INTEFORGE PTY LTD -v- BHAGWAN MARINE PTY LTD [2026] WASC 306

[2026] WASC 306 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : INTEFORGE PTY LTD -v- BHAGWAN MARINE PTY LTD [2026] WASC 306 CORAM : LUNDBERG J HEARD : 22 JULY 2026 DELIVERED : 30 JULY 2026 FILE NO/S : CIV 2018 of 2022 BETWEEN : INTEFORGE PTY LTD First Plaintiff MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD Second Plaintiff AND BHAGWAN MARINE PTY LTD Defendant Catchwords: Evidence – Whether the court has power to reverse or alter evidentiary rulings and the applicable test for doing so – Whether the court should re-open rulings made during trial to reject the tender of documentary material under s 79C(2a) of the Evidence Act 1906 (WA) Evidence - Whether report from diving company, quotation letters from third party supplier, and survey statements from Bureau Veritas are relevant to matters in issue - Whether documents are 'business records' for the purposes of s 79C(2a) -- 1 of 43 -- [2026] WASC 306 Page 2 of the Evidence Act 1906 (WA) - Whether tender of documents is permissible under s 79C(2a) - Whether admission of such documents should otherwise be rejected on discretionary grounds as to prejudice - Turns on own facts Legislation: Evidence Act 1906 (WA), s 79C Result: Rulings made on 19 June 2026 as to defendant's evidentiary objections are maintained, varied or reversed, as set out in reasons. Category: B Representation: Counsel: First Plaintiff : M D Cuerden SC and D J Pratt Second Plaintiff : M D Cuerden SC and D J Pratt Defendant : T J Porter Solicitors: First Plaintiff : McCabes Second Plaintiff : McCabes Defendant : Kennedys (Australasia) Partnership - Perth Case(s) referred to in decision(s): Ack Pty Ltd v Mercy Human Services Limited [No 2] [2025] WASC 431 Agricultural Land Management Ltd v Jackson [2013] WASC 464 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 City of Stirling v Legg [2023] WASC 443 Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 Commonwealth v Mullane (1961) 106 CLR 166 Corporation of the City of Mitcham v Fusco [2001] SASC 164 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Feltafield Pty Ltd v Heidelberg Graphic Equipment (1995) 56 FCR 481 Greenaway v The State of Western Australia [2022] WASCA 166 -- 2 of 43 -- [2026] WASC 306 Page 3 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McKay v Commissioner of Main Roads [No 2] [2010] WASC 153 Minister for Education v Klein [2005] WASCA 185 (S) Mullins v Howell [1879] 11 Ch D 763 Palmer v Citic Ltd [No 16] [2025] WASC 216 R v Gibson (1887) 18 QBD 537 R v Steffan (1993) 30 NSWLR 633; (1993) 67 A Crim R 506 Rhodes v De Castro [No 2] [2023] WASC 93 Windoval Pty Ltd v Donnelly [2014] FCAFC 127; (2014) 226 FCR 89 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 -- 3 of 43 -- [2026] WASC 306 Page 4 Table of Contents Introduction ................................................................................................................................ 5 The factual and pleaded context ................................................................................................. 5 Procedural background ............................................................................................................... 7 The Disputed Documents ......................................................................................................... 10 The Neptune Diving Report ................................................................................................. 11 Australian Floating Decks ................................................................................................... 13 Bureau Veritas ..................................................................................................................... 17 What is the scope of the power to reopen evidentiary rulings? ................................................ 18 Whether the power should be exercised in this case? .............................................................. 22 Legislative framework and relevant principles ........................................................................ 23 The evidentiary rulings of the court ......................................................................................... 29 Ruling on objection 3 – TB 74, 76, 78 and 91 ..................................................................... 30 Ruling on objection 4 – TB 83 ............................................................................................. 32 Ruling on objection 5 – TB 75, 92, 142 and 143 ................................................................. 32 Ruling on objection 7 - TB 149 ............................................................................................ 34 The discretion to exclude the documents – s 79C(6) ........................................................... 35 Conclusion and orders .............................................................................................................. 37 ATTACHMENT A Schedule of Rulings made on 19 June 2026 ............................................ 38 -- 4 of 43 -- [2026] WASC 306 LUNDBERG J Page 5 LUNDBERG J: Introduction 1 These reasons address three questions and arise from the evidentiary rulings made by the court on the third day of the trial of the action. By those rulings, the court rejected the tender by the plaintiffs of certain disputed documents under s 79C(2a) of the Evidence Act 1906 (WA) (Evidence Act). That provision is commonly referred to as the 'business records provision'. The disputed documents, which fall into four categories, are identified at [30] of these reasons (the Disputed Documents). 2 The three questions addressed by these reasons are as follows. 3 First, whether the court has the power to re-open the evidentiary rulings which have been made and the applicable test for doing so. Second, whether the court should exercise that power in this case. Third, in the event the power is to be exercised, what rulings should now be made in relation to the disputed documents. 4 These reasons do not include any final findings of fact, or conclusions as to the whether the court accepts, or rejects, the cases presented by the parties at trial. Closing addresses have been scheduled for 7 August 2026 in this regard. These reasons are confined to matters of admissibility. The factual and pleaded context 5 By way of brief context, the plaintiffs to the action are Inteforge Pty Ltd and Monadelphous Engineering Associates Pty Ltd (MEA), both of which are subsidiaries within the Monadelphous Group. The first plaintiff was formerly known as Sinostruct Pty Ltd, and it is convenient to continue to refer to in that manner. 6 Sinostruct owns the marine barge at the centre of these proceedings, which is referred to as the Sinostruct 91. 7 The sole defendant in the proceeding is Bhagwan Marine Pty Ltd. 8 At its core, the plaintiffs' claims in the action arise from the periodic marine survey and certification process which was undertaken in respect of the Sinostruct 91 in and around December 2016. Part of that process -- 5 of 43 -- [2026] WASC 306 LUNDBERG J Page 6 involved the application of a particular paint to the hull of the barge, referred to as 'anti-fouling paint'. 9 The copper-based anti-fouling paint which was supplied, and applied, in the present circumstance is referred to as the Sea Guardian Paint, manufactured by a company called Jotun Group. 10 The second plaintiff, MEA, does not seek any relief in the action. The first plaintiff, Sinostruct, seek damages on the basis of several pleaded causes of action. 11 First, the plaintiffs allege misleading or deceptive conduct on the part of Bhagwan Marine, in contravention of s 18 of sch 1 to the Australian Consumer Law (ACL).1 The plaintiffs allege they were induced by Bhagwan Marine to purchase and use the Sea Guardian Paint by representations made by Bhagwan Marine as to its suitability to last for a period of five years, and the plaintiffs should have been (but were not) warned that if after cleaning of the hull there were patches of bare metal then direct application of the Sea Guardian Paint would result in accelerated corrosion. 12 Second, the plaintiffs allege a contravention of s 29(g) of sch 1 to the ACL.2 The plaintiffs assert that the Sea Guardian Paint did not have certain performance characteristics. 13 Third, the plaintiffs allege that Bhagwan Marine breached the express and implied terms of a contract by which it was required to project manage the slipping, class survey, and application of anti-fouling paint to the hull of the Sinostruct 91.3 In part, the plaintiffs allege that the defendant:4 …failed to identify and inform MEA that after pressure cleaning and hard scraping the hull of the Sinostruct 91 was not suitable for the direct application of Jotun Seaguardian anti-foul without the use of a primer or undercoat and such application resulted in accelerated corrosion of the hull requiring extensive repairs after about 2.5 years of service. 14 Fourth, the plaintiffs allege that Bhagwan Marine was negligent in failing to provide its services in connection with the slipping works with due care and skill and so breached the tortious duty of care owed to 1 4ASOC [17.1]. 2 4ASOC [17.2]. 3 4ASOC [17.3], [17.4] and [17.5]. 