Reported Decision : 47 NSWLR 309 New South Wales Supreme Court CITATION : NAB v RUSU [1999] NSWSC 539 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4371/96 HEARING DATE(S) : 28.04.99, 29.04.99, JUDGMENT DATE : 4 June 1999 PARTIES : National Australia Bank Ltd v Monica Chara Rusu & Ors. JUDGMENT OF : Bryson J COUNSEL : J. Thomson for the plaintiff. (Defendants are self-represented) SOLICITORS : Dibbs, Crowther & Osborne for the plaintiff. (Defendants are self-represented) CATCHWORDS : Practice and Procedure - commercial litigation - unrepresented parties - non-English speaking - proper advice and assistance from Court - ; Evidence - tender of Business records by plaintiff bank - admissibility - Need to prove authenticity of records - Evidence Act 1995. ACTS CITED : Evidence Act 1995 ss 48(1), 48(1)(6), 55(1), s 7(1), 59(1), 69(1), 69(2), 81(1) 142(1), 144(1) (6), 152, 166, 168 and 169. Rajski v Scitec Corporation Pty Ltd (Court of Appeal unreported 16 June 1986. CASES CITED : Tardy v The Secretary of the Department of Community Services & Health (9 October 1990 unreported) Studer v Konig (4 June 1993 unreported) Marriage of Johnson (1997) 139 FLR 384. DECISION : Tender rejected. 21 - - - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRYSON J Friday, 4 June, 1999 4371/96. NATIONAL AUSTRALIA BANK LTD v Monica Chara RUSU & Ors. JUDGMENT 1 HIS HONOUR : These reasons relate to the admissibility of documents tendered by the plaintiff's counsel on the basis that they are business records. 2 These proceedings were commenced by Summons on 10 December 1996. As they were commenced by Summons each party's evidence-in-chief should be given on affidavit. There are now pleadings; Statement of Claim of 3 February 1998 and Defences by each defendant, and the issues are complex. The first, second, third and fourth defendants filed appearances, and they were formerly represented by solicitors but have not been since 6 July 1998. The fifth defendant filed an appearance in person on 14 April 1999. The hearing commenced on 28 April 1999 and continued on 29 April 1999; the first and second defendants did not appear at the hearing and I am informed that they are serving sentences of imprisonment. The third, fourth and fifth defendants appeared in person. It was evident when they spoke that they were able to speak some English but very little. I found it very difficult to understand what they said, and when they did say something I understood it was not always in point. They had the assistance of Mr Danny Mato, who told me that he is the son of the third and fourth defendants. What they did say made it clear to me that they oppose the plaintiff's claims against them. The hearing is proceeding on the issues raised by the pleadings. 3 The practice of the Court in giving assistance to unrepresented litigants appears from observations in Rajski v Scitec Corporation Pty Limited , (Court of Appeal unreported 16 June 1986. Samuels JA said: "In my view, the advice and assistance which a litigant in person ought to receive from the Court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the Court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. In these days of reasonably available legal aid, a litigant in person is becoming increasingly uncommon. At all events the absence of legal representation on one side ought not to induce the Court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other". The availability of legal aid has lessened since 1986. 4 In the course of his judgment Mahoney JA said: "What steps will be appropriate, in a particular case, to prevent injustice being done to parties who find themselves involved in litigation conducted in this way, must, of course, be determined in the light of the facts of that case: but it should be clear that it is proper that steps be taken to that end." 5 Illustrations of the practice appear in the judgments of McLelland J in Tardy v The Secretary of the Department of Community Services and Health (9 October 1990 unreported) and in Studer v Konig (4 June 1993 unreported). In Marriage of Johnson , (1997) 139 FLR 384 the Full Court of the Family Court of Australia established for that Court a more prescriptive practice in which it is an obligation of the trial Judge: "If evidence is sought to be tendered which is or may be inadmissible, to advise him or her of the right to object to inadmissible material, and to inquire whether he or she so objects….." Page 407. 6 No authority confines a primary Judge of the Supreme Court in this way. Their Honours gave further references to authority, in New South Wales and elsewhere. Of course, it is for the Family Court of Australia to establish its own practice on that matter; in the Supreme Court of New South Wales the extent of intervention remains discretionary. I see this tender as an occasion where I should intervene and attribute an objection to the defendants. 7 To explain the evidence ruling I will give a short statement of the nature of the claim. I am not yet in a position to find any fact, except for the limited purposes of an evidence ruling. 8 On 17 and 18 June 1996 the first defendant Monica Rusu was employed by the plaintiff, and for over a year she had been a member of the staff at its branch at 138 Queen Street, Campbelltown. Ms Rusu knew a code number which had to be used to open one of two combination locks on the safe; one group of staff members knew one code number and another group knew the other, so that two persons had to work together to lock and to unlock the safe. The bank's case is that Ms Rusu stole $476,500 in bank notes from the safe. This case is based on evidence of circumstances and opportunity to the effect that if one of the two locks on the safe was closed in a certain way it could be opened again by a person who only knew the code for the other, that Ms Rusu stayed at the premises after all others left, and that a computer record kept by the security company shows that the safe was opened for a short time soon after the others left. I am told that other evidence will show that the second defendant Peter Francis Mato attended at the bank premises to pick her up after work, and that they had significant amounts of funds available to them soon afterwards, in contrast to their resources before. 