Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 3)

[1999] FCA 1543

FEDERAL COURT OF AUSTRALIA

Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 3) [1999] FCA 1543

EVEREADY AUSTRALIA PTY LIMITED v GILLETTE AUSTRALIA PTY LIMITED

NG 1205 of 1998

LINDGREN J
3 NOVEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1205 OF 1998

BETWEEN:	EVEREADY AUSTRALIA PTY LIMITED (CAN 003 539 026) Applicant
AND:	GILLETTE AUSTRALIA PTY LIMITED (ACN 000 011 914) Respondent

JUDGE:	LINDGREN J
DATE:	3 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No 3)
(ruling on tender of documents)
(ex tempore)

1. The applicant, Eveready, seeks to tender six volumes of survey questionnaires with their answers.  The tender is objected to by the respondent, Gillette.  The tender is sought to be made through the last of Eveready’s witnesses who has just entered the witness box for cross-examination.  It seems to be accepted that admission of the surveys at this late stage would give rise to difficulties in the running of the case.  Probably there would have to be an adjournment and Eveready witnesses would have to be recalled for further cross-examination.

2. In my respectful view, the fact that the questionnaires and answers were available to Gillette for inspection following Eveready’s discovery is beside the point.  The documents were not exhibited to any affidavit and Gillette has not known until now that they were to be relied on as evidence.  I accept the statement of senior counsel for Gillette that he would need time to study the six volumes of questionnaires in order to prepare further cross-examination.  Until now, he was entitled to think that the effect of the documents, whatever it may be, would not need to be overcome.

3. Eveready’s survey evidence in this case was the subject of a judgment of Tamberlin J on 7 October 1999. At that point Eveready sought by motion an order that Gillette was not entitled to rely on Dr Gordon’s affidavit to the extent that it related to the form and/or methodology of the survey.

4. The basis of Eveready’s motion was that Gillette had not complied with the Court’s Practice Note 11.  Tamberlin J thought that a notice given by Eveready in June 1999 had been adequate to activate the Practice Note.  It was not until September 1999 that Gillette gave Eveready particulars of its criticisms of the survey.

5. His Honour declined to make the order, saying that the issue was more appropriately left to the hearing.

6. It still remains the position that Eveready will make submissions at the end of the day as to the adverse effect that Gillette’s non-compliance with the Practice Note should have in relation to Dr Gordon’s affidavit.

7. It is to be noted, however, that Tamberlin J was not satisfied that if Gillette had promptly notified its objections, Eveready would have remedied the position in any way other than that in which it in fact sought to do so.  Eveready did take certain measures and filed a number of further affidavits as a result of its reading of Dr Gordon’s affidavit.

8. There is a particular problem for the Court in receiving the documents at this stage.  Apparently what would be done if they were to be admitted into evidence is that in addition to my assessing the competing affidavit evidence already read and the oral evidence adduced in cross-examination, I would be expected, by reference to nothing more than submissions, coupled with the six volumes of questionnaires and answers, to prefer one side’s submissions to the other’s.  As Mr Kunc, counsel for Eveready correctly points out, it is common for counsel to hand up summaries or outlines drawing attention to particular parts of voluminous documentary evidence with a view to saving the Court an excessively onerous task.  But having regard to the way in which issue has been joined between the experts in relation to the survey, I think that in this particular case I would need to delve into the six volumes to know which submissions were to be preferred.  If it had been clear at a much earlier stage that the six volumes were to be tendered, it may be that the parties might have reached agreement as to their effect as a whole and produced a statement of that agreement.  Alternatively, they might have agreed as to what the issues were and as to the documents by reference to which I was to resolve those issues.

9. In all the circumstances I think that the documents should not be admitted.  This does not, of course, preclude Eveready from making the criticisms which it would make in any event of Gillette’s attempt to rely on Dr Gordon’s affidavit.

10. I reject the tender of the six volumes of survey questionnaires and answers.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             8 November 1999

Counsel for the Applicant:	Mr A C Archibald QC and Mr F Kunc
Solicitors for the Applicant:	Gilbert & Tobin
Counsel for the Respondent:	Mr R C Macaw QC and Mr S Sharpley
Solicitors for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	3 November 1999
Date of Judgment:	3 November 1999