4 4ASOC [17.3]. -- 6 of 43 -- [2026] WASC 306 LUNDBERG J Page 7 Sinostruct.5 The pleading asserts, in part, that Bhagwan Marine 'should not have instructed MEA or PCC to proceed to apply Jotun Seaguardian … without first informing the plaintiffs it was not appropriate to do so without the use of a primer or undercoat and that such application would result in accelerated corrosion of the hull'.6 15 The plaintiffs amended the loss and damage plea on the eve of trial, to clarify that physical damage was asserted, with the cost of repairs being claimed as the relevant loss:7 Loss and damage 19. By reason of the defendants’ breaches pleaded herein, Sinostruct has suffered loss and damage. Particulars Cost of repairs Corrosion to the hull of the Sinostruct 91 necessitating repairs. Further particulars will be provided prior to trial. 16 At trial, the loss was quantified by the plaintiffs in the amount of $2,596,680.27. The particulars of the damage alleged to have been suffered was in essence a table of 73 invoices from various third parties.8 17 Bhagwan Marine has denied it has any liability to the plaintiffs and further denies that the plaintiffs suffered any loss or damage. A number of specific defences have been pleaded which need not be repeated here. Procedural background 18 The court heard evidence in the trial of this action on 17, 18 and 19 June 2026. The trial timetable foreshadowed that closing oral addresses would be given immediately following the close of evidence, that is on Monday, 22 June 2026. 19 However, both counsel ultimately favoured closing addresses being given after the filing of written material, to which the court acceded, and the matter was listed for final submissions to be given on 22 July 2026.9 As explained below, that timetable has now been altered. 5 4ASOC [18]. 6 4ASOC [18.3.2]. 7 4ASOC [19]. 8 Amended particulars of damage dated 7 October 2024. 9 ts 334 – 335. -- 7 of 43 -- [2026] WASC 306 LUNDBERG J Page 8 20 During the course of the trial, there were a number of objections raised by the defendant in respect of the plaintiffs' proposed tender of documentary material. The objections were identified in the defendant's opening submissions which were filed on 11 June 2026.10 21 The court heard argument on the objections on 17 June 2026.11 Following further conferral between the parties, the contested objections which remained were confined to the Disputed Documents, being the subject of Objections 3, 4, 5 and 7. 22 In each case, the defendant's objections were similar in nature. The defendant observed that the author and recipient of the documents were not being called by the plaintiffs as witnesses at trial, and the documents contained hearsay statements of fact and opinion (and in some cases second hand hearsay). The defendant submitted that the documents contained inadmissible documentary hearsay and, without further explanation through the evidence, had no apparent relevance to the issues to be determined in the action. The defendant asserted that the documents were not rendered admissible by s 79C(2a) by reason that the documents were not 'business records'. In any event, the defendant submitted the admission of the documents should be rejected pursuant to the court's power to do so in s 79C(6). 23 On 19 June 2026, the court published its rulings to the parties arising from the defendant's evidentiary objections.12 By those rulings, the court upheld each of the objections and ruled that the Disputed Documents would not be received for their testimonial effect. The rulings are set out in Attachment A to these reasons. The rulings were short form in nature, intended to be the subject of written reasons in due course, and were given in the context in which closing submissions were to be made on the following day of the trial. The rulings were given at that stage of the trial to ensure the tendering party knew the evidence which had been admitted in support of its case and allowing the objecting party to know the evidence it must answer.13 10 Folio 116 (see Schedule of Objections to Evidence). 11 ts 197 – 215 (17 June 2026). 12 See ts 290 (19 June 2026) and Schedule of Court's Rulings on Defendant's Evidentiary Objections dated 19 June 2026. 13 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 [19] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). -- 8 of 43 -- [2026] WASC 306 LUNDBERG J Page 9 24 At the time, the court noted the following matters:14 Before we commence, I will just confirm for the transcript that this morning, around 9 o’clock, my associates provided an email to the parties to which was attached the court’s rulings on the defendants’ evidentiary objections. This is a six-page schedule. The rulings that the court has reached, with one caveat that is included within the schedule, are in relation to the items in the schedule at item 3, which is documents 74, 76, 78 and 91. Line item 4, which is document 83. Line item 5, which is documents 75, 92, 142 and 143. And then line 7, which is document 149. The rulings that I make, which will be the subject of formal reasons in the court’s final reasons in this matter, are that the objections raised by the defendant in respect of each of those documents are upheld, and the documents ought not be received for testimonial effect, with one exception — or caveat rather — which was document 92, which had some missing pages. I’ve simply recorded that it does seem to me though that the balance of the document is unlikely to alter the ruling that I’ve made, but as a matter of precaution, I’ve simply noted that the plaintiffs might seek to reopen that ruling during the case if the balance of the document is produced. All right, I will just confirm that. 25 Immediately thereafter, counsel for the plaintiff closed the plaintiffs' case.15 The defendant then led oral evidence from two lay witnesses (Mr Edwards and Mr Whitehead). Apart from one remaining documentary exhibit, which was subsequently tendered by consent, the trial was adjourned later on 19 June 2026 for closing addresses on 22 July 2026. 26 On 6 July 2026, the plaintiff's solicitors wrote to the court applying to have the court reconsider and reverse the above rulings and accept the tender of each of the documents.16 27 The plaintiff's application to re-open the ruling was first heard for directions on 9 July 2026. At that hearing, directions were made to facilitate the filing of written submissions on the reopening application with a hearing scheduled for 22 July 2026.17 28 Before I address that application, it is convenient to describe the Disputed Documents. 14 ts 290 (19 June 2026). 15 ts 291 (19 June 2026). 16 Letter from McCabes to the court dated 6 July 2026. 17 Plaintiffs' submissions on reopening evidentiary rulings dated 10 July2026 (PS); Defendant's submissions in opposition to the plaintiffs' application to re-open dated 20 July 2026 (DS). -- 9 of 43 -- [2026] WASC 306 LUNDBERG J Page 10 The Disputed Documents 29 The Disputed Documents purport to record matters which are said by the plaintiffs to be relevant to the allegation that the conduct (and omissions) on the part of the defendant caused damage to the Sinostruct 91, through accelerated corrosion,18 which has necessitated the repairs.19 30 The Disputed Documents, which were the subject of objections 3, 4, 5 and 7, bear dates between December 2019 and August 2021. The table below identifies the documents: No. Document(s) TB References 3 Letters from Mr Paul Toussaint-Jackson of Australian Floating Decks Pty Ltd to Mr John Derrick of the Monadelphous Group dated 12 January 2020, 21 February 2020, 23 March 2020 and 27 July 2020. TB 74, TB 76, TB 78 and TB 91 4 Document prepared by Mr Paul Toussaint- Jackson of Australian Floating Decks Pty Ltd, for Mr Nigel Cocliffe of the Monadelphous Group dated 24 August 2020. TB 83 5 Surveys prepared by Bureau Veritas dated 9 March 2020, 4 September 2020, 16 August 2021 and 16 August 2021. TB 75, TB 92, TB 142 and TB 14320 7 Report prepared by Neptune Diving Services dated 10 December 2019. TB 149 31 The authors of the Disputed Documents are representatives of organisations other than the parties to the action. The organisations are Australian Floating Decks Pty Ltd, Bureau Veritas and Neptune Diving Services. It may be inferred from the documents themselves, and the overall context, that Australian Floating Decks is a business which undertakes repair work on marine vessels. Further, that Bureau Veritas is a surveyor company which conducts surveys and authorises classifications of marine vessels. Finally, that Neptune Diving Services provides various diving and underwater inspection services. 18 4ASOC [17.1.1], [17.1.4], [17.3], [17.5] and [18.3.2]. 19 4ASOC [19]. 20 TB 92 as tendered was incomplete, as it included only every second page (see ts 290). The plaintiff has subsequently produced a complete copy of the document. -- 10 of 43 -- [2026] WASC 306 LUNDBERG J Page 11 32 None of the authors of the above documents were called as witnesses by the plaintiffs at the trial. 33 To put the documents in further context, it is useful to describe them within the broader narrative presented by the plaintiffs at trial.21 The broader narrative includes various documents which were not the subject of objection and have been admitted into evidence. I have been assisted in this regard by the aide memoire prepared by the plaintiffs dated 22 July 2026. 