New South Wales Supreme Court CITATION : Mobileciti Pty Limited v Vodafone Pty Limited [2009] NSWSC 891 HEARING DATE(S) : 25 and 26 August 2009 JURISDICTION : Equity Division JUDGMENT OF : Hamilton AJ EX TEMPORE JUDGMENT DATE : 26 August 2009 DECISION : Business records rejected under s 135 of the Evidence Act 1995 CATCHWORDS : EVIDENCE [23] – Admissibility and relevancy – in general – other cases – Judicial discretion to exclude – Evidence Act 1995, s 135 LEGISLATION CITED : Evidence Act 1995, ss 69, 135, 136, 137 CATEGORY : Procedural and other rulings Ainsworth v Burden [2005] NSWCA 174 Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222 CASES CITED : Longhurst v Hunt [2004] NSWCA 91 Ordukaya v Hicks [2000] NSWCA 180 Papakosmas v The Queen (1999) 196 CLR 297 Roach v Page (No 11) [2003] NSWSC 907 Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348 Mobileciti Pty Limited (plaintiff) PARTIES : Vodafone Pty Limited (first defendant) Look Mobile Distribution Pty Limited (second defendant) FILE NUMBER(S) : SC 6445/05 Mr M W Young (plaintiff) COUNSEL : Mr A S McGrath w. Dr H Bennet (first defendant) No appearance (second defendant) Dixon Holmes du Pont (plaintiff) SOLICITORS : Henry Davis York (first defendant) No appearance (second defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON AJ Wednesday, 26 August 2009 6445/05 Mobileciti Pty Limited v Vodafone Pty Limited & Anor JUDGMENT (ex tempore) 1 HIS HONOUR: I am this morning considering objections to various pieces of evidence tendered on behalf of the first defendant in these proceedings. The first class with which I shall deal is paragraphs of affidavits whereby employees of the first defendant recorded telephone calls to customers to conduct a survey and record on survey forms handwritten answers to printed questions. Those paragraphs, if admitted, would carry the survey forms into evidence. Those witnesses, frankly, say they cannot remember the conversations that led to the completion of those forms. They think or assume that they asked the questions set out in the forms, but they have no recollection of this either. 2 The answers that are recorded are quite elliptical, for instance, on page 117 of Exhibit A the following questions and answers are recorded: "Did you sign up for a contract? Yes. If so, how long was your contract for? 4. How many mobile numbers did you sign up for? 1. Were you offered a handset? YES/NO" with the "NO" crossed through. "Did you get a handset? YES/NO" with the "NO" crossed through. There is a note at the foot of the page in the witness' handwriting: "Notes confirm." The notes that are referred to are identified as being at page 122 of Exhibit A. Whereas the survey document indicates that the telephone call was made about 11 December 2005, the notes refer to a telephone conversation with somebody else that took place on 27 June 2005. 3 There is no issue that the survey documents are business records of the plaintiff. They were made before there was any question of litigation in this case and they are plainly admissible as business records under s 69 of the Evidence Act 1995 ("the EA"), subject to the Court's discretion to exclude them under s 135 or to limit their use under s 136 of the EA. 4 Section 135 provides as follows: "General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 5 It is contended that the surveys should be excluded under either para (a) or para (b), on the ground that the probative value of the evidence is substantially outweighed by the danger that the evidence might either be unfairly prejudicial to the plaintiff or be misleading or confusing. 6 The approach of the courts to the expression "unfairly prejudicial" in ss 135, 136 and 137 of the EA has had a somewhat convoluted history that is, in general terms, set out in Odgers' Uniform Evidence Law (8th Ed, 2009) [1.3.14560]. 7 In Ainsworth v Burden [2005] NSWCA 174 the Court of Appeal decided that the phrase must have the same meaning in the three sections. There is no doubt that that proposition reflects the law. 8 In Papakosmas v The Queen (1999) 196 CLR 297, McHugh J (who was the only Justice of the High Court who expressed the view) referred to two possible views of the ambit of "unfair prejudice". His Honour said that it was not necessary to express a concluded opinion deciding between the two views, but that he was inclined to think that the narrower view should be taken, that the reference was to a tendency to cause the fact finder to base the decision on something other than the established propositions in the case. 9 Mr Anthony McGrath, of counsel for the first defendant, has submitted that this view is established by what McHugh J said in that case. However, his Honour's rather tentative view has not prevailed in later decisions of the courts relating to the expression. I have referred, in particular, to the decisions of the Court of Appeal in Ordukaya v Hicks [2000] NSWCA 180; Longhurst v Hunt [2004] NSWCA 91; and, most recently, Dyldam Developments Pty Limited v Jones [2008] NSWCA 56. I have also adverted to the single Judge decisions of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 222; Sperling J in Roach v Page (No 11) [2003] NSWSC 907; and Sackville J in Seven Network Ltd v News Ltd (No 8) [2005] FCA 1348. 