9 The bank makes claims against the first and second defendants based on the allegation that they stole the bank's money, and claims to be entitled to charges over property which they own by tracing the bank's money into the property. The bank also makes various claims against the third, fourth and fifth defendants, to the effect that they have incurred personal liabilities and that property which they own is subject to charges in favour of the bank arising out of knowing receipt and dishonest dealings with money owned by the bank. 10 As one step in what I expect will be a very elaborate body of evidence in support of its case the bank's counsel has tendered pages 25 and 26 of Exhibit SEG3. These appear on their face to be pages 1 and 2 of a transaction history inquiry relating to an Account No. 146459720, and internal material in those pages is obviously appropriate for them to be bank statements. The pages do not identify the bank or the customer. Other documents at pages 14 to 29 inclusive of Exhibit SEG2 are tendered to show what pages 25 and 26 refer to and to support their admissibility. 11 Ms Simone Emma Gilbert is a solicitor in the office of the solicitors who represent the Bank. Annexure A to the Affidavit of Ms Gilbert sworn 23 April 1999 is a Schedule of payments which, according to Ms Gilbert's analysis of documents produced on subpoena by various persons and companies, were made by the first and second defendants after 17 June 1996. 12 Item 1 in the Schedule contains statements to the effect that on 18 June 1996 the second defendant paid Advance Bank $2,850 cash, and bases this on documents produced under subpoena by Advance Bank Australia Limited. 13 The second defendant is the defendant most directly affected by Item 1. He was not present at the hearing and I was told that he was in prison. Procedural law is applied strictly in hearings which occur in the absence of a party. For the defendants who appear I am not able to make the assumption upon which Courts act when parties are represented that evidence which may be inadmissible is deliberately allowed to be admitted unless an objection is taken. Of course these defendants have not said that they object to any particular passages of evidence; they are not able to do so, either in understanding or in power of language. They have not equipped themselves with such obviously necessary aids as legal representation or a skilled interpreter. They have taken a generally oppositional position and I do not think that I should disregard questions of the admissibility of evidence when I perceive them. 14 A difficulty for the tender of pages 25 and 26 to prove the facts in Item 1 is that in the analysis Item 1 states that it was the second defendant who paid $2,850 in cash into his own bank account on the day after the theft from the bank; whereas nothing on pages 25 or 26 or in the associated documents identifies the second defendant himself as the person who made the cash deposit. Evidence elsewhere suggests that he conducted a concrete haulage business; he may well have had $2,850 in cash available to pay into his bank account from the business or from some other source, or it may well have been someone else who paid it in. The plaintiff's counsel told me that he expected that when evidence about Item 1 is taken with other transactions it will form part of a pattern which will support his case. If admitted the evidence about the deposit of $2,850 will need to be supplemented in some such way or by other material if it is ever to have any real significance. On its own it will not support the analysis in Item 1. 15 Tender of pages 25 and 26 appears to me to raise a question of their authentication; that is whether there is evidence that they truly are what counsel alleges they are; that is copies of bank statements which record dealings between the second defendant and the Advance Bank. No witness from the Advance Bank and no other witness has said in oral evidence or on affidavit that that is what they are. 16 The plaintiff's counsel asked me to find that the documents tendered are bank statements of the Advance Bank relating to an account conducted by the second defendant, on the basis of the contents of those documents and on some other documents which show the manner in which pages 25 and 26 come to be available. 17 Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be; there are exceptions under the Common Law and under statutes for public registers and for many kinds of documents when certified in various ways: and see the method of proof provided in some cases by ss 170 and 171 of the Evidence Act 1995. At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document, or found it among the business's records, or can recognise it as one of the records of the business. 