New South Wales Supreme Court CITATION : Roach & Ors v Page & Ors (No.27) [2003] NSWSC 1046 4-8, 11-14, 18-21, 25-29 August 2003 HEARING DATE(S) : 1, 5, 9-12, 15-19 September 2003 13-17, 20-24, 27-30 October 2003 1-6 November 2003 JUDGMENT DATE : 13 November 2003 JURISDICTION: Common Law JUDGMENT OF : Sperling J at 1 DECISION : Tender of the documents rejected. CATCHWORDS : Evidence - the meaning & scope of business records in s69 of the Evidence Act 1995 - whether materials published at large for advertising and public relations purposes on a business's website qualify as business records LEGISLATION CITED : Evidence Act 1995, s64, s69, s135, s136 CASES CITED : Roach & Ors v Page & Ors (No.15) [2003] NSWSC 939 Walter Edward Roach Sydtech Pty Ltd PARTIES : Winnote Pty Ltd Brian John Downey Page, Peter Eustace Hollingdale, Roderick McLeod, Warren Francis Asprey, Ian Farley Hutchinson, Brian Edmond Thornton, Thomas Owen Jones, Geza Francis Kim Santow, Robert Colin Nicholls, James Henry Graham, Peter Short, Phillip Thornton Taylor, Bruce Kelvin Cutler, David Myles Bennett, John Charles Mulally, Kevin William Broadley, James Michael Page, Peter John Carney, Patricia Helen Brown, Brian John McFadyen, Robert Andrew Channon, Peter John Perry, Douglas Michael Franc, Peter Stanley Ridout, Michael John Gray, Howard Keith Chillingworth Steele, Julian Block, Elizabeth A Nosworthy, Edward Joseph Wright, Claire Grose, John Hugh Clifford Colvin, Bryan David Weir, George Thomas Forster, John Lindsay Arthur, Roy Merrill Randall, Anthony Jospeh Muratore, Sir Clarence Waldemar Harders, Peter Campbell Church, Terence Michael Burke, Richard Stuart Gray, John Kevin O'Sullivan, Gregory Stephen Pearce, Rebecca Anne Davies, John Martin Green, Gordon David Cooper, Pamela Gaye Edwards, Stephen David Chipkin, Yukio Hayashi, Lucy Kathleen Farrell, Paul Ashley Cooper, Graham John Kelly, Barry Leon Barker, Philip John Christensen, Fabian Gleeson, Helen Irwin Wright, Iain Ronald Jones, Shaun Gerard McGushin, Mark Russell Cohen, Joanne Christine Seve, Amanda Jane Harkness, John Pierce Angus, Cornelius Daniel Neil Griffin, Murray John Dearberg, Marc Sandford Hutchinson, Timothy Mark Hirshman, Leon Pasternak, Kevin Alan Lewis, Donald Bruce Robinson, Michael Perrin Ryland, Richard Randolph Pearson, Geoffrey Howard Levy, Geoffrey Alan McLellan, David Jacob Hammerschlag, Gavin Terence Bell, John Gilbert Tabernar, Michael John Back, Georgina Margaret Gray, Raymond Unyuen Ming Kwok, Michael Orlov, Bettie Anne McNee - t/a Freehill Hollingdale & Page Brian David Kewley, Keith Alfred Robert Skinner, Jeffrey Stephen Kiddle, Denis James Davies, Davied Leonard Bailey, Martin Moule Hudson, Colin George Polites, Marcus Kirkland Fairbairn, John Alfred Emerson, James Macklin Pfeiffer, Russell David Allen, Peter Algernon Franc Hay, Paul Montgomery, John Balfour Blanch, Richard Geoffrey Eager, Peter Farley Mitchell, Peter Mark Butler, Simon Anthony Yencken, Rebecca Anne Davies, Paul Ashley Cooper, Peter William Stawell, Stephen Marcus Stern, John Lindsay Cooper, Graeme James Smith, Iain Ronald Jones, Rayne De Gruchy, Wayne McMaster, Graeme Ross Watson, Maxwell Douglas Ralph Cameron, Frank Barry, Irene Helen Zeitler - t/a Freehill Hollingdale & Page FILE NUMBER(S) : SC 20950/97 COUNSEL : Mr S Rares SC with Mr A Bell for the Plaintiffs Mr A Meagher SC with Mr M Darke for the Defendants SOLICITORS : Maurice Blackburn Cashman for the Plaintiffs Allens Arthur Robinson for the Defendants - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List Sperling J Thursday, 13 November 2003 20950/97 Walter Edward Roach & Ors v Brian John Downey Page t/a Freehill Hollingdale Page & Ors Judgment No.27 – On admissibility of Harte Peat and Topterra documents 1 His Honour: On 6 November 2003, counsel for the plaintiffs tendered extracts from the websites of Harte Peat (of Ireland) and Topterra (of Holland) which, on the evidence, are exporters of black peat to Australia for use in the mushroom growing industry. 2 There is evidence to the effect that quality control is an important consideration for mushroom growers in their selection of and loyalty to a peat supplier. That is a relevant matter in the proceedings. The documents now under consideration are tendered to supplement and fortify that evidence. 3 The relevant parts of the publications are as follows. In the case of Harte Peat: Harte Peat was awarded the prestigious ISO 9002 in 1997 in recognition of their quality control program, which ensures a quality product, is produced over and over again … Harte Peat has their own laboratory that enables them to test their raw materials & finished product on a daily basis. Standard analyses include pH, Ash, Moisture, Bulk density & Life. Other tests are carried out independently by N.A.V.B.C. (National Agricultural and Veterinary Biotechnology Centre). 4 In the case of Topterra: The quality of the end product is already largely determined with the digging out of the peat. That is why there are already several checks and analyses in the peatfield before and during the harvesting of the peat … Also all the raw materials and end products are being tested several times per day in own laboratory and also chemical and physical analyses are being made on a regular base by an external laboratory. Finally a control sample is held back from each packed load. 5 Counsel for the plaintiffs accepts that the plaintiffs cannot have the documents as evidence of what Harte Peat and Topterra do in relation to quality management. He submits, however, that the documents are admissible to prove, by inference from the publicising of quality management, that the publishers believe quality management is important to peat buyers. It is then to be inferred from the belief that such an attitude on the part of customers is the fact. So the argument runs. 6 The tender was put on two alternative bases. First, it was said that the publications were admissible as business records within the meaning of s69 of the Evidence Act 1995. In that regard, counsel for the plaintiffs accepts that there would then have to be a limitation pursuant to s136 so that the documents would not stand as evidence of what was in fact done by these corporations in relation to quality control. 