Roach & Ors v Page & Ors (No.27)

His Honour : On 6 November 2003, counsel for the plaintiffs tendered extracts from the websites of Harte Peat (of Ireland) and Topterra (of Holland) which, on the evidence, are exporters of black peat to Australia for use in the mushroom growing industry.

There is evidence to the effect that quality control is an important consideration for mushroom growers in their selection of and loyalty to a peat supplier. That is a relevant matter in the proceedings. The documents now under consideration are tendered to supplement and fortify that evidence.

The relevant parts of the publications are as follows. In the case of Harte Peat: Harte Peat was awarded the prestigious ISO 9002 in 1997 in recognition of their quality control program, which ensures a quality product, is produced over and over again … Harte Peat has their own laboratory that enables them to test their raw materials & finished product on a daily basis. Standard analyses include pH, Ash, Moisture, Bulk density & Life. Other tests are carried out independently by N.A.V.B.C. (National Agricultural and Veterinary Biotechnology Centre).

In the case of Topterra: The quality of the end product is already largely determined with the digging out of the peat. That is why there are already several checks and analyses in the peatfield before and during the harvesting of the peat … Also all the raw materials and end products are being tested several times per day in own laboratory and also chemical and physical analyses are being made on a regular base by an external laboratory. Finally a control sample is held back from each packed load.

Counsel for the plaintiffs accepts that the plaintiffs cannot have the documents as evidence of what Harte Peat and Topterra do in relation to quality management. He submits, however, that the documents are admissible to prove, by inference from the publicising of quality management, that the publishers believe quality management is important to peat buyers. It is then to be inferred from the belief that such an attitude on the part of customers is the fact. So the argument runs.

The tender was put on two alternative bases. First, it was said that the publications were admissible as business records within the meaning of s69 of the Evidence Act 1995. In that regard, counsel for the plaintiffs accepts that there would then have to be a limitation pursuant to s136 so that the documents would not stand as evidence of what was in fact done by these corporations in relation to quality control.

Secondly, it was said that the documents were admissible pursuant to s64(2) on the ground that calling witnesses from the corporations to give evidence would cause undue expense and delay.

As for s69, the publications are not business records within the meaning of s69. Every publication by a business is not automatically a “record of the business”. As I said in my judgment No. 15 in these proceedings ( Roach & Ors v Page & Ors (No.15) [2003] NSWSC 939), at [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.

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 s69. 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.

It is necessary to place such a restrictive construction on s69 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.

The thinking behind the section is clear enough. Things recorded or communicated in the course of the business and constituting or concerning business activities are likely to be correct. There is good reason for the courts to afford to such records the same kind of reliability as those engaged in business operations customarily do. The same is not true of publications made for wider dissemination, for entertainment, for advertising or for public relations purposes. Such publications are justifiably received with healthy scepticism.

The publications now tendered are not business records within the meaning of s69.

If I am wrong about that, what are the representations in the publications which would then be available to the plaintiffs? These are that the respective corporations had the quality management practices described in the publications. If not within the direct knowledge of the authors of the publication, the information is likely to have been supplied by persons who had personal knowledge of such practices. That would satisfy s69(2).

It is at this point that a question of relevance arises. The representations are relied upon, first, to ground an inference that the authors believed that customers value such quality management. (Otherwise, the authors would not have included the passages.) That inference is available.

But such a belief is only relevant if it could be inferred from that belief that customers in fact value such quality management. It is here that the process of reasoning breaks down. It is as likely as not that such a belief (assuming the belief were inferred) is mere supposition (however reasonable the supposition may be) rather than a belief based on information concerning the state of mind of customers.

The process of reasoning is also in breach of the hearsay rule. A fact cannot be proved by evidence that a person believed it to be true.

The representations in the publications are, accordingly, not relevant evidence as tending to prove the ultimate proposition for which the evidence is intended to be used, namely, that customers value quality management practices of the kind described in the publications.

To cover the situation if I am wrong about that, I would exclude the evidence pursuant to s135. If the inferred belief of the authors of the publication is capable of grounding an inference about the state of mind of customers, it would be unfair to admit the evidence without the defendants having the opportunity of testing the way in which the belief actually came to be formed and in particular whether customers had in fact conveyed an attitude concerning quality management practices of the relevant kind, by word or by action, to the observation of the authors of the publication.

That consideration alone would lead me to conclude that the probative value of the evidence is substantially outweighed by unfair prejudice to the defendants.

As for s64(2), the argument fails for the same and for additional reasons.

The same reasons apply because the representations identified in the documents for the purposes of s64 are the same representations, namely, the existence of the described quality management practices. From that point forward the argument founders on relevance and the exercise of discretion pursuant to s135.

Additionally, the s64 approach fails because it is not shown that it would cause undue expense or undue delay, or would not be reasonably practicable to call the persons who made the representations. In particular, it is not shown that this could not be done expeditiously and cheaply by video link. Those are relative terms but, in the context of the length and expense of the present proceedings, that is the case.

Accordingly the tender of the documents is rejected. -o0o-