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
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:
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.
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.
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
- AGLC
- Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 2) [2016] FCA 596
- Case
- [2016] FCA 596
- Decision Date
CaseChat Overview and Summary
The court found that the doctrine of procedural fairness required that a party not be prejudiced by the other party's failure to disclose evidence. The court noted that the decision to exclude evidence was discretionary and should only be exercised in exceptional circumstances where the prejudice to the opposing party was significant. In this case, the court found that Clipso had not been materially prejudiced by the late disclosure of evidence. The evidence in question was largely cumulative and did not undermine Clipso's case. The court held that the discretion to exclude evidence should not be exercised where the prejudice to the opposing party was not substantial. The court found that Clipso had not demonstrated sufficient prejudice to warrant exclusion of the evidence or a stay of proceedings.
The court ultimately found that the late disclosure did not result in a significant procedural disadvantage to Clipso, and therefore the covenant was enforceable. The court held that the evidence should be admitted, and the proceedings should continue. Clipsal was permitted to enforce the non-compete covenant against Clipso. The court's decision highlights the importance of timely disclosure of evidence, but also recognises that the exercise of the discretion to exclude evidence should be limited to cases where there is a significant risk of substantial prejudice.
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Evidence
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