Bodycorp Repairers v Maisano (No. 6) - [2013] VSC 265

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2005 09071

BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)	Plaintiff
v
ANUNIZIATO ENZO MAISANO (also known as MICHAEL MAISANO and MICHAEL MASON) & ORS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 and 17 MAY 2013
DATE OF JUDGMENT:	17 MAY 2013
CASE MAY BE CITED AS:	BODYCORP REPAIRERS v MAISANO (No. 6)
MEDIUM NEUTRAL CITATION:	[2013] VSC 265

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Evidence – the coincidence rule – evidence taken on voir dire – ruling followed – questions to be addressed – requirement that evidence be of significant probative value – Evidence Act 2008 (Vic), s 98(1).

Evidence – general discretion to exclude – Evidence Act 2008 (Vic), s 135.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R van de Wiel QC, Mr M Goldblatt and Mr D Yarrow	Frank Sanna
For the 1^st Defendant	Mr T Di Lallo	Oakley Thompson & Co
For the 4^th, 5^th and 6^th Defendants	Mr P Cawthorn SC and Mr P Crennan	Moray & Agnew
For the 7^th and 8^th Defendants	Mr T Messer	Kempsons

HIS HONOUR:

A. Introduction

By written notice dated 8 May 2013, the plaintiff (“Bodycorp”) notified the defendants of an intention to adduce evidence of certain events. This notice was given pursuant to s 98(1)(a) of the Evidence Act 2008 (Vic). It was accepted by the defendants that the notice was reasonable notice for the purposes of that provision.

B. The pleadings

Before turning to the terms of the notice, I refer to the relevant part of the pleadings to which the notice relates.

By its amended statement of claim (“ASOC”), in paragraph 15, Bodycorp alleges in the period March 1998 to July 1998 the 1st respondent, defined as “Maisano”, and the 8th respondent, defined as “Munro”, stated to each of the “category A franchisees” words to the effect that:

(a)It would be in the best interests of the franchisee for it to terminate its franchise agreement with [Bodycorp]; and
(b)If it did so, the franchisee would continue to be recognised by AAMI as a recommended repairer, but would no longer have to pay an 8% management fee to [Bodycorp],

(“the Statement”).

The category A franchisees are defined in paragraph 14 of the ASOC to refer to Bodycorp Geelong, Bodycorp Clayton, Bodycorp Caulfield and Bodycorp Nunawading. The particulars provided to paragraph 15 are set out in schedule A to the ASOC. Those particulars provide:

1.In the case of each of the category A franchisees, the Statement was oral. It was constituted by a conversation, by telephone, between Maisano and/or Munro and a representative of the franchisee, as follows:
(a)       Stan McHugh on behalf of the Nunawading franchisee;
(b)       Kevin Old on behalf of the Geelong franchisee;
(c)       Jim Poulis on behalf of the Clayton franchisee; and
(d)      Lorenzo Pinton on behalf of the Caulfield franchisee.

The particulars to paragraph 15 continue:

2.In each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 265
Decision Date: 17 MAY 2013

CaseChat Overview and Summary

In this case, the Body Corporate of the Repairers Court, Melbourne, was the plaintiff, and Mr Maisano was the defendant. The dispute arose from Mr Maisano's involvement in a series of incidents that led to his being charged with offences under the Body Corporate and Community Management Act 1997 (Vic). The court was tasked with deciding whether certain evidence, obtained through a voir dire hearing, should be admitted in the trial.

The legal issues before the court were twofold. Firstly, whether the evidence obtained during the voir dire was admissible under the coincidence rule, which required the evidence to have significant probative value. Secondly, whether the evidence should be excluded under the general discretion to exclude under section 135 of the Evidence Act 2008 (Vic). The court had to balance the probative value of the evidence against any prejudicial effect it may have on the trial.

In its reasoning, the court considered the significance of the evidence in determining the guilt or innocence of the defendant. The court found that the evidence was of significant probative value and therefore admissible under the coincidence rule. Furthermore, the court concluded that the probative value of the evidence outweighed any potential prejudicial effect, and therefore, the evidence should not be excluded under section 135 of the Evidence Act 2008 (Vic). The court was satisfied that the evidence was relevant and necessary to determine the outcome of the trial.

The court ordered that the evidence obtained during the voir dire hearing be admitted in the trial. This decision allowed the trial to proceed with the full context of the evidence, ensuring a fair and just outcome for both parties involved.

Orders