Grace v Grace

HIS HONOUR: The plaintiff tenders a file note, which I would infer was prepared by a solicitor in the office of Hunts Lawyers on 17 March 2008, of a telephone conversation with Dr Grace that day.

The document is tendered for the purpose of proving that Dr Grace made a number of statements, which it would no doubt be submitted, are inconsistent in some respects with her current evidence. In other words, the previous representation sought to be proved is the representation made by the author of the note that Dr Grace said certain things. That author not being called, that amounts to a hearsay purpose. The plaintiff supports the tender on the basis that the document is a business record for the purposes of (NSW) Evidence Act, s 69.

It is uncontroversial that the document is a business record. The question, however, is whether the business records exception to the hearsay rule contained in s 69 is rendered inapplicable in the circumstances by s 69(3), which relevantly provides that the section does not apply if the representation was prepared or obtained for the purpose of conducting or in contemplation of or in connection with an Australian or overseas proceeding.

Proceedings concerning the Nevilda Investments Superannuation Fund were not on foot in 17 March 2008, and I am not satisfied that proceedings in connection with the Nevilda Investments Superannuation Fund were then in contemplation, but the relevant contemplation or connection does not have to be of or with the proceedings in which the document is sought to be tendered. Proceedings between the plaintiff and the defendants – indeed, the proceedings I am hearing – were already on foot. Hunts were acting for the defendants in those proceedings. The provisional liquidator had been appointed in those proceedings. The provisional liquidator, in the apparent discharge of his duties, was seeking information about the superannuation fund.

While the obtaining of that information may not then have been at the heart of the proceedings, in my view, the answers being sought by the solicitor from Dr Grace, and the answers recorded in the note under tender, flowed inevitably from what the provisional liquidator was seeking, and the provisional liquidator was appointed in and for the purpose of these proceedings.

In my view, therefore, the relevant representations contained in the document under tender were prepared or obtained in connection with an Australian proceeding, namely, the proceedings that were already before this court.

The tender cannot therefore be supported under the business records exception. No other basis of admissibility has been suggested. I reject the tender. The document will be marked for identification only, as MFI 246.