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Ibrahim v Pham

Ibrahim v Pham

Case [2004] NSWSC 650 29 July 2004

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CITATION: IBRAHIM & ORS v PHAM & ORS [2004] NSWSC 650

HEARING DATE(S): 19/07/04-20/07/04

JUDGMENT DATE:
29 July 2004

JUDGMENT OF: Levine J

DECISION: Evidence inadmissible

CATCHWORDS: Tendency evidence - admissibility - civil action

LEGISLATION CITED: Evidence Act 1995 ss 97, 135

CASES CITED: ASIC v Vines [2003] NSWSC 1237
Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
Regina v Ellis [2003] NSWCCA 319
Trylow v Commissioner of Taxation [2004] FCA 446

PARTIES :

RIMA IBRAHIM
(First plaintiff)
SARGON NAJORIAN BADAL
(Second plaintiff)
BADAL INVESTMENTS PTY LTD
(Third plaintiff)
v
PHILIP PHAM
(First defendant)
PHAM ATIC PTY LTD
(Second defendant)
FRED DAVID
(Third defendant)
SUZIE DAVID
(Fourth defendant)
PAUL MANUELPILLA DOMINIC
(Sixth defendant)
LINDA JOAN GLORIA ROMANO
(Seventh defendant)

FILE NUMBER(S): SC 20483 OF 2002

COUNSEL:
B H K Donovan QC / D Baran
(Plaintiffs)
D Pritchard
(First and second defendants)
R Darke SC / M Dicker
(Third to sixth defendants)

SOLICITORS:
Barclay Benson Lawyers
(Plaintiffs)
Ebsworth & Ebsworth
(First and second defendants)
Acuiti Legal
(Third to sixth defendants)

DLJ:1
[2004] NSWSC 650

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

TUESDAY 20 JULY 2004

20483 OF 2002

RIMA IBRAHIM
(First plaintiff)

SARGON NAJORIAN BADAL
(Second plaintiff)

BADAL INVESTMENTS PTY LTD
(Third plaintiff)

v

PHILIP PHAM
(First defendant)

PHAM ATIC PTY LTD
(Second defendant)

FRED DAVID
(Third defendant)

SUZIE DAVID
(Fourth defendant)

PAUL MANUELPILLA DOMINIC
(Sixth defendant)
LINDA JOAN GLORIA ROMANO
(Seventh defendant)

JUDGMENT (Tendency evidence - admissibility - civil action)

1 On 20 July I ruled that proffered tendency evidence was inadmissible. I said:

“Yesterday I heard an application by the plaintiffs to lead what I will describe as tendency evidence (see s 97 of the Evidence Act 1995).

Evidence made up of four affidavits of persons involved in other litigation against the same defendants was tendered on the voir dire for the plaintiffs. For the defendants in response specifically to the tendency assertions, as I shall describe them, were tendered affidavits as well as affidavits from the substantive actions. I heard oral submissions and have written submissions from the defendants.

Yesterday I indicated that in all likelihood I would deliver my ruling this morning and publish my reasons therefor as soon as I can.

My ruling is that I decline to admit the evidence in exhibit A on the voir dire; the Kondrajian and Nakad material.

In brief I can add for present purposes that I am not persuaded that the material is tendency evidence. If I was, I would not be persuaded that it has significant probative value. If I was so persuaded I would exclude it nonetheless under s 135(c) at the least. I will publish my reasons as soon as I can”.

2 I now provide my reasons.

3 By their third further amended statement of claim filed in court on 15 July this year the plaintiffs sue the defendants claiming damages…

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.

Continue reading Ibrahim v Pham

Details

AGLC: Ibrahim v Pham [2004] NSWSC 650
Case: [2004] NSWSC 650
Decision Date: 29 July 2004

CaseChat Overview and Summary

In the matter of Ibrahim v Pham, the Federal Court was tasked with determining the admissibility of evidence that was tendered in a civil action. The case involved the plaintiff, Ibrahim, who was seeking damages for alleged defamation and copyright infringement against the defendant, Pham. The crux of the dispute centred around the use of evidence that the plaintiff claimed demonstrated a tendency to engage in unlawful behaviour by the defendant. The trial judge had ruled that the evidence was inadmissible, a decision which the plaintiff sought to appeal.

The primary legal issue before the court was whether the trial judge was correct in ruling that the evidence was inadmissible. The court had to consider the relevant legal principles concerning the admissibility of tendency evidence in civil proceedings, including the requirements under the Evidence Act. The court was also required to examine the trial judge's application of these principles and whether there were any errors in his Honour's determination.

The court, in delivering its judgment, held that the trial judge was correct in excluding the evidence. The court found that the evidence in question did not meet the criteria for admissibility as set out in the Evidence Act. The court emphasised that the evidence must have significant probative value and not be prejudicial or otherwise unfair to the defendant. The court concluded that the trial judge had properly exercised his discretion in excluding the evidence, given its potential to unfairly prejudice the defendant. The appeal was thus dismissed, and the trial judge's decision was upheld.

The final orders of the court confirmed the dismissal of the appeal and upheld the trial judge's ruling on the admissibility of the evidence. The court also ordered that the plaintiff bear the costs of the appeal.

Orders