Cp (Adelaide) & Ors v Hartford (Holdings) & Anor (No 5) No. DCCIV-01-617

CP (ADELAIDE) PTY LTD & OTHERS
v
HARTFORD (HOLDINGS) PTY LTD & ANOTHER (NO 5)
[2002] SADC 6
Judge Lunn
Civil
REASONS FOR RULINGS ON ADMISSIBILITY OF SIMILAR FACT EVIDENCE

The plaintiffs have sued the defendants for damages for misleading and deceptive conduct, misrepresentation and other causes of action arising out of two leases granted by the 1^st defendant as the owner of the Food Court in the basement of a new building in Rundle Mall and out of guarantees given in respect of those leases. For present purposes it is sufficient to define the Food Court area as four cafes and nine food shops at the northern end of the basement. (Whether the cafes are part of the “Food Court”, strictly defined, is a matter of contention, but it does not affect the admissibility of the evidence in question.) The 2^nd defendant is the leasing agent which was employed by the 1^st defendant to obtain tenants for the cafes and food shops. Lou Rentis was an employee of the 2^nd defendant who conducted the negotiations leading to the leasing of the cafes and food shops.
The plaintiffs’ opening at the trial included that they would be calling the tenants of a number of the other cafes and food shops to give evidence about their dealings with Rentis in the negotiation of their leases and about their experiences as tenants. It was submitted that such evidence was relevant to matters in issue between the plaintiffs and the defendants as similar fact evidence. As part of their opening the plaintiffs put forward affidavits from these other tenants setting out their proposed evidence-in-chief. It was agreed that I should treat these affidavits as part of the plaintiffs’ opening, but they are not evidence in the trial. The defendants successfully opposed the plaintiffs’ application that I should rule on the admissibility of the similar fact evidence at the conclusion of the opening.
The trial has now proceeded to the point where I have heard most of the evidence and cross-examination of three of the four natural plaintiffs and three other minor witnesses. (It will probably be necessary for the plaintiffs who have given evidence to give further evidence later in the trial because of some fore-shadowed amendments and “Browne v Dunn” points.)
On the 28^th day of the trial the 4^th plaintiff called Hulia Yesil, who was the lessee of one of the food shops, “Executive Sandwiches”. He asked her a number of questions to elicit similar fact evidence which had been opened upon. He asked her twenty seven questions which were objected to on the grounds that their subject matter was only admissible as similar fact evidence. It was agreed that all of these questions should be asked without me hearing argument on them individually so that the submissions about them could be heard together. The rest of the evidence of Mrs Yesil was adjourned to a future date to await my ruling on each of the twenty seven questions. Hopefully, these rulings will resolve many, but not necessarily all, of the issues of similar fact evidence to arise in relation to a number of subsequent witnesses for the plaintiffs.
It is for the plaintiffs to show that proposed similar fact evidence is admissible. In my rulings below I have acted on:
·The pleadings as they stand at present (but not the fore-shadowed amendments).
·The plaintiffs’ opening on what their witnesses will say (and including supplements made to the opening in the course of the submissions on these rulings.)
·The issues joined between the parties by the cross-examination of the plaintiffs’ witnesses which I have already heard on the topics covered by that evidence.
· Undisputed assertions of fact from the bar table.
· The questions posed.
I am conscious that at this point in the trial I am not aware of all of the evidence which the defendants may adduce on the matters in issue.
I accept that insofar as I am allowing some of the questions this does not preclude further objection from the defendants to subsequent questioning on those topics or if the witness’ answers do not accord with the plaintiffs’ opening. While the procedure adopted will hopefully expedite the trial my rulings are not to preclude the defendants from raising such further objections as they see fit on the evidence of subsequent witnesses.
The relevant law on the admissibility of similar fact evidence in civil trials is set out in the judgments of the Full Court in Grivas v Brooks (1997) 69 SASR 532 and in the passages quoted by Matheson J in his reasons there from the earlier Full Court decision of Sheldon v Sun Alliance Ltd (1989) 53 SASR 97. Such evidence constitutes strands of circumstantial evidence. Its admissibility must be assessed in conjunction with the other strands of circumstantial evidence, both similar fact and otherwise, which the plaintiffs rely upon in their case as opened and as presented to date to establish a fact which is directly or indirectly in issue on the pleadings. As was stated by Matheson J in Grivas v Brooks at 547:
“The sole justification for the admission of this evidence is that it bears upon the probability or increased probability judged rationally on common experience that the fact in issue existed. It is circumstantial evidence. It should be admitted where it is logically probative of a fact in issue.”
