PPK Willoughby Pty Ltd v Baird

HIS HONOUR: The plaintiff has tendered two folders of material originally collected for the purpose of conveniently cross-examining Mr Wowk, with the exception of two documents that the defendants now wish to have included. The plaintiff objects to the defendants’ proposed tender of those documents.

The first document is an email from Deanna Ogilvie to Sydney–PPK Willoughby Gardens Group dated 19 October 2009. It is specifically addressed to Mr Wowk, and is in the following terms:

The second document is a file copy of a letter nominally from the defendants to Mr Graeme Webb at PPK Holdings Pty Ltd dated 23 October 2009. It is unaddressed, unsigned apart from the printed words “Yours sincerely HWL Ebsworth” and is marked “Copy”. For presently relevant purposes, the letter includes the following:

The plaintiff objects to the first document upon the basis that it is hearsay and to the second document upon the basis that there is no evidence that the letter was ever sent or received.

In my opinion, the plaintiff’s objection to the first document is good and I reject the tender. The position with respect to the second document is more complicated.

On 12 June 2019, Mr Webb was cross-examined about the HWL Ebsworth letter dated 23 October 2009 as follows:

On 18 June 2019, Mr Wowk was asked questions about the same HWL Ebsworth letter as follows:

Ms Ogilvie gave evidence about the letter on 21 June 2019, as follows:

Ms Ogilvie’s 14 June 2017 affidavit referred to this letter in the following terms:

The plaintiff contended that this evidence did not support a finding or a conclusion that a letter, of which the document sought to be tendered by the defendants is said to be a copy, was ever sent by the defendants or received by the plaintiff. However, the plaintiff does not contend, and specifically disavows any suggestion, that the copy contained in the defendants’ discovered file was not placed there, and accordingly came into existence, at or about the date that it bears. Indeed, there is evidence, in the form of the defendants’ memorandum of fees for the relevant period, that they invoiced the plaintiff for a letter dated 23 October 2009, which the plaintiff uncontroversially accepts refers to the letter in question. The plaintiff maintains that a charge raised for the preparation of the letter does not of itself support the conclusion that it was actually sent, relying in particular for that submission upon the quoted evidence of Mr Webb. Moreover, the letter invited a response from the plaintiff and the evidence in this case does not disclose that a response was made.

Obviously enough, the defendants wish to rely upon the letter in support of their contention that they were instructed by the plaintiff not to pursue a comprehensive due diligence enquiry. It is not for me currently to decide that question although it will presumably achieve significance in the outcome of the proceedings. For present purposes, the issue is not whether the letter was sent or received but whether the creation of the letter in the defendants’ file is relevantly capable of supporting a finding that the defendants were given the limiting instructions for which they contend. Restricted to a consideration of the present application, it occurs to me as a matter of high probability that a file copy of a letter in the terms described would not have been generated unless the putative instructions had been given, or at least that the defendants understood that they had been given: the letter reads in terms as a file note of something that required confirmation. It is clearly relevant to the proof of the probability of a fact in issue. The broader question of whether or not the finding promoted by the defendants ought ultimately to be made remains to be seen.

In my view, the letter is relevant and should be admitted.