Dilma Taxi Pty Ltd v Yildiz and Ors (Ruling)

[2011] VCC 1390

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-10-03798

DILMA TAXI PTY LTD	Plaintiff
(ACN 111 850 956)
v
SULEYMAN YILDIZ	First Defendant
and
MUNEVVER YILDIZ	Second Defendant
and
REYHAN YILDIZ	Third Defendant

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JUDGE:	HIS HONOUR JUDGE SHELTON
WHERE HELD:	Melbourne
DATE OF APPLICATION:	14 June 2011
DATE OF RULING:	14 June 2011
DATE OF REASONS:	18 November 2011
CASE MAY BE CITED AS:	Dilma Taxi Pty Ltd v Yildiz & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VCC 1390
REASONS FOR RULING

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Subject:	EVIDENCE
Catchwords:	Civil trial – tendency evidence.

Legislation cited: Evidence Act 2008, s.97 and s.100

Cases cited:	Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569 – Bectiv Station Pty Ltd v AWB (Australia) Ltd [2006] FCA 1596.
Judgment:	Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Christie	Slater & Gordon Ltd
For the Defendants	Mr S Hay	Maurice Blackburn Commercial Lawyers

DRAFT

HIS HONOUR:

1          On 14 June 2011, the third day of trial in this proceeding, I refused an application by the plaintiff to lead tendency evidence. I indicated that I would give my reasons at a later point in time. These are those reasons.

2 Section 97(1) of the Evidence Act 2008 (“the Act”) provides that tendency evidence is inadmissible unless:

“(a)	the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)	the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

3          Central to the plaintiff’s case is that the defendants agreed to grant successive assignments of six taxi licences assigned to the plaintiff for the working life of the taxi cab attached to the licences and for any subsequent taxi cab attached to the licences. In the alternative, the plaintiff asserted that the defendants made such representations.

4          The plaintiff sought to call evidence from Isak Akpolat that in or about February 2007, the first defendant offered to Akpolat an assignment of Licence No. MT2465, and indicated to him that he would be granted successive assignments of the licence for the working life of the taxi cab assigned and to attach a new vehicle to the licence at the expiration of the working life of the taxi cab assigned. Akpolat did not proceed to take an assignment of licence MT2465. This licence, at the end of February 2007, was assigned to the plaintiff.

5          The plaintiff further seeks to call evidence that in or about October 2006 and April 2007, the first defendant was offering Akpolat an assignment of Licence No. MT2008 and that the first defendant informed Akpolat that if he took the assignment, then the first and second defendants would grant successive

DRAFT

assignments of the licence for the working life of the taxi cab attached to the
licence.

6          The plaintiff further sought to adduce evidence from Bayram Kusman that when the first defendant offered him an assignment of Licence No. MT4642 in or about August 2006, he informed Kusman that if he took an assignment of the licence, then he would be allowed to attach a new vehicle to the licence at the expiration of the working life of the taxi cab attached to the licence, which then only had fifteen months’ working life left, and that he would grant successive assignments of the licence for the working life of the replacement taxi cab.

7          By calling this evidence, the plaintiff sought to prove that the defendants had a propensity to agree to grant successive assignments and licences:

(a)	for the working life of the taxi cabs; and
(b)	for subsequent taxi cabs sought to be attached to licences.

8          Alternatively, the evidence was to be called to prove that the defendants had a propensity to represent to intending assignees that if they took assignments of licences, then the defendants would grant successive assignments of the licences:

(a)	for the working life of the taxi cab attached to the licences; and
(b)	for any subsequent taxi cab attached to the licences.

9          I was referred to two cases where the admissibility of tendency evidence in a civil, as opposed to a criminal proceeding was discussed: Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569 and Bective Station Pty Ltd v AWB (Australia) Ltd [2006] FCA 1596.

10        Mr Hay, who appeared for the defendants, opposed the plaintiff’s application.

DRAFT

11 Firstly, he submitted that reasonable notice in writing had not been given as required by s.97(1)(a) of the Act. The notice in writing was only given on the third day of the trial after Dogan Hayirli, a director of the plaintiff and the plaintiff’s principal witness, had given evidence-in-chief for over a day, and been cross-examined for approximately two hours.

12        No satisfactory explanation was given as to why notice was not served earlier.

13        By contrast, in Jacara and Bective Station, prior to commencement of the trial, affidavits were filed by those from whom it was sought to lead tendency evidence, indicating the evidence they would give. In Bective Station, answering affidavits were filed on behalf of the defendants.

14        Here, the tendency evidence proposed to be called was only set out in general terms in the notice given. This made it difficult for the defendants to properly respond to the application.

15 Section 100(1) of the Act provides:

“The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97.”

16        In my view, it is not appropriate for me to exercise my discretion under this provision.

17 Secondly, Mr Hay contended that the notice does not apply with clause 7(b)(i) to (iii) of the Evidence Regulations 2009 made under s.99 of the Act, which provides that particulars must be provided in the notice of:

“(i)	the date, time and place at and the circumstances in which the conduct occurred; and
(ii)	the name of each person who saw, heard or otherwise perceived the conduct; and
(iii)	in a civil proceeding, the address of each person named under subparagraph (ii), so far as they are known to the notifying party.”

18 Mr Christie, who appeared for the plaintiff, conceded that the notice given only
DRAFT

refers to the month and year and not to “the date, time and place” of the alleged conduct. Presumably such matters would have been attended to had affidavits been filed outlining the evidence which the proposed witnesses could give.

19        Thirdly, Mr Hay submitted that the proposed evidence would not “have significant probative value”. He submitted that it was necessary to focus on what was said between Hayirli and the first defendant, the spokesperson for the defendants, rather than what was said by the first defendant to others. In addition, with respect to Kusman, the conduct relied upon in August 2006 is somewhat remote from what occurred in February 2007.

20        In my view, there is merit in each of the three objections to the application raised by Mr Hay.

21 For the above reasons, I have refused the application. In doing so, I have taken into account the matters referred to in s.192(2) of the Act.

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