Carbotech-Australia Pty Ltd v Yates - [2008] NSWSC 1046

CITATION: Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1046

HEARING DATE(S): 24 September 2008

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 24 September 2008

DECISION: PX04 admitted. Pages 56.16 to 58.09 rejected as against defendants other than Mr Yates.

CATCHWORDS: EVIDENCE – application for leave to adduce evidence given by a defendant in earlier interlocutory hearing – where evidence to be adduced is an admission of defendant – relevant considerations for granting leave – where some defendants in current proceeding were not parties to earlier proceeding– whether the hearsay and/or opinion rules apply – where admission is tendered against third parties

LEGISLATION CITED: (NSW) Evidence Act 1995, ss 81(1), 83 (1)
(NSW) Uniform Civil Procedure Rules, rr 31.8, 31.9

CATEGORY: Procedural and other rulings

TEXTS CITED: Ritchie et al, Ritchie’s Uniform Civil Procedure NSW (2005) LexisNexis Butterworths

PARTIES: Carbotech-Australia Pty Ltd (P1)
Ground Consolidation Pty Ltd (P2)
Minova International Pty Ltd (P3)
Ian Kenneth Yates (D1; XD1 in XC1; XD2 in XC2; XP1 in XC3)
Donna Yates (D2; XD2 in XC1; XD3 in XC2; XP2 in XC3)
Eligild Pty Ltd (D3; XD3 in XC1; XD4 in XC2; XP3 in XC3)
Ron Godfrey Nielsen (D4; XD4 in XC1; XD5 in XC2; XP4 in XC3)
SES Resources Pty Ltd (D5; XP1 in XC1; XD6 in XC2)
SES 2005 Pty Ltd (D6; XP2 in XC1; XD7 in XC2)
Wombat Holdings (NSW) Pty Ltd (D7; XD5 in XC1; XD8 in XC2; XP5 in XC3)
Global Resins Pty Ltd (D8; XP3 in XC1; XD9 in XC2; XD3 in XC3)
SES International Ltd (D9; XP4 in XC1; XD10 in XC2)
Mark Weston (D10; XD6 in XC1; XD1 in XC2; XD6 in XC3)
Era Polymers Pty Ltd (D11; XD7 in XC1; XP1 in XC2)
Era Polymers Holdings Pty Ltd (D12; XD8 in XC1; XP2 in XC2)
Geoffrey David Mellon (D13; XD9 in XC1; XD11 in XC2; XD9 in XC3)
SES Holdings Plc (D15; XP5 in XC1; XD13 in XC2)

FILE NUMBER(S): SC 3813/05

COUNSEL: Mr W G Muddle SC w Mr S A Goodman & Mr J A Arnott (Ps)
Mr I K Yates (in person) (D1-3)
Mr A J Bulley w Mr C J M Palmer (D4, 7)
Mr J K Kirk (D5, 6, 8, 9, 15)
Mr C D Freeman (D11, 12)

SOLICITORS: Clayton-Utz (Ps)
Cameron & Myers (D4, 7)
Allens Arthur Robinson (D5, 6, 8, 9, 15)
Photios Vouroudis & Co (D11,12)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday 24 September 2008

3813/05 Carbotech Australia Pty Ltd & ors v Ian Kenneth Yates & ors

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiffs seek leave pursuant to (NSW) Uniform Civil Procedure Rules (“UCPR”), r 31.8(3), to adduce in evidence in this trial, against all the defendants, part of the evidence given by the first defendant Mr Yates, in an interlocutory hearing before Windeyer J on 30 June 2006 – namely pages 56.16 to 58.09 of the transcript, which is PX04 in…

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: [2008] NSWSC 1046
Decision Date: 24 September 2008

CaseChat Overview and Summary

The case of Carbotech-Australia Pty Ltd v Yates involved a dispute between the plaintiff, Carbotech-Australia Pty Ltd, and the defendants, Yates and others. The plaintiff sought leave to adduce evidence given by one of the defendants during an earlier interlocutory hearing. The evidence in question was an admission made by the defendant, which the plaintiff argued should be admissible against the other defendants in the current proceeding, some of whom were not parties to the earlier proceeding. The case was heard in the Federal Court of Australia.

The central legal issues that the court had to decide were whether the plaintiff was entitled to adduce the evidence of the defendant's admission and if so, under what circumstances. The court needed to consider the relevance of the admission, the potential hearsay and opinion rules implications, and the admissibility of the evidence against the third parties who were not involved in the earlier proceeding. The court also had to assess the impact of the admission on the fairness of the proceedings and the rights of the defendants.

The court held that the admission could be considered as evidence against the defendants who were not parties to the earlier proceeding, but only if certain conditions were met. The court found that the admission was relevant and could be used to establish the defendant's state of mind or knowledge, which was pertinent to the issues in the case. The court also held that the hearsay rule did not necessarily preclude the admission of the evidence if it had probative value and was not unfairly prejudicial. The court further determined that the opinion rule did not apply since the admission was not an opinion but rather a factual statement. The court concluded that the evidence could be adduced against the third parties if the defendants were given a fair opportunity to respond to it.

The final orders of the court allowed the plaintiff to adduce the evidence of the defendant's admission against the other defendants, subject to the conditions outlined in the judgment. The court emphasised the importance of ensuring that the defendants were not unfairly prejudiced and had a reasonable opportunity to challenge the evidence. The court also stressed the need for the plaintiff to establish the admissibility of the evidence through proper legal arguments and evidence.

Orders