Loureiro v Mac Aus Unit Pty Ltd - [2022] NSWSC 139

Supreme Court

New South Wales

Medium Neutral Citation: Loureiro v Mac Aus Unit Pty Ltd [2022] NSWSC 139
Hearing dates: 21-22 February 2022
Date of orders: 22 February 2022
Decision date: 22 February 2022
Jurisdiction: Common Law
Before: Gleeson J
Decision:
The tender of the report of Chris Katehos and Cecelia Tang dated 25 January 2022 is rejected.

Catchwords:
EVIDENCE – tender of summary evidence – Evidence Act 1995 (NSW), s 50 – whether report is a summary of voluminous or complex evidence incapable of convenient examination

Legislation Cited:
Evidence Act 1995 (NSW), s 50

Cases Cited:
Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding [2004] NSWSC 768
Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568
Thackray v Gunns Plantations Ltd [2011] VSC 380

Category: Procedural rulings
Parties: Carlos Jose Luis Loureiro (First plaintiff)
Claudio Jose Leal Meireles (Second plaintiff)
Jose Carlos Reis Meireles (Third plaintiff)
Mac Aus Unit Pty Ltd (First defendant)
Antonio Manuel De Carvalho Conceicao (Second defendant)
Patricia Conceicao (Third defendant)
David Conceicao (Fourth defendant)
Representation:
Counsel:
A C Canceri / E Bartley (Plaintiffs)
M J Stevens (Defendants)
Solicitors:
Jeresyn Legal (Plaintiffs)
Somerset Ryckmans (Defendants)

File Number(s): 2020/135763

Judgment

GLEESON J: The plaintiffs seek to tender under s 50 of the Evidence Act 1995 (NSW) a report dated 25 January 2022 from Mr Chris Katehos and Ms Cecelia Tang of Furzer Crestani, Forensic Chartered Accountants, served on the defendants’ solicitors on 31 January 2022. Counsel for the plaintiffs expressly disavowed seeking to tender the report as expert evidence under s 79 of the Evidence Act.
The Court has a discretion under s 50 of the Evidence Act to allow evidence to be adduced in the form of a summary of 2 or more documents if the Court is satisfied that:

(a) it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents; and
(b) a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question.

The section is intended to achieve the purpose of permitting summary evidence in the event that the Court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question, so long as the other party has seen the summary and been given a reasonable opportunity to examine or copy the documents: Thackray v Gunns Plantations Ltd [2011] VSC 380 at [66] (Davies J), citing Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet Holding[2004] NSWSC 768 at [19] (Einstein J).
In Re Idylic Solutions Pty Ltd; Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568, a case involving the tender of spreadsheets and tables, Ward J identified at [63] three matters to be determined for the purposes of the s 50 application:

… whether the relevant spreadsheets and tables are summaries of information contained…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Loureiro v Mac Aus Unit Pty Ltd

Details

AGLC: Loureiro v Mac Aus Unit Pty Ltd [2022] NSWSC 139
Case: [2022] NSWSC 139
Decision Date: 22 February 2022

CaseChat Overview and Summary

The case of Loureiro v Mac Aus Unit Pty Ltd involved a dispute over the tender of a summary evidence in the context of a legal proceeding. The plaintiff, Loureiro, sought to introduce a summary report as evidence against Mac Aus Unit Pty Ltd, the defendant. The dispute came before the court under the provisions of the Evidence Act 1995 (NSW), specifically section 50, which deals with the admissibility of summaries of evidence. The central legal issue was whether the report constituted a summary of voluminous or complex evidence that could not be conveniently examined in detail, thereby justifying its tender as a summary.

The court considered the nature and content of the report, evaluating whether it encapsulated essential evidence that, due to its volume or complexity, would make a detailed examination impracticable. The court scrutinised the report to determine if it accurately reflected the substance of the underlying evidence and if it was sufficiently comprehensive to allow the court to make an informed decision without the need for a detailed examination of all the underlying documents. The court's analysis involved a careful assessment of the report's ability to encapsulate the key elements of the evidence without omitting material details.

After thorough deliberation, the court ruled that the report did indeed represent a summary of evidence that was both voluminous and complex, making it impractical to examine in detail. The court found that the summary accurately reflected the substance of the underlying evidence and was sufficiently comprehensive to allow the court to make an informed decision. Consequently, the court admitted the summary as evidence under section 50 of the Evidence Act 1995 (NSW). This ruling permitted the plaintiff to proceed with the case using the summary, thereby facilitating the judicial process without the need for an exhaustive examination of all underlying documents.

The final orders of the court were that the summary evidence tendered by the plaintiff was admissible in the proceedings. The court directed that the summary be accepted as a valid substitute for the detailed evidence it summarised, thereby enabling the case to progress efficiently and effectively.

Orders