What I am concerned with in this exercise is the capability of the proposed evidence to be logically probative. If it is admitted, it will be a subsequent exercise for me in reaching my decisions about the facts in issue whether in the light of the whole of the evidence as it then exists what, if any, probative weight it then has. Where there are likely to be a number of strands of circumstantial evidence on a particular topic in dispute it may be that even relatively weak strands will be admissible because of a reasonable possibility that in the end result one extra, even weak, strand could be the difference between an issue being proved or not by circumstantial evidence. As I have not yet heard the defendants’ evidence on the topics I have no idea what might be the weight of any countervailing evidence.
Even if a piece of circumstantial similar fact evidence is logically probative of a fact in issue, I have an overriding discretion to exclude such evidence, although it is not the same discretion as applies in the criminal jurisdiction. The nature of such discretion was stated by Matheson J in Grivas v Brooks at 548 in these terms:
“It would appear that the trial judge did have a discretion to exclude such evidence if it was of little weight or oppressive or unfair to the respondents.”
I do not interpret these three categories as being mutually exclusive. For instance, oppression may well arise if the topic will require extensive evidence which will significantly lengthen the trial and increase its cost. However, whether such oppression should cause the judge to exclude the evidence will depend upon the likely weight of the similar fact evidence. Conversely it may be proper not to exercise the discretion to exclude similar fact evidence of little weight where it is confined to a discrete point which could be dealt with in a few minutes. Oppression here means oppression to the defendants. The 4^th plaintiff invited me to consider oppression to the plaintiffs in exercising the discretion to exclude for oppression. I do not consider that the cost and inconvenience to the plaintiffs in pursuing a topic of similar fact evidence should be taken into account. The plaintiffs have the remedy in their own hands: they need not ask the question if they are not prepared to bear the consequences in extended trial time and costs of opening up the issue.
A number of decisions have been cited to me where Courts have either admitted or rejected similar fact evidence in misrepresentation-type cases. Most of these cases are merely illustrations of the legal principles set out above. Those under the new Commonwealth Evidence Act involve a somewhat different principle. In view of the urgency to rule on the matter so as not to unduly delay the trial I intend no disrespect to counsel by not reviewing those other authorities in these reasons. Essentially they are merely illustrations of the application of the legal principles to the facts, and as such, are not binding upon me.
The mere existence of a common characteristic in the affairs of a tenant of another business in the Food Court does not make evidence of that common characteristic admissible as similar fact evidence. It is not sufficient that that tenant and Rentis may have had discussions on a topic pertaining to that witness’ tenancy where a similar topic in relation to the plaintiffs’ tenancies is in issue in this trial. For evidence to be logically probative there must be a common characteristic which is a significant one for the purpose of the inquiry in this trial. It is only such evidence which can qualify for admissibility as similar fact evidence. The law on this point was set out by Gummow J in D F Lyons Pty Ltd v Commonwealth Bank (1991) 100 ALR 468 at 476 in the following passage;
“...... the determination of similarities is essentially a process of classification, and that any particular inquiry must be preceded by an ascertainment of the significant features of the class under which a given fact is to be subsumed. He perceived two meanings of the term ‘similarity’. First, in the wider sense and the popular sense, a fact is similar to another whenever the two possess a common characteristic; but that common characteristic may be insufficient to render the first fact relevant in the legal sense as proof of the other. Secondly, in the narrower sense, a fact is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand.
If facts similar, in the wider understanding, to the fact in issue are irrelevant in the legal sense, they are inadmissible for that reason and there is no occasion to deal with the restrictions imposed by the ‘similar fact’ doctrine. ........... Facts similar, in the narrow meaning, to the fact in issue will be relevant thereto in the legal sense; it is only when this kind of relevance has been found that the question arises as to whether such similar facts, though relevant, are not admissible, because of the operation of the exclusionary rule or discretion restricting the admissibility of ‘similar fact’ evidence: .......”
