at a meeting on 12 February 1976 Mr Prebble, on behalf of the first defendant, had made a contract or arrangement or entered into an understanding within the meaning of s.45(2) of the Trade Practices Act 1974 ("the Act") ag it then was. I indicated that I felt it might oe better to receive the evidence at least on a conditional basis (9327, 9371) but I was asked not to take that course. I was referred to a mu 4r of tases Upon wnat 'VAS reauired to establisn that an arrangement was made or an urderstanding entered inc. Th particular I was referred to T 2.0. v. Nicholas. Fisher J.. (1979) 24 A.L.R, 509 particularly a -471 and 636, and the decision of tne Full Tecurt of thi application of the relavant erintiples 2f law. cowever, at p.3l one Full Court e@xcressed some doubt .n regard tc che view of Figner J. that a necessary ingredient of an understanding tor the =men or "mutual un ra purpose of 3.45 was that there re an 2 commitment between two or more varties in the sense that each must have accepted an cbhiigation qua the otner or others. The judament continued: 167. "Ag at present advised, it seems to me that one could have an understanding between two or more persons restricted to the conduct which one of them will pursue without any element of mutual obligation, in so far as the other party or parties to the understanding are concerned." I was also referred to T.P.C. v. Tubemakers of Australia Led. (1983) A.T.P.R. 40-358 at vp.44,323-4 and to certain other eases. I expressly refrain from expressing any view upon the construction of the relevant expressions in 3.45 of the Act except in so0 far as 1s necessary to determine the admissibility of the question under rtonsideration. There was no dispute tnat a witness may aive evidence of H1S Past intenticn where the matter ve der consideration 15 4 sala or not in relation to s.26(a) of 'the Income Tax Assessment Act 1974, Senicr counsel for the tirst itefancanr zard ft not found any authorities specifically in tne mactrer 223R* but LT was referred to a numper cf cases by mim ana cy ctunsel fry ine or other of the rarties. T allcwei cubmiszions oy rtounse®l fr: anv of the oarties. I consider that the sguestion 13 leading but I reject it mainly because I have reached the conclusion that the evidence of 168. what Mr Prebble intended by what he said at the meeting 1s not relevant to the consideration of the question of whether or not the first defendant, through Mr Prebble, made an arrangement or entered into an understanding which was within 38.45(2). I refrain from expressing any view upon the question of whether Mr Prebble can give any evidence of his understanding of anything that was said to him by anybody else at the meeting (9343, 9364). I think the critical question 1s that raised by senior counsel for the Commission, namely, whether in a multilateral cr bilateral comtract, arrangement tr understanding a party or an alleged party, cam give direct evidence of what he intenied by the woris ne used. [ think there 1s a distinction between the eviience admissible in an action +9 rectify a contract or nave A contract rescinded and the evidence admissible to prove <nat a contract was made. It is clear that che cbyective theory of contracts 1s in command of the fiesid (Taylor v. Johnson (19293) 4° A.L.R. 265 at p.163, Whitty 9n Contracts, 25th Ed.. para. 1Li:,. and Storer vv. Manchester City csuncii €1374]7 1 W.L.r. Les3 at p.1408 where Denning M.R. 3a1d- "Tn contracts vou donot look at the actual icia at wnat ne intent in amans mind. You Ul Sali and did. A ceonmtracn 1s formea when there 1s, te all outward acvearantes, a contract. A Man cannon ger aut cf a ctontratt sy saying: 'IT did not intend to cortract' if py his werdis he nas done 50, dis iurtert1ieun is f2 be teund only in the cutward expression which his letters convey If they shew ai concluded contract. that 1s enoucn." os 169. Whilst I am concerned with an arrangement or understanding and not a contract, I do not see any significant difference in principle. It may be that the Commission's obiection is further strengthened by considering that the question 18 not whether a party to a contract can get some reiief from it because of. for example, mistake, but it 18 a question of considering the effect of what was done in relation to whether or not the acts established contravened the relevant provisisns cf 3.45. (See Cheshire and Fifoot, Law of Contract, 4th Aust. Ee . para. 939.) I rule that che question 1s inadmissible. My Evidence - Irferences from relevant cractice - Eviderces 3 prattice. 