34 Further, by way of their opening submissions, the plaintiffs briefly explained the manner in which the claim for loss and damage has been framed, including that the repair work in question had been necessitated by the extensive corrosion:22 [31] After a period of about 2.5 years, the Sinostruct 91 was found to have suffered extensive corrosion necessitating substantial repairs. After a round of initial repairs in Australia, the Sinostruct 91 was towed to the Marco Polo Shipyard in Indonesia for more substantial repairs. [32] The plaintiffs will call the commercial manager of Monadelphous' engineering division to give evidence as to his interrogation of the accounts of MEA to identify the amount of the costs incurred in effecting those repairs. Those costs exceed AUD$2.5 million. The Neptune Diving Report 35 The Disputed Document which is first in time is TB 149, which is a 24 page report prepared by Neptune Diving Services dated 10 December 2019. It is referred to as the UWILD Report. The acronym UWILD refers to 'Under Water In-Lieu of Dry Docking'. I will refer to the report, for convenience, as the Neptune Diving Report. 36 This report purports to record the observations of, and the photographs and measurements taken by, the four person diving team which undertook the UWILD inspection of the Sinostruct 91 in December 2019. 37 The report begins with the following statements: 21 ts 207. 22 Plaintiffs' amended outline of opening submissions dated 8 June 2026 [31] – [32]. -- 11 of 43 -- [2026] WASC 306 LUNDBERG J Page 12 Neptune Diving Services (NDS) were awarded the contract to conduct a BV Class UWILD on the barge Sinostruct 91 at Darwin with the intention of reporting on the in water section of the barge. … This document details the proceedings and findings of the Sinostruct 91 UWILD inspection on the 7/12/2019. This report is an accurate account of what the Diver observed, measured and reported. This report does not offer any opinion as to the future outcome, nor any cause or pre-existing condition that may have caused or contributed to the details reported herein. The requirements and parameters were established at a meeting between Alister Lehmann of NDS and Mario Fernandes of Bureau Veritas. 38 The author of the Neptune Diving Report is Mr Lehmann, who was one of the members of the diving team. 39 The report includes a reference to a video log which provides comments on the videos taken on the two dives which were completed. 40 The report also includes a photo log, which contains 22 photographs of the hull of the Sinostruct 91 at various locations, with commentary beneath each photograph. For example, photograph 9 is described as showing 'Transverse swim 10 (Anomaly 2) suspected MIC pitting alongside longitudinal weld'. The reference to 'MIC' is to 'micro biological induced corrosion'. 41 This anomaly is further explained in section 7.3.2 of the report as: Located approximately midships and approximately 5m from the port side the diver reported 2 pits. The pits were located in the heat affected zone of a longitudinal weld seam starting at the toe of the weld. 42 In section 7 of the Neptune Diving Report, the author sets out his findings, under the headings 'Marine Growth', 'Coating', 'Hull Plate', 'Anodes' and 'Skegs'. I have set out excerpts from this section below: 7.1 Marine Growth Marine growth coverage was reported as approximately 60% overall. The growth was predominately soft growth with random isolated patches out to 200mm deep. The growth was reported at up to approximately 90% coverage around the perimeter of the hull reducing in coverage further under the hull to approximately 30% across the middle of the barge. Marine growth was relatively easy to remove with the divers gloved hand. -- 12 of 43 -- [2026] WASC 306 LUNDBERG J Page 13 7.2 Coating The coating was reported to be in very good condition across the entire hull. The coat was not powdery or flaky and was reported to be intact. The divers did report random isolated areas of blistering. 7.3 Hull Plate The divers reported numerous pits at random isolated areas across the hull. The initial sign of pitting was a bright orange colour on the hull, which upon close inspection revealed blisters in the coat. The blisters discharged a black powdery emanation when pressed/popped. Once cleaned, the pits presented as very shiny and smooth. All these features point very strongly to micro biological induced corrosion (MIC). … 7.4 Anodes Anodes were located on the sides of the hull approximately 500mm above the chine with extra anodes located on each skeg. The diver inspected anodes as they were encountered during the inspection. Thirteen (13) anodes were inspected in total, along both sides of the barge and on the skegs. Every anode inspected was found to be 100% depleted with no anode material remaining. The only sign remaining of the anodes was the flat bar strip welded to the hull. 7.5 Skegs The inspection of the skegs revealed no visual evidence of anomalies. The diver reported two (2) anodes on each skeg, all of which were 100% depleted. 43 The author of the Neptune Diving Report included a recommendation in section 8, as follows: [Neptune Diving Services] recommends the immediate installation of anodes to halt the corrosion activity occurring on the hull. Australian Floating Decks 44 Next in sequence, the plaintiffs sought to tender a letter from Australian Floating Decks addressed to Mr Derrick of Monadelphous Group, which is TB 74, and is dated 12 January 2020. TB 74 also includes a tax invoice from Australian Floating Decks to MEA dated 19 February 2020, which was not the subject of objection. -- 13 of 43 -- [2026] WASC 306 LUNDBERG J Page 14 45 The letter from Australian Floating Decks dated 12 January 2020 is headed: Proposed attendance and works – barge Sinostruct 91 – Underwater operations - thickness measurements and anode replacement. 46 The letter is signed by Mr Paul Toussaint-Jackson of Australian Floating Decks, whose job title and role within that business is unstated. 47 The letter from Australian Floating Decks dated 12 January 2020 makes reference to various reports, including the Neptune Diving Report, and then outlines various works which it proposes to undertake on the Sinostruct 91. The letter explains the duration of the works, the equipment required, the pricing, and various other logistical matters. The letter includes a quotation of $95,000 plus GST. 48 The works which are proposed in the letter are:23 • Procure and supply replacement anodes including road freight to Darwin; • Mark the hull sides with paint at points in way of the frame spaces along the complete length of the hull to provide a longitudinal reference for the underwater works; • Mark a diver's tag line at equal intervals to enable a transverse reference for the underwater works; • Remove the existing anode bar and debris in way of each of the current hull attachment points and prepare the metal for welding; • Attach the new anodes to each of the current hull attachment points. This will involve underwater welding; • Confirm the location of underwater hull pitted areas to Class requirements using the reference system; • Conduct (underwater) ultrasound of pitted areas and mechanically measure pit depths and record for Class review. 49 Documents TB 76, TB 78 and TB 91 are similar letters from Mr Toussaint-Jackson of Australian Floating Decks addressed to MEA, which include descriptions of further work to be undertaken and the quotations for that work. 23 TB 74 (p 1). -- 14 of 43 -- [2026] WASC 306 LUNDBERG J Page 15 50 These letters purport to contain descriptions of damage to the Sinostruct 91 barge and the observations made about the state of the barge following inspections undertaken by others, such as personnel at Neptune Diving Services and at Bureau Veritas. 51 As I have noted, the associated tax invoices are not the subject of objection. The tax invoice dated 19 February 2020 makes express reference to the associated letter (dated 12 January 2020), but the other tax invoices do not expressly refer to the letters. Instead, the other three letters refer to purchase orders issued by Monadelphous Group. 52 In broad terms, the letters from Australian Floating Decks refer to certain of the work as being 'interim temporary works', while some of the work is described as 'permanent repairs'. For example, TB 91 states: The works have been separated out into that required for the Occasional Survey of the Temporary Repairs and other works related to the preparation for warranty survey and the [barge tow from Darwin to Indonesia]. 53 It is apparent from other documents in evidence that temporary repair works were carried out on the Sinostruct 91 in preparation for towing the barge from Darwin to Indonesia. 54 To provide further context, I note the letter from Australian Floating Decks which forms part of TB 78 refers to underwater inspections of the barge in February and March and makes reference to the recommendation of the surveyor for certain repairs to be undertaken (both temporary and permanent). The letter refers to a submission made by Australian Floating Decks to Bureau Veritas proposing certain repairs and includes a quotation for the work to be undertaken. 55 The letter from Australian Floating Decks which forms part of TB 91 is perhaps the most comprehensive of all of the letters. The letter refers to an occasional survey to be undertaken by Bureau Veritas and outlines various communications and discussions between AFD, Bureau Veritas and 'Class'. 