18 In Equity and Commercial litigation proof of the authenticity of business documents does not often claim attention because practices are followed which limit the occasions when it needs attention. The authenticity of documents is often established in accordance with Rules of Court for documents which have been subject of Discovery (Pt. 18 r.4) or of Notices to Admit their authenticity (Form 22), or where counsel against whom a document is tendered has reasons to accept its authenticity, and decides not to object to its tender. These practices have not been followed here as the Advance Bank has not been involved in Discovery, the defendants are unrepresented and there has been no Notice to Admit Facts and Authenticity of Documents. There has in reality been no opportunity for the defendants to consider what course they should take. Ms Gilbert's affidavit with its voluminous schedules was sworn only five days before the hearing began; I do not know when it was served on the defendants, but it cannot have been served on them in sufficient time before the hearing for any advantage to be gained from reading it. The supporting documents Exhibits SEG-1 to SEG-7, seven large volumes, were not available until produced at the hearing, and a glance at them would suggest that it would take some days for a skilled lawyer to study them and grasp their significance. 19 It is necessary to establish by evidence other than by pages 25 and 26 the facts that pages 25 and 26 are a bank statement, they are a statement of the Advance Bank and that the account to which they refer is an account of the second defendant. In effect counsel asked me to assume that pages 25 and 26 are relevant and assured me that he would make them relevant. I accept this assurance and my concerns about admissibility of pages 25 and 26 do not relate to their relevance; they would be relevant if they are authentic. If counsel's assurance had already been made good it would be possible, at discretion, to admit the documents provisionally under subs. 57(1)(b). However that stage has not been reached. In the language used in subs. 57(1), a finding that the evidence is what the party claims it to be is distinguished from the question whether the evidence is relevant; authenticity is something on which relevance depends. (Justice Smith saw authenticity as an aspect of relevance in his Honour's Article " The More Things Change the More They Stay The Same? The Evidence Act 1995 - An Overview " 1995 UNSW Law Journals at 13: I see them as distinguished to some degree for this purpose.) As counsel's assurance has not been made good, I have not reached the point where the documents could be provisionally admitted. In my opinion, a question of authenticity is not a question as to the relevance of documents within subs. 58(1), which treats authenticity as part of the material on which relevance may be determined. 20 The record at page 25 "180696…cash deposit $2,850 …" is a previous representation as defined in the dictionary to the Evidence Act 1995. Evidence of a previous representation is not admissible to prove the facts asserted: see subs 59 (1); but s 69 creates an exception for business records and subs 69(1) relates to authentication.. "69 (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) at any time was or formed part of such a record, and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact." 21 If pages 25 and 26 are to be admitted the plaintiff must show (and I abbreviate s.69): (i) they are part of the records belonging to or kept by the Advance Bank in the course of its business; (ii) they contain a previous representation made in the course of the business; (iii) the previous representation was made by a person who had personal knowledge or on the basis of information supplied by a person who had personal knowledge. 22 Under s. 48(1)(b): "A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: …….. (b) tendering a document that: (i) is or purports to be a copy of the document in question; (ii) has been produced or purports to have been produced, by a device that reproduces the contents of documents;……" (e) tendering a document that: (i) forms part of the records of or kept by a business (whether or not the business is still in existence), and (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary.". 23 " Document in question" is a document as to the contents of which it is sought to adduce evidence; see sub-section 47(1). Pages 25 and 26 are the document in question. 24 Pages 25 and 26 are xerox copies of documents produced by the Advance Bank to the Court in answer to a subpoena; the affidavit of Ms Gilbert shows this. Their admissibility is in the same situation as the document which the Advance Bank produced. Section 51 in Part 2.2 provides: "The principles and rules of the Common Law that relate to the means of proving the contents of a document are abolished." This abolishes the previous law relating to secondary evidence and proof of copies to show the contents of documents. Part 2.2 Documents, including s.48, puts a different scheme in its place. 25 The fact that a copy is tendered has no significance for admissibility, and the admissibility of the documents is in the same position as if the plaintiff proceeded under the opening words of sub-section 48(1) - "A party may adduce evidence of the contents of a document in question by tendering the document in question…" 26 Section 51 does not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be, and subs 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is. Sub-section 48(1) is not an enactment to the effect that documents are to be received in evidence on the basis of what appears on their own face. Sub-section 48(1) prescribes the means of adducing evidence of the contents of documents, and leaves untouched the need to establish that a document is what it purports to be; it does not mean that documents prove themselves, as if judicial notice must be taken of them. 27 If sub-section 48(1) meant that all that had to be done to establish the authenticity of a document was to tender it, it would dispense with the need to prove the authenticity of a document and put the Court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect. I would regard an enactment to that effect as absurd, and I would look for other constructions; however I do not think that sub-section 48(1) has that effect. 