IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 506 of 2000S

Between:

LICE ELENIVULA SAUMI
Plaintiff

and

AIR FIJI LIMITED
Defendant

D.P. Sharma for the Plaintiff
R. Smith for the Defendant

DECISION

On 24 July 1999 Air Fiji Flight No. PC 121, an Embraer Bandeirante aircraft crashed at Delailasakau about 40km west of Nausori. All aboard, including the Plaintiff’s husband, lost their lives.

The writ was issued in November 2000 alleging negligence and seeking damages.

By Summons issued in November 20002 the Court is asked, as a preliminary issue, to rule on the admissibility of an Investigation Report into the crash.

The Report was issued by the Civil Aviation Authority of Fiji in December 1999. The foreword to the Report states that:

“the investigation was conducted and this report prepared in accordance with international standards and recommended practices as published in Annex B to the Convention on International Civil Aviation Aircraft Accident and Incident Investigation.”

and that:

“the investigation was carried out by staff from the Australian Transport Safety Bureau.”

I was not told and do not know why it was decided not to hold a public enquiry into the causes and circumstances of the accident as provided by Regulations 1, 4, 7 and 10 of the Civil Aviation (Investigation of Accidents) Regulations (Cap 174 – Subs).

In his helpful written submission Mr. Sharma urged that the Report be admitted in evidence at the trial of the action. He principally submitted:

(a)	that the Report should not be excluded on the ground that it contains hearsay; but

(b)	that the Report should be admitted as a public record or document.

The starting point is RHC O 38 r 1 which provides that:

“subject to the provisions of these Rules and the Evidence Act and any other enactment relating to evidence any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open Court.”

The identities of the authors of the Report are at present unknown, at least to the parties. Therefore it seems that the authors of the Report cannot, as things stand at present, be called to produce the Report or to be asked questions about the manner in which they investigated the accident.

The Report itself makes numerous allegations. Four examples will be sufficient illustration.

Page ix: “Examination of company documentation indicated that check-and-training records were not appropriately maintained.”

Paragraph 1.15.1: “When commencing employment with the company a staff member encountered poor procedures such as line pilots being promoted to checking and training responsibilities and management positions without formal assessment.”

Paragraph 1.15.2: “A Bandeirante pilot-in-command commented that there were no company standard operating procedures for the aircraft.” and:

“Several company operation manuals were checked. The manuals had not been amended to reflect the changing structure of the company since 1995.”

As will be readily appreciated these allegations are highly damaging to the Defendant. Not only are their authors unknown but furthermore the sources of the apparently substantially hearsay allegations are not precisely revealed.

Mr. Sharma pointed out that Part II of the Civil Evidence Act 2002 specifically provides that hearsay evidence must not be excluded. Section 5 however provides that where hearsay evidence is adduced but the maker of the statement is not called then the Court may order the maker of the statement to give oral evidence. Since the authors of the Report are not known, this section would, it seems to me, be inoperable.

In the absence of the authors of the Report Mr. Sharma urged that the Report be admitted as a public record or document.

The definition of a “public document” seems to be surprisingly vague:

“Any document or record evidencing or connected with the public business or the administration of public affairs preserved in or issued by any department of the government” (Black’s Law Dictionary).

“I understand a ‘public document’ there to mean a document that is made for the purpose of the public making use of it and being able to refer to it.” (Sturla v. Freccia 5 App. Cas. 643, 644)

Under Section 11 of the Civil Evidence Act 2002:

“A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.”

Examination of the common law on the admissibility of public documents (see e.g. Cross on Evidence – 5th Australian Edition – 1996) is helpful. The main examples of public documents given are registers, returns and maps and certificates. Such documents are routinely compiled by public officers discharging a public duty. The purpose of allowing documents such as these to be produced without calling their makers is to avoid wastage of time. In most cases the facts and matters recorded are not likely to be the subject of dispute. In the present case the contents of the report are clearly contentious, and the facts and opinions can hardly be described as being of a routine nature. In my view the Report cannot properly be described as a public document or a record of a public authority.

In my opinion the Report, in its present form is, without production by its authors, inadmissible to prove its contents. I so rule.

M.D. Scott
Judge

29 October 2003