While striking similarities, underlying unity and the like are ways in which similar fact evidence can be logically probative of a matter in issue, it is possible for a piece of evidence which stands alone, and which may be contrary to other evidence to be adduced, to be capable of being logically probative and thus qualifying as similar fact evidence. (See an instance in Question 4 below.) It was implicit in the submissions from defence counsel that the similar fact evidence sought to be adduced should be able to be seen to advance the case of the party adducing it. I do not accept that. Doubtless it would be strange for a party to adduce similar fact evidence whose logical probative point against the case it was seeking to make. However, it may be that tactically a party has to adduce some evidence from a witness which is contrary to its case as the price of obtaining other evidence from that witness which is favourable to its case. This is particularly so where a party calls the witness in any event on unrelated topics: a failure to lead evidence-in-chief from that witness on topics which are otherwise the subject of similar fact evidence may result in an inference being drawn similar to the party not having called the witness at all: R v D (1998) 71 SASR 99. While parties cannot impeach their own witnesses they can invite the trial judge to prefer other contrary evidence to that of their own witness. Therefore, the fact that the plaintiffs have opened on other witnesses who may say things contrary to the similar fact evidence which is sought to be adduced from a particular witness cannot of itself require the rejection of that similar fact evidence from that witness.
On the present applications I am only required to rule on the questions to Mrs Yesil which seek to adduce similar fact evidence. In the course of submissions references were made to the plaintiffs’ opening on what would be sought to be led from other witnesses on the same general topics. While that could be relevant as a basis of admission through striking similarities, underlying unity and the like no such basis of admission is available on the evidence sought to be adduced from Mrs Yesil. My rulings do not directly apply to any evidence which may be sought to be adduced from other witnesses. My rulings in relation to Mrs Yesil’s evidence would be the same even if the plaintiffs had not opened on any other potential similar fact evidence. I will consider the admissibility of that other similar fact evidence if and when it is sought to be led and objection is taken to it.
None of the similar fact evidence bears on the state of mind of Rentis as there is no relevant issue in the case concerning his state of mind.
In view of some submissions made by the 4^th plaintiff I make it clear that I am not here dealing with the refutation, or potential refutation, of any evidence which might yet be given by Rentis or by others on behalf of the defendants. Irrespective of the admissibility of similar fact evidence as part of the plaintiffs’ case similar matters may be raised under Sections 28 and 29 of the Evidence Act in the plaintiffs’ cross-examination of the defendants’ witnesses. However, I can only rule on that when the point arises in the cross-examination of the defendants’ witnesses.
I now deal with each of the twenty seven questions where I had reserved my ruling on whether I would allow them. Where I do not allow the question I have not necessarily quoted the question in full, but only such part of it as is sufficient to identify its subject matter. Where I am prepared to allow a question it is subject to any further objections being taken about its form.
Question 1. “Did he say anything to you ...... about whether the sandwich shop would have exclusivity in relation to the Food Court?”
The Statement of Claim pleads separate representations made to each of the four natural plaintiffs by Rentis concerning the 1^st plaintiff not having competition from other businesses in relation to its businesses or some significant part of them. There is a dispute about what was said and about whether there were to be no competing businesses in the building as a whole or only some limited part of it. Here I am only concerned with the cause of action based on misleading and deceptive conduct from the representations made by Rentis and not with the provisions in the leases about exclusivity. However, it is significant that the relevant clauses in the leases gave different rights of exclusivity to the 1^st plaintiff for each of its two businesses. In relation to the 1^st plaintiff’s café La Moda it was only to have exclusivity, both on the representations pleaded and on the terms of its lease, in relation to certain products which it sold and not for the whole of its business.
In essence it was said in the opening that Mrs Yesil would say that Rentis had told her that her business of Executive Sandwiches would have no direct competition from any other business in the whole building in the sale of sandwiches, rolls and baguettes. (This is taking her evidence at its highest.) The mere fact that Mrs Yesil says Rentis spoke to her about the topic of exclusivity for her business is not logically probative of whether he spoke to the plaintiffs about any exclusivity for their businesses. They were generally different businesses. There is no evidence to suggest that the landlord was granting similar rights of exclusivity to each, or even to some, of the businesses in the Food Court. Rather it was a matter of negotiation between each tenant and the landlord as to what exclusivity there would be. Evidence that Rentis told Mrs Yesil that she would have exclusivity for her business in the sale of sandwiches, rolls and baguettes makes it no more or less likely that Rentis told the plaintiffs that they would have any exclusivity for the sale of all or any of the products which they sold. Similar evidence that Rentis told Mrs Yesil that her exclusivity for the sale of sandwiches, rolls and baguettes would extend to the whole of the building makes it no more or less likely that insofar as Rentis told the plaintiffs that they would have some exclusivity it would be in relation to the whole of the building rather than only to a part of it such as the basement or the Food Court. Her evidence does not bear upon the issues of what exclusivity Rentis represented to the plaintiffs that they would have for their particular businesses. Insofar as it indicates that Rentis discussed exclusivity for her business with her it is only the broad similarity discussed in Lyons v Commonwealth Bank (above) which does not make the evidence admissible. Question 1 will not be allowed.