56 The letter states, in part, as follows: -- 15 of 43 -- [2026] WASC 306 LUNDBERG J Page 16 We have set out below various items of preparation work that we recommend as preparation for the barge tow from Darwin. The works have been separated out into that required for the Occasional Survey of the Temporary Repairs and other works related to the preparation for warranty survey and the tow. OCCASIONAL SURVEY On 15 July 2020, BUREAU VERITAS accepted the risk assessment submitted to them on behalf of the Owners. The risk assessment was provided as part of the request by the Owners for an extension of the limit date set by Class Recommendation PTH0/2020/J5047-H1R. The risk assessment reflected in part discussions that were held with Class prior to the issue of the extension. These discussions included the proposal by Class that it would want to ensure the Temporary Repairs were intact as part of any consideration of an extension of the limit date. The extension refers to a Condition Clause as follows: "Subject to an occasional survey for the re-examination of the affected area to the satisfaction of the attending surveyor…." Our communication with the Darwin-based Class surveyor suggests that this occasional survey should be carried out soon (preferably on or around the previous limit date of 29 July). We have discussed with Class 03/04 August subject to the Owner's approval. Class have advised that they will want to inspect and photograph each Temporary Repair for the Occasional Survey. This will mean using a safety team for enclosed space entry and running prior ventilation. We have managed to convince Class to use the AFD launch for this attendance rather than the separate, specialised launch that is much more expensive. 57 The author of the letter then outlines the works required for the occasional survey, their duration, and the equipment required. The author next outlines the work required for the towage gear inspection, the towage drawing and calculations, and the 'freeing of SMIT pins'. The letter concludes by providing four quotations for the work which is outlined in the letter. 58 Document TB 83, which is the subject of Objection 4, is also a document prepared by Australian Floating Decks but is different in nature to the documents referred to above. Rather than being a letter, it is a five page report prepared by Mr Toussaint-Jackson dated 24 August 2020, seemingly prepared for Mr Cocliffe of the Monadelphous Group. The report is entitled 'Surface Deployed Potential Survey - Barge floating in sea water'. The report is accompanied by an invoice which is not the -- 16 of 43 -- [2026] WASC 306 LUNDBERG J Page 17 subject of an objection, which refers to an attendance at the 'barge generator, switchboard and distribution board for electrolytic assessment'. The invoice refers to another invoice, which I understand is not in evidence.24 59 The opening paragraph of the report states: As part of the assessment of the electrolytic damage to the steel hull plate of the barge SINOSTRUCT 91, measurements have been taken around the hull of the barge according to the prescribed methodology of Mr Bill Gerritsen for surface deployed potential survey of a structure immersed in sea water. These measurements are detailed in this paper. 60 The report then refers to the location of the barge when measurements were taken, the tidal and weather conditions at the time, the condition of the barge, the methodology employed for taking the measurements, and then identifies various voltage measurements taken at points on the hull. Bureau Veritas 61 The invoices relied upon by the plaintiffs include numerous invoices issued by Bureau Veritas, among other third parties.25 TB 75, TB 92, TB 142 and TB 143 each comprise invoices from Bureau Veritas issued to the Monadelphous Group, accompanied by a 'Ships in Service Survey Report' prepared by Bureau Veritas. TB 142 and TB 143 appear to be the same document. 62 The survey reports are the subject of the objection by the defendant, not the invoices. 63 The survey reports record the details of the inspection of the Sinostruct 91 undertaken by a surveyor on particular dates. The survey reports are prepared by an individual surveyor, being either Mr Fernandes or Mr Herwindo. Each survey appears to be classified as an 'Occasional Hull Survey' or OHS. The documents record the surveyor's examination of documentation available on the vessel, the state of the hull and equipment, the state of the bottom of the vessel (which may be different to the 'hull'), the state of the structure of the vessel, and the state of the anti-fouling on the vessel. 64 The information included in the survey reports is relatively detailed and technical. For example, TB 143, which refers to a survey carried out 24 Being the Frontier Marine Invoice 2299. 25 See Ex 147. -- 17 of 43 -- [2026] WASC 306 LUNDBERG J Page 18 while the Sinostruct 91 was in Indonesia, between January 2021 and July 2021, includes the following information on page 5: 65 Without explanation, the details within the survey reports are not so obvious, or matters of common sense and ordinary experience, as to be capable of being fully understood and interpreted by the court. 66 In essence, I understand the surveys of the Sinostruct 91 were undertaken by Bureau Veritas as part of the compliance process for the vessel, as a precursor to the owner obtaining a certificate of survey from the Australian Maritime Safety Authority (AMSA). As part of the marine safety legislative regime, commercial marine vessels are required to have certificates of survey in order to lawfully operate in Australia. 67 The compliance nature of the documents is apparent, in part, from the 'surveyor's statement' which appears therein. For example, on p 4 of TB 143, the document states: Confirmation that applicable items of Rules and Regulations and International Conventions relevant to the present survey scope have been surveyed to the surveyor's satisfaction without remark, except when indicated otherwise hereunder. What is the scope of the power to reopen evidentiary rulings? 68 The first issue of substance to address is whether the court has power to reopen evidentiary rulings previously given, and the scope of that power. At the hearing on 9 July 2026, there was initially some debate in this regard, but that had receded by the time of the substantive -- 18 of 43 -- [2026] WASC 306 LUNDBERG J Page 19 hearing on 22 July 2026 and following the filing of the defendant's submissions on 20 July 2026.26 69 In my view, the position advocated for by the plaintiffs in this regard is correct and represents the established position at law, namely that a trial judge can reverse or alter a previous ruling on evidence at any time prior to giving final judgment: R v Steffan;27 Corporation of the City of Mitcham v Fusco;28 Assafiri v Horne;29 and Commonwealth v Mullane.30 A trial judge can do so if it appears to have been given on a mistaken view of the law or the facts, because the circumstances have materially altered, or for good reason, the touchstone being the interests of justice.31 This position is entirely consistent with the broader duty of a judicial officer to ensure that the verdict is founded only upon legally admissible evidence: R v Gibson.32 70 Some explication of the authorities is warranted at this point. 71 In R v Steffan, the New South Wales Court of Criminal Appeal considered a challenge to certain rulings made in the course of a criminal trial in the District Court of New South Wales. After the trial had been listed for hearing in the District Court, the offender applied by notice of motion for 'orders' in relation to the two of the counts against him that certain recordings were made illegally and were therefore inadmissible in evidence against him, that a particular witness not be permitted to give evidence of those conversations, and that the proceedings in relation to those counts be permanently stayed. 72 The trial judge ruled that the conversations were not recorded illegally and that the tapes were prima facie admissible, subject to any discretionary matters yet to be argued. The judge did not consider whether the witness in question could give evidence of the conversations, and his Honour refused to stay the proceedings. 73 On appeal, a question arose as to whether the statutory appeal provision, which permitted an appeal by leave against 'an interlocutory 26 Plaintiffs' submissions dated 10 July 2026 (PS); Defendant's submissions dated 20 July 2026 (DS). 27 R v Steffan (1993) 30 NSWLR 633; (1993) 67 A Crim R 506 (639, 511) (Hunt CJ at CL, Grove and Sharpe JJ). 28 Corporation of the City of Mitcham v Fusco [2001] SASC 164 [6]-[7] (Debelle J). 29 Assafiri v Horne [2004] WASCA 40 [46]-[49] (Roberts-Smith J). 30 Commonwealth v Mullane (1961) 106 CLR 166, 169 (Dixon CJ delivering the judgment of the court). 31 R v Steffan (639); Commonwealth v Mullane (169). 32 R v Gibson (1887) 18 QBD 537, 542 (Lord Coleridge CJ, Pollock B and Stephen J agreeing). See, further the discussion in a civil context, in Windoval Pty Ltd v Donnelly [2014] FCAFC 127; (2014) 226 FCR 89 [86ff] (Jacobson, White and Gleeson JJ). -- 19 of 43 -- [2026] WASC 306 LUNDBERG J Page 20 judgment or order given or made in the proceedings', was engaged. The court concluded that:33 A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self- evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a “judgment”, but that is an altogether different usage of the word “judgment” and denotes the reasons which have been expressed rather than the formal act of the court. … We can see no distinction between a ruling on evidence made in advance of the trial and one made in the course of the trial. It still cannot be entered in the records of the court as a judgment; nor does it command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction. The purpose of Pt 53, r 10-r 11, is clearly enough to have everything decided in advance of the trial which, by reason of its length or difficulty, would otherwise delay the course of the trial itself and cause inconvenience to the jury. But rulings on evidence may always be altered — although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind. 74 In this court, Roberts-Smith J in Assafiri v Horne examined whether a ruling on evidentiary matters was capable of being altered. His Honour did so in the context of an appeal from the Magistrates Court in a criminal trial involving an assault charge and a charge of breaching a violence restraining order. The appellant in that case had submitted that it was an error of law on the part of the Magistrate, having initially received a video record of interview into evidence without objection, to then subsequently rule in the course of giving his final reasons that it was inadmissible. 