New South Wales Supreme Court CITATION : NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 1036 HEARING DATE(S) : 10 September 2010 JUDGMENT DATE : 13 September 2010 JUDGMENT OF : Harrison J DECISION : Rimanui's application to uplift exhibit J for the purpose of having it forensically examined is dismissed. CATCHWORDS : CIVIL PROCEDURE – interlocutory application for access to documentary exhibit for forensic examination – quaere the existence of any genuine dispute as to authenticity or identity of the document– no reasonable forensic purpose identified – whether request reasonable in the circumstances - application refused LEGISLATION CITED : Evidence Act 1995 CATEGORY : Procedural and other rulings CASES CITED : NM Rural Enterprises Pty Ltd v Rimanui Farms Limited & Ors [2010] NSWSC 968 Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 NM Rural Enterprises Pty Ltd (Plaintiff) PARTIES : Rimanui Farms Limited (First Defendant) Gil Gil Farming Pty Ltd (Second Defendant) Lloyds Syndicate No 1243 (Third Defendant) FILE NUMBER(S) : SC 2003/93179 J E Maconachie QC with S B Docker and M W E Maconachie COUNSEL : T J Hancock with J P Donohoe and A T Martin (First Defendant) B Loukas (Second Defendant) G T W Miller QC with D A Lloyd (Third Defendant) TurksLegal (Plaintiff) SOLICITORS : Webb and Boland (First Defendant) Doyle Wilson (Second Defendant) Riley Gray-Spencer (Third Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 13 September 2010 2003/93179 NM Rural Enterprises Pty Ltd v Rimanui Farms Limited & Ors JUDGMENT 1 HIS HONOUR: Rimanui seeks an order permitting it to have exhibit J forensically examined. This is because there are different versions of exhibit J in circulation, and Rimanui wants if possible to establish the provenance of the exhibit. Rimanui makes no suggestion that the different versions of exhibit J are the result of anything sinister or deceptive or because of any wrongdoing by the plaintiff. Background 2 The plaintiff tendered exhibit J as the original Woollams report dated 18 October 2001. Paragraph 3.6 of that report says this in part: "3.6 On 2 December 2000 Mr Lehmann conducted a further inspection of the cotton at Telleraga Station. A copy of his report for 2 December 2000 is attached as Appendix B ." 3 A examination of appendix B to exhibit J reveals that it includes not only Mr Lehmann's three page handwritten report dated 2 December 2000, but it also contains a facsimile transmission header page from the plaintiff, a map of "Telleraga" Station and three of the four pages of Mr Ward's typed notes that have been referred to in earlier judgments that I have delivered: see, for example, NM Rural Enterprises Pty Ltd v Rimanui Farms Limited & Ors [2010] NSWSC 968. 4 Paragraph 8.2 of exhibit J says this in part: "8.2 In respect of the possible source of the glyphosate, Mr Lehmann states in his report of 2 December 2001 [ sic ], attached as Appendix H , that the possible sources may be…" 5 An examination of appendix H to exhibit J reveals that it contains all of the same documents that make up appendix B, with the addition of the previously omitted fourth page of Mr Ward's typed notes. 6 The plaintiff had earlier tendered exhibit F, which is a copy of the Woollams report without any appendices at all. Its tender followed cross-examination of Ms Woollams and re-examination by Mr Maconachie. Some of that re-examination was as follows: "Q. In 8.2 there's a reference to "attached as Appendix H", do you see that? A. Yes. Q. Do you turn please to the back of the document. Is there an Appendix H attached? A. There are no appendices attached to this copy. HIS HONOUR: We can assume that Appendix H is Mr Lehmann's report. MACONACHIE: Can't assume that at the moment. Just excuse me a moment. Q. Will you have a look at the document that you're just being shown now? It comes from the custody of Mr Hancock and purports to be the annexures to the ALM report (shown). Do you see it's so described on the front page? A. Yes. Q. Appendix A, annexures to ALM report. Would you flick through to appendix H, that page is to be seen? A. Yes. Q. Have you got that? A. Yes. Q. And there's no appendix H? A. That's correct. ***** Q. Now can I show you a document containing nine pages and tell me if you recognise that nine page document (shown)? A. Yes, I do. ***** Q. You may not be able to answer this question and just wait lest there be an objection, would you have a look at the document again and I'll ask you this question. Can you tell His Honour whether or not that bundle of nine documents was Appendix H to your report of 18 October 2001 when it was prepared and delivered? A. (No answer). HIS HONOUR Q. You can answer that now? A. I can't say that that report, that appendix was absolutely attached to that report. Q. You've answered a slightly different question. I don't think you are being asked whether it was attached. I think you are asked whether it was intended that the documents you now hold were to be Appendix H? A. Yes. MACONACHIE: Your Honour is quite right. I had a complication that wasn't necessary. HIS HONOUR: No you didn't. The answer wasn't responsive. MACONACHIE Q. That was Appendix H to your report? A. Yes. HANCOCK: I object