24 November 1232 aigibter Fuling This ruliny sreiates 23 he oacmissibility ci rearrazn documents said «to be cirtalars sent sub <3 tts members cov ters N.F.F.A. Three tases of tarder are elisa aon, ' a) Secondary evidence of ltormmunicationas to such of the defendants as are ultimately shown to ne members ot N.F.F.S. 170. (b) As documents in the possession of the executive director of N.F.F.A. or, in certain cases, secondary evidence of the same and, as such, documents in the possession of those of the defendants who were members when the circular was sent. (c) In relation to certain of the documents reliance is placed on Part IIIA of the Evidence Act 1905. In considering qround (a) particularly, 1t 1s necessary to decide whether the evidence that rtirculars were sent out to and received by mempers 15 sufficient to estaplish that they were commauntcarions wricth wers made to members in cases where the A5tumerf under oconsiaercatizon 1g mth found cn tne pessession of the colevart remrer. To am asfed to draw cne inferences thar the T1ltcisars were s3ert 73 memeers cron the =vidence cf Mr Levitt vnat might ce rari ne ce of a cractice and from the fact that cnere 15 evidence that a mumber of tirculars, -vwhicn were found in roe N.F.P.A. files, were also wcreduced cv Tragex Transport Pty. Led. ("Teagex': and by Tnited Feersht soldiras 'Aust.) Pky. Led. ULF dw and certain ctner circulars were '2 oe round for the vear 1975 in tne files of Tragex ana ou.F os. and fer tne year .377 -- the tiles of U.S H, ard Toungs Trantocrt Pty, Lei Sc far as of oan tes, the nl cupeceera 1ssuer co Mr Pochfort, whicn he nas teen vesiiyead -2> answer and wnich cculd Sarpeena For Mr Pochfort ravering circulars far tne years i976, 171. 1976 and 1977 dated 1 August ruling of 22 August 1983. not required to produce the documents. requiring the production letters received from N.F.F.A. in the defendants were served about with in some detail in my ruling of 6 1983 was considered by me 1975, 23 August 1983 in my Mr Rochfort was held to he a person Further subpoenas also of all originals and copies of circular 1976 and 1977 by each of and were dealt September 1983. In short, each defendant, except the fourth defendant, claimed privilege in respect of all the documents sought in This ciaim for erivileqe was accepted "y w.olnion, estariicn 1D wa T me) i at ¢ ry f) sucs0enas eann te) a nm w riD p ce TZ che Frurteen the subpoena issued to it. by the Commission and, in scught in the claiming such ":ycuLars that I am asked 35 doc umerts N.F.F.A. files. "hrea of theze ard cone otner «MFT 446) were te se Founa in toe tocument: ercduced by Tladex > anmawer 73) a suDpoOena and 'twelve ct tnem were prtauced ino ansver fo a suppltena 22 L.Por. The document narvea F7- i? by .F.F a. is to me fcuna in MFI 423, MFI 447 aca "Fi l45 ara rhe acramert marked F7e/ 27 15 to pe found ain tne N.F.F.3. files anilain cne 7iles af Tradex and 1E.4. being MFT aie, "FI 443 and MFI 4°. ceenectively. I consiier tnat. in tne lighr sf sther general evidence, re Tam justified in atsuming that at and 1977 the practice was to sash un the years 1275, 1376 circulars to each of the is 172. @ members. In saying this I have in mind the evidence about the @ course of business followed in sending out copies of circulars ° (6784, 6829, 7424, 7543 and today). I refer to Cross on Evidence, 2nd Aust. Edn., para 2.4, Phipson on Evidence, 13th Edn., para 9.22 and Halsbury's Laws of England, 4th Edn., Vol. 17, para 35. I also rely on the judgment of Asprey J.A., with which Mason J.A. agreed, in Connor v. Blacktown District Hospital C1971] 1N.S.W.L.R. 713. The question arose whether evidence was admissible to show a general course of business in relation to the cleaning of a hospital floor and Asprey J.A. said at p.7Zl: "In my Opinion, evidence of a relevant oractice may be given py a serson who, ona sufficient mumber of occasions and over a sufficient cericd, has reqularly and uniformly oertormed acts, Tr nae ceserve- 'the redqular and unifcrm vertormance of actzs by others, under une same circumstances ana ipen tne same cccasions, so as £2 make it appear orobacle in the minis cf reasenabie "an rTnar, Tiven tne same circumstances and 'cecrtasions, ch like acts will again he verformed, ' The avidence given bv Mr Levitt, in substance, was that Cirtauiars for members vere clatei 1 ervelrices