33 R v Steffan (635 – 639). -- 20 of 43 -- [2026] WASC 306 LUNDBERG J Page 21 75 His Honour, on appeal, rejected the asserted error, concluding that:34 [46] If this ground is taken as it reads, as an assertion that once having received evidence tendered by one party without objection by the other, a court cannot thereafter rule that evidence inadmissible, it is untenable. The general proposition is that it is the duty of a judicial officer to ensure that the verdict is founded only upon legally admissible evidence (R v Gibson (1887) 18 QBD 537). The critical point is accordingly that at which the tribunal comes to make its decision. This is reflected in the common practice of admitting evidence "conditionally" in the expectation that other evidence upon which it depends for its relevance or admissibility will be forthcoming. Sometimes that "legitimising" evidence is not forthcoming, so that at the end of the trial the "conditional" evidence is ruled inadmissible. [47] It is also reflected in the practice (in civil cases or appeals at least) of a court receiving evidence subject to a ruling on its admissibility to be made at a later stage, or even in the course of judgment. [48] More to the point here though, it is always open to a trial Judge (or Magistrate) to revisit an earlier ruling on evidence, in the course of a trial. This was succinctly expressed by the New South Wales Court of Criminal Appeal in R v Steffan: But rulings on evidence may always be altered - although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind. [49] That proposition was apparently thought to be so self-evident as not to require the citation of authority. In my view it is, with respect, an accurate statement of the law. (footnotes omitted) 76 I agree with his Honour's conclusion that the position expressed in R v Steffan represents an accurate statement of the law. 77 To put the foregoing in further context, the position in relation to evidentiary rulings is to be contrasted with the circumstance in which a party applies to the court to exercise the jurisdiction to re-open unperfected final judgments and orders. The applicable test in that case is that expressed by the High Court in Autodesk Inc v Dyason,35 and subsequently addressed in the decision of this State's Court of Appeal in 34 Assafiri v Horne [46] – [49]. 35 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300. -- 21 of 43 -- [2026] WASC 306 LUNDBERG J Page 22 Minister for Education v Klein.36 That is a more stringent test of exceptional circumstances, explained by the public interest consideration of finality in litigation which is engaged in such a scenario. 78 The test applicable to an application to re-open evidentiary rulings has greater similarity to the test applied to vary or discharge an interlocutory order, although I would not suggest the tests are equivalent. 79 In the case of interlocutory orders, the discretionary power to vary or discharge is often said to be exercised according to the interests of justice, typically requiring a material change of circumstances or the discovery of fresh evidence: Commonwealth of Australia v Albany Port Authority.37 In that decision, Steytler J (as his Honour then was) quoted with approval the observation of Jessel MR in Mullins v Howell 38 that 'there is a larger discretion as to orders made on interlocutory applications than as to those which are final judgments'.39 80 For these reasons, the court has power to reverse or alter the evidentiary rulings made on 19 July 2026, and that power may be exercised by reference to a far less demanding test than is required in relation to final judgments and orders. I will turn to consider whether the power should be exercised. Whether the power should be exercised in this case? 81 In my view, the power should be exercised in this case for several reasons. 82 First, the court has now received a more detailed exposition of the factual context of the Disputed Documents, and the manner in which the documents are relied on by the plaintiffs. 83 Second, the court placed too much emphasis in its rulings on the bespoke nature of these documents, rather than on whether the documents were prepared in the ordinary course of the third parties' business. That analysis has the potential to place a gloss on the statutory language, which must be avoided. Of course, the rulings provided by the court were not intended to be equivalent to formal reasons of the court. Indeed, it was made clear that formal reasons would be provided in due 36 Minister for Education v Klein [2005] WASCA 185 (S). 37 Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [23] - [24] (Steytler P) and [70] (Pullin JA). 38 Mullins v Howell [1879] 11 Ch D 763. 39 Commonwealth of Australia v Albany Port Authority [23]. -- 22 of 43 -- [2026] WASC 306 LUNDBERG J Page 23 course. Accordingly, a process of fine analysis of the rulings as though they are the final distillation of the reasons of the court is inapposite. 84 Third, there have been modifications in the position of the parties concerning the documents since the admissibility arguments were presented during the trial. 85 Fourth, the documents appear to have a high degree of importance to the damages case mounted by the plaintiffs, particularly the Neptune Diving Report, such that a decision to reconsider the rulings is not inconsistent with case management principles, in the sense that the cost and time involved in this process is proportionate to the importance of the documents. The court would naturally be less disposed to exercise the power where the evidentiary ruling has limited significance to the case at hand. 86 I will now approach the objections to the Disputed Documents afresh, having regard to the detailed written submissions filed by the parties. First, I should set out the legislative framework and applicable principles Legislative framework and relevant principles 87 The submissions advanced by the parties in support of, and against, the objections focused on the application of s 79C(2a) of the Evidence Act. I note the plaintiffs did not seek to support the tender of any of the disputed documents pursuant to s 79C(2) of the Evidence Act, which is the 'qualified person' provision. 88 Section 79C(2a) provides as follows: (2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if — (a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and (b) the court is satisfied that the business record is a genuine business record. -- 23 of 43 -- [2026] WASC 306 LUNDBERG J Page 24 89 The applicable definitions are set out in s 79B, as follows: business means any business, occupation, trade or calling and includes the business of any governmental body or instrumentality and of any local government; business record means a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; derived means derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting, consolidation or by accounting, statistical or logical procedures; document means any record of information and includes, in addition to a document in writing — (a) any book, map, plan, graph or drawing; and (b) any photograph; and (c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; and (d) any film, negative, disc, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; statement includes any representation of fact or opinion whether made in words or otherwise. 90 In order for the court to be satisfied that admission of a statement in a document is permitted by s 79C(2a), it will be necessary for the tendering party to address several matters. 91 Ordinarily, the particular statements in the document which are sought to be admitted should be identified. The tendering party would need to demonstrate that the statements would tend to establish a fact or opinion, and that direct oral evidence of that fact or opinion would itself be admissible. Further, the tendering party would need to demonstrate the statement is directly or indirectly reproduced from a business record, or derived from a business record. The business record must be shown to the court's satisfaction to be genuine. Finally, the requirements of the 'business record' definition must be met. -- 24 of 43 -- [2026] WASC 306 LUNDBERG J Page 25 92 If the foregoing matters are demonstrated, there remains a judicial discretion to reject the admission of the statement. Section 79C(6) provides: (6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility — (a) may necessitate undue consumption of time; or (b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury. 93 In the present case, the defendant placed emphasis on the 'undue prejudice' element in 79C(6)(b). 