JCDecaux Australia Pty Ltd v Adshel Street Furniture Pty Ltd

[2002] FCA 703

FEDERAL COURT OF AUSTRALIA

JCDecaux Australia Pty Ltd v Adshel Street Furniture Pty Ltd [2002] FCA 703

JCDECAUX AUSTRALIA PTY LIMITED (ACN 078 716 793) v ADSHEL STREET FURNITURE PTY LIMITED
(ACN 008 081 872) and PUBLIC TRANSPORT CORPORATION

V139 of 2000

WEINBERG J

3 JUNE 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	V139 OF 2000

BETWEEN:

JCDECAUX AUSTRALIA PTY LIMITED (ACN 078 716 793)
APPLICANT

AND:

ADSHEL STREET FURNITURE PTY LIMITED
(ACN 008 081 872)
FIRST RESPONDENT

PUBLIC TRANSPORT CORPORATION
SECOND RESPONDENT

JUDGE:

WEINBERG J

DATE:

3 JUNE 2002

PLACE:

MELBOURNE

RULING REGARDING THE ADMISSIBILITY OF THE
SECOND AND THIRD SENTENCES OF PAR 129
OF THE AFFIDAVIT OF JOHN BARRON OF 18 MARCH 2002

1. In par 129 of his affidavit of 18 March 2002, John Barron, the Victorian Operations Manager of Adshel Street Furniture Pty Ltd, the first respondent, said:

   “In around December 1997 Tom Wilson, Adshel’s commercial manager reported to me that he had been at a meeting with Spanti at which Spanti said that Frankston City Council was considering entering a contract for the provision of advertising shelters with Whiteway.  In around February or March 1998 Spanti told me sometime in general conversation that he had called Frankston City Council and said that it should have shelters installed by Adshel under the PTC contract.  He said he told the Council that if it entered a contract with Whiteway to build the shelters then the PTC would move the bus stops.”

2. Objection is taken to the final two sentences which, the applicant, JCDecaux, has sought to rely upon in cross-examination of Mr Barron, given that Adshel, whose witness Mr Barron was, resiled from reliance upon these sentences.  Curiously, the objection is taken by Adshel, as well as by the Public Transport Corporation (“the PTC”), the second respondent. 

3. Mr Spanti’s remarks to Mr Barron would normally be regarded as hearsay, given that they appear to be tendered to prove the truth of that which was asserted. However, as a senior employee of the PTC, with authority to make statements on its behalf in relation to the matter with respect to which the statement was made (see s 87(1)(a) of the Evidence Act 1995 (Cth)) what he said to Mr Barron seems to fall within the exception to the hearsay rule contained in s 81 of that Act, at least in so far as it constitutes an admission on the part of the PTC. It is capable, therefore, of being relied upon by JCDecaux in support of its case against the PTC.

4. The real issue to be determined is whether these two sentences are relevant. Section 55(1) of the Evidence Act provides as follows:

   “The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

5. Section 56 provides, in general terms, that evidence that is relevant in a proceeding is admissible while evidence that is not relevant is not admissible.

6. In my opinion, the two sentences in question are relevant in this proceeding.  They are capable of rationally affecting (both directly and indirectly) the assessment of the probability of the existence of a fact, or facts, in issue.

7. An issue which has arisen (both through the pleadings and by reason of the manner in which this trial has been conducted) is what precisely Mr Spanti said at a meeting held on 27 August 1998.  That meeting was attended by Ms Clark and Ms Lichtnauer.  Ms Clark’s evidence was that Mr Spanti said that there was no point in JCDecaux approaching councils directly because the PTC would simply move the stops.  Mr Spanti’s filenote regarding that meeting conveys an altogether different account of what he said. 

8. If Mr Barron’s evidence is to be accepted, Mr Spanti, some months prior to the critical August 1998 meeting, made a similar, and perhaps even strikingly similar, comment regarding the movement by the PTC of bus stops.  It is true that that comment was directed towards the Frankston City Council, and not a council which features in this case.  However, that is not to the point.

9. Mr Barron’s evidence regarding what Mr Spanti told him is also relevant to another issue in this case. It constitutes evidence, by way of admission, that the PTC had, as one of its purposes in entering into what is said to have been a “new” agreement with Adshel, sometime between June 1997 and December 1997, a purpose proscribed by s 45 of the Trade Practices Act 1974 (Cth).

10. In these circumstances, I propose to admit the two sentences in question.  I decline to exclude them in the exercise of my discretion.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Weinberg.

Associate:

Dated:             3 June 2002

Counsel for the Applicant:	Mr A. Bannon SC and Mr A. Payne
Solicitors for the Applicant:	Gilbert and Tobin
Counsel for the First Respondent:	Mr G.H. Garde QC, Mr C. Harrison and Mr P. Zappia
Solicitors for the First Respondent:	Freehills
Counsel for the Second Respondent:	Mr K. Hargrave QC and Mrs C. Kenny
Solicitors for the Second Respondent:	Phillips Fox
Date of Hearing:	14 and 15 May 2002
Date of Ruling:	3 June 2002