10 I have come to the conclusion that I ought exercise my discretion under s 135 to reject the evidence of the surveys and the evidence as to their manner of creation. The factors that I have taken into account in exercising that discretion are as follows: (1) Mr McGrath has asserted that the evidence has a high degree of significance in the case as tending to establish whether what was said by the plaintiff's customers provided reasonable grounds for the first defendant to require the second defendant to terminate the plaintiff's dealer agreement and whether what was said by the plaintiff's customers provided a fair basis for the first defendant to reasonably consider that a connection had been obtained using misleading or deceptive conduct. (2) The plaintiff has chosen to lead hearsay evidence rather than calling the makers of the statements, eg, the customers: see Idoport at [40]. And there is contest about both what was said to the first defendant's employees who participated in the telephone calls and as to the truth of the information that was furnished to them by the customers. There was no explanation from the first defendant as to why the customers should not have been called, permitting cross examination of them as to what they said. (3) That is of some particular importance, because the evidence is unsatisfactory and equivocal in form, as demonstrated by the extract from a survey form which I have set out above: see Idoport at [40]; Dyldam at [91]. The answers are elliptical and there was no evidence as to what the customer actually said and any surrounding conversation. In so far as it can be inferred what questions were asked of the customer, these questions were, themselves, general and ambiguous. Indeed, the answers in some instances conflict with other evidence in the case. The answers suggest that there was in many instances a contract for four months, whereas the other evidence indicates, not that the contract entered into with the first defendant was for a term, but that there was a collateral agreement with the plaintiff that a cash rebate would be made if the relationship, not itself for a term, was not cancelled until after a specified period. Furthermore, in so far as reference was made to "notes" as confirming what was recorded in the survey forms, what is recorded on A122 in respect of the same customer as A117 relates to does not, in reality, show at all that what is on A117 is confirmed. (4) The plaintiff attempted unsuccessfully to give evidence of other statements by the same customers. It is true that, once objection was taken by the first defendant, that attempt was bound to fail because, unlike the documents assembled by the first defendant, the documents assembled by the plaintiff were assembled after litigation had commenced and therefore fell foul of s 69(3) of the EA and could not be tendered as business records. The first defendant did not have to take and maintain that objection as it did. But it is clear from the plaintiff's attempt to tender those documents, that other versions, whether admissible or not, were available of what the relevant customers said. As I have already said, the first defendant, itself, could have called the relevant customers and produced greater precision as to what they said rather than proffering second-hand hearsay to prove it. (5) The course followed by the first defendant precluded cross examination. It is the law that the lack of opportunity to cross examine is relevant, but not necessarily decisive, in determining whether or not hearsay evidence should be excluded: Dyldam at [89]. However, it has been said that the fact that cross examination was precluded was, in appropriate circumstances, sufficient to justify the exercise of the discretion in favour of exclusion: Roach at [34]; Longhurst at [46]. (6) The unfair prejudice relied on is unfair prejudice arising from the plaintiff's inability to test the evidence, the evidence itself being unclear and equivocal, as I have indicated. 11 In all the circumstances I have come to the conclusion that the survey evidence should be excluded under s 135 of the EA as giving rise to unfair prejudice (Seven Network at [20]). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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