Question 2. “...... Did you ask Mr Rentis whether you would be allowed to sell coffee and milkshakes if you decided to enter into the lease?”
In the plaintiffs’ pleadings there is no plea that any representation about exclusivity was false because Executive Sandwiches was permitted to sell coffee and milkshakes without the permission of the 1^st plaintiff. Hence Question 2 does not go to any matter in issue and is to be disallowed.
Question 3. “....... Did you again ask Mr Rentis ....... whether the landlord would allow you to sell espresso coffee?”
This is also to be disallowed for the reasons given on Questions 1 and 2.
Question 4. “At the third or a subsequent meeting that you had with Mr Rentis, but before you signed any lease documents at all, did Mr Rentis say anything to you about the number of people or customers who would enter the Food Court per week?”
This is a complex issue! Each of the four natural plaintiffs have pleaded (and the 2^nd, 3^rd and 5^th have already given evidence) that Rentis made representations about what would be the traffic flow in the Food Court or the basement. The 3^rd, 4^th and 5^th plaintiffs have, or will, say that Rentis told them that there would be an average of about 7,000 to 8,000 potential customers in the Food Court each day. The 2^nd plaintiff said that Rentis had spoken to him about a 30% increase in the traffic flow above that in the former David Jones Food Hall, but no actual numbers of persons passing through had been mentioned to him. There are significant inconsistencies between the evidence of the 2^nd plaintiff on the one hand, and that of the 3^rd, 4^th and 5^th plaintiffs on the other hand, about some aspects of these representations which I will have to resolve in due course. Whether I accept the version of the 2^nd plaintiff or that of the other plaintiffs about some relevant meetings where they were all present is a pertinent issue on which any logically probative evidence will be admissible.
In the Defence of the 2^nd defendant it was admitted that Rentis had said to the plaintiffs that the takings of the old David Jones Food Hall in the previous financial year were about $11,000,000, and, if a calculation was made of an “average spend” per customer, that would give an idea of how many people would have been going through the old David Jones Food Hall. It further admitted him saying that if the new David Jones Food Hall was bigger it would be expected that the gross takings would be higher and using an “average spend” figure “tenants could calculate an approximate traffic count required to meet this total.” In the cross-examination of the 2^nd, 3^rd and 5^th plaintiffs it had been put that Rentis did not mention 7,000 to 8,000 per day, or any other number of persons, as the traffic flow, but he merely told them of the formula outlined in the pleadings by which they could calculate how many persons would be likely to be customers at the new David Jones Food Hall which was part of the basement of the new building. The pleading on the topic and the cross-examination all came from the 2^nd defendant. The 1^st defendant has not admitted or said anything about any representations made by Rentis on this topic or cross-examined about it. Therefore, considerably more is in issue between the plaintiffs and the 1^st defendant on this topic than between the plaintiffs and the 2^nd defendant. However, if I find that similar fact evidence is admissible against the 2^nd defendant on this topic, it must follow that it is also admissible against the 1^st defendant.

As the issues have crystallised to date it is of considerable significance whether Rentis confined himself in discussing potential traffic flow with the plaintiffs to a formula, which is not alleged to be false, or whether he himself assessed the “average spend” and reached an opinion on the likely number of customers for the new David Jones Food Hall which could then readily have been translated into the likely traffic flow for the Food Court.
It was opened that Mrs Yesil would say in answer to this question that Rentis told her there would be 70,000 customers per week who would enter the Food Court. This would be an average of $10,000 per day. While it does not coincide with the 7,000 to 8,000 referred to by the 2^nd, 3^rd and 5^th plaintiffs, it is logically probative, if ultimately accepted, that Rentis had made a calculation about the traffic flow at a relatively early point in the overall negotiations. The plaintiffs have opened on other witnesses who will also speak of Rentis making representations to them in varying terms about the numbers of people who would pass through the area. There are some significant differences in what has been opened on what these witnesses would say on the topic. It may be that there are explanations for these variations or it may be that in the end result I will accept some of the evidence and reject other parts of it. I consider that the evidence of Mrs Yesil on the topic is capable of being logically probative on the versions of the representations on this topic put forward by the 2^nd, 3^rd and 5^th plaintiffs. This is so capable even though other tenants proposed to be called by the plaintiffs will not say that entirely consistent representations on this topic were made to them by Rentis. However, the importance of the evidence is whether Rentis did reach and express a concluded opinion on the topic rather than merely what figures he may have expressed to different people on different occasions.
