Ipex ITG Pty Ltd v State of Victoria (Ruling No 3)

[2010] VSC 383

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

No. 7182 of 2002

IPEX ITG PTY LTD (IN LIQUIDATION)	Plaintiff
V
STATE OF VICTORIA	Defendant

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 18, 19, 23 and 24 August 2010
DATE OF RULING:	24 August 2010
CASE MAY BE CITED AS:	IPEX ITG Pty Ltd v State of Victoria (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2010] VSC 383

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PRACTICE AND PROCEDURE – Application to rely on a further additional supplementary witness statement – Application refused – Evidence late and unhelpful.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie SC with Mr A W Sandbach	A J H Lawyers Pty Ltd
For the Defendant	Mr J D Elliott SC with Ms G Schoff	Victorian Government Solicitor

HIS HONOUR:

1. In relation to discovery, I am not going to make any further orders.  I am not making any order on the application of the plaintiff; I am not going to make any order on the application of the defendant.  The circumstances surrounding the late provision of exhibits P2 and P4 and the notes taken at the time call for some explanation and either the explanation will be forthcoming or it will not and either it will be satisfactory or it will not and I do not propose to make any order compelling the plaintiff to give an explanation.  If it gives an explanation, so be it; if it does not, so be it.

1. The second application relates to the further additional supplementary witness statement of Craig Miles.  I am not prepared to admit that statement into evidence.  I will not permit the plaintiff to rely on the statement.  First, the statement is late - it is very late.  This is not a split trial and the defendant is and was entitled to expect that all of the evidence in support of any damages allegedly suffered by the plaintiff would be contained in witness statements by those with knowledge and/or experts properly briefed.

1. Further, the defendant would have been entitled to call for numerous documents, including financial documents.  Secondly, paragraph 38 of the further amended statement of claim, prior to its amendment on the first day of trial, simply referred to, under the particulars to loss and damage, “Costs of preparation of tender thrown away in the sum of $88,565”, and evidence has been directed to that and it has been permitted.

1. The further or alternatively part of the particulars to paragraph 38 simply refers to the loss of the chance of profit of $299,363.  There is no reference to any gross profit figure or mark-up that the defendant may have been entitled to, either on the provision of hardware or labour type costs.

1. The reference in the witness statement of Mr Miles, exhibit P5, to gross profit figures and the exhibits to which he refers have been struck out of his witness statement on the grounds that I was not satisfied that he was able to give such evidence.  Further, such evidence was not given in a form so as to make it meaningful and admissible and helpful for the purpose of establishing any damages.

1. The same applies in relation to the evidence proposed in the further additional supplementary witness statement of Craig Miles.  The evidence is woefully inadequate, in my opinion.  It comprises deduction, inference and assertions from what was put in the response to tender document.  An endeavour has been made to refer to that document, (a document prepared for a totally different purpose) and extract from that information as the basis for a damages claim.  This is simply inadequate and not sufficient from an evidential point of view.

1. There is no supporting documentation that has been referred to.  The witness  was the recipient of information received from other departments.  In fact, he refers to a human resources department in paragraph 7, a corporate financial department in paragraph 8 and a financial department in paragraph 10 as the basis for his information.  He does not refer to any individual who has provided the information, to any source documents and the reasoning is just woefully inadequate.

1. Usually in these cases there is a detailed expert’s report, even though in many cases the subject matter is merely the extraction of financial information from the books, records and documents of the particular company, but at least in those situations there is a process of reasoning and supporting documentation that would enable the other party to test the accuracy of the evidence.

1. In this case there is assertion, and no more than assertion, that there were particular markups in relation to hardware and in relation to the provision of services.  It is apparent from the short statement, comprising 10 paragraphs, that there is simply no basis on which the defendant could test any of the bald assertions made, given that the proposed witness himself is relying on the receipt of information from various other departments.

1. Accordingly, I will not permit the plaintiff to rely on the further additional supplementary witness statement of Craig Miles and further, in relation to the witness statement that has been tendered, being exhibit P5, we will extract from that exhibit what has been called CM-B comprising two pages, CM-B1 and CM-B 2.  Again, those documents are not meaningful, not helpful, they are just a bunch of figures that do not support adequately any evidence that has in any event been struck out of the witness statement comprising exhibit P5.

1. So what remains as the evidence-in-chief of Mr Miles, having taken out CM-B, CM-B1 and CM-B2 is, exhibit P5 will remain with two exhibits.  One is exhibit CM-A, the tender response costs which the plaintiff relies on in support of the head of damages in the sum of $88,565, and the CM-C which we have given a separate exhibit, P4.

1. There remains to consider, and that will be done in conjunction with the witness or after the witness has given his evidence, the supplementary witness statement dated 10 August, and the further supplementary witness statement dated 23 August 2010.