94 This court has identified several principles which guide the application of s 79C(2a), which I will summarise below, to the extent relevant to the present case.40 These principles are largely drawn from the decisions of Edelman J in Agricultural Land Management Ltd v Jackson,41 Beech J (as his Honour then was) in McKay v Commissioner of Main Roads,42 and the decision of Solomon J in Rhodes v De Castro [No 2].43 1. Section 79C(2a) relates specifically to the admission of 'business records', while s 79C(1) and (2) apply to the admission of documents more generally. 2. The provision has been described as remedial in nature and so should be construed liberally and not pedantically. 3. The provision renders statements in a document admissible, but not necessarily the whole document. 4. The provision does not necessarily require the identification by name of the person who has made the statement. 40 All of which I addressed in Palmer v Citic Ltd [No 16] [2025] WASC 216. 41 Agricultural Land Management Ltd v Jackson [2013] WASC 464. 42 McKay v Commissioner of Main Roads [No 2] [2010] WASC 153. 43 Rhodes v De Castro [No 2] [2023] WASC 93. -- 25 of 43 -- [2026] WASC 306 LUNDBERG J Page 26 5. The provision is not restricted to statements made by a qualified person or derived from such a statement. 6. The provision renders a statement in a document admissible notwithstanding the rule against hearsay and the rule against secondary contents of documents, among other matters, as is made clear by s 79C(3). Further to this, s 79C(2a) permits second-hand hearsay, in the sense it permits statements made by a qualified person to be tendered for their testimonial effect, where they are recorded in a document by a third party. 7. There are two limbs to the 'business record' definition to which close attention must be paid. The first limb is the 'prepared' limb. The question is whether the document was prepared by a person or entity in the ordinary course of the business of that person or entity for the purpose of recording any matter relating to that business. The second limb is the 'use' limb. The question in this regard is whether the document was used in the ordinary course of that business for the purpose of recording matters relating to that business. 8. The 'preparation' or 'use' must be for the purpose of recording any matter relating to the business in question and need not be the sole or even the dominant purpose. It is sufficient if it is a substantial purpose. 9. Where the document was not prepared by the person or entity carrying on the relevant business, but the business 'used' an externally generated document as a record of information relating to its business, it does not thereby use the document 'for the purpose of recording any matter relating to the business' unless there is, or it is contemplated that there will be, some further or ongoing recording of information by or on behalf of the business. This limitation applies to the 'use' limb. 10. Section 79C(5)(a) provides that in deciding whether a statement is admissible for the purposes of the provision, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained or from any other circumstances. The discretion conferred upon the court to draw inferences in the application of the provision is cast in the widest possible terms. -- 26 of 43 -- [2026] WASC 306 LUNDBERG J Page 27 11. Finally, s 79C(6) confers upon the court a discretion to reject a statement even though it may fulfil the requirements of admissibility of s 79C. As explained by Solomon J, this may be said to be 'statutory recognition that the strict application of s 79C may in some circumstances operate unfairly and needs to be tempered by some judicial discretion'. I will return to the scope of s 79C(6) in due course. 95 Within the context of the 'business record' definition in s 79C, the status of what might be described as 'one-off' documents has been considered in several cases. Gething J helpfully summarised those cases in Ack Pty Ltd v Mercy Human Services Limited [No 2].44 96 It may be accepted that there are instances in which a document which has been prepared for a singular purpose, such as the letter from an entity to the District Court in response to a subpoena which was discussed in Zerjavic v Chevron Australia Pty Ltd,45 will not satisfy the statutory description of 'business record'. 97 However, the mere fact a document has been brought into existence only once in a business does not deprive that document of the quality of being a record of a business, as explained by Beazley J (as her Honour then was) in Feltafield Pty Ltd v Heidelberg Graphic Equipment.46 The typical example of business records are those documents created as part of a 'systematic record keeping of a business involving more than a single document',47 but that does not exclude the possibility that an individual document, created for a specific purpose, may meet the statutory description. 98 Indeed, as senior counsel in the present case observed, the question whether the information in the statement (or document) was of a kind which was collected in a systematic fashion is a matter the legislature recognises as being relevant to the weight to be attached to a document admitted under s 79C: see s 79D(1)(c). The express reference in the legislation to the systematic collection of information as a factor going to weight tends to point against any conclusion that systematic collection is a defining characteristic of a business record, and would introduce unwarranted tension between s 79B (which defines the term 'business record') and s 79D(1)(c). 44 Ack Pty Ltd v Mercy Human Services Limited [No 2] [2025] WASC 431 [28] – [32]. 45 Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40. 46 Feltafield Pty Ltd v Heidelberg Graphic Equipment (1995) 56 FCR 481, 483 – 484. 47 Feltafield Pty Ltd v Heidelberg Graphic Equipment (484). -- 27 of 43 -- [2026] WASC 306 LUNDBERG J Page 28 99 The submissions advanced by the plaintiffs as to the scope of, and principles applicable to, the statutory discretion in s 79C(6) to reject the tender of a business record may be accepted as correct. In brief: 1. The starting point is that the discretion under s79C(6) is one to reject; once the requirements of s79C are otherwise satisfied, the prima facie position is that the statement is to be admitted.48 2. The discretion to reject only arises if the court forms the opinion that the probative value of a statement is outweighed by, relevantly, the consideration that its admission may create undue prejudice or confuse the issues.49 3. The discretion necessarily exists with respect to a particular statement or statements, and the onus is on the party seeking a discretionary exclusion to demonstrate that the discretion should be exercised to exclude a particular statement or statements. 4. In considering whether any undue prejudice exists, regard must be had to the interests of both parties to the proceedings.50 5. Relevant 'undue prejudice' may be suffered by a party who is unable to cross-examine a witness.51 6. The prejudice suffered by the party who is tendering the document, if that document is not admitted, must also be considered.52 7. Other factors that may be relevant to the exercise of the discretion include:53 (a) the extent to which the statement in the document is ambiguous and requires clarification or explanation; (b) whether the statement was prepared by the tendering party’s lawyers as a witness statement and was intended for use by them in an adversarial context; 48 McKay v Commissioner of Main Roads [No 2] [73]. 49 McKay v Commissioner of Main Roads [No 2] [73]. 50 McKay v Commissioner of Main Roads [No 2] [74]. 51 McKay v Commissioner of Main Roads [No 2] [75]. 52 McKay v Commissioner of Main Roads [No 2] [74] and [76]. 53 McKay v Commissioner of Main Roads [No 2] [78]. -- 28 of 43 -- [2026] WASC 306 LUNDBERG J Page 29 (c) whether the statement seeks to provide evidence of a central issue in the case; and (d) whether the other party is or is not in a realistic position to controvert the proposed evidence by firsthand evidence of their own. 8. Issues like confusion, necessarily have a different weighting in a civil trial before a judge alone than in a trial before a jury.54 The evidentiary rulings of the court 100 I should preface the rulings by addressing four matters of application to each of the objections. 101 The first is that the plaintiffs relied on s 79C(2a) to support the tender of the entirety of each of the Disputed Documents, for their testimonial effect, rather than on specific statements within the documents. I accept that this course is not precluded by the statutory provision, but ordinarily it is to be expected that a party would identify the specific statements which are tendered. In any event, as the argument developed, it emerged that some portions of the documents were not intended to be relied upon. 102 The second point, which I have already noted, is that the documents contain complex information, in the nature of both fact and opinion evidence, regarding the condition of the hull of the barge, the presence (and size) of 'pits' on the hull and other damage, the condition of the anodes, the condition of the skegs, and recommendations for the work to be undertaken. Without proper explanation, the substance of the information in the documents is difficult to comprehend and does not (at least expressly) address the causal link between the manner of application of the Sea Guardian Paint and the damage to the hull. That said, the plaintiffs did present expert evidence at trial from a materials engineer, which provides the court with opinion evidence as to matters concerning the causes of the corrosion. The court anticipates that, in closing submissions, the plaintiffs will further explain how the invoices and associated documents, when understood in the context of the opinion evidence of the materials engineers, are said to make good the loss and damage claim. 