Aristocrat Technologies Australia Pty Limited v Ainsworth Game Technology Limited

Aristocrat Technologies Australia Pty Limited sought preliminary discovery from Ainsworth Game Technology Limited under rule 7.23 of the Federal Court Rules 2011 (Cth). The Federal Court was required to determine whether the application constituted an interlocutory proceeding for the purposes of the hearsay exception in s 75 of the Evidence Act 1995 (Cth), and whether a declaration containing hearsay evidence was unfairly prejudicial under s 135 of the Evidence Act. The court found that the application was indeed an interlocutory proceeding for the purposes of s 75, following the weight of authority that considered such applications to be interlocutory and not final. The court also found that the evidence should not be rejected on the basis of unfair prejudice, even though it was of little weight given its form as a bald assertion and its hearsay character. Ainsworth did not provide any reason why Mr Greenslade could not have made an affidavit rather than a declaration, which would have provided an opportunity for Aristocrat to cross-examine him.

The court ordered that the parties provide an agreed minute of the orders to be made by 18 October 2018. The prospective applicant was required to file submissions on the question of costs by 18 October 2018, limited to two pages. The prospective respondent had until 25 November 2018 to file any responding submissions, also limited to two pages. The prospective applicant could file any submissions in reply by 1 November 2018, also limited to two pages. The question of costs was to be determined on the papers.