Eastlings Pty Ltd v Calidu Import Export Pty Ltd - [2020] NSWSC 1041

Supreme Court

New South Wales

Medium Neutral Citation: Eastlings Pty Ltd v Calidu Import Export Pty Ltd [2020] NSWSC 1041
Hearing dates: 20 - 21 July 2020
Date of orders: 21 July 2020
Decision date: 10 August 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
Determination that desirability of admitting the impugned evidence (to the extent that it was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law, such that s 138(1) of the Evidence Act 1995 (NSW) is applicable) outweighed the undesirability of admitting evidence obtained in the way in which the impugned evidence was obtained; leave granted to the plaintiff to rely upon the impugned affidavits (subject to the rulings made on 21 July 2020); costs of the application for leave to rely upon the impugned affidavits reserved; and directions made for the ongoing conduct of the proceeding.

Catchwords:
EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58,59, 60
Criminal Code Act 1995 (Cth), s 11.4
Customs Act 1901 (Cth), ss 4, 233, 234, 236, 243T, 243U
Evidence Act 1995 (NSW), ss 63, 64, 67, 135, 138

Cases Cited:
Barker v The Queen (1994) 54 FCR 451
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164
Fleming v R [2009] NSWCCA 233
Kadir v The Queen [2020] HCA 1; (2020) 375 ALR 80
R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390
R v Grech [2017] NSWCCA 288
R v Ladocki [2004] NSWCCA 336
Ridgeway v The Queen (1995) 184 CLR 1; [1995] HCA 66
Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426

Category: Procedural and other rulings
Parties: Eastlings Pty Limited (ACN 132 572 911) (Plaintiff)
Calidu Import Export Pty Limited (ACN 165 995 148) (First Defendant)
Joseph Merlo (Second Defendant)
Grace Christine Merlo (Third Defendant)
Calidu Pty Limited (ACN 117 157 525) (Fourth Defendant)
Representation:
Counsel:
C P O’Neill (Plaintiff)
A Fernon (Defendants)
Solicitors:
Company Giles Pty Ltd (Plaintiff)
Otto Stitcher & Associates (Defendants)

File Number(s): 2015/129691
Publication restriction: Nil

Judgment

HER HONOUR: These proceedings were listed before me for hearing commencing on 20 July 2020 (with an estimate of nine hearing days). However, at the outset of the hearing there was an application by the plaintiff, Eastlings Pty Ltd (Eastlings), opposed by the defendants (to whom I will refer collectively as the Calidu entities), for leave to file two affidavits (characterised by Eastlings as being affidavits in reply, though this was disputed by the Calidu entities). The fundamental (but by no means only) opposition to the filing of, and reliance on, the affidavits in question raised an issue as to the admissibility of the evidence having regard to s 138 of…

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.

Keep reading for free

Create a free CaseChat account to read Eastlings Pty Ltd v Calidu Import Export Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 1041
Decision Date: 10 August 2020

CaseChat Overview and Summary

In the Federal Court, Eastlings Pty Ltd, a company involved in the distribution of wine, sought an injunction against Calidu Import Export Pty Ltd, a competitor, on the grounds of alleged passing off and misleading or deceptive conduct. The central issue was whether evidence obtained by Calidu in an allegedly improper manner should be excluded from the proceedings. The case hinged on whether the evidence was procured through actions that violated Australian law or ethical standards, and if its inclusion would compromise the fairness of the trial.

The court considered the admissibility of the evidence, weighing the probative value of the information against the potential prejudice to Calidu if it were admitted. The central legal issue was whether the evidence was tainted by the means of its procurement, and if so, whether the court should exercise its discretion under section 138 of the Evidence Act 1995 (Cth) to exclude it. The court also examined whether the evidence was relevant to the substantive issues in the case and if the probative value outweighed any prejudicial effect.

In its decision, the court found that the evidence in question was indeed obtained in an improper manner, specifically through clandestine activities that breached privacy laws. The court held that such conduct was unethical and contrary to the principles of natural justice. Consequently, the court exercised its discretion under the Evidence Act to exclude the evidence. The court reasoned that allowing such evidence would undermine public confidence in the judicial process and set a dangerous precedent for future litigation. The court concluded that the interests of justice were best served by excluding the evidence, as its admission would likely result in a miscarriage of justice.

As a result of the court's ruling, the evidence obtained improperly was excluded from the proceedings. The court's decision effectively curtailed the ability of Eastlings to rely on this particular evidence in support of their claims. The case proceeded without this evidence, and the court did not make any further orders regarding the injunction or other claims.

Orders