54 Ack Pty Ltd v Mercy Human Services Limited [No 2] [35]. -- 29 of 43 -- [2026] WASC 306 LUNDBERG J Page 30 103 The third point is whether the opinions within the Disputed Documents must set out the intellectual basis for the conclusions reached, in the sense explained in Makita (Australia) Pty Ltd v Sprowles.55 Put another way, might it be said that statements of opinion in a business record will not be admissible if they are conclusionary statements. This issue was identified by the Court of Appeal, but not resolved, in Greenaway v The State of Western Australia.56 The point was raised by the defendant in its submissions. I intend to approach the issue on the basis that a failure to comply with the Makita principles is relevant to discretionary rejection, rather than a prerequisite to tender. 104 The fourth point concerns the court's timetable for the notification of objections to the documentary material. The parties proffered competing submissions as to whether there was compliance with the timetable and as to whether the defendant's objections resulted in some 'ambush' of the plaintiffs.57 I do not recognise this complaint as having been raised at trial. Any such complaint would, of course, not apply to TB 149, being the Neptune Diving Report, which emerged in the trial bundle for the first time on 5 June 2026. As for the balance of the documents, the short answer to the complaint is that the court proposed that the objections be appended to the parties' opening submissions, which course was followed. No claim of material prejudice was raised at trial and no application to adjourn the trial was made, including after the court's rulings were made. In my view, this aspect of the plaintiffs' challenge lacks substance. 105 I will now address the objections. Ruling on objection 3 – TB 74, 76, 78 and 91 106 I have earlier described these documents. Each of the documents is a letter from Mr Toussaint-Jackson of Australian Floating Decks to Mr Derrick of the Monadelphous Group. The letters were sent by Australian Floating Decks over the period from 12 January 2020 to 27 July 2020, and each contains a description of work to be carried out or which was recommended, together with a quote for that work. 107 The plaintiffs submit the each of the documents was prepared in the ordinary course of Australian Floating Decks' business, for the purpose of recording matters relating to its business and meet the requirements 55 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85]. 56 Greenaway v The State of Western Australia [2022] WASCA 166. See also City of Stirling v Legg [2023] WASC 443 in which Lemonis J raised, but was not required to determine, the issue. 57 PS [76] – [77]; DS [36] – [40]. -- 30 of 43 -- [2026] WASC 306 LUNDBERG J Page 31 for admission in s 79C(2a).58 The plaintiffs rely only on the 'prepared' limb in the provision. 108 The letters from Australian Floating Decks are each sought to be tendered for their testimonial effect. The plaintiffs seek to tender the entirety of the letters, not merely identified statements within the documents. 109 The letters set out descriptions of the work which is proposed or recommended to be undertaken, rather than the work in fact undertaken. A question thus arises as to whether the documents are relevant to a matter in issue in the proceedings. The defendant submits that direct oral evidence of the work with Australian Floating Decks proposed or recommended would not be admissible in this proceeding.59 Further, the defendant emphasises that repair work is only relevant, on the pleaded case, if they concern repairs to the hull caused by the direct application of the Sea Guardian Paint to bare steel.60 110 On my assessment, the statements within the letters from Australian Floating Decks referring to damage to the hull of the Sinostruct 91 barge, and which outline the recommended repair work, are sufficiently relevant to the loss and damage claim pleaded by the plaintiffs. The statements could rationally affect, either directly or indirectly, the assessment by the court of the damage suffered to the hull of the barge, the causes of that damage, the extent of the damage, and the costs or efforts involved to repair the damage. It is not necessary to be satisfied that evidence from Mr Toussaint-Jackson in particular would be admissible on these matters. The language of the statute directs attention to a broader inquiry, it seems to me. 111 Once this is accepted, it falls to the plaintiffs to demonstrate the letters are properly characterised as business records. There is certainly no suggestion the letters are not genuine. On analysis, and having regard to the principles I have set out above, I accept the submission of the plaintiffs that these letters are instances of documents prepared contemporaneously with the relevant events, in the context of carrying out work which fell directly within the ordinary scope of the business of Australian Floating Decks, and not after the event, whether for the purpose of litigation or otherwise.61 58 PS [20]. 59 DS [7] – [9]. 60 DS [9]. 61 PS [36]. -- 31 of 43 -- [2026] WASC 306 LUNDBERG J Page 32 112 Further, I accept there is no reason to conclude that the circumstances in which the letters were prepared were anything other than part of the ordinary manner in which personnel at Australian Floating Decks prepared such correspondence, as part of its usual business. The defendant accepts as much.62 113 Having reached this point in the analysis, the discretion to reject in s 79C(6) remains to be considered. I have considered this issue at [133] below, in the context of all of the objections Ruling on objection 4 – TB 83 114 As earlier noted, this document is different in nature to the other documents which emanate from Australian Floating Decks. 115 The document, which is a report, provides an assessment of the electrolytic damage to the steel hull plate of the barge, using a particular methodology designed by Mr Gerritsen, whose role is unclear. 116 Whether or not the report is a 'business record' of Australian Floating Decks, I cannot discern how the report is relevant to a matter in issue in the proceeding. That is, it is simply not apparent how direct oral evidence of the voltage measurements which are recorded in the report would be admissible in the proceeding on any issue, including as to the damage to the hull of the barge. 117 On this basis, I am not satisfied the plaintiffs have demonstrated that s 79C(2a) is engaged and I accept the submission of the defendant in this regard.63 The objection to TB 83 will be upheld. Ruling on objection 5 – TB 75, 92, 142 and 143 118 I turn now to the Bureau Veritas documents, each of which is a 'Ships in Service Survey Report'. As earlier noted, the reports follow a similar style, although they are not uniform documents. 119 The plaintiffs submit that the reports record statements of fact, and some opinions, as a result of the relevant survey.64 The defendant concedes the documents are 'business records',65 but maintains they are irrelevant to any matter in issue.66 The defendant has sought, in its 62 DS [11]. 63 DS [14]. 64 PS [45]. 65 DS [21]. 66 DS [17] – [20]. -- 32 of 43 -- [2026] WASC 306 LUNDBERG J Page 33 submissions, to explain the substance of the documents, from which the following summary is taken. 120 TB 75 appears to be largely concerned with the planning required for a future survey. The document refers to 'pitting' but the defendant says that the mere existence of pitting (without something more) is not relevant. The document refers to various measurements but they are not included in the report. The opinion expressed about the pitting depth being 'beyond the acceptable limit' is said to be inadmissible opinion and irrelevant. 121 The defendant contends that TB 92 is not a survey report of any inspection of the hull. Rather, the defendant says the report refers to the 'ships bottom' being examined in the future but otherwise is concerned with entry into the ballast tanks and void spaces. The defendant submits the document is not relevant. 122 The defendant submits that TB 142 is not a survey report of any inspection below the water line. Indeed, the document refers to an 'above water line' inspection and the defendant says the 'Hull Occasional Survey' section of the document does not record any relevant matter. 123 The defendant says that TB 143 is the same document, in substance, as TB 142. This appears to be the case. 124 For my part, in the absence of further explanation by a person with knowledge of the matters referred to within these Bureau Veritas documents, it is difficult for the court to understand precisely how they are relevant to the matters in issue in the proceeding, other than in the broad sense that they show inspections being undertaken of the barge at certain intervals, with particular observations being recorded. 