New South Wales Supreme Court CITATION : Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 616 HEARING DATE(S) : 13/6/06 - 16/6/06 JUDGMENT DATE : 16 June 2006 JURISDICTION : Equity JUDGMENT OF : Campbell J EX TEMPORE JUDGMENT DATE : 06/16/2006 DECISION : One file note admitted, another rejected CATCHWORDS : EVIDENCE – unfair prejudice – EVIDENCE – business records LEGISLATION CITED : Evidence Act 1995 Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 CASES CITED : Silver v Dome Resources NL [2005] NSWSC 348 Vitali v Stachnik [2001] NSWSC 303 The Mid-City Skin Cancer and Laser Centre Pty Ltd - Plaintiff Ali Zahedi-Anarak - First Defendant PARTIES : Idameneo (No 123) Pty Ltd T/as Sydney Medical Centre - Second Defendant L W Kernot Pty Limited - Third Defendant Laurence William Kernot - Fourth Defendant FILE NUMBER(S) : SC 2863/02 R D Marshall; P K Bruckner - Plaintiff COUNSEL : J Downing - First Defendant G Lucarelli - Second Defendant R D Wilson; A Eastman - Third and Fourth Defendants Kelvin Solari - Plaintiff SOLICITORS : Yeldham Lloyd Associates - First Defendant Kennedys - Second Defendant Hancock Alldis & Roskov - Third and Fourth Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J FRIDAY 16 JUNE 2006 2863/02 THE MID-CITY SKIN CANCER & LASER CENTRE PTY LIMITED v ALI ZAHEDI-ANARAK & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: The plaintiff seeks to read an affidavit of Ms Tallulah Glynne, sworn on a date which does not readily appear from the face of the document. That affidavit deals with two topics. One of them is the giving, by Ms Glynne, of evidence in an affidavit of a conversation which she had with Mr Cox. It deposes to a conversation in substantially the same terms as that which I have set out in my earlier judgment in this matter relating to Ms Glynne's file note concerning the conversation with Mr Cox. Objection is taken to that portion of the affidavit under section 135 of the Evidence Act 1995. 2 The mere fact that Mr Cox is unavailable to be cross-examined is not in itself sufficient to establish that it would be unfairly prejudicial to allow the evidence to be received: Silver v Dome Resources NL [2005] NSWSC 348 at [13], and cases there cited. 3 The substance of the evidence has been available to the defendant for some time. I am not persuaded that the admission of the evidence would be unfairly prejudicial to the defendants. I, therefore, admit paragraphs 1-4 inclusive of the affidavit. 4 The second topic with which the affidavit deals is a file note, which was made by a receptionist at the practice on 7 June 2004. It is a note which was made on a form of a kind which was ordinarily used as the cover of a patient's file. However, while it relates to a conversation which the receptionist had with a person who was a patient of the practice which had been purchased, it was not the ordinary file of that patient. Rather, it was a fresh file cover, on which nothing else is written but that file note and details of the patient and which contains no documents relating to the patient. 5 The file note says: "Someone called this morning asking if Dr Zahedi works here and asked where the files were. She told me she was Dr Zahedi's secretary at 580 George St and she had our 7.30 am appointment at her clinic very angry because they went up to 468 George St and nobody was there. She then said she'll call back later and speak to someone." 6 Ms Glynne says that the receptionist handed her the file note and said, "I had a telephone conversation and made a note. Here is the file containing the note." 7 The plaintiff seeks to support the document as a business record. Section 69(3) Evidence Act 1995 excludes from admissibility as a business record a document containing a representation, "… if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding." 8 At the time this file note was made, litigation was already on foot. Dr Lindsay, and I would infer also Ms Glynne, were well aware at that time that there was a problem, in a business sense, concerning patients of the practice, which they believed the plaintiff had purchased, transferring their custom to the first or the second defendant. 9 The provisions of section 69(3) are ones which should be given a wide import: Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4]. The policy of the section has been explained by Justice Barrett in Vitali v Stachnik [2001] NSWSC 303 at [12]. 10 In my view, the representation is one which was prepared or obtained in contemplation of an Australian proceeding. For that reason, I would not admit paragraphs 5 to 8 inclusive of the affidavit of Ms Glynne. 11 Exhibit J, received on the voir dire, is not evidence in the case. 12 There being no objection to paragraph 9 of Ms Glynne's affidavit, it is admitted. 13 As a consequence of that decision, paragraph 4 of Ms Glynne's affidavit of 14 June 2002 is also rejected and exhibit TG-24 to that affidavit is rejected. ********** 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.