Category Archives: s. 150

Traxys Europe SA v Balaji Coke Industry Pvt Ltd [2011] FCA 1132 (29 September 2011)

7 Senior Counsel for Balaji submitted that none of this matters because the correspondence is admissible pursuant to s 69(2) of the Evidence Act 1995 (Cth) (the Evidence Act) and that no submission has been made on behalf of Traxys that it should be excluded on some discretionary basis (eg pursuant to s 135 of the Evidence Act).
8 I am entitled to look at the documents in Annexure “VA1”in order to decide whether or not they should be admitted pursuant to s 69 of the Evidence Act. It seems to me that the documents do meet the requirements of subs (2) of s 69. I say this because, on their face, they appear to be documents maintained by Balaji as part of its ordinary business records (see s 183 of the Evidence Act) and, insofar as those letters generated by Balaji itself are concerned, appear to have been generated by a person with the requisite knowledge. The same may be said of the letters emanating from Concast.
9 For these reasons, I propose to admit the correspondence comprised in Annexure “VA1” to Mr Agarwal’s first affidavit. In so doing I say nothing about the weight that will be given to those documents when I come to consider the substantive decision or decisions which I have to make in the present litigation.

12 It is incumbent upon the party tendering a document which is said to constitute a binding contract such as the Share Sale Agreement to authenticate its execution by calling a witness who can testify as to that matter or by otherwise satisfying the Court that the document was executed as it appears to have been. In the present case, I am not satisfied that Balaji has discharged that proof. The correct approach to a matter such as this was discussed by Nicholas J in Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) (2011) 280 ALR 97 at [63]–[87], particularly at [78]–[80]. As Bryson J said in National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309 at [17] (p 312), at its simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made. Proof of authenticity in this sense means proof that the relevant document is what it purports to be. Section 149 of the Evidence Act ameliorates the position as far as the evidence of attesting witnesses is concerned but does not otherwise affect these basic propositions.

25 Senior Counsel for Balaji submits, however, that the document is admissible because s 150 of the Evidence Act makes it admissible. In addition, Senior Counsel for Balaji submits that I should revisit the previous ruling which I made rejecting the alleged Agreement (Ruling 4) for the same reason, that is to say, that s 150 of the Evidence Act makes the document admissible. …

27 In Pt 1 of the Dictionary in the Evidence Act, “seal” is defined as including a stamp. Annexure “VA2A” has the seal of a notary from Calcutta affixed to it. Initially, Senior Counsel for Balaji relied upon that fact as assisting the admissibility of the document but, upon more mature reflection, accepted that that circumstance did not take the matter as far as he needed to take it.
28 The critical submission ultimately made was that the document has affixed to pages 1, 2 and 3 a stamp which appears to be either the Common Seal of Balaji or at least a stamp containing the name of Balaji and that, at the point where the document required execution, the following appeared:

29 It is apparent, therefore, that there is a stamp (not the same stamp as appears on pages 1, 2 and 3 of the document but, nonetheless, a stamp) at the point where the document was required to be executed by Balaji, together with the signature of Mr Sharma as its Director. It appears, therefore, that there was an imprint of a seal of Balaji on the document, which is Annexure “VA2A” to the second affidavit. It also appears that Balaji is a body corporate established by a law of a foreign country (namely, India).
30 It, therefore, appears that the presumption raised by s 150(1) of the Evidence Act is raised in the present case. That presumption is a presumption to the effect that the imprint is the imprint of the corporate seal and that the document was duly sealed as it purports to have been sealed.

Mokbel v Attorney-General for the Commonwealth of Australia [2007] FCA 1536 (5 October 2007)

[2007] FCA 1536

EXTRADITION – validity of request for extradition to Australia issued by the Minister for Justice and Customs – whether s 40 of the Extradition Act 1988 (Cth) evinces a “contrary intention” for the purpose of s 19A of the Acts Interpretation Act 1901 (Cth) – source of power to request the extradition of an Australian citizen from a foreign State – operation of ss 19 and 19A of the Acts Interpretation Act 1901 (Cth) in relation to the exercise of executive power by two ministers.

INTERNATIONAL LAW – whether an Australian Court can comment on or intervene in the manner in which the Greek Ministry of Justice dealt with communications from an Australian diplomat – principle of non-adjudication.

ADMINISTRATIVE LAW – whether the Minister acted in bad faith, for an improper purpose or in breach of the requirements of natural justice.

