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 (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." 3 The document was sent to the first defendant under cover of an email in the following terms: "Hi Avery, I do have 1½ pages of notes (attached) from the DV Forum with a list of attendees (though I made this list for myself to help remember names so it doesn't include people I knew well such as you and Tracey Poynter). It may help." 4 The plaintiff contends that the document on its face, but in particular with the benefit of the explanatory email, cannot qualify as a document that forms part of the records of the Forum belonging to or kept by Ms Wilkes in the course of or for the purposes of a business. I agree. 5 Putting aside the question of whether or not the Forum is or was a business as defined, the document does not otherwise qualify in the terms of the subsection. Ms Wilkes took notes for her own purposes. She did not do so in a way that shows that her notes were intended to form, or did form, part of the records belonging to or kept by her in the course of or for the purposes of that business. She took notes as an attendee at the Forum, and not in any dual role as an employee of the putative business or in some other recognisable official or quasi-official capacity. Nor can it be said that the notes at any time were or formed part of such a record. 6 I accept that a document may be kept "in the course of, or for the purposes of, a business" even if it is for the "personal use" of a particular employee. This much follows from what was said in Gordon v Ross [2006] NSWCA 157 at [38]: "[38] The second ground of objection raised on appeal was that the document did not form part of the records of the business managed by the plaintiff for the defendant. The distinction sought to be drawn was between a set of notes kept by the plaintiff for his own purposes and those which might be used by 'the employees on "Glengowan"' or be shown to the employer. However, this challenge is based on a false dichotomy: the plaintiff himself was an employee on Glengowan. The real question was whether the record was kept by the plaintiff in the course of or for the purposes of the business, within par (a) of s 69(1), and whether it contained a representation recorded in the course of, or for the purposes of, the business. There is some overlap between the two parts of sub-s 69(1), but for present purposes, nothing turns on that. The plaintiff gave evidence that he made the notes for the purposes of future management of Glengowan, evidence which would seem unassailable when the contents of the notes are considered. They were clearly prepared for his personal use, but in his occupation as manager ; they were not for 'personal use' in the sense that a plan for a future holiday might be." (emphasis added) 7 However, there is no flavour or suggestion in this case that the notes that were taken would ever be likely to have or to assume any role as a document forming part of the records of the Forum or have anything to do with, or any task to perform for, the Forum at all. 8 I am also not satisfied that the Forum was a business for the purposes of the section. It was not a profession, calling, occupation or trade. The first defendant contends that it can satisfy the description of an undertaking. That expression must be understood in the context of the exception for which the section provides. There must in my view be a commercial or mercantile flavour to the circumstances in the course of which the document was generated. The Forum was not in this category. It was a meeting of concerned groups or members of the community with an interest in addressing certain nominated and possibly related social and public health issues. It did not have a constitution or any formal structure. It was not incorporated in a formal way and was not associated with any informal but identifiable structure either. An undertaking to my mind suggests the existence of a particular task or enterprise of some type going well beyond an ad hoc assembly of like-minded people commendably in search of ideas and solutions to disparate social problems. Conclusion and order 9 The document does not qualify as a business record. I reject the tender. ********** 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.