Published by Geoff Harrison | 6 October 2023
Section 69 of the Evidence Act 1995 ('the Act') relates to business records. If a document can be categorised as a business record, subject to certain exceptions, the document is generally admissible as an exception to the hearsay rule. To be categorised as a business record, the document must either form 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 at any time formed part of such a record and contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
The hearsay rule does not apply to the previous representation if the representation was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or 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.
An exception to this rule is where the document 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 was made in connection with an investigation relating to or leading to a criminal proceeding (See Averkin and Vitali).
If a business maintains a system of keeping records, the hearsay rule does not apply in relation to proving a negative ie. that there were no such records made or kept in accordance with that system.
Up until the decision of Gregg, there was some uncertainty as to whether the authentication of the document could be proven from the terms of the document itself. However, as noted by, Hoeben CJ at CL at 368 and overturning the decision of NAB v Rusu, "[t]here is no reason in principle that to the extent necessary, the authenticity of a document cannot be determined from the terms of the document itself".
Other Sources:
Cases:
Gregg v R [2020] NSWCCA 245 (See [366] - [368] re authentication/provenance of the document)
NAB v Rusu [1999] NSWSC 539 (Overturned by Gregg)
Averkin v Insurance Australia Ltd [2016] NSWCA 122 (See [112] - [113] re made in connection with an investigation)
Vitali v Stachnik [2001] NSWSC 303 (see [12])
Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355
AEI Insurance Group Pty Ltd v Martin (No 4) [2024] FCA 1110 (screenshots of diary notes)
Extracted Legislation:
EVIDENCE ACT 1995 - SECT 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.
(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 occurrence 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 occurrence 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 that system, of the occurrence of the event.
(5) For the purposes of 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).
Notes-:
1 Sections 48, 49, 50, 146, 147 and 150 (1) are relevant to the mode of proof, and authentication, of business records.
2 Section 182 of the Commonwealth Act gives section 69 of the Commonwealth Act a wider application in relation to Commonwealth records.
EVIDENCE ACT 1995 - SECT 183
Inferences
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may-
(a) examine the document or thing, and
(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
Note-: Section 182 of the Commonwealth Act gives section 183 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
PART 2 - OTHER EXPRESSIONS
1 REFERENCES TO BUSINESSES
(1) A reference in this Act to a business includes a reference to the following-
(a) a profession, calling, occupation, trade or undertaking,
(b) an activity engaged in or carried on by the Crown in any of its capacities,
(c) an activity engaged in or carried on by the government of a foreign country,
(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity),
(e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament,
(f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature.
(2) A reference in this Act to a business also includes a reference to-
(a) a business that is not engaged in or carried on for profit, or
(b) a business engaged in or carried on outside Australia.
6 REPRESENTATIONS IN DOCUMENTS
For the purposes of this Act, a representation contained in a document is taken to have been made by a person if-
(a) the document was written, made or otherwise produced by the person, or
(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.
8 REFERENCES TO DOCUMENTS
A reference in this Act to a document includes a reference to-
(a) any part of the document, or
(b) any copy, reproduction or duplicate of the document or of any part of the document, or
(c) any part of such a copy, reproduction or duplicate.
EVIDENCE ACT 1995 - SECT 48
Proof of contents of documents
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods-
(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question,
(b) tendering a document that-
(i) is or purports to be a copy of the document in question, and
(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents,
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)-tendering a document that is or purports to be a transcript of the words,
(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it-tendering a document that was or purports to have been produced by use of the device,
(e) tendering a document that-
(i) forms part of the records of or kept by a business (whether or not the business is still in existence), and
(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary,
(f) if the document in question is a public document-tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed-
(i) by a person authorised by or on behalf of the government to print the document or by the Government Printer of the Commonwealth or by the government or official printer of another State or a Territory, or
(ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country, or
(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
(3) If the party adduces evidence of the contents of a document under subsection (1) (a), the evidence may only be used-
(a) in respect of the party’s case against the other party who made the admission concerned, or
(b) in respect of the other party’s case against the party who adduced the evidence in that way.
(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by-
(a) tendering a document that is a copy of, or an extract from or summary of, the document in question, or
(b) adducing from a witness evidence of the contents of the document in question.
Notes-:
1 Clause 5 of Part 2 of the Dictionary is about the availability of documents.
2 Section 182 of the Commonwealth Act gives section 48 of the Commonwealth Act a wider application in relation to Commonwealth records and certain Commonwealth documents.
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