in o1zecn ncles (7422) bearing the name of an indiviisal area that the ccrtents cf che pigeon hile were 2 21ther sent oy tcin tl "nat perzon ata Partitular address cfc a cerson would callect the contents cf tne Sideon Bnle on cehnalif cf the cerscn wnacs2 are oreared cm it here was also eviiente that the ccommunicarnicrs intendei for TertaLln corporations cir entities were placea in the pigeon nole ef 'che versomn ct vhom the communications for that particular 173. corporation or entity were habitually addressed. There was also some evidence of complaints about non-receipt of information (7430). In my opinion there is sufficient evidence before me to admit such of the circulars as are tendered and are relevant not only against those persons in whose files the documents were found but also as secondary evidence of communications to such of the defendants as are ultimately shown to be members of N.F.F.A. at the relevant time in all circumstances where 1t 18 show tnaat the person to whom the communicaticrn was addressed was an aporopriate person 'o receive tne communication on behalf of the Torporation cr antity snown t> be a member. I have looked at the circulars tendered ana I do not s2¢ any season to reiect anv cf them on the qrounds cf retevancy. I wil. admit all the circulars in the document headed "N.F.F.A. ciycu.ars to be tenderean"" as 2ommunications. Tenice coursel for tne Commies ian ais? tendered three cf nee carculars which I have aamitted a3 .iamuiricatisns ourer tne basis that certair entries in "nem vere business records, They were the circulars martad fcr iiertificatiin 4°79, 472 and 179. The cart than was tendered in MPI 479 was 2 reteived stamp ard a Tertain notation in red oink marftea 'tosv7y fo J TG. taen fi.s with what appears 2 be an initial anaadat_ under it. In relation to MFI 4738 a different type of stamp wnich appears «7 contain at least the words "Express ..." and "Head Office' and a 174. @ date was also tendered (7474) and in MFI 479 a similar stamp and date was tendered. On each of these documents there appears to be an initial which was also described as a squiggle. It was gubmitted by counsel for the sixth defendant that there was no statement of fact in the stamp and ultimately what were called squiggles were not pressed by the Commission (7490a). I will apply the provisions of s.7D(2)(b)(v) and (vi). Counsel for the sixth defendant also submitted that certain circulars which bore a different received stamp had not teen tendered and senior counsel for the Commission then agreed to tender che received stamp on a number of these circulars being those marked MFI 474, MFI 475, MFI 476 and MFI 477 to the extent Ww £ the received stamp and a date as pusineass records. There was m cme arqument about whether the stamps and dates on documents marked for identification 470, 473 and 479 contained a statement ot fact but = consider that they do and I will admit ail tne stamps and dates and also the notation 'copy to TILT.n. then file oan MFT 470 as business records. The parties may address on the best vay to mark the documents dealt with in the ruling as exhioits. Evidence - Whether conversation aileaqed to be confidential admissible. 175. 28 March 1984 (Transcript 10664 to 10667) Oral Ruling This question concerns the admissibility in evidence of discussions which took place between Mr Cooper, apparently the managing director (finance) of Ansett Freight Express, and Mr Wise, the general manager of that company, in relation to a takeover by Ansett Freight Express of a company which has been rererred to as Albury Border Transport. Mr Wise 1s being asked questions in cross-examination by senior counsel fer the Trade Practices Commission. It is submitted by senior counsel for the Commission to be reievart in tne basis of tne question of market. The matter has been argued over a period of more than half adav but I feel it essential to waive a ruling without delay. The objection was first taken ky counsel for th? seccnd defendant. Senior counsel for the defendant who called Mr Zlse outs tne matter in a number of ways, but ae does not suqgest that the restriction on the asking of tne question is orher tnan one based upon the propesition tnat in the interview under consideration the Commission was sseking tc investigate a possible contravention of 3.50 of the Trade Practices Act 1974 176. @ ("the Act"), and that any information it obtained during this interview was obtained in confidence