7 Secondly, it was said that the documents were admissible pursuant to s64(2) on the ground that calling witnesses from the corporations to give evidence would cause undue expense and delay. 8 As for s69, the publications are not business records within the meaning of s69. Every publication by a business is not automatically a "record of the business". As I said in my judgment No. 15 in these proceedings (Roach & Ors v Page & Ors (No.15) [2003] NSWSC 939), at [5]: The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties. 9 So far as is presently relevant, it is the recording of business activities in the course of carrying on the business which is critical. The publication of a book by a business providing a history of the business may record details of the business carried on but it is not a "record of business" within the meaning of s69. Similarly, a flyer or a media advertisement or a website publication, extolling the virtues of the business in the way such publications do, is not a record of a business merely because it purportedly records activities of the business. 10 It is necessary to place such a restrictive construction on s69 because it cannot have been intended that publications of this kind would qualify, any more than it would have been intended that – in the ordinary course – books, magazines or newspapers published by the business would be covered by that section. 11 The thinking behind the section is clear enough. Things recorded or communicated in the course of the business and constituting or concerning business activities are likely to be correct. There is good reason for the courts to afford to such records the same kind of reliability as those engaged in business operations customarily do. The same is not true of publications made for wider dissemination, for entertainment, for advertising or for public relations purposes. Such publications are justifiably received with healthy scepticism. 12 The publications now tendered are not business records within the meaning of s69. 13 If I am wrong about that, what are the representations in the publications which would then be available to the plaintiffs? These are that the respective corporations had the quality management practices described in the publications. If not within the direct knowledge of the authors of the publication, the information is likely to have been supplied by persons who had personal knowledge of such practices. That would satisfy s69(2). 14 It is at this point that a question of relevance arises. The representations are relied upon, first, to ground an inference that the authors believed that customers value such quality management. (Otherwise, the authors would not have included the passages.) That inference is available. 15 But such a belief is only relevant if it could be inferred from that belief that customers in fact value such quality management. It is here that the process of reasoning breaks down. It is as likely as not that such a belief (assuming the belief were inferred) is mere supposition (however reasonable the supposition may be) rather than a belief based on information concerning the state of mind of customers. 16 The process of reasoning is also in breach of the hearsay rule. A fact cannot be proved by evidence that a person believed it to be true. 17 The representations in the publications are, accordingly, not relevant evidence as tending to prove the ultimate proposition for which the evidence is intended to be used, namely, that customers value quality management practices of the kind described in the publications. 18 To cover the situation if I am wrong about that, I would exclude the evidence pursuant to s135. If the inferred belief of the authors of the publication is capable of grounding an inference about the state of mind of customers, it would be unfair to admit the evidence without the defendants having the opportunity of testing the way in which the belief actually came to be formed and in particular whether customers had in fact conveyed an attitude concerning quality management practices of the relevant kind, by word or by action, to the observation of the authors of the publication. 19 That consideration alone would lead me to conclude that the probative value of the evidence is substantially outweighed by unfair prejudice to the defendants. 20 As for s64(2), the argument fails for the same and for additional reasons. 21 The same reasons apply because the representations identified in the documents for the purposes of s64 are the same representations, namely, the existence of the described quality management practices. From that point forward the argument founders on relevance and the exercise of discretion pursuant to s135. 22 Additionally, the s64 approach fails because it is not shown that it would cause undue expense or undue delay, or would not be reasonably practicable to call the persons who made the representations. In particular, it is not shown that this could not be done expeditiously and cheaply by video link. Those are relative terms but, in the context of the length and expense of the present proceedings, that is the case. 23 Accordingly the tender of the documents is rejected. -o0o- Last Modified: 12/22/2003 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. 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