South Sydney District Rugby League Football Club Ltd v News Ltd (No 5)

[2000] FCA 1270

FEDERAL COURT OF AUSTRALIA

South Sydney District Rugby League Football Club Ltd v News Ltd (No 5)
[2000] FCA 1270

SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED v NEWS LIMITED & ORS
N 1295 of 1999

FINN J
31 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1295 OF 1999

BETWEEN:

SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED (ACN 002 487 390)
APPLICANT

AND:

NEWS LIMITED (ACN 007 871 178)
FIRST RESPONDENT

NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538)
SECOND RESPONDENT

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 292)
THIRD RESPONDENT

NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962)
FOURTH RESPONDENT

AND the Fifth to Twenty-third Respondents set out in the Schedule

JUDGE:

FINN J

DATE OF RULING:

31 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT RULES THAT:

1.the affidavit of Michael Roy Whitney sworn 30 August 2000 be permitted to be read.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1295 OF 1999

BETWEEN:

SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED (ACN 002 487 390)
APPLICANT

AND:

NEWS LIMITED (ACN 007 871 178)
FIRST RESPONDENT

NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538)
SECOND RESPONDENT

AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 292)
THIRD RESPONDENT

NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962)
FOURTH RESPONDENT

AND the Fifth to Twenty-third Respondents set out in the Schedule

JUDGE:

FINN J

DATE OF RULING:

31 AUGUST 2000

WHERE MADE:

SYDNEY

REASONS FOR RULING

1. I have been asked to rule on the admissibility of an affidavit sworn by Mr Michael Roy Whitney on 30 August 2000 which the applicant ("Souths") seeks to read in this proceeding.  Objection is taken to its being read.  The affidavit recounts statements made by Mr Kerry Stokes to a group of people at his apartment on 25 July 2000 as also statements made to Mr Whitney in two telephone conversations subsequent to that meeting and within a period of two weeks thereafter. 

2. The burden of the conversations is that Mr Stokes made statements as to his intention to provide sponsorship support for Souths if Souths was to be readmitted into the NRL rugby league football competition.  In substance his statements were that until he found the right corporate vehicle he would personally guarantee the payment of $1 million a year for three years with an option for a further two years.  In the telephone conversations with Mr Whitney he indicated he would honour what he had promised.  On both occasions he indicated he simply had not found the right vehicle for doing what he proposed. 

3. The applicant submits that evidence of Mr Stokes' intention is admissible as original evidence and not as hearsay.  It relies on the observations of Sir Anthony Mason in Walton v The Queen (1989) 166 CLR 283 at 288-289 and in cases footnoted to Sir Anthony's observations. In particular it relies upon observations made by Glass JA in Dobson v Morris (1975) 4 NSWLR 681 at 683. Speaking of the admissibility of a declaration of intention previously made by a person, his Honour had this to say:

   "Much has been written about the relationship between the hearsay rule on the one hand and the res gesta doctrine on the other.  No little of the confusion is due to the use of the latter doctrine as an umbrella to cover evidentiary situations of a wholly diverse character:  Professor J Stone Res Gesta Reagitata (1939) 55 LQR 66.  It is unnecessary to consider whether evidence of intention in a form of a declaration by a person concerned is received as an exception to the hearsay rule or as original evidence from which an inference may be drawn.  Where it is relevant the prudent intentions of a person declarations by him as to his state of mind are admissible in evidence … The rule applies whether the statement of intention is made by a party or by someone who is not a party.  It is immaterial whether or not the statement is against the interests of the declarant, although this will no doubt affect its weight.  It is likewise immaterial whether or not the declaration was contemporaneous with some conduct for which it provides an explanation.  Whether the intention proved by the declaration is to subsist at one point of time has been shown to continue or relate back to a later or earlier time is governed by the ordinary rules of evidence:  Re Fletcher [1917] 1 Ch 339."

4. I should add I have already admitted into evidence subject to relevance a bank guarantee guaranteeing to Souths the obligations arising under such sponsorship agreement to pay money to Souths up to a maximum of a million dollars per annum for a period not exceeding three years as may be entered into by a company associated with Mr Stokes.  The guarantee contains a definition of what such a company means. 

5. Considered in isolation there is in my view little doubt that the evidence of Mr Stokes' intentions are admissible as original evidence.  Because the ability and financial capacity of Souths to field a team has been put in question and because the sponsorship potentially available to Souths has been made an issue in the proceeding, the intentions of parties indicating they wish to provide sponsorship are relevant to a fact in issue in the proceeding:  Walton v R, above, at 289.  Mr Stokes' making his statements has independent evidentiary value in proving his intentions. 

6. What makes the issue complicated in the present matter are the circumstances in which Souths seeks to have Mr Whitney's affidavit read. Mr Stokes himself has sworn an affidavit in the proceeding in which he made statements as to proposed sponsorship of Souths. Mr Stokes was not prepared to make himself available to give evidence and I refused leave to Souths to read his affidavit without the respondents having the opportunity to cross-examine him. Likewise Souths sought to tender as an exhibit extracts from his affidavit on the basis that they were statements of intention admissible under s 72 of the Evidence Act 1995 (Cth). I refused that tender as well. For the purposes of ruling on the objection to Mr Whitney's affidavit but for no other purpose (and I have given directions accordingly) both Mr Stokes' affidavit and a subpoena directed to the contents of it have been admitted as exhibits. The fourth respondent ("NRL") relies upon the differences - it says inconsistencies - between what Mr Whitney recounts as Mr Stokes' statement of intention and the contents of Mr Stokes' own affidavit for the purposes of asserting that Mr Whitney's affidavit is misleading and confusing and as such should be excluded under s 135 of the Evidence Act. 