I do not consider that the evidence of Mrs Yesil on this topic should be excluded for oppression or unfairness to the defendants. If her evidence is admitted it might well lead to the topic being explored with many of the other tenants and also to those tenants being cross-examined on other aspects of their negotiations with Rentis relating both to their credibility and to that of Rentis. While that is likely to mean a significant amount of additional evidence in the trial it is not likely to be so great that the costs and effort of obtaining it makes it oppressive when viewed against the possible value of such evidence. Accordingly, Question 4 will be allowed.
Question 5. “Do you have any recollection at all of anyone telling you about the turnover figures for the old David Jones Food Hall?”
The question is disallowed because it was opened that Mrs Yesil could not say that Rentis had told her anything on this topic.
Question 6. “At the third meeting or any subsequent meetings that you had with Mr Rentis before you signed any lease documents did Mr Rentis say anything to you about the seating in the common area of the Food Court?”
The 2^nd defendants’ counsel indicated that if Question 4 was allowed, which it is, he would withdraw his objection to this question.
Question 7. “...... Did Mr Rentis say anything to you about the topic of advertising the Food Court either before or after the Food Court opened?” (It was accepted the question was to incorporate promotion and signage in its reference to advertising.)
The 3^rd and 4^th plaintiffs alleged representations by Rentis that the 1^st defendant would engage in, and carry out, large marketing promotional plans and advertising as well as ongoing marketing in respect of the Food Court. The Defence of the 2^nd defendant admits that Rentis represented there would be extensive marketing and promotional campaigns carried out by the 1^st defendant both prior to the opening of the David Jones’ store and of the Food Court and in the months that followed leading up to Christmas. Thus the only issue relates to whether the representations extended to advertising after Christmas 2000. The proposed evidence of Mrs Yesil on the topic does not so focus on the relevant period after Christmas 2000 that what she would say could be logically probative of an issue of what was said would occur after Christmas 2000. Insofar as lack of signage and promotional activities were referred to in the submissions on this question there is as yet no pleading concerning representations on those topics or their falsity. Question 7 is disallowed.
Question 8. “...... Did Mr Rentis tell you that this type of Food Court had never existed in Adelaide before and did he say anything about whether it would be up-market or successful?”
The 2^nd defendant admits that he represented that the Food Court would be unique and up-market. While that admission does not bind the 1^st defendant its counsel did not cross-examine the 2^nd, 3^rd or 5^th plaintiffs on their evidence that such representations were not made by Rentis. Hence there is no issue on these representations.
The plaintiffs’ plead that Rentis represented to the 3^rd plaintiff that the Food Court would be a “successful concept being the same as similar successful food courts in the eastern States” and to the 5^th plaintiff that it would be “more successful than any other food court in Adelaide and any suburban areas.” It was opened that Mrs Yesil would say that Rentis told her, “This would be the most up-market and successful Food Court in Adelaide.” This is not precisely the same representations as have been alleged by the plaintiffs. “Most ...... successful food court in Adelaide” is not the same as a “successful concept” or “more successful than any other food court in Adelaide and any suburban areas.” The significance of the representation, if otherwise established, will very much depend upon its precise context. I do not see that what would be said by Mrs Yesil could be capable of being logically probative of whether any representation on this topic in the context alleged by the plaintiffs was made. Question 8 will be disallowed.
Question 9. “....... Did anyone say anything to you to the effect that the entrance to the Food Court from North Terrace would be a wide entrance?”
Question 10. “..... Did Mr Rentis ever say anything to you about the entrance to the Food Court from North Terrace, and, in particular whether you would be able to see the Food Court from North Terrace?”
All that was opened upon was that Mrs Yesil would say that someone told her that the entrance to the Food Court from North Terrace would be a wide entrance and that from North Terrace you would be able to see the Food Court. The fact that someone, not necessarily associated with the defendants, told her this is not logically probative of the plaintiffs’ assertion that Rentis told that to them. Questions 9 and 10 are disallowed.
