KC v Shiley Inc

[1997] FCA 977

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 633 of 1993

BETWEEN:

KC
FIRST APPLICANT

KS BY HER NEXT FRIEND KC
SECOND APPLICANT

KF BY HER NEXT FRIEND
THIRD APPLICANT

KL BY HER NEXT FRIEND KC
FOURTH APPLICANT

AND:

SHILEY INCORPORATED
FIRST RESPONDENT

PFIZER INCORPORATED
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	1 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT EX-TEMPORE

I have been invited by the respondents to reject paragraphs 48 to 69 of the statement of Mr Harvey Hilman, of 23 April 1997, which is in the course of being read.  I am not prepared to reject those paragraphs as a group on the basis that they are manifestly irrelevant.  Rather, I prefer to deal with each of the paragraphs seriatim which are objected to.

I have been cited a number of cases relating to the requirement for clear and cogent proof where allegations of fraud or contumelious conduct are made: see Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. Those cases, it seems to me, really deal with the degree of satisfaction which the Court is required to have at the time when it comes to make a decision after evidence has been admitted. They do not directly bear on the admissibility of specific evidence from which such inferences are sought to be drawn.

The present case, as we all appreciate, is an extremely complex one.  There is a great deal of documentation and there will no doubt be a great deal of additional evidence arising from cross-examination and further witnesses. At this stage it is premature to reject anything as irrelevant if it can be reasonably argued that it could give rise to an inference which would support the applicants' case.  I am assured by Senior Counsel for the applicants that it is the applicants' case that this material will bear on the establishment of defects in the manufacturing process.  This is an inferential matter arising from varied circumstances.

Accordingly I do not propose to reject that evidence in paragraphs 48 to 69 in globo.  However I will deal with each paragraph specifically.

I certify that this and the preceding one (1) pages is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            1 September 1997

Counsel for the Applicant:	Mr B H K Donovan QC Mr M L Williams
Solicitor for the Applicant:	Cashman & Partners
Counsel for the Respondent:	Mr R J Ellicott QC Mr J V Nicholas
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	1 September 1997
Date of Judgment:	1 September 1997