Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd

[2024] FCA 126

FEDERAL COURT OF AUSTRALIA

Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd [2024] FCA 126

File number(s):

NSD 1457 of 2023

Judgment of:

JACKMAN J

Date of judgment:

16 February 2024

Catchwords:

EVIDENCE – hearsay – exception in Evidence Act 1995 (Cth) s 75 – whether source of information identified – where affidavit referred to conversations with persons using alias – objection upheld

Legislation:

Evidence Act 1995 (Cth) s 75

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Cases cited:

Prior v Wood [2017] FCA 193

Wily v Terra Cresta Business Solutions Pty Limited [2006] NSWSC 949

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

5

Date of hearing:

16 February 2024

Counsel for the Applicants

Mr B May

Solicitor for the Applicants

Levitt Robinson Solicitors

Counsel for the Respondent

Mr J Gooley and Mr N Olson

Solicitor for the Respondent

HWL Ebsworth Lawyers

ORDERS

NSD 1457 of 2023

BETWEEN:

PUNCHBOWL CASUAL DINING PTY LTD

ACN 638 873 802

First Applicant

MOHAMMAD MATIUR RAHAMAN
Second Applicant

MUHAMMAD WAJAHAT
Third Applicant

AND:

RASHAYS CAFES & RESTAURANTS PTY LTD

ACN 150 097 724

Respondent

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	16 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The applicant’s objection to the affidavit of Mr Adam John Deverson dated 12 February 2024 is upheld.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcript

JACKMAN J

1. The applicant in the matter (who is the respondent in this interlocutory application) objects to certain portions of the affidavit of Mr Adam John Deverson dated 12 February 2024 (“Affidavit”). The objection is pressed on the ground of hearsay notwithstanding s 75 of the Evidence Act 1995 (Cth), which provides that:

   In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

2. Where a party adduces evidence of information communicated by another person, there is authority to the effect that s 75 requires the adducing party to identify that person by name: Wily v Terra Cresta Business Solutions Pty Limited [2006] NSWSC 949, [11]–[12] (Palmer J); Prior v Wood [2017] FCA 193, [77] (Dowsett J). No submission was put to me to the effect that those authorities are wrong.

3. The portions of evidence sought to be relied upon by the respondent (who is the applicant in this interlocutory proceeding) do not identify the source of information by name. One of the sources of information went by an alias “James Packer”, which the evidence shows was not his real name, and there is no identification by name of the person who was the source of that information. The second source of information was identified by the initials SG, and I do not regard the use of those initials as identifying the name of the informant. The respondent did not adduce any evidence as to the identity of either “James Packer” or “SG”.

4. It follows that s 75 of the Evidence Act 1995 (Cth) does not render the hearsay rule inapplicable. Accordingly, I reject the portions of the Affidavit to which objection has been taken on the ground of hearsay.

5. I should add that the respondent did not make any attempt to rely upon any confidential affidavit, which could have been made the subject of a suppression order pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth).

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Associate:

Dated:       22 February 2024