New South Wales Supreme Court CITATION : Silver v Dome Resources NL [2005] NSWSC 348 HEARING DATE(S) : 8 & 11 April 2005 JUDGMENT DATE : 12 April 2005 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Letter from director complaining of incorrectness of minutes of directors meeting of company admitted as business record. CATCHWORDS : EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - In general - Representations made in course of or for purposes of business - What constitute. LEGISLATION CITED : Evidence Act 1995 ss 69, 135 ASIC v Whitlam (2002) 42 ACSR 407 Assaf v Skalkos [1999] NSWSC 1329 Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 8) (2004) 207 ALR 483 Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 CASES CITED : Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 Roach v Page (No 15) [2003] NSWSC 939 Roach v Page (No 27) [2003] NSWSC 1046 Schipp v Cameron (No 3) NSWSC 9 October 1997 unreported Einstein J Michael Bernard Silver (P1 & XD1) Fair Choice Limited (P2 & XD2) PARTIES : Dome Resources NL (D1 & XC1) Durban Roodepoort Deep Limited (D2 x XC2) FILE NUMBER(S) : SC 2586/01 J E Thomson and M J Watts (Ps & XDs) COUNSEL : T G R Parker (Ds & XCs) Bull, Son & Schmidt (Ps & XDs) SOLICITORS : Allens Arthur Robinson (Ds & XCs) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 12 APRIL 2005 2586/01 MICHAEL BERNARD SILVER & ANOR v DOME RESOURCES NL & ANOR JUDGMENT 1 HIS HONOUR: These are my reasons for admitting into evidence under s 69 of the Evidence Act 1995 ("the EA") representations in the letter, a copy of which is p 413 in Exhibit 1. 2 Section 69 of the EA relevantly provides as follows: "(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." 3 The relevant letter was written on 22 December 2000 by Barry C Bolitho, who was, on 9 May 1999, appointed a director of Dome Resources NL and attended on that day the directors' meeting at which he was so appointed. The letter, written some 19 months later, raised questions about the correctness of the minutes of that meeting. The body of the letter was in the following terms: "I have recently read a copy of the minutes that proport [sic] to record the Dome directors meeting held on May 9th 1999. The minutes are incorrect in that the Retirement Variation Deed for Michael Silver was not discussed. Charles Mostert advised the meeting that a duly authorised Retirement Deed for Silver was legally binding and he recommended that the board acknowledge the deed. No deeds were tabled. I understand that a Dome board meeting is to be held in mid January, during which I propose to amend the draft minutes of the May 1999 meeting to properly reflect the matters discussed at the meeting." 4 The minute referred to was as follows: "DIRECTORS RETIREMENT VARIATION DEEDS: At this point, Mr Silver and Mr Hutt disclosed an interest in the matter about to be discussed and left the Board Room, leaving the conference telephone connected to DRD's Johannesburg office. After being advised by a telephone call on Mr Silver's mobile phone to return to the Board Room and the conference telephone call, Mr Silver and Mr Hutt were informed by Mr Mostert that the other directors had discussed the Retirement Variation Deeds and had RESOLVED to execute them. Mr Mostert said that he understood that the retirement benefits were only to be paid on the retirement of each director. Both Mr Silver and Mr Hutt agreed with this. Mr Mostert said that Mr Hutt would also be paid the amount in lieu of three months notice on his retirement." 5 It is agreed that the letter was inserted in the minute book of the company. But it is equally clear that the minute was not corrected. 6 It is not conceded that the statements tendered are admissible under s 69. It is said that the letter is not part of the records of the company and that the representations were not made in the course of or for the purposes of its business. 7 Its inclusion in the minute book indicates that the letter was treated as part of the records of the company. Furthermore, I agree with what was said by Sperling J in Roach v Page (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." In my view it is clear in the instant case that the letter did form part of the records of the company. 8 However, it is also said that the representations in the letter were not in the course of or for the purposes of the business; a statement as to what occurred at directors' meetings does not fall within this category. 9 Section 69 of the EA is to be given a wide interpretation: See the judgments of Einstein J in Schipp v Cameron (No 3) NSWSC 9 October 1997 unreported; Gzell J in ASIC v Whitlam (2002) 42 ACSR 407 at [155]; my judgment in Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 at [4]; and the judgment of Hely J in Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569 at [17]. It may be that in some circumstances representations made concerning matters relating purely to the constitution of a company may not be made for the purposes of or in the course of its business. Documents have been excluded where their content only recounts the history of the company or was purely promotional: Roach v Page (No 27) [2003] NSWSC 1046 at [9]. 10 However, I do not need to decide the question of whether or not statements relating to the discussion of purely constitutional issues are made in the course of or for the purposes of the business, since the subject discussion at the relevant directors' meeting was in my view in the course of or for the purposes of the business, relating, as it did, to the remuneration of directors engaged in the business. The statements tendered concerned whether or not there was discussion of this subject matter at the meeting and should be regarded as made in the course of or for the purposes of the business. 11 Therefore, in my view, the representations were made in the course of or for the purposes of the business and qualify for admission under s 69. 12 The remaining issue is whether the statements should be excluded in the exercise of the Court's discretion under s 135 of the EA. It is said that the plaintiffs will be prejudiced by their inability to cross examine Mr Bolitho. Attention is also drawn to the equivocal terms of the statements; their remoteness in time from the event that they relate to (more than 19 months); and the fact that no action was taken in relation to the minutes as a result of the letter. 13 The criterion for exclusion of a document is whether its probative value is substantially outweighed by its prejudice to the plaintiff: Roach (No 15) at [13]; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 8) (2004) 207 ALR 483 at [76], [111]: see also Assaf v Skalkos [1999] NSWSC 1329 at [15]. Inability to cross examine does not of itself require exclusion: Ringrow at [27]; Harrington-Smith (No 8) ibid. Lack of cross examination is mitigated by the fact that, in its absence, the weight to be attached to the evidence must be reduced accordingly: Ringrow ibid; Harrington-Smith (No 8) at [111]. 14 In my view the cases for and against exclusion under s 135 are close to the line in this instance, but I have come to the conclusion that the discretion to exclude should not be exercised and the representations will, therefore, be admitted. The matters put in favour of exclusion will be considered in assessing the weight to be attached to the evidence. ********** 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.