Beadcrete Pty Ltd v Fei Yu trading as Jewels 4 Pools

In the Federal Circuit Court, Beadcrete Pty Ltd sought leave to tender an affidavit containing experimental proof as evidence in a proceeding against Fei Yu trading as Jewels 4 Pools. The application for leave was made under Part 34, rule 34.50(2)(b) of the Federal Court Rules 2011, which allows for the admissibility of experimental proof in proceedings but requires the proponent to comply with certain procedural requirements, including notifying the opponent of the experiment and each fact that the proponent asserts is, will, or may be proved by the experiment. The primary legal issue the Court had to address was whether Beadcrete had complied with these requirements and, if not, whether leave should still be granted to tender the experimental proof as evidence.

The Court found that Beadcrete had not complied with the requirement to serve particulars of the experiment and each fact that Beadcrete asserted was, will, or may be proved by the experiment on Fei Yu. The Court relied on previous decisions, including Lucent Technologies Inc v Krone Aktiengesellschaft, which highlighted the importance of providing adequate opportunity for the opponent to challenge the validity of the experiment. Despite considering factors that might suggest granting leave, such as the experiment being carried out before the dispute or the undue expense of repeating it, the Court concluded that these considerations did not affect the applicability of the rule. Therefore, the Court held that Beadcrete had not met the necessary procedural requirements.

Consequently, the Court refused leave to tender the report of Mr Mahaffey as evidence in the proceeding. The Court's decision underscores the importance of adhering to the procedural requirements outlined in rule 34.50 for the admissibility of experimental proof, emphasising that non-compliance with these rules will result in the evidence being inadmissible unless the Court grants leave.