to the tender. ***** HIS HONOUR: Just before you move on, do you accept, Mr Hancock, that a nine-page document in the form that has been shown to the witness was sent by facsimile transmission to Mr McDougall by Mr Ward? HANCOCK: I do. I do not know what the position of those to my right is. I certainly do. ***** HIS HONOUR: What is the forensic proposition that makes this important, from your point of view? HANCOCK: The provenance of the document may be in issue at some stage as to whether that last page went forward in the course of the investigation. MACONACHIE: That is what I am trying to prove. ***** EXHIBIT #E NINE-PAGE DOCUMENT, BEING A COPY OF A FACSIMILE SENT FROM FAX NUMBER OF 02 6753 9575 ON 4 DECEMBER 2000 BETWEEN 15.16 AND 15.19, ADMITTED ***** EXHIBIT #F REPORT OF MS WOOLLAMS, FORMERLY MFI 4, TENDERED, ADMITTED WITHOUT OBJECTION " 7 Ms Woollams was asked the following questions in further cross-examination by Mr Hancock: "Q. Do you have your report there, exhibit F? MACONACHIE: Page 25. WITNESS: Yes, I have it. HANCOCK Q. Exhibit H is described, in paragraph 8.2 of your report, as: "In respect of the possible source of glyphosate, Mr Lehmann states in his report of 2 December 2001, attached as appendix H"? A. Yes. Q. You do not say "Attached as H is a nine-page facsimile from Mr Ward to Mr McDougall dated 4 December", do you? A. No. Q. I asked you some questions about this earlier; the eight-page document earlier. You told me, you agreed with me, you probably had that document? A. Yes. Q. What now has revived your memory, upon seeing exhibit E, that is the nine-page fax, that that document is meant to be exhibit H in your report? A. I couldn't say on what basis - are you able to ask the question again please? Q. I will ask it a little differently? A. Yes. Q. Can you be sure that exhibit H to your report of 18 October 2001 was not simply Mr Lehmann's report of 2 December 2001, alone? A. I can't be." 8 On 13 February 2003 Kemp Strang, formerly the solicitors for the plaintiff, wrote to Webb & Boland, the solicitors for Rimanui, relevantly in these terms: "We refer to your discussions with Sean Docker in relation to this matter. To facilitate negotiations between our clients we enclose a copy of a report from Agricultural Loss Management group dated 18 October 2001 in relation to the cause of the damage to our client's crops on Telleraga Station in 2000/2001." 9 The document referred to in that letter has now become exhibit F. 10 On 19 March 2003, Webb & Boland sent exhibit F to Gwydir Air for provision to its agronomist Mr Ghirardello for comment. On 8 May 2003 Mr Ghirardello wrote to Webb & Boland informing them that appendix H was "blank". He inquired whether they had a copy of it. On 21 May 2003, Kemp Strang informed Webb & Boland, during a telephone attendance, as follows: "Informed me that appendix H is the same as appendix B and there is actually a typo on page 25 of the report. Appendix H should be the 2000 report in appendix B." 11 Appendix H referred to in that attendance memorandum is the Lehmann report of 2 December 2000. 12 Finally, Rimanui tendered MFI 5, which was the bundle of annexures to the Woollams report. It became exhibit 1D17. Appendix B contains only the three pages of the Lehmann report dated 2 December 2000 and appendix H is blank. Consideration 13 The plaintiff objected to the proposal to have the document examined upon the basis that there was no discernible forensic purpose for doing so. A full copy of exhibit J did not come into Rimanui's possession until 8 September 2010. The difficulty as it was perceived by Rimanui in all of these circumstances was described by Mr Donohoe as follows: "DONOHOE: The difficulty that now arises is that there is a document that has been put to the court as being an original document that is completely inconsistent we say in terms of its appendices with a document which has purportedly been provided to us and ultimately then provided on to our experts in terms that it not only does not contain appendix H but contains quite a different document at appendix B. The original document, exhibit J, if your Honour will remember, was never put before a witness. It was tendered some two days after Miss Woollams had left the witness box. That in itself gives rise to an unusual circumstance where under normal circumstances of discovery one is given an opportunity to inspect a document if privilege is not claimed over it, and should one inspect that document or choose not to there is the implied admission that that document is an authentic document. That opportunity has not been afforded to the first defendant in relation to this particular document. Your Honour will be asked eventually to make a finding of fact in relation to what is contained in appendix H and now there will be submissions about what was properly contained at appendix B." 14 Mr Donohoe identified the issue as whether or not the appendices were printed and created at the same time as the report or within the same relevant period. The significant document, or part of a document, for these purposes is once again page four of Mr Ward's typed notes of 2 December 2000. 