The Builders Warehouse Group Ltd T/as Campbells Hardware and Timber v Multinail Australia Pty Ltd

[1995] FCA 164

CATCHWORDS

PRACTICE AND PROCEDURE - admissibility of statement - witness deceased - utility in making direction before hearing

Evidence Act 1905
Evidence Act 1995 ss 2(2) & (3), 63
Federal Court Rules O 10 r 1(2)

The Builders Warehouse Group Limited T/as Campbells Hardware and Timber v Multinail Australia Pty Limited & Ors
No QG66 of 1994

Kiefel J  Brisbane  24 March 1995

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG66 of 1994

BETWEEN:

THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER

Applicant
AND:

MULTINAIL AUSTRALIA PTY LIMITED

Respondent
AND:

MULTINAIL AUSTRALIA PTY LIMITED

Cross-Claimant
AND:

THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER

Cross-Respondent

JUDGE MAKING ORDER:    Kiefel J.

DATE OF ORDER:                 24 March 1995

WHERE MADE:  Brisbane

MINUTES OF ORDERS

APPLICANT'S MOTION
THE COURT GRANTS:

1. Leave to the applicant cross-respondent to file and serve a further amended statement of claim in accordance with exhibit "RAK6" to the affidavit of Ross Anthony Kinneally filed 7 March 1995 by 24 March 1995. 

THE COURT ORDERS THAT:

1. The applicant pay the respondent's costs occasioned by the amendment and the respondent's costs of and incidental to the application for directions, including the hearing on 22 March 1995.

RESPONDENT'S MOTION TO STRIKE OUT:
THE COURT ORDERS THAT:

1. Further hearing on the motion be adjourned.

1. The costs of the parties be reserved to the hearing of the application and cross-claims.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG66 of 1994

BETWEEN:

THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER

Applicant
AND:

MULTINAIL AUSTRALIA PTY LIMITED

Respondent
AND:

MULTINAIL AUSTRALIA PTY LIMITED

Cross-Claimant
AND:

THE BUILDERS WAREHOUSE GROUP LIMITED T/AS CAMPBELLS HARDWARE AND TIMBER

Cross-Respondent

CORAM:Kiefel J.

DATE:24 March 1995

PLACE:Brisbane

REASONS FOR JUDGMENT

On 4 November 1994 directions were made by me requiring the delivery of statements of the applicant's witnesses in affidavit form, to be delivered by 16 December 1994.  That was not done.  In January 1995 a proposed witness, Mr Robertson died, having signed a statement but not an affidavit.  That statement was forwarded to the respondent on 2 February 1995.  The following day the respondent filed a notice of motion seeking an order striking out the statement of claim.

I am told that the basis for the application was that the evidence of Mr Robertson contained in the statement was considered inadmissible under the Evidence Act 1905 (Cth) it being a business document, but one which was prepared for the purpose of litigation. I take it that the respondents contend that without that evidence the applicant will be unable to make out its case, although this is a matter of dispute. On 23 February 1995 the Evidence Act 1995 (Cth) received assent. By s.2(2) and (3), however, the substantive sections of the Act are to commence from dates fixed by Proclamation or in any event by 18 April 1995. It is s.63 which creates an exception to the hearsay rule that the applicant will rely upon at trial and when tendering the statement. That section has not to date been proclaimed.

By motion filed on 17 March 1995 the applicant seeks leave to amend its statement of claim, and this is not contested.  The proposed pleading is a more comprehensive and particularised pleading regarding oral and written representations.  The applicant however also sought the following order:

"that at the trial of the action the applicant cross-respondent may tender the statement of Michael John Robertson deceased, dated 3 May 1994, being exhibit "RAK6" to the affidavit of Ross Anthony Kinneally filed herein on March 17 1995, as evidence of the said Michael John Robertson deceased and that the service of a copy of the said statement on the solicitors for the respondent cross-claimant on February 2, 1995 be deemed sufficient compliance with the said order, insofar as it required service of an affidavit by the said Michael John Robertson deceased on the said solicitors and that the filing in affidavit form of the statement of the evidence-in-chief of Michael John Robertson deceased be and is hereby dispensed with".

The respondent will not contend that the fact that the evidence of Michael John Robertson is contained in a statement and not sworn by way of affidavit, is itself a reason for its non-admission.  They will however contend at the hearing that the special provisions with respect to business documents in the Evidence Act 1995 will continue to apply.

It was submitted for the applicant that the direction, seeking a ruling in a sense on the admissibility of the document, is an appropriate direction under O.10 r.1(2)(a)(xiv).   It was submitted for the applicant that there would be real utility in making that direction now, but I do not consider that is so. 

With respect to the conduct of the action, it would not resolve any present issue.  The document is not sought to be tendered now, and even if I made a declaration of sorts it would be subject to the trial judge's ruling when it was sought to admit the document into evidence.  It is not suggested that the exclusion of the evidence would require a further amendment of the statement of claim.

It is said that other witnesses' evidence will need to be re-cast if this evidence is excluded, but how this is so is not apparent to me since the oral representations are alleged to have been made to Mr Robertson alone.  It is not suggested, at least by the applicant, that absent that evidence the applicant's case will fail.  Even recasting the directions sought into a form of declaration, it would not be
one declaratory of the present state of the law.  In these circumstances I decline to make the directions sought.

I will order that leave be granted to the applicant cross-respondent to file and serve a further amended statement of claim in accordance with exhibit "RAK6" to the affidavit of Ross Anthony Kinneally filed herein on 7 March 1995 by 24 March 1995.  I will speak with counsel about other directions necessary to bring the matter to hearing.  With respect to costs there will be orders that the applicant pay the respondent's costs occasioned by the amendment and the respondent's costs of and incidental to the application for directions, which I observe effectively includes the hearing on 22 March.  The costs otherwise on the respondent's motion to strike out shall be reserved to the hearing of the application and cross-claims.

Subject to the orders for costs, I will make orders and directions in terms of the draft initialled by me and placed with the papers.

I certify that this and the preceding three pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date:22 March 1995

Counsel for the applicant:  EJ Lennon QC

Solicitors for the applicant:  Kinneally Mahoney

Counsel for the respondents:  PA Keane QC

Solicitors for the respondents:                  Mullins & Mullins

Date of Hearing:  22 March 1995

Place of Hearing:  Brisbane

Date of Judgment:  24 March 1995