Barton Property Partnership No 2 v Andrew John Foote

• Jurisdiction: Australian Capital Territory
• Judge: Mossop AsJ
• Judgment Date: 04 August 2015
• Court: Supreme Court of ACT
• Docket Number: File Number: SC128 of 2015
• Date: 04 August 2015

[2015] ACTSC 203

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop AsJ

File Number: SC128 of 2015

Barton Property Partnership No 2

(First Plaintiff)

Barton General Practice Partnership

(Second Plaintiff)

and

Andrew John Foote

(First Defendant)

Andlyn Barton Property Pty Ltd

(Second Defendant)

Grace (ACT) Pty Ltd t/as Helen King Hearing Solutions

(Third Defendant)

Representation:

Counsel

Mr D Robens (First and Second Plaintiffs)

Mr M Orlov (First and Second Defendants)

Ms S Mulherin (Third Defendant)

Cases Cited:

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 5) [2012] FCA 1479

Barton Property Partnership No 2 & Anor v Foote & Ors (No 2) [2015] ACTSC 204

Forbes Engineering (Asia) Pty Ltd v Forbes (No 4) [2009] FCA 675

Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406

McMahon v John Fairfax Publications Pty Ltd (No 4) [2012] NSWSC 216

National Telecoms Group Ltd v John Fairfax Publications Pty Ltd (No 1) [2011] NSWSC 455

Roach v Page (No 15) [2003] NSWSC 939

Roach v Page (No 27) [2003] NSWSC 1046

Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349

Legislation Cited:

Evidence Act 2011 (ACT)

EVIDENCE — Admissibility of documents — business records — extracts from web pages — consideration of reliability of extracts — consideration of personal knowledge of authors of extracts

Decision:

See [26]

1 These are the reasons for my decision on the admissibility of certain evidence sought to be tendered by the plaintiffs in these proceedings. The background to the proceedings is set out in my substantive judgment in the matter: Barton Property Partnership No 2 & Anor v Foote & Ors (No 2) [2015] ACTSC 204.

2 During the course of the hearing on 18 May 2015 I deferred my ruling on certain parts of the affidavits of Thomas Barrington-Smith affirmed 28 April 2015 and 29 April 2015. Certain paragraphs of those affidavits and the annexures referred to in those paragraphs were objected to on the grounds that the annexures were not admissible as business records to prove the truth of their contents. The annexures were print outs of various web pages.

3 No party objected to the deferral of my ruling. Subsequent to the deferral of my ruling affidavit evidence was read by the third defendant which greatly reduced the significance of the evidence the subject of the deferred ruling.

4 The evidence appears to be tendered in order to establish that the conduct of the practice of an audiometrist or audiologist is within the scope of the definition of “health facility” and not within the definition of “business agency” for the purposes of “non retail commercial use” as defined in the purpose clause of the relevant units plan. It was tendered in order to prove the qualifications required to be an audiometrist or audiologist and to demonstrate the activities which would be required to be carried out at the premises of an audiometrist or audiologist. Having regard to the evidence given in the affidavits of Helen King affirmed 11 May 2015 and 15 May 2015 the significance of these annexures to Mr Barrington-Smith's affidavits is much reduced although it is not possible to say that, if admissible, they are not relevant.

5 The paragraphs of the affidavits which were objected to simply referred to and annexed various documents obtained from the internet. I will therefore simply deal with the objections on the basis that a ruling upon the admissibility of the relevant annexure will determine the admissibility of the paragraph which refers to it.

6 Section 69 of the Evidence Act 2011 (ACT) provides:

69 Exception—business records

• (1) This section applies to a document that—

  • (a) either—

    • (i) is or forms part of a record belonging to or kept by an entity in the course of, or for the purposes of, a business; or

    • (ii) at any time was or formed part of the record; and

  • (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

• (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made—

  • (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

  • (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

• (3) Subsection (2) does not apply 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.

• (4) If—

  • (a) the happening of an event of a particular kind is in question; and

  • (b) in the course of a business, a system has been followed of making and keeping a record of the happening of all events of that kind;

    the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with the system, of the happening of the event.

• (5) For this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).

  Note 1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of proof, and authentication, of business records.

  Note 2 The Common wealth Act, s 182 gives the Commonwealth Act, s 69 a wider application in relation to Commonwealth records.

7 In Roach v Page (No 15) [2003] NSWSC 939 the plaintiff sought to tender an extract (which was characterised as an “advertorial”) of the Australian Mushroom Growers” Association Journal as a business record under s 69. Sperling J rejected the argument that the extract was a business record as follows (at [5]–[8]):

• 5. The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties.

• 6. On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business. They are the product of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business.

• 7. It was submitted that the document was part of the records of the Australian Mushroom Growers' Association Limited (the publisher), of Campbell's (it being submitted that they would have retained a copy of it) and / or of the State Library of New South Wales (to be inferred, it was said, from the ISSN number recorded in the publication). For the reasons I have given, the document did not qualify as constituting part of the records of any of these entities within the meaning of the section.

• 8. The approach may be tested in a commonsense way. It cannot have been intended that newspapers, magazines and journals (publication of any kind produced and / or received in the course of a business undertaking) would be evidence of whatever was stated in them.

8 Sperling J revisited the issue in Roach v Page (No 27) [2003] NSWSC 1046, when his Honour rejected the tender of extracts from certain websites operated by Irish and Dutch peat exporters. Once again, it was contended that the extracts were business records. Sperling J said (at [9]–[12]):

• 9. So far as is presently relevant, it is the recording of business activities in the course of carrying on the business which is critical. The publication of a book by a business providing a history of the business may record details of the business carried on but it is not a ‘record of business’ within the meaning of s 69. Similarly, a flyer or a media advertisement or a website publication, extolling the virtues of the business in the way such publications do, is not a record of a business merely because it purportedly records activities of the business.

• 10. It is necessary to place such a restrictive construction on s 69 because it cannot have been intended that publications of this kind would qualify, any more than it would have been intended that — in the ordinary course — books, magazines or newspapers published by the business would be covered by that section.

• 11. The...