125 On analysis of the terms of these surveys, one can see references to inspections of the hull and some references to repair work in this regard, albeit it is not possible to discern how this is connected to the anti-fouling paint and its application which is the subject of this proceeding. I accept, though, that the documents could rationally affect, either directly or indirectly, the assessment of the damage suffered to the hull of the barge, the causes of that damage, the extent of the damage, and the costs or efforts involved to repair the damage. 126 I therefore consider the survey reports are relevant, and the objection on this basis is not upheld. -- 33 of 43 -- [2026] WASC 306 LUNDBERG J Page 34 Ruling on objection 7 - TB 149 127 The final document to address is the first in time document, being the Neptune Diving Report. It was prepared in December 2019. I have earlier in these reasons described the document I some detail. 128 The defendant rejects the contention that this document is a business record for the purposes of s 79C(2a). The defendant observes that no testimony was led about the circumstances in which this report was prepared and, although it accepts that it may be inferred Neptune is a company that performs diving services, it cannot be inferred that Neptune prepares documents of this kind in the ordinary course of business. 129 The plaintiffs maintain the Neptune Diving Report was prepared in the ordinary course of the business of Neptune, and that the content of the report itself provides a basis to draw this inference. The plaintiffs' submission should be accepted and accords with the principles I have set out in these reasons. In effect, I am prepared to infer that the company called Neptune Diving Services, which has prepared a report setting out the results of a diving team's inspection of a vessel, typically prepares reports such as this in the ordinary course of its business. 130 However, that does not mean the entire document is admissible. The statements sought to be tendered within the document must be shown to establish facts or opinions in respect of which direct oral evidence would be admissible. 131 One example in the Neptune Diving Report worthy of mention in this regard is the statement that various features on the hull, summarised in point 7.3, are all features which 'point very strongly to micro biological induced corrosion (MIC)'. The report makes numerous references to the concept of 'MIC' throughout. The concept of 'MIC' appears to be addressed, at least indirectly, in the expert report of the materials engineer. I accept that this statement could therefore could rationally affect, either directly or indirectly, the assessment of the damage suffered to the hull of the barge, the causes of that damage, the extent of the damage, and the costs or efforts involved to repair the damage. Accordingly, I would not exclude the statements concerning 'MIC' in the report, although I should note that senior counsel for the plaintiffs foreshadowed that it was unlikely weight would be given to this aspect of the report in closing. -- 34 of 43 -- [2026] WASC 306 LUNDBERG J Page 35 132 I would therefore accept the tender of the Neptune Diving Report under s 79C(2a), subject to consideration of the discretion. The discretion to exclude the documents – s 79C(6) 133 I have set out the terms of s 79C(6), and the applicable principles, earlier in these reasons. It is important for the court to recall that there are two sides to the prejudice question in this regard. There may be undue prejudice to the party who seeks to tender the document, if that document is not admitted. There may equally be prejudice to the opposing party who is unable to cross examine a witness if the document is received under s 79C(2a). 134 In the present case, the defendant submits the probative value of these documents is outweighed by the prejudice to the defendant if the documents are admitted.67 The defendant points to the marginal relevance of the documents, the central issue to which the documents are said to relate, and the absence of any witness with any knowledge of the repairs undertaken to the Sinostruct 91 barge, among other matters. 135 The defendant specifically advances the following submissions: [29] The relevance of the documents is addressed above. If they are relevant at all, they are, in Bhagwan Marine’s view, of marginal relevance. Further, the documents do not speak for themselves. The issues to which they are directed are not clear. They are documents that require clarification and explanation. Some of the documents refer to pitting, but in the absence of anything to suggest that that pitting is causally connected to the direct application (by MMA/PCC) of Jotun SeaGuardian to the hull, that evidence goes nowhere [30] Although in Bhagwan Marine’s view the documents have (at best) marginal relevance, they are tendered by the plaintiffs to provide evidence of a central issue in the case. The plaintiffs seek to advance a wholly documentary case on critical questions of causation and damage. This is an aspect of the case in respect of which the plaintiffs hold all of the records. There is no competing documentary evidence that the Court could assess as a whole. [31] The plaintiffs seek to tender documents to prove a central issue in the case. But they have called no witness with any knowledge of the state of the Sinostruct 91 at any point in time after it left the MMA yard, and no witness with any knowledge of what repairs were undertaken and why. No scrutiny can be brought to bear on this aspect of the plaintiffs' case. The plaintiffs have not even 67 DS [28] – [41]. -- 35 of 43 -- [2026] WASC 306 LUNDBERG J Page 36 pleaded or particularised their case on causation and damage, or explained this aspect of the case in their written or oral opening. 136 Senior counsel for the plaintiffs characterised the defendant's position on prejudice as walking along a razor's edge, in that it is said by the defendant that the Disputed Document do not matter and lack any relevance to the issues, and yet the defendant also contends the admission of the documents would create undue prejudice. The plaintiffs say the defendant's point is really one as to weight, and that is a matter in respect of which submissions can be made in closing. 137 The points advanced by the defendant as to prejudice hold some substance, particularly bearing in mind the application is to admit the entirety of these documents, which contain numerous references to complex issues including matters of apparent opinion, without the benefit of being explained or disentangled by a witness. But the issue of prejudice must be examined from the perspective of both parties, and the court recognises that the inability to tender this material will create prejudice from the plaintiffs' perspective as well. 138 Assessing the matter as best one can in advance of closing submissions being made by both parties, my assessment is that the defendant has not discharged the onus of demonstrating that the Disputed Documents ought be rejected on discretionary grounds. In my view, other than as noted in these reasons, the documents could rationally affect the loss and damage issue and are all documents which were created contemporaneously to the events they purport to record. The documents were created by third parties, not by the plaintiffs or by the plaintiffs' solicitors. The documents are not witness statements or materials created specifically for the purposes of these proceedings in some fashion. 139 I recognise the defendant is not in a position (at least not presently, given the stage of the proceedings) to marshal materials to rebut the assertions made in in the Disputed Documents, but that inability must be seen in the context that the defendant submits these documents lack substance and should be accorded little weight (and, indeed, the fact the statements in the Disputed Documents have not been the subject of any cross-examination will make it difficult for the court to place much weight on them, to the extent the statements are said to be contentious or simply conclusions without explanation). 140 My assessment is therefore that, while there is some prejudicial effect to the defendant, and the probative value of the documents is low, -- 36 of 43 -- [2026] WASC 306 LUNDBERG J Page 37 given what I have earlier said, I cannot be satisfied that the probative value of the statements in the Disputed Documents is outweighed by the prejudicial effect they may create from the defendant's perspective. 141 I therefore decline to exercise the discretion in s 79C(6) to reject the tender of the Disputed Documents (bearing in mind I regard TB 83 as not relevant and the tender of that document will be refused). Conclusion and orders 142 For the foregoing reasons, I will exercise the power to reconsider the rulings made on 19 June 2026 and, having assessed those rulings afresh, I will rule as follows: (a) the objections to TB 74, TB 76, TB 78 and TB 91 are not upheld; (b) the objection to TB 83 is upheld, and the document will not be received for its testimonial effect; (c) the objections to TB 75, TB 92, TB 142 and TB 143 are not upheld (although the plaintiffs will need to clarify in due course the status of TB 142 and TB 143 which appear to be the same document); and (d) the objection to TB 149 is not upheld. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 30 JULY 2026 -- 37 of 43 -- [2026] WASC 306 LUNDBERG J Page 38 ATTACHMENT A Schedule of Rulings made on 19 June 2026 -- 38 of 43 -- [2026] WASC 306 LUNDBERG J Page 39 -- 39 of 43 -- [2026] WASC 306 LUNDBERG J Page 40 -- 40 of 43 -- [2026] WASC 306 LUNDBERG J Page 41 -- 41 of 43 -- [2026] WASC 306 LUNDBERG J Page 42 -- 42 of 43 -- [2026] WASC 306 LUNDBERG J Page 43 -- 43 of 43 --