Kirby v Centro Properties Limited (No 3)

In Kirby v Centro Properties Limited (No 3), the primary issue was the admissibility of certain evidence under the Evidence Act 1995 (Cth) in a proceeding involving allegations of misconduct in the context of a property investment scheme. The matter was heard in the Federal Court of Australia, where Justice Bromberg was tasked with deciding whether the content of specific affidavits, which referenced previous representations, could be admitted beyond simply proving the representations were made.

The legal issues before the court included whether the representations in question could be admitted for their content under the hearsay rule exceptions and whether the failure or refusal to comply with a reasonable request for the purpose of determining a question relating to a previous representation warranted any sanctions. Furthermore, the court had to consider whether the exclusion of the content of the representations would result in unfair prejudice to any party, and if so, whether the court should exercise its discretion to limit the use of the evidence rather than exclude it outright.

Justice Bromberg determined that the evidence in question could only be admitted to prove that the representations were made and not for their content. The court found that the request for the evidence was reasonable and that the failure to provide it without reasonable cause warranted limiting its use. Consequently, the content of the previous representations was admissible only to establish that they were made, and not for any hearsay purpose. Additionally, a specific sentence in one of the affidavits was struck out due to its prejudicial nature. These findings led to the orders that were subsequently entered, in accordance with the Federal Court Rules 2011.