28 So far as I am aware there is no judgment which has decided that under the Evidence Act, 1995 the authenticity of a document tendered in evidence may be determined simply on the basis of the form and contents of the document or on that basis taken with information about the source from which it was produced showing that it was produced on subpoena and by whom. References in case law to authentication of documents tendered are usually brief and incidental. Texts dealing with the legislation do not appear to have commented to the effect that under the legislation documents establish their own authenticity. See the comment on business records in Cross on Evidence , 5th Australian Ed. (J.D. Heydon QC) at paragraphs [5540 - 5550], which deals with s. 48 and s. 69, among others and makes no comparison with s. 45b of the Evidence Act 1929 (South Australia) with which that work deals at [35400]. I have not noticed any such observation in Mr Odgers' "Uniform Evidence Law" 3rd Ed. 1998 either. 29 The Law Reform Commission appears not to have regarded their drafts as bringing about that result. See LRC 26, Vol. 1, para. 31 particularly paragraph 654; the comments in paragraph 654 appear to assume the continuing need for proof of authenticity; see text at Note 16 in the final sentence. See too Chapter 40 Judicial Notice paragraphs 985 and 986 dealing with self-authentication. See too paragraphs 981. See Chapter 24 authentication and identification, paragraph 498. See too paragraph 981. See too paragraphs 707, 981, 982 and 983. In LRC 26 Vol. 2 Para 282 again dealing with authentication and identification the Law Reform Commission referred to s.45b of the Evidence Act 1929 (SA) and commented: "No authentication is required initially - it is enough that the document be (1) apparently genuine." 30 At page 551 Note 25 to paragraph 985 includes this sentence: "Consideration was given to including a proposal that in Civil trials a document tendered in evidence be assumed to be authentic in the absence of objection." This proposal was not adopted by the Law Reform Commission. At Paragraph 992 there is a recommendation for legislation providing to the effect that a document 20 years old produced from proper custody is presumed to be authentic. Other references at paras 707, 982, 983 and 986 may illustrate what was proposed. 31 The Law Reform Commission's drafts were not in the same form as the legislation as later enacted. Chapter 31 of LRC 26 - Evidence of Documents - was directed to proposals which were not enacted; the distinction between primary and secondary evidence of the contents of documents was to be preserved in the proposals, but the Act takes a different course. The need for authentication of evidence was seen as continuing - paragraph 659 shows this. 32 Commentary in LRC 38 does not appear to support the view that the Law Reform Commission recommended dispensing with authentication of documents, or doing so prima facie, or adopting the principles of the South Australian s 45b. The draft explanatory memorandum dealing with Clause 125, at Appendix A, page 243, does not suggest that Clause 125 (which corresponds with s.48 as enacted) made any large change in the need for evidence authenticating a document. It does not seem possible that, after addressing s.45b, the Law Reform Commission could have contemplated adoption of its principles without explicitly indicating that it was recommending this large change. 33 Section 152 of the Evidence Act 1995, which relates to documents more than 20 years old produced from proper custody, appears to deal with authentication. Its presence in the Act is inconsistent with there being a wider general presumption of authenticity. The reference in Subs 144(1)(b) to "a document the authority of which cannot reasonably be question" is also inconsistent with a wide general presumption of authenticity. 34 If the Court is to find a significant fact on which a large liability may depend, there is a need for the Court to have some measure of confidence in the source of the Court's belief that the fact exists. The Court acts almost always on narrations which must have a human origin; not usually on the Court's own knowledge or on states of fact which are taken to be incontestable. The balance of probabilities is not a demanding standard, as the possibility that the less probable state of fact may be the true one is very obvious, and makes civil justice very vulnerable to error. For the Court to feel confident that it should act on any narration it is very important to have a human witness who has pledged, by oath or affirmation, that the narration is true: someone who is responsible for it. Business records may be incomplete; they often are. They record what there is perceived to be a business need to record, and that may be a small part or an oblique aspect of the objective event. 35 The factual context in which the plaintiff is in a position to tender pages 25 and 26 appears from the affidavit of Ms Gilbert and from other documents in Exhibit SEG-3. On 25 March the plaintiff served a subpoena on Advance Bank Australia Limited at its office in George Street, Sydney and the schedule of the subpoena called for a very long list of original documents or copies including statements of account No. 146459720 in the name of Peter Mato for the period 1 August 1996 to date, and for a number of other records and deposit slips, but none specifically relating to the deposit of $2,850 on 18 June 1996 to that account. In answer the Advance Bank produced a copy of a bank cheque dated 2 July 1996, pages 25 and 26, a record of transaction relating to deposit of $2,850 on 18 June 1996 but not identifying the depositor and at pages 28 and 29 a personal account application of obscure date by Francis Mato relating to account No. 146459720. (The second defendant's name is Peter Francis Mato). 