ASIC v Rich

(2005) 216 ALR 320; [2005] NSWSC 417

Supreme Court of NSW

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Interrogate

Catchwords

1. EVIDENCE — admissibility of documents — scope and effect of s 1305 of the Corporations Act — whether such documents as budgets are inadmissible under the hearsay rule — requirement of authentication of documents tendered in evidence — scope and effect of business records exception to hearsay rule — effect of business records exception where document contains representations of expert opinion — scope of "unfair prejudice" under ss 135 and 136

Quick Take

The word 'kept' in s 1305(1) of the Corporations Act means 'caused or allowed to come into existence and be retained' and does not require a deliberate act of retention separate from creation. Financial documents such as budgets, trial balances and management accounts maintained on a company's computer system fall within both the business records exception under s 69 of the Evidence Act and the s 1305 presumption. The business records exception does not override the opinion rule where documents contain representations of expert opinion. The concept of 'unfair prejudice' under ss 135 and 136 does not encompass the ordinary forensic disadvantage of having documentary evidence admitted, and the legislative policy favouring business records is a relevant consideration in the exercise of the exclusionary discretion.