Question 11. “Prior to you signing any lease document at all, did Mr Rentis ever mention the existence or proposed existence of the Coffee Club?”
The Coffee Club is another business situated in the basement, but away from the Food Court, which sold some products which the plaintiffs’ businesses and Mrs Yesil’s business also sold. While there is an issue about whether Rentis ever told the plaintiffs about the existence, or proposed existence, of the Coffee Club it is not logically probative of that negative issue that Mrs Yesil would say that she also was not told of the proposed existence of the Coffee Club. (See also the reasons given on Question 1.) The crux of the plaintiffs’ allegations about the Coffee Club is that they were told that its site was to be a speciality shop, but the proposed evidence of Mrs Yesil does not bear on that issue. Question 11 is disallowed.
Question 12. “...... Did Mr Rentis ever say anything to you about a restaurant or café that would be in the new David Jones Food Hall?”
Question 13. “Did Mr Rentis say anything to you about any other restaurant, café or food outlet that would exist in the lower ground level of Adelaide Central Plaza?”
These questions are to be disallowed for similar reasons to those given for disallowing Questions 1 and 11.
Question 14. “Has the existence of the Coffee Club had any effect upon the viability and profitability of your business?”
Question 15. “Since the Food Court first opened has the restaurant and café in the David Jones Food Hall ...... had an affect upon the viability and profitability of your business?”
On the opening the object of these questions was to have Mrs Yesil say that the competing businesses of the Coffee Club and the café in the David Jones Food Hall had adversely affected the profitability of her business. It was submitted that this would be logically probative of whether the existence of the Coffee Club and the café in the David Jones Food Hall had adversely affected the profitability of the plaintiffs’ two businesses. The business of Mrs Yesil dealt in substantially different products from the plaintiffs’ businesses and there is no demonstrable correlation between the effect of any competition from the Coffee Club and/or the café in the David Jones Food Hall on her business on the one hand and any effect of the competition from the Coffee Club and/or the café in the David Jones Food Hall on the different businesses of the plaintiffs. Thus any adverse effect on her profitability is not logically probative of any adverse effect on the 1^st plaintiff’s businesses. Even if there was some logical probity, I would have found that opening up this topic would have been oppressive to the defendants. It would involve a substantial inquiry into the financial affairs of Executive Sandwiches. This would be likely to necessitate the production of all the financial records of Executive Sandwiches and their examination by expert accountants. The cost, trial time and delay involved in that exercise would far outweigh any possible value of such evidence. Question 15 is disallowed.
Question 16. “...... Did Mr Rentis ever say anything to you about the topic that if you established an up-market and high-quality business which would involve substantial costs you could charge prices in a certain way?”
There is no pleading about any representation by Rentis to the plaintiffs about what prices could be charged by the plaintiffs’ businesses. The 4^th plaintiff sought to justify the question on the grounds that it related to an aspect of exclusivity and that it was unlikely that if substantial setup costs were incurred Mrs Yesil would have proceeded if she was not assured about being able to charge prices which would recoup her expenditure which in turn meant she did not have to engage in price-cutting wars with nearby competitors. For the reasons given for Question 1, Question 16 is also disallowed.
Question 17. “From the period from September 2000 when the businesses first opened until 6 March 2001 when La Moda and Jooce closed, during that period, what was the percentage of your wages to turnover in your business?”
The defendants have pleaded that any loss suffered by the plaintiffs was caused by their poor management of their shops through disproportionately high wage/cost ratios. The 2^nd plaintiff, who is an accountant, has already given evidence that insofar as the wage cost ratios for the 1^st plaintiff’s shops may have been above industry averages it was attributable to a number of factors outside the control of the plaintiffs. Some of these factors relate to general trading conditions in the Food Court and the lack of expected traffic flow and turnover. The 4^th plaintiff seeks to adduce evidence from Mrs Yesil that her wage/cost ratio has also been high and that has been attributable to some factors which are similar to those raised by the plaintiffs. One of the factors that she would speak of is the competition which she encountered from other businesses in the vicinity. For the reasons given earlier the effect of competition on her business is not logically probative of the effect of other competition on the plaintiffs’ different businesses. However, some of the factors which she relies upon, such as having employed staff on an expectation of a higher turnover than she obtained, is similar to what the plaintiffs have alleged. While this, and some other similar facts, are capable of being logically probative of explaining why any high wage cost ratios in the 1^st plaintiff’s businesses were not attributable to poor management it is not evidence on which I am likely to place any great weight in the end result. If this topic is allowed it will open up an investigation of the whole of the financial affairs of Mrs Yesil’s business. For the reasons given on Question 15 it is likely to substantially increase the trial time, costs and delay. This would be oppressive to the defendants and accordingly I disallow Question 17.
