FEDERAL COURT OF AUSTRALIA Quaker Chemical (Australasia) Pty Ltd v Fuchs Lubricants (Australasia) Pty Ltd [2019] FCA 370 File number: NSD 1210 of 2016 Judge: ROBERTSON J Date of judgment: 18 March 2019 Catchwords: EVIDENCE – admissibility of documents produced by a third party in answer to a subpoena – whether representation was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian proceeding – whether authenticity a ground of admissibility Legislation: Evidence Act 1995 (Cth) ss 58, 69 Cases cited: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) [2005] FCA 1357; 147 FCR 235 Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; 207 FCR 448 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; 235 FCR 181 Australian Securities and Investments Commission v Flugge (No 10) [2015] VSC 690 1 Commissioner of Taxation v Cassaniti [2018] FCAFC 212 Matthews v SPI Electricity Pty Ltd (Ruling 35) [2014] VSC 59 National Australia Bank v Rusu [1999] NSWSC 539; 47 NSWLR 309 Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions [2015] VSC 741 Date of hearing: 15 March 2019 Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr C Dimitriadis SC with Mr R Clark Solicitor for the Applicant: Silberstein & Associates Counsel for the Respondent: Mr C Moore SC with Mr A Fox and Ms A McDonald Solicitor for the Respondent: Shelston IP Lawyers Pty Ltd ORDERS NSD 1210 of 2016 BETWEEN: QUAKER CHEMICAL (AUSTRALASIA) PTY LTD (ACN 000 465 949) Applicant AND: FUCHS LUBRICANTS (AUSTRALASIA) PTY LTD (ACN 005 681 916) Respondent AND BETWEEN: FUCHS LUBRICANTS (AUSTRALASIA) PTY LTD (ACN 005 681 916) Cross-Claimant AND: QUAKER CHEMICAL (AUSTRALASIA) PTY LTD (ACN 000 465 949) Cross-Respondent JUDGE: ROBERTSON J DATE OF ORDER: 18 MARCH 2019 THE COURT ORDERS THAT: 1. Pages 1329-1331 and pages 1332-1335 of Fuchs' tender bundle are admitted into evidence. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROBERTSON J: 1 Objection has been taken by Quaker to the admission into evidence of certain documents in the tender bundle of Fuchs. The documents concerned were from Glencore and were produced to the Court on subpoena. The subpoena was issued at the request of Quaker. 1 The objection as originally framed was that the documents were hearsay as the business records exemption in s 69(2) of the Evidence Act 1995 (Cth) did not apply, by operation of s 69(3). This was because "the representation… was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding." 2 It became apparent in the course of argument that only some of the documents objected to obviously answered that description. These were documents, internal to Glencore, produced on subpoena but consisting of emails which on their face were prepared for the purpose of the search for documents to be produced in answer to the subpoena. 3 The emails were dated in mid-August 2017, the proceedings having been commenced in 2016. 4 These documents, the emails at pages 1325-8 of Fuchs' tender bundle, referred to documentation being sought in answer to the subpoena, saying that the dye added to the roof support fluid was used for leak detection or for high pressure fluid injection identification. That distinction lies at the heart of one of the issues in the substantive proceedings. 5 I rejected the tender of these emails. In my view it is clear that those emails are excluded from being admitted under the business records exception to the hearsay rule: s 69(3). I refer to the analysis by Lindgren J in Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) [2005] FCA 1357; 147 FCR 235, particularly at [25]. As I understood it, the tender of these emails was only faintly pressed. 6 I turn then to the two documents which remain, the first being at pages 1329-31 and the second at pages 1332-5 of Fuchs' tender bundle. 7 These documents are apparently dated 24 February 2015 and 2 April 2014 respectively. 8 The submission on behalf of Quaker in relation to these two documents was not put, as I understand it, solely with reference to s 69(3). Rather, the submissions were put, first, that the only reason these two documents were there was that they were attached to one of the emails, the tender of which I have rejected, and, second, the authenticity of the two documents had not been established since they were merely produced on a subpoena issued to a third party. 