HP Mercantile Pty Ltd v Clements [2014] NSWSC 290

HP Mercantile Pty Ltd v Clements [2014] NSWSC 290

The memorandum dated 19 September 2001 from Merilbah to HP Mercantile is admissible as a business record under s 69 of the Evidence Act, as the court inferred Mr Purcell might reasonably have had knowledge of the matters asserted. However, the schedules and other attached documents are only admissible to identify the documents to which the memorandum refers, not as proof of facts asserted, due to the failure to establish provenance or knowledge of the author. The evidence is not unfairly prejudicial or misleading such as to warrant exclusion under s 135. No further order under s 169 is necessary because the documentation beyond the memorandum was only admitted for a limited purpose.

Parties
Plaintiff: HP Mercantile Pty Ltd; Defendant: Phillip Clements
Jurisdiction
Australia
Judgment Date
19 March 2014
Procedural Posture
Interlocutory Application / Admissibility Ruling in the Course of Proceedings
Outcome
Relevant paragraphs of affidavit admitted subject to limitation; memorandum admitted; other documents admitted for limited purpose only.
Legal Topics
Admissibility, Business Records, Hearsay, Relevancy, Prejudice, Requests for Witnesses
Evidence Admissibility Business Records Hearsay Relevancy Prejudice Requests for Witnesses

Case Brief

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Parties

HP Mercantile Pty Ltd

Plaintiff

Phillip Clements

Defendant

Procedural Posture

Interlocutory Application / Admissibility Ruling in the Course of Proceedings

Legal Issues

  1. 1 Whether documents annexed to affidavit are admissible as business records under s 69 Evidence Act 1995 (NSW)
  2. 2 Whether documents should be excluded under s 135 Evidence Act for unfair prejudice or being misleading
  3. 3 Whether a direction under s 169 Evidence Act should be made against the plaintiff for failure to call a requested witness

Ratio Decidendi

The memorandum dated 19 September 2001 from Merilbah to HP Mercantile is admissible as a business record under s 69 of the Evidence Act, as the court inferred Mr Purcell might reasonably have had knowledge of the matters asserted. However, the schedules and other attached documents are only admissible to identify the documents to which the memorandum refers, not as proof of facts asserted, due to the failure to establish provenance or knowledge of the author. The evidence is not unfairly prejudicial or misleading such as to warrant exclusion under s 135. No further order under s 169 is necessary because the documentation beyond the memorandum was only admitted for a limited purpose.

Court Disposition

Relevant paragraphs of affidavit admitted subject to limitation; memorandum admitted; other documents admitted for limited purpose only.

Orders

  • Paragraphs 83 and 86 of Mr Chapman's affidavit admitted with limitation under s 136 Evidence Act; documents rise no higher than exhibits RC 19 and RC 20 respectively.
  • Memorandum dated 19 September 2001 from Merilbah to HP Mercantile in exhibits RC 19 and RC 20 admitted as a business record under s 69 Evidence Act.