Mundine v Brown (No 3) [2010] NSWSC 515

New South Wales Supreme Court

CITATION : Mundine v Brown (No 3) [2010] NSWSC 515

HEARING DATE(S) : 10 May - 1 June 2010

JUDGMENT DATE : 19 May 2010

JUDGMENT OF : Harrison J

DECISION : Tender of notes from Forum meeting rejected.

CATCHWORDS : EVIDENCE – proposed tender of documents as business records - Evidence Act 1995 s 69(1) – where notes taken by delegate at a forum on domestic violence – whether notes kept "in the course of, or for the purposes of, a business" when taken for the "personal use" of the delegate – where delegate not employed by the putative business - whether business records – tender rejected.

LEGISLATION CITED : Evidence Act 1995

CATEGORY : Procedural and other rulings

CASES CITED : Gordon v Ross [2006] NSWCA 157

Lana Mundine (Plaintiff) PARTIES : Avery Brown (First Defendant) APN News and Media Limited (Second Defendant) Daily Examiner Pty Ltd (Third Defendant)

FILE NUMBER(S) : SC 2009/296431

T Molomby SC with R K M Rasmussen (Plaintiff) COUNSEL : P M Sibtain (First Defendant) A T S Dawson (Second and Third Defendants)

Slater & Gordon (Plaintiff) SOLICITORS : Holding Redlich (First Defendant) Banki Haddock Fiora (Second and Third Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

HARRISON J

19 May 2010

2009/296431 Lana Mundine v Avery Brown, APN News and Media Limited and Daily Examiner Pty Ltd (No 3)

JUDGMENT 1 HIS HONOUR: The first defendant seeks to tender a document prepared by Carolyn Wilkes, a Community Development Officer (Crime Prevention) with the Clarence Valley Council. Ms Wilkes attended the Domestic Violence Forum together with several other interested parties held on 14 August 2008. Ms Wilkes took notes of what occurred at the forum. There are two pages in her handwriting on A4 paper from what appears to be a spiral backed notebook or pad. The pages are arguably relevant to an issue in the proceedings (although the plaintiff does not accept this) inasmuch as they refer to the qualifications and skills of aboriginal workers and the lack of mental health workers, among other things. Ms Wilkes is not being called as a witness to prove the contents of the document or for any other purpose and no other procedure to render the document admissible in her absence has been followed. 2 The plaintiff objects to the tender of the document. The first defendant contends that it is a business record and is admissible as such without more. In particular, the first defendant contends that it is a document for the purposes of s 69(1) of the Evidence Act 1995, which is in the following terms: " 69 Exception: business records