and all such information could certainly not be used except perhaps in proceedings in relation to 3.50 of the Act. He also accepts the right to uge any such information if it discloses an "iniquity" - I put that in inverted commas - it 18 not an easy expression to apply. I have been referred to a number of cases. One 1s Fastrol Australia Pty. Limited v. Emtech Associates Pty. Limited and the report I am looking at. for the sake of convenience, 138 the report in (1980) A.T.P.R. 40-183 at p.42,501. This wasa judgment of Path J. which dealt with the situation where the Trade Practices Commission came into possession of a report given om ai confidential basis +3 'Castrol 2c: Emtecth apout ctertain attriputes Of a2 metle s21 Neo g.esrion aroze cencerning tne use 2 the document in ayuesticns direct2ei toa witress giving evidence in ittigation. That 1s a very important aspect ar tne marcter. Tr also referred "2 A wagrers ot insceard © inotne -- 7" o- », T4- v ~ - aomissicom v. aAlLizred "1i25s Iriustries Priv Trade Practices ! rumited and, aqain fcr rtonvenience, A.T.P.R. 49-294 at £.42,948. I think .© 15 approoriate to refer to some of che things his Honour said at p.42,989. His Honour trere said, and I will read certain of the passages: 177. "Tt would seem surprising to me if the law were such as to compel a prosecutor in the position of the Commission here to return documents which might be evidence, or at least relevant to an issue in the prosecution of the person charged, prior to the completion of the prosecution. That is particularly so where, as here, the purpose of the claimant is to recover the documents, not for the purpose of preventing their disclosure commercially to competitors or customers, but to hamper the prosecution which is being brought." Later on that page his Honour said in relation to submissions: 'IT rvejyected 1t rpecaus@ the public interest consideratiors with which I nave earlier dealt indicate to me tnat this was not the intention of Parliament. The Cammission is charged with the administration of the Act. The Commission 1S am agency or emanation of tk= Trown." A little further on nis Honour said: it 1s mot suqqestea in the present case tnat Me Matthews r T oanteroos2e ne was an officer of Allied Miils who certain matters with the Commission. i proceed with the quotation: we. COULd rot lawfully give information £2 th Commission, notwithstanding that cna information mignt itself be cintidential.' I was also referred to various orner cases. Smithers J. nad to consider the auestion of information obtained in confidence in the case of Melbourne Home of Ford Pty. Limited v. 178. . @ Trade Practices Commission and, again for the sake of convenience, I refer to the report in (1979) A.T.P.R. 40-131 a: p.18,402 and I refer particularly to the passage at pp.18,420-18,421. His Honour cited a passage from Diplock L.J. in Parry-Jones v. Law Society. That 13 a passage appearing in £19693 1 Ch. at p.9, and his Honour there considered the question of contractual duty of confidence and said in relation to that duty: "For exampie, ain che case of canker and customer, the dutv of confidence 1s subzect to the overriding dutv cf the banker at common law to disclose and answer auestions as to his customer's affairs wnen he 1s asked toa give evidence on ther in the witness box in a court of iaw ... rt it ee ul fo B a ww tr) re i) "ct a jw a w HA co > u io Q x b i) Q p he U Le} fe} mh wu li wu re ie) DB fy he Tam ret toncerned with any auestion of publication 7: what was said ir tre interview other than in orcceedings in tnt: Tourt. Tne Court nas power toa nake varlous orders to restrain oublication under the vrovisions of tne Federai Gaurs of Australia Act 1976. Althouagn I doubt 1f it 15 relevant, I am nor 179. satisfied any duty of confidence existed in this case. Indeed, whether or not Mr Cooper or Mr Wise were in any way obliged to engage in conversation or to answer any questions they were "asked, they appear to have chosen so to do. Counsel for the second defendant appeared to rely mainly on an alleged doctrine of public policy. In relation to this question I consider the vassages from the judgment of Sheppard J. which I have cited at p.42,880 are of considerable significance. I will allow the question. es mre suv ggradrss (73 - oe ope ag teres wet yea mote Me emwact ha te "427 5 To ere aaa) " * delivered on various | -, Justice Frowee. } dates. Cpa GR égsceciate i | [pstee 22 Praguchek oe. |