15 Rimanui relied upon s 167 of the Evidence Act 1995 as follows: " 167 Requests may be made about certain matters A party may make a reasonable request to another party for the purpose of determining a question that relates to: … (c) the authenticity, identity or admissibility of a document or thing." 16 I was referred to Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307. Mr Donohoe submitted that the test was ultimately a question of whether or not the request was a reasonable one in the circumstances. It did not have to go to a fundamental issue in the proceedings. At paragraph [30] of Trimcoll, Basten JA commented in the following terms: "[30] The scope of the trinity in s 167(c), "authenticity, identity and admissibility", is reasonably clear as to its core, but imprecise at the periphery. For example, a party may seek to tender a handwritten file note, the relevance of which may be obscure unless one knows the author of the document, when it was created and whence it was extracted. These may be considered questions of "identity" in relation to a document or thing. If the nature of the document, its author and its time of creation is apparent on its face, there may be a question as to whether it is indeed what it purports to be, which might be categorized as a question of "authenticity". Those matters may determine whether it is relevant, whether it is a business record, and may thus be matters affecting its admissibility. There is thus no entirely clear dividing line between questions of authenticity and identity and each may provide a basis for admissibility: see National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 at [17]-[19] (Bryson J). The connection was identified by Heydon JA in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 at [46], noting that "if the document was of unknown origin, it could have been objected to as unauthenticated and irrelevant". Indeed, the caselaw discussed by Austin J in Australian Securities and Investments Commission v Rich (2005) [2005] NSWSC 417; 216 ALR 320 at [93]-[121], is devoted to the question of authentication as a precondition to admissibility. Of more direct relevance for present purposes, Austin J referred to a distinction drawn by Hidden J in New South Wales Crime Commission v Trinh [2003] NSWSC 811 at [14] between authenticity and accuracy. Austin J stated at [118]: 'Hidden J's reasoning in Trinh , distinguishing between authenticity and accuracy, identifies part of a wider distinction, between matters of authenticity going to the adducing of evidence, and matters going to the credibility and weight of documentary evidence once it has been authenticated and judged admissible. Authentication is about showing that the document is what it is claimed to be, not about assessing, at the point of the adducing of the evidence, whether the document proves what the tendering party claims it proves.'" 17 Mr Donohoe's submission was that the significance of page four of Mr Ward's typed notes might well include the fact that some experts who formulated opinions about what caused the damage to the plaintiff's crops simply did not have the information that it contains. Whether they would have made anything of the information or not is beside the point, which is simply that their analyses may have been different if they had had it as part of the matrix. 18 The plaintiff's position was clearly stated: "MACONACHIE: I object to the orders prayed for. There is nothing demonstrated by anything said in Mr Moylan's affidavit or affidavits or any of the submissions made by Mr Donohoe that points to the efficacy of a document examination resolving the issue that he says is presented, none. The question is, unless I am misunderstanding it entirely, and that's possible, is whether or not fundamentally the Woollams report, if I can call it that, of 28 October 2001 in its present form in court as exhibit J is as it was on 28 October 2001 when it was delivered. It wasn't objected to when it was tendered, that's point one. Secondly, the witness who is on the state of the evidence responsible primarily, but not solely, for its form is Ms Woollams. I appreciate that for one reason or another, and I don't seek to apportion or direct blame or criticism, she has not been asked whether it is in the form in which she, as it were, signed off on it. I can't remember now what Mr McDougall said about it, but he was cross-examined at length. If that's the issue it doesn't require some document examiner to examine it and postulate whether it is or isn't in a particular form. There is not a word of evidence before you to demonstrate that there will be any efficacy at all from a document examination in informing the issue that my learned friend wants to have clarified. There is just none. Accordingly, there can be no reasonableness with respect to the request. Reasonableness in that context, in my submission, means reasoned, logical and deductive." 19 Mr Maconachie submitted that whatever might be said about the existence of, or the reasons for, the discrepancies in various versions of the Woollams report, no amount of forensic examination of exhibit J was going to cast any light on them. He said that there was no evidence that the proposed document examination would reveal anything about the reason for the discrepancies at all. Accordingly, he contended that the request was not reasonable and in the circumstances the order should be refused. 