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Rusu was incorrectly decided October 1, 2020

Gregg v R [2020] NSWCCA 245

  1. As I have stated, the trial judge also concluded, relying on the decision in Rusu (National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539), that s 48(1) of the Evidence Act merely prescribes the means of adducing evidence of the contents of a document and leaves untouched questions of authenticity. It is not clear to the extent that proposition influenced the primary judge, having regard to his subsequent conclusion that the document purported to be a presentation to inform the Board of LHL and that the proposed document was a working document of a person at the consultancy firm Booz.
  2. Rusu, to the extent it states the authenticity of a document could not be proved by consideration of the form or content of the document, has received some judicial support. In Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, Heydon JA, with whom Priestley JA and Sheller JA agreed, stated at [46] without elaboration that “The Evidence Act 1995 does not permit documents to authenticate themselves save in limited circumstances”, citing Rusu: see also Australian Securities and InvestmentsCommission v Rich [2005] NSWSC 417; 216 ALR 320 at [101]-[104]. However, the decision has been subjected to considerable criticism: see V Bell, “Documentary Evidence under the Evidence Act 1995 (NSW)” (2001) 5(1) The Judicial Review 1.
  3. In Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26 (“Calleja”) Leeming JA, with whom Basten JA and Gleeson JA agreed, reviewed the authorities critical of Rusu and, without finally determining that Rusu was incorrectly decided, stated that it was regrettable that the authorities critical of Rusu were not brought to the attention of the primary judge: [2018] NSWCA 26 at [99]-[102].
  4. Since the decision in Calleja, the Full Court of the Federal Court in Federal Commissioner of Taxation v Cassaniti at [65] agreed with Perram J in Australian Competition and Consumer Commission v Air New Zealand (No 1) that Rusu was plainly wrong. Quite apart from the fact that the Court should follow a decision of another intermediate appellate court on what is effectively uniform legislation unless it is of the opinion that it is plainly wrong (Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; [1993] HCA 15), I respectfully agree that Rusu was incorrectly decided. There 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. Bryson J, who did not have the benefit of argument on the question, was not referred to s 183 of the Evidence Act.

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