Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 2)

[2016] FCA 596

FEDERAL COURT OF AUSTRALIA

Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 2) [2016] FCA 596

File number:

NSD 2537 of 2013

Judge:

PERRAM J

Date of judgment:

20 May 2016

Catchwords:

EVIDENCE – discretion to exclude – procedural prejudice

Legislation:

Evidence Act 1995 (Cth) s 135

Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322

Seven Network v News Ltd (2005) 224 ALR 317

Date of hearing:

20 May 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Intellectual Property

Sub-area:

Patents and associated Statutes

Category:

Catchwords

Number of paragraphs:

3

Counsel for the Applicants:

Mr J S Cooke and Mr B A Mee

Solicitor for the Applicants:

Banki Haddock Fiora

Counsel for the Respondents:

Mr D L Williams SC and Mr S Balafoutis

Solicitor for the Respondents:

Breene & Breene Solicitors

REASONS FOR JUDGMENT

PERRAM J:

1. The trial of this matter commenced on 16 May 2016.  During the trial, questions arose in relation to the tender of certain evidence.  It is necessary to say something about two questions which arise on the tender of a bundle of documents by the respondent.  The first is admissibility.  The second is, assuming the material is admissible, whether there is a discretionary power to prevent the evidence being tendered.  The tender arose on the fifth day of the trial and consists of certain documents which, if admitted, would tend to prove the state of various internet pages in earlier years.  I am satisfied that the material was introduced in circumstances which can be described as reasonable.  The need for it arose as a result of an answer given by Mr Quinn, one of the applicants’ witnesses, under cross-examination.  I do not think that the respondents’ representatives can be criticised for only gathering the material by mid-trial and there is, also, the further fact that the respondents’ case had not closed at the time that the tender was proposed.

2. On the other hand, I am satisfied that the applicants cannot reasonably meet the tender within the timeframe of the trial. Leaving to one side for the moment the question of admissibility, there is a debate as to whether the power to prevent the use of evidence conferred by s 135 of the Evidence Act1995 (Cth) extends to unfair prejudice which consists of, or is of, a procedural nature: see, for example, the reasons of Sackville J in Seven Network v News Ltd (2005) 224 ALR 317 and my own recent decision in Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322. Assuming that it can be utilised in a situation of procedural unfairness, it seems to me that I would not exercise it in this case. The argument would have to be that if the documents are tendered, the applicants would suffer procedural prejudice because I would not grant an adjournment if one was sought after the tender.

3. However, it seems to me that I would grant such an adjournment. Hence, the prejudice will not arise and s 135 cannot be called upon. Accordingly, assuming that the material is relevant, I would decline to prevent the respondent from using it. It will be necessary to hear further argument on admissibility.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        26 May 2016