20 Finally, Mr Maconachie said this: "I am prepared to make the following admission. The document served in February 2003, that is to say, exhibit F, and served in February 2003 on the first defendant without prejudice for its text is authentic. Exhibit 1D17 for its appendices is authentic. I hope it helps. ***** The admission I have offered puts an end to the issue, without any need for a document examination, which is not evident on the face of the matter, because it will not be, and cannot be, suggested to Mr Ghirardello that he had the four pages of notes from the Woollams' report. But it certainly will be suggested that he had the very same material from other sources. Your Honour will remember references to document 71 and document 72A in the discovery, which were specifically and particularly addressed by Mr Ghirardello in his correspondence with Mr Mark Gray-Spencer." 21 The significant fact that decides the outcome of this application is that there is not, or certainly does not appear to be, any dispute that the deficiencies and dissimilarities in the document, or versions of it or of parts of it, are all agreed and accepted. In other words, no party is putting in issue any suggestion by any other that various versions of exhibit J or of parts of it, have not all or always been consistent. It is agreed and recognised that some appendices were incomplete or totally absent, and that they have also been misdescribed. 22 A search for the reason why this should be so does not appear to be of any obvious assistance to any party or to me. Indeed, on one view, an answer to the question may be inimical to the interests of Rimanui. For example, at present the submission is available to Rimanui that the incompleteness of Mr Ward's notes at some point in their dissemination and consideration since 2 December 2000 may, in Mr Donohoe's words, have poisoned the well (of justice) at its source. The availability of a submission that any particular expert may have commenced or considered another or different line of investigation or analysis, or may have been more easily capable of persuasion to another point of view, with the benefit of all of the material, is not lost simply because the form or format of exhibit J cannot definitively be located or isolated in time and space. 23 I am also at a loss to understand what any forensic document examiner could tell the parties and me about exhibit J, which it may be important to know, other than the accepted fact that it may have been in several different forms at various different times. However, that is not only already known, it is uncontroversial, and therefore currently unimportant. Mr Maconachie's admissions made for the plaintiff on this application confirm and support it. It might be otherwise if it were to be alleged that some critical event occurred or some essential issue was irretrievably overlooked, because of reliance by someone on an incomplete document, or that the exposure of some dishonesty or secrecy were lurking. The earlier of these possibilities do not present themselves for consideration in this case and the later ones have been specifically disavowed. The fourth page of Mr Ward's typed notes has been in circulation for a long time and its role as part of exhibit J is forensically inconsequential. It undoubtedly has a role of some forensic significance in these proceedings but precisely what it is remains to be seen. It is not limited by or tied to the question of whether or not it was or became a part of exhibit J at any particular time or whether it ever did, or in what circumstances. 24 Even though there may be no clear dividing line in all cases between the authenticity and identity of documents, that distinction does not appear in any event to loom large at present with respect to exhibit J. Nor is the time of its creation a matter of apparent significance once it is accepted or admitted that it was in a particular form at a particular time, in this case specifically in March and May 2003, but also at other times as well. Authenticity rather denotes correctness or genuineness. What we are here concerned with is more akin to inadvertence or mistake at the time of creation or reproduction or dissemination, than with authenticity strictly so called. The identity of exhibit J is also not in issue in the sense that it is in the form that it is in, and there is no dispute that other different versions of it or of part of it have been circulated over the years. Mr Ghirardello was alive to the discrepancies in 2003 and his perspicacity alerted others to the differences as well. 25 Even though Rimanui has agreed that the costs associated with the proposed examination should be borne by it, I rather suspect that the whole exercise is ill founded and is likely to be a waste of time. I do not think I should accede to the application. Orders 26 Rimanui's application to uplift exhibit J for the purpose of having it forensically examined is dismissed. ********** 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.