Case: Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933
Outcome: cited
business records are prepared as internal records in the course of or for the purposes of the business (Austin J in ASIC v Rich [2005] NSWSC 417 at [212] ). Business records can clearly include opinions ( Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933) however as observed by Austin J in ASIC v Rich [2005] NSWSC 417: It is most unlikely that those expressing opinions in business records would attend to the requirements of s 78 or s 79 , let alone with the precision required by Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It would not occur to the people creating those documents that they should set out to justify their opinions in the same way that an expert would do in preparing a written report for a court hearing. In those circumstances, to apply the opinion rule to business records that meet the requirements of s 69 would be substantially to undermine, if not to negate, the implementation of the policy underlying the business records provisions, asserted so forcefully by Hope JA in Albrighton (at 548-549) and by the Australian Law Reform Commission in its Interim Report on Evidence at [709]. Courts would be prevented from having access to substantial components of the records of businesses so as to assess them for what they are, on the ground that they do not satisfy requirements which their authors would not have regarded as relevant. As Brownie AJ remarked in a somewhat different context ( Linfox Transport (Aust) Pty Ltd v Arthur Yates &amp; Co Ltd (2003) 47 ACSR 261 at [23]), "it does not seem apt in this context to draw a lawyerly distinction between the way a witness might or might not be permitted to give opinion evidence in court with the way in which a company officer routinely reports to his superiors". (at [212]) The absence of the author of the report, or anyone who could explain it, as a witness in these proceedings is, however, an issue which goes to weight to be attributed to the evidence: Ringrow [2003] FCA 933 at [27] . Although the Deloittes Touche Tohmatsu report may be a "business record" for the purposes of s 69 of the Evidence Act and prima facie admissible, a balance must be struck between the probative and prejudicial value of the report. Section 135 of the Evidence Act empowers the court to refuse to admit evidence its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. In my view the prejudice likely to be suffered by the respondents from admission of the Deloittes Touche Tohmatsu report outweighs its probative value. I form this view because as I have already explained, I consider that the evidence discloses grounds for serious concern as to the compliance of the Deloitte Touche Tohmatsu audit report with cl 3.3 and Annexure 1 of the share sale agreement. This issue is compounded by the absence of the author of the report, any witness who could speak to the report, and the absence of source financial documentation, all of which mean that the contents of the report cannot be properly tested by the respondents. Accordingly I consider the Deloitte Touche Tohmatsu report should be ruled inadmissible pursuant to s 135 of the Evidence Act .