Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd

[2001] QCA 33

[2001] QCA 33

COURT OF APPEAL

DAVIES JA
WILLIAMS JA

MULLINS J

Appeal No 5723 of 2000

JUST GI PTY LTD

(ACN 010 645 708)	Respondent (First Plaintiff
and
NOMOHEITH PTY LTD
(ACN 060 188 367)	Respondent (Second Plaintiff)
and
MARKEV PTY LTD
(ACN 070 666 476) as trustee
of the Evans Family Trust	Respondent (Third Plaintiff)
and
PIG IMPROVEMENT COMPANY
AUSTRALIA PTY LTD
(ACN 058 819 328)	Appellant (Defendant)
BRISBANE ..DATE 12/02/2001
12022001 D.1 T13/LZG14 M/T COA22/2001

DAVIES JA: Mr Keane for the appellant has sought leave to read
and file an affidavit by Mr Andrew Peters, which we have had an
opportunity of reading because it was put with the papers
before us, which deposes to matters said to have occurred since
the date of the hearing before Mr Justice Mackenzie, and said
to show delay on the part of the respondent and therefore being
relevant, it is submitted, to the question which arises before

this Court.

We were told by Mr Barlow for the respondents that if leave
were granted, which he opposes, he would seek leave to file and
read two further affidavits, which raise contentious issues
with respect to the affidavit which has been filed. This is,
as Mr Keane acknowledges, an appeal against an exercise of
discretion on a matter of practice and procedure.

Ordinarily, in my opinion, in circumstances involving an appeal of this kind, further material ought not to be brought, particularly when it raises contentious matters of fact, unless those matters of fact are of vital issue to the matters before the Court.

Having looked at the affidavit proposed to be read by
Mr Peters, I do not think that the matters raised in there are
sufficiently material to the matters sought to be raised in
this appeal, which is essentially one of whether the learned
Judge below has erred in the exercise of his discretion, and
consequently I would refuse leave to read it.

12022001 D.1 T13/LZG14 M/T COA22/2001

WILLIAMS JA: I agree.

MULLINS J: I agree.

DAVIES JA: Order as I have indicated.

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