36 In summary these documents show that when ordered by the Court's subpoena to produce statement of account No. 146479720 in the name of Peter Mato, Advance Bank produced documents, including pages 25 and 26, relating to its customer Francis Mato. The statements do not relate to the period called for; they relate to the period from 31 January 1996 to 8 July 1996. 37 I am asked then to find on the basis of Advance Bank's behaviour in responding to the subpoena that pages 25 and 26 meet the three requirements of s. 69 to which I earlier referred. The evidence of Ms Gibson establishes that Advance Bank responded in that way to the calls in the subpoena. In support of the tender counsel referred me to other documents of which I have nothing before me but their face value; they are the subpoena, a copy of the affidavit of service of subpoena and the other documents which the bank produced. All of them are subject to at least the same difficulties for their admissibility, even for the purpose of testing the admissibility of a documents tendered; and possibly greater difficulties as some of them are less apparently business records even in purport. 38 The plaintiff needs to obtain a finding for the purposes of the admission of the evidence tendered to the effect that pages 25 and 26 meet the three requirements of s.69, and to obtain that finding must rely on evidence relevant to the conditions in s.69 according to the prescription of sub-section 55(1). That test is: The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally effect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings." The standard of proof for a fact on which the admissibility of evidence depends is the balance of probability; sub-section 142 (1). 39 The line of reasoning that I am asked to follow is the effect that the fact that Advance Bank produced pages 25 and 26 in answer to the call in the subpoena for bank statements could rationally affect the assessment of the probability that the bank statement of which pages 25 and 26 are copies forms part of the records belonging to Advance Bank, that it contains information recorded in the course of Advance Bank's business, and that that information was made in one of the ways referred to in subs. 69(2). In this line of reasoning, as Advance Bank sent these documents to the Court and had a duty to do so, everything that the documents apparently record is probably in order as a business record. 40 I think it is obvious that reasoning in this way could easily and often produce seriously erroneous findings; it surrenders all the vigilance which experience of life and the law suggests to me is required in serious affairs. However, the test of relevance in subsection 55(1) is a test stated with studied breadth, and it appears to me as a matter of fact that Advance Bank's behaviour in producing a document in response to the subpoena could rationally affect the assessment of the probability of the existence of the facts which make the document a business record within s. 69. The unsatisfactory nature of the process of reasoning is somewhat masked by the circumstance that the recipient of the subpoena was a bank; there would be many recipients of subpoenas whose response might receive an initially less generous interpretation than an institution in the conduct of which the community usually replaces confidence, while the superficiality of that interpretation of the conduct of a bank is clear enough. 41 As means of proof of the records of the Advance Bank, the circumstances relating to Advance Bank's response to the subpoena appear to me to be vehemently unsatisfactory; the peril that a finding of fact would be erroneous if it is based on such material appears to me to be great. In saying this I bring to bear on my appraisal of the facts my experience of the conduct of legal business and the responses of parties to subpoenas; that is not a branch of human behaviour in which I regard people as highly reliable. Far better means of proving the authenticity of bank statements are obvious and ready to hand, and I have to consider how readily they could have been used in a serious endeavour to prove important facts. 42 I am not satisfied on the balance of probabilities that pages 25 and 26 are what they are alleged to be; that is I am not satisfied and do not find for the purpose of their admissibility that they are business records being bank statements of the account conducted by the second defendant with the Advance Bank. 43 The machinery in ss 166 to 169 of the Evidence Act 1995 is not applicable as the plaintiff did not give notice of its intention to tender these documents in time to allow a request under subs 167(1) to be made within 21 days (subs. 168(1)). One outcome of the machinery is that the Court may make orders in subs 169(1) including an order that the evidence is not to be admitted in evidence (para (c)): this group of sections and the machinery for which it provides do not enable any document or other evidence to be admitted in evidence, and the legal basis for its admission must be found elsewhere. If authenticity must be proved, these sections do not provide means of proof of authenticity. 44 The tender is rejected. Last Modified: 06/04/1999 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.