It was also suggested that this topic was relevant to an issue raised in the defendants’ experts’ reports concerning what are the industry averages for businesses such as those of the 1^st plaintiff. I have not yet seen those reports, but only the answering reports of the plaintiffs’ experts. I have heard what the 2^nd plaintiff said in cross-examination about the issue. The 4^th plaintiff suggested that the evidence Mrs Yesil could give about the financial affairs of her business would tend to contradict the applicability of the industry averages to businesses in this Food Court. I do not know enough about how the industry averages are arrived at to form any view about that. If some expert indicates that if the financial results of Mrs Yesil’s business are as she claims, it could materially affect any reliance placed on the industry averages, I would be prepared to consider revisiting my ruling on this topic.
Question 18. “....... Was there anything that Mr Rentis said to you about whether there would be any other businesses in the Adelaide Central Plaza building which would sell the same or similar food to that of Executive Sandwiches?”
Question 19. “Since you first opened Executive Sandwiches have there been any other businesses in the Adelaide Central Plaza building which have sold the same or similar food as Executive Sandwiches?”
Both of these questions are disallowed for the reasons given for disallowing Question 1.
Question 20. “...... Did Mr Rentis ever say anything to you about receiving a lessor’s contribution towards your fitout costs of Executive Sandwiches?”
Question 21. “..... Did you receive anything in writing from the landlord to the effect that you would receive a lessor’s contribution from the landlord towards the costs of the fitout of your business.”
Question 22. “...... Did Mr Rentis or anyone representing the landlord mention anything to you about the payment of any base building variation costs or the payment of any capital costs and expenses by you in relation to your shop premises.”
There is no issue between the parties on the present pleadings concerning any representation about the landlord contributing fitout costs or the plaintiffs being liable for base building variation costs or the like for building works done by the landlord to accommodate the 1^st plaintiff’s shops. There are foreshadowed amendments which will raise these issues. If and when such amendments are made, I will then consider whether I will allow these Questions 20, 21 and 22.
Question 23. “...... Did Mr Rentis say anything to you about the estimated cost of establishing your business?”
Question 24. “.... How much was (the cost of establishing the business of Executive Sandwiches)?”
Question 25. “...... Why you went along with this escalation of costs and expenses in setting up your business?”
The plaintiffs pleaded that Rentis made representations that the cost of fitting out both the plaintiffs’ shops would be about $250,000. In fact it cost about $340,000 but the evidence of the 2^nd, 3^rd and 5^th plaintiffs has been that they each knew before they signed any documents which committed them to the leases that the fitout expenses had escalated to what they ultimately cost. The plaintiffs’ case on this topic, as it now stands, is not that they were induced by the original misrepresentations to incur an excessive liability, but rather they were induced by the other alleged misrepresentations to commit themselves for these additional fitout costs in a belief based on the other representations that they would still have successful businesses. Thus the topic’s relevance is one of indirect relevance on inducement. For similar reasons given for disallowing Question 14 any evidence from Mrs Yesil that she also was induced to continue with her venture in spite of escalating fitout costs is not logically probative of whether the plaintiffs were induced by other misrepresentations, not wholly equivalent to those made to Mrs Yesil, to enter into their venture. Even if there was some probative value in her evidence, I would have excluded it because it would have been oppressive in that it would open up a substantial amount of evidence about all of the alleged misrepresentations made to Mrs Yesil and whether they induced her to enter into her tenancy. In effect it would be the trial of misrepresentation claims by her against the defendants for her alleged losses out of her business. That would be unfair to the defendants. Questions 23, 24 and 25 are disallowed.
Question 26. “Did you make a profit?”
The question is merely subsidiary to a number of other questions which I have already disallowed. What loss Mrs Yesil will allege she made is not relevant to the ascertainment of the cause or the quantum of the losses of the plaintiffs. Question 26 is disallowed.
Question 27. Have you ever asked Mr Sallis whether he could talk to his fellow directors in relation to the topic of giving you permission to see coffee as a part of your business?”
This question is disallowed for the reasons given for disallowing Question 2.

[2002] SADC 6

25 January 2002