New South Wales Supreme Court CITATION : Drabsch v Switzerland General Insurance Co Ltd [1999] NSWSC 1030 revised - 26/06/2000 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3008/93; 2264/93 HEARING DATE(S) : 6 October 1999 JUDGMENT DATE : 6 October 1999 3008/93 Neil Gregory Drabsch (P) Switzerland General Insurance Co Ltd (D1) Andrew Chua (D2) Peter Edward Lepparde (D3) Allan Robert Whitehead (D4) PARTIES : Michael John McErlane (XD to 3rd XC) 2264/93 Neil Gregory Drabsch (P1) Julie Ann Drabsch (P2) Switzerland General Insurance Co Ltd (D1) Switzerland Insurance Australia Ltd (D2) Switzerland Insurance Holdings Ltd (D3) JUDGMENT OF : Hamilton J A B Shand QC and C E Moore (Drabsch) COUNSEL : G Nell (McErlane) J E Marshall and R S Hollo (Switzerland General) D G Charles (Superannuation Trustees) Brock Partners (Drabsch) SOLICITORS : Levingstons (McErlane) Minter Ellison (Switzerland General) Clayton Utz (Superannuation Trustees) CATCHWORDS : EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - In general - Circumstances in which statements concerning entertainment or social occasions may be admissible under Evidence Act 1995, s 69 ACTS CITED : Evidence Act 1995, s 69 DECISION : Statements admitted. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 6 OCTOBER 1999 3008/93 NEIL GREGORY DRABSCH v SWITZERLAND GENERAL INSURANCE CO LIMITED & 3 ORS 2264/93 NEIL GREGORY DRABSCH & ANOR v SWITZERLAND GENERAL INSURANCE CO LIMITED & 2 ORS JUDGMENT (On admissibility of MFI 9) His Honour: 1 During the trial Dr Dill was cross examined about the contents of a fax from Dr Odermatt in Zurich to Mr Heffernan of Aust Re. A deal of the contents of the document was cross examined into evidence without objection but, thereafter, objection was, during the cross examination, taken by Mr Marshall, of counsel for SGI, to certain further portions of the document being cross examined in. However, I allowed the cross examination to continue at the time. The document was marked MFI 9 and is now tendered on behalf of Mr Drabsch. It is tendered on the basis of being a business record admissible under s 69 of the Evidence Act 1995. 2 Mr Marshall objects to its tender on the basis that part of the document appears to relate to entirely private matters of the entertainment of Dr Odermatt and his wife by Mr Heffernan and his wife during a farewell trip to Australia by Dr Odermatt at the end of his service with SGI. Mr Marshall rightly says that for representations to be excepted from the hearsay rule under s 69, not only must the document containing the representation be a business document, in that it is or forms part of the records kept for the purposes of a business, but the representations themselves must be made or recorded in the document in the course of or for the purposes of the business, and that many of the representations in the document concerning matters of hospitality do not answer that description. 3 I overrule Mr Marshall's objection to the document and to the statements contained in it. It is conceded that the document was produced to the Court in answer to a subpoena addressed to Swiss Re Australia, which indicates that it was initially kept and has continued to be kept since 1990 as part of the records of the business of that company. Furthermore, so far as the representations are concerned, it seems to me that, even where hospitality is referred to, the hospitality was afforded by Mr Heffernan and his wife to Dr Odermatt and his wife in the course of the business conducted by their respective companies. There is no evidence that these people had a friendship or social relationship of any sort outside the confines of the business and it seems to me that the proper conclusion in the circumstances is that the representations were made in the course of or for the purposes of a business. MFI 9 is, and all the representations in it are, therefore, admitted and the document will be marked Exhibit P 39. …oOo… Last Modified: 06/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.