9 I do not accept the first submission, that the only reason these two documents are there is because the email, the tender of which I have rejected, attaches them. In my opinion, in substance, the two documents are 'there' because they were produced in answer to the subpoena issued at Quaker's request. Internally to Glencore the documents were originally attached to an email by Mr Ryan of Glencore in response to a request by Mr Horner of Glencore for documentation to answer the subpoena, but the circumstances of the location and production of the documents does not mean that the documents owe their existence to Mr Ryan's email. 10 It was not suggested the documents fell outside the scope of the subpoena. 11 In relation to the second submission, reference was made to National Australia Bank v Rusu [1999] NSWSC 539; 47 NSWLR 309 at 312-18, where Bryson J held that a third party response to a subpoena was insufficient to authenticate a document. 12 In my view it is sufficient for me to note the following. 13 Perram J in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) [2012] FCA 1355; 207 FCR 448 at [89]-[107] held that the approach of Bryson J was "plainly wrong". Perram J, at [92], having said that authenticity is not a ground of admissibility and does not directly arise for the tribunal of law's consideration at the level of objections to evidence, went on to say that the tribunal of law does not determine that the document is or is not authentic because this is not a question for it. It may, however, determine that no reasonable inference to that effect is open and thereby conclude that it is not relevant. In deciding the relevance of a document (which may involve asking whether the tribunal of fact can reasonably infer that the document, otherwise relevant, is authentic), the tribunal of law is explicitly authorised by s 58(1) of the Evidence Act to ask what inferences as to authenticity are available from the document itself. 14 The reasoning of Perram J was approved by White J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; 235 FCR 181 at [93]–[97] (not disturbed on appeal, at [2015] FCAFC 13; 249 FCR 167). See also Matthews v SPI Electricity Pty Ltd (Ruling 35) [2014] VSC 59 at [32] per Forrest J; Australian Securities and Investments Commission v Flugge (No 10) [2015] VSC 690 per Robson J; Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions [2015] VSC 741 at [105] per Almond J. 15 Most recently, the Full Court in Commissioner of Taxation v Cassaniti [2018] FCAFC 212 at [64]-[65], per Steward J with whom Greenwood and Logan JJ agreed, has approved what Perram J said in declining to follow Rusu. Relevantly, Steward J said at [65]-[66], having set out what Perram J said at [92]: From these observations, his Honour concluded that the provenance of a document could be inferred from its contents, and for that purpose, declined to follow the earlier decision of National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309. I respectfully agree with Perram J: see also Australian Securities and Investments Commission v Flugge (No 10) [2015] VSC 690 per Robson J. In addition, business records may be admitted and used as proof of the truth of any facts they recite without the need to identify the author of the document. As Heerey J observed in Guest v Federal Commissioner of Taxation [2007] FCA 193; 65 ATR 815 (Guest) at [25]: The terms of s 69(2)(a) do not suggest that it is an essential precondition of admissibility that the "person" in question be identified. The ordinary meaning of the language is that it is sufficient that the person who made the representation, whoever he or she is, had or might reasonably be supposed to have had, personal knowledge of the asserted fact. The policy behind the provision is clear enough. Routine business records, made before any legal proceeding arises or is contemplated (cf the exception in s 69(3)), have an inherent likelihood of reliability which outweighs the common law's aversion to hearsay evidence where the maker of a statement cannot be tested by cross-examination. The utility of s 69 would be greatly diminished if it were necessary to locate among large organisations, perhaps over a long period of time, persons who made representations, often in circumstances where the practical needs of the organisation did not require any identification at the time the representations were made. This authority is binding on me. 16 For these reasons I admit pages 1329-1331 and pages 1332-1335 of Fuchs' tender bundle. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 18 March 2019