7. Insofar as presently relevant s 135 provides:

   "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: 
   (a) be unfairly prejudicial to a party;  or
   (b) be misleading or confusing."

8. What makes the evidence allegedly misleading or confusing is the apparent inconsistency between the two affidavits.  What is said by NRL is that if Mr Whitney's affidavit is admitted it will be misleading or confusing because it is not on its face misleading or confusing but it is made so by comparison with the other affidavit which is not in evidence and which NRL continues to object to being put into evidence. 

9. For my own part without setting out the terms in any detail of Mr Stokes' affidavit I am not satisfied that they are such as create the misleading or confusing state of affairs that NRL alleges.  I am not satisfied that such differences as there are between the two documents are such as render Mr Whitney's affidavit misleading or confusing.  It speaks of Mr Stokes' intention at two points in time.  It does not confuse on its face. 

10. Nonetheless I am of the view that the entirety of the evidence manifest in Mr Stokes' evidence as recounted by Mr Whitney must be treated with a considerable deal of circumspection.  As I have noted it only states his intention as at two points in time.  If I am asked to infer whether that intention subsists, that NRL has not had any opportunity to test Mr Stokes' intention as also his capacity to make the provisions that he suggests, does bear significantly on any question of weight that might be attributed to the evidence.

11. I do take notice of the fact that I have ruled inadmissible the affidavit and the reason for my not giving leave for it to be read.  In the circumstances then I am prepared to allow Mr Whitney's affidavit to be read.  The weight that I will attribute to it is altogether another matter. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ruling for Ruling herein of the Honourable Justice Finn.

Associate:

Dated:             20 September 2000

Counsel for the Applicant:	Mr T E F Hughes QC with Mr R W White SC, Mr M G Scheib and Ms A Silink
Solicitor for the Applicant:	Nicholas G Pappas & Company
Counsel for the First and Second Respondents:	Mr N C Hutley SC with Ms S J Goddard
Solicitor for the First and Second Respondents:	Allen Allen & Hemsley
Counsel for the Third Respondent:	Mr D Campbell with Mr S Hughes
Solicitor for the Third Respondent:	Colin W Love & Co
Counsel for the Fourth Respondent:	Mr A J Meagher SC with Mr J E Marshall and Mr P J Brereton
Solicitor for the Fourth Respondent:	Minter Ellison
Counsel for the Fifth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third Respondents.	Mr A Coleman
Solicitor for the Fifth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third Respondents.	Henry Davis York
Date of Hearing:	16, 19-23, 26-30 June;  3-6, 10-13, 24-28 July;  3-4, 7-11, 29-31 August;  1, 4-8 September 2000.
Date of Ruling:	31 August 2000

THE SCHEDULE

CANBERRA DISTRICT RUGBY LEAGUE

FOOTBALL CLUB LIMITED (ACN 008 568 634)

Fifth Respondent

CANTERBURY-BANKSTOWN RUGBY

LEAGUE CLUB LTD (ACN 001 869 405)

Sixth Respondent

CRONULLA-SUTHERLAND DISTRICT RUGBY

LEAGUE FOOTBALL CLUB LIMITED (ACN 002 692 186)

Seventh Respondent

NEWCASTLE KNIGHTS LIMITED (ACN 003 363 228)

Eighth Respondent

ST GEORGE ILLAWARRA RUGBY LEAGUE

FOOTBALL CLUB PTY LIMITED (ACN 085 008 340)

Ninth Respondent

BRISBANE BRONCOS RUGBY LEAGUE

CLUB LIMITED (ACN 010 769 025)

Tenth Respondent

COWBOYS RUGBY LEAGUE

FOOTBALL LIMITED (ACN 060 382 961)

Eleventh Respondent

MELBOURNE STORM RUGBY

LEAGUE CLUB LIMITED (ACN 081 369 468)

Twelfth Respondent

MANLY WARRINGAH DISTRICT RUGBY LEAGUE

FOOTBALL CLUB LIMITED (ACN 003 348 436)

Thirteenth Respondent

NORTH SYDNEY DISTRICT RUGBY LEAGUE

FOOTBALL CLUB LIMITED (ACN 003 009 158)

Fourteenth Respondent

EASTERN SUBURBS DISTRICT RUGBY LEAGUE

FOOTBALL CLUB LIMITED (ACN 002 687 416)

Fifteenth Respondent

PENRITH DISTRICT RUGBY LEAGUE FOOTBALL
  CLUB LIMITED (ACN 003 908 583)

Sixteenth Respondent

PARRAMATTA DISTRICT RUGBY LEAGUE

CLUB LTD (ACN 002 254 980)

Seventeenth Respondent

WESTS TIGERS RUGBY LEAGUE FOOTBALL

PTY LIMITED (ACN 090 076 403)

Eighteenth Respondent

AUCKLAND WARRIORS RUGBY

LEAGUE LIMITED (Registered in NZ No. 508 646)

Nineteenth Respondent

MANLY-NORTHS RUGBY LEAGUE FOOTBALL CLUB PTY LIMITED (ACN 090 093 833)

Twentieth Respondent

VALIMANDA PTY LTD
(ACN 002 639 778)

Twenty-first Respondent

AH CB PTY LIMITED
(ACN 068 819 152)

Twenty-second Respondent

BRISBANE BRONCOS CORPORATION PTY LTD
(ACN 057 607 208)

Twenty-third Respondent