Desert Farms Pty Ltd v Shea - [2025] NTSC 23

CITATION:Desert Farms Pty Ltd v Shea & Ors [2025] NTSC 23
PARTIES:DESERT FARMS PTY LTD
(ACN 161 105 880)

v

SHEA, David Andrew

and

CORMACK, Benjamin James

and

NORTHERN BEE WORKS PTY LTD
(ACN 649 481 872)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  Supreme Court exercising Territory jurisdiction
FILE NO:2023-03073-SC
DELIVERED:  17 April 2025
HEARING DATE:  27 March 2025
JUDGMENT OF:  Smyth A/AsJ
CATCHWORDS:

EVIDENCE – Judicial Discretion to admit or exclude Evidence – Application for advanced ruling – Considerations which apply to the exercise of discretion on an advanced ruling – Advanced ruling declined
Evidence (National Uniform Legislation) Act 2011 (NT) s 135, s 136, s 191A
Smith v The Queen (2001) 206 CLR 650; Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWCA 349; Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No. 3) [2009] FCA 1075; Ahern v Aon Risk Services Australia [2014] NSWSC 1697; Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56, referred to.
Odgers S Uniform Evidence Law, 14th ed., 2019
Williams W et al. Uniform Evidence in Australia, 2015
REPRESENTATION:
Counsel:
Plaintiff:E Withnall
Defendants:J Stuchbery
Solicitors:
Plaintiff:Withnall Halliwell
Defendants:Ward Keller
Judgment category classification:    B
Judgment ID Number:  Smy2502
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Desert Farms Pty Ltd v Shea & Ors [2025] NTSC 23

No. 2023-03073-SC
BETWEEN:

DESERT FARMS PTY LTD
(ACN 161 105 880)

Plaintiff

AND:

DAVID ANDREW SHEA

First Defendant

AND:

BENJAMIN JAMES CORMACK

Second Defendant

AND:

NORTHERN BEE WORKS PTY LTD (ACN 649 481 872)

Third Defendant

CORAM: SMYTH A/AsJ
REASONS FOR JUDGMENT
(Delivered 17 April 2025)

The Plaintiff makes application by summons filed 28 February 2025 for two orders under ss 135 and 136 of the Evidence (National Uniform Legislation) Act 2011 (the Act). The Plaintiff seeks relief under:
1. Section 136 of the Act in relation to paragraphs [4]-[30] of the affidavit of David Andrew Shea sworn 31 January 2025; and
2. Section 135 of the Act in relation to paragraphs [130]-[144] of the afﬁdavit of David Andrew Shea sworn 31 January 2025.

Background to Proceedings

The background to these proceedings, for the purpose of these applications, can be summarised succinctly. The proceedings relate to claims brought by the Plaintiff against the Third Defendant company and its directors (the First and Second Defendants) with respect to breach of contract and trespass to goods. The claim relates to an alleged breach of contract essentially constituting the failure of the First Defendant to provide beekeeping services to the Plaintiff and damages resulting therefrom. A similar claim is brought against the First Defendant with respect to an alleged breach of an employment contract between the First Defendant and the Plaintiff. The Plaintiff also brings claims against the Defendants with respect to certain property relating to beekeeping (bees and equipment),…

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: [2025] NTSC 23
Decision Date: 17 April 2025

CaseChat Overview and Summary

Desert Farms Pty Ltd brought proceedings against Shea, seeking an advanced ruling on the admissibility of certain evidence under sections 135 and 136 of the Evidence Act 1995 (Cth). The case was heard in the Federal Court of Australia. The primary issue before the court was whether the judge should exercise his discretion to make an advanced ruling on the admissibility of certain evidence before the trial. The court had to consider whether the probative value of the proposed evidence was substantially outweighed by the risk of prejudice, confusion, or waste of time.

The court determined that the application for an advanced ruling was not appropriate in this case. The judge noted that there was no urgency for such a ruling and that the evidence could be properly assessed at the trial. The court emphasised the broad discretion afforded to judges under section 192A of the Evidence Act, which allows for advanced rulings if considered appropriate. However, the judge concluded that the case did not meet the criteria for an advanced ruling, as the evidence could be adequately dealt with at the trial.

The court declined the application for an advanced ruling on the admissibility of the evidence. The decision highlighted the importance of assessing the admissibility of evidence at the appropriate stage of the proceedings, particularly when the evidence could be effectively managed during the trial. This ruling underscores the discretionary nature of advanced rulings and the need for a case-by-case assessment of their appropriateness.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Sections 135 and 136 of the Act are found within Chapter 3 of the Act entitled “Admissibility of Evidence” and specifically Part 3.3 of the Act entitled “Discretionary and Mandatory Exclusions”. Sections 135 and 136 of the Act provide:135 General discretion to exclude evidenceThe court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:(a) be unfairly prejudicial to a party; or(b) be misleading or confusing; or(c) cause or result in undue waste of time.136 General discretion to limit use of evidenceThe court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:(a) be unfairly prejudicial to a party; or(b) be misleading or confusing. The provisions in Part 3.3 of the Act are intended to contain an exhaustive list of provisions with respect to excluding or limiting the use of evidence on policy grounds, supplanting the common law discretionary rules.[2] The ordinary procedural process for the admission of evidence, particularly in civil proceedings, where evidence in chief is given by affidavit, is for objections with respect to the admissibility of proposed evidence to be made in advance, to the opposite party and the Court, and for those objections to be dealt with at the commencement of the trial on the opening of each party’s case when affidavit evidence is sought to be read.[3] However, the Act provides for the ability for advanced rulings before trial with respect to matters such as the admissibility of evidence proposed to be adduced. That is provided through s 192A of the Act which provides:Section 192A Advance rulings and findingsWhere a question arises in any proceedings, being a question about:(a)the admissibility or use of evidence proposed to be adduced; or(b)the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or(c)the giving of leave, permission or direction under section 192;the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings. There is clearly a broad or open-ended discretion with respect to such advanced rulings, if the court “considers it appropriate to do so”. The exercise of discretion under s 192A of the Act, with respect to rulings under s 135 or s 136, can be made in civil or criminal proceedings. The usefulness of such rulings is apparent in criminal proceedings where juries are concerned. There can be utility in civil proceedings as well, particularly where cases are complicated and limiting evidence will have the effect of narrowing issues in dispute, reducing the length or complexity of proceedings or possibly encouraging settlement of the proceedings.[4] In Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No. 3), Forster J stated:[5]The three sets of proceedings have been fixed for hearing together to commence on 23 March 2010. They are to be heard at the same time. The evidence in each set of proceedings is likely to be evidence in each of the others. To give an evidentiary ruling of the kind sought by the ACCC so far in advance of the trial would be unusual. There may be sound discretionary reasons for the Court declining to entertain the application even though it clearly has the power to make an order of the kind sought here (see s 192A of the Evidence Act 1995 (Cth) (the Evidence Act). However, in the present case, a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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