Evidence Act 1995 (Cth) ss 143(1)(c), 150, 153

Faustin Epeabaka v Minister for Immigration & Multicultural Affairs [1997] FCA 1413 (10 December 1997)

MIGRATION – judicial review – Refugee Review Tribunal – nature of proceedings before Tribunal – burden of proof – obligation to rationally consider probative evidence

EVIDENCE – whether Refugee Review Tribunal is a court for purposes of the  Evidence Act 1995  (Cth) – effect of ss 8 and 9

Evidence Act 1995  (Cth) ss 8(1), 9(1), 150

Finkelstein J
In clauses 9(1) and (2) of Pt 2 of the Dictionary “a law of the Commonwealth” is defined to be a written or unwritten law of the Commonwealth and an “Australian law” (which according to the definition in Pt 1 includes the law of the Commonwealth) is also defined to be a written or unwritten law.

Most of the limbs of each definition of federal court and Australian court refer to an actual court. They can have no application to the Tribunal for in no sense is it a court. But each definition includes as a court a body that is not in fact a court. It is to these parts of the definitions to which I must now refer.

The Tribunal will be an Australian court if it is “a body that, in exercising a function under an Australian law, is required to apply the laws of evidence “and it will be a federal court if it is a body that “in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.” However, the Tribunal is not such a body because s 420(1) of the Migration Act provides that the Tribunal is “not bound by … rules of evidence”. This is sufficient to take the Tribunal outside those limbs of the definition of Australian court and federal court just mentioned.

In arriving at this conclusion I have ignored the difference in language between s 420(1) which provides that the Tribunal is not bound by the rules of evidence and the definitions which refer to a body that is required to apply the laws of evidence. I do not regard this difference in expression as material. Each expression is apt to refer to the same subject namely matters that are or are not admissible in a proceeding and the method by which those matters are placed before a decision-maker: see Sopinka Lederman & Bryant, “Laws of Evidence in Canada” (1992 Butterworths) at p 1, and Halsbury’s Laws of England (4th ed) vol 4 para 1.

Further, I do not regard the fact that the Tribunal is obliged to observe certain rules that are sometimes called rules of evidence as affecting my conclusion. The rules that I have in mind are the various privileges that may be relied upon to exclude evidence being led before the Tribunal. The privileges are legal professional privilege, the privilege against self incrimination and what was once referred to as Crown privilege but is now known as public interest immunity. While each of these privileges is commonly regarded as part of the rules of evidence, they have application to a proceeding before the Tribunal not because they are rules of evidence but because they are fundamental principles of the common law that are capable of being exercised not only in curial proceedings but in administrative and investigative proceedings as well: see Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 with regard to legal professional privilege, Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 and Controlled Consultants v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 with regard to the privilege against self incrimination and Science Research Council v Nasse [1980] AC 1028 and Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 313 with regard to public interest immunity.

The result is that the Tribunal does not fit within any limb of the definition of federal court. However, the Tribunal is a body that is authorised by an Australian law, the Migration Act, to hear, receive and examine evidence: see the discussion of the powers and functions of the Tribunal earlier in these reasons. It follows that the Tribunal is an Australian court in accordance with para (e) of the definition of that court.

But it does not follow from the fact that the Tribunal is an Australian court that proceedings before it are governed by the tabled provisions in s 5(1). The effect of s 8(1) of the Evidence Act must be considered. Section 8(1) is one of a number of provisions in Pt 1.2 which are concerned with the application of the Evidence Act. The subsection provides that the Evidence Act does not affect the operation of the provisions of any other Act. The question thus raised is whether s 8(1) prevents the tabled provisions in s 5(1) having application to proceedings before the Tribunal.

The scope of operation of s 8(1) is not clear. There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment. In that event the provision of that other enactment will prevail. But what if there is no direct inconsistency. Some indication of how s 8(1) is to operate in that circumstance may be gathered from s 9(1) which provides that:

“For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.”

When s 8(1) and s 9(1) are considered together the legislative intention that is disclosed is that where a court, whether it is an Australian court or a federal court, is not required to observe the rules of evidence the Evidence Act will not operate so as to impose that obligation. Here again reference should be made to s 420(1) of the Migration Act which provides that the Tribunal is not bound by the rules of evidence. If a proceeding before the Tribunal was governed by ss 150 the Tribunal would be required to receive a particular document as part of the evidence in a proceeding before it when it would not be required to do so if s 420(1) was the sole provision that applied. Thus there is, in a general sense, an inconsistency between the two provisions. It follows, in my opinion, that s 8(1) renders s 5(1) inapplicable to proceedings before the Tribunal.