Thompson, Peter Anthony v Ice Creameries of Australia Pty Ltd

[1997] FCA 1569

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 281 of 1994

BETWEEN:

PETER ANTHONY THOMPSON AND ROBYN LESLEY THOMPSON
APPLICANT

AND:

ICE CREAMERIES OF AUSTRALIA PTY LTD
FIRST RESPONDENT

DAVID ALAN ATCHISON
SECOND RESPONDENT

JUDGE(S):	LEHANE J
DATE:	14 AUGUST 1997
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

Mr Cotman seeks to read an affidavit of 12 August 1997 by David Alan Atchison, in which Mr Atchison would reply to certain evidence given, both in his report and more particularly in cross-examination, by Mr Booth, an expert witness called by the applicants.   The evidence which Mr Atchison would give, if the affidavit were read, can be divided into three categories.

One is evidence as to the presence or absence of major drawcards, as they were described in Mr Booth’s evidence, within a range of areas of a number of ice creameries: perhaps - I am not sure - all of them.   In addition, and this is part of the same category of evidence, Mr Atchison would give evidence as to the extent of pedestrian traffic in the vicinity of various ice creameries, that is to say whether its density is low, medium or high. 

The second category of evidence is in response to particular evidence given by Mr Booth as to Baskin-Robbins Corporation’s ice cream parlours within Hoyts Cinema complexes, and the evidence would be to the effect that within the complexes certain of those outlets, indeed a number of them, have been closed and that in Mr Atchison’s observations most Baskin-Robbins shops are in suburban locations, usually in strip shopping areas.

The third category of evidence relates to Mr Atchison’s more general views about the appropriate location of ice creameries; and of that third category it may fairly be said that in substance it repeats affidavit evidence already filed by Mr Atchison.  It is, I think, now accepted that there is nothing in particular to be added by reading that third category of evidence.  That seems to me clearly right and I think it requires no further comment. 

The first category of evidence, that relating to so called drawcards and degree of pedestrian traffic, is slightly more complex.  It was put that Mr Booth’s views about the importance of surrounding pedestrian traffic were not apparent from the reports which had been filed but became evident merely in cross-examination.   It is unnecessary, I think, to go through the evidence in great detail.   In my view, Mr Booth’s evidence given in cross-examination, properly understood, does not extend significantly, if at all, beyond the view that he had expressed in his reports.  In substance, the view expressed in his reports was that an ice creamery at the particular site in Engadine, and perhaps at any site within Engadine, given its peculiar demographic characteristics was unlikely to be successful unless it had a significant exposure to passing pedestrian traffic and that, given Engadine’s characteristics once again, no such exposure could be expected in the absence of a significant drawcard, such as, for example, a cinema complex or a major shopping centre.

That, it seems to me, emerges clearly enough from the report.  It was reinforced by Mr Booth in cross-examination but I think, beyond perhaps certain possible logical extensions of it which require no particular evidence, it goes no further.  On that basis I think it is inappropriate to allow those sections of Mr Atchison’s further affidavit to be read, for a combination of three reasons.   One is that the application comes very late when the applicant’s case has already closed.  Secondly, given what I believe to be the effect of Mr Booth’s evidence, it seems to me that no significant prejudice will be caused to the respondents by not admitting the evidence, particularly in circumstances where, as I understand the evidence given by Mr Booth, the substance of it was available to be dealt with a considerable time ago.  Thirdly and significantly, and in the light of the other considerations, the evidence opens up a substantial new area which might, on the part of the applicants, require investigation, particularly factual investigation, and perhaps comment by expert witnesses about the locations, and other characteristics, of a number of other ice creameries.

A combination of those considerations requires, I think, that the evidence not be accepted.

As for the third point, this is I think a considerably more limited one.  Mr Harris for the applicant says that the evidence about the Baskin-Robbins outlets might perfectly well have been put on in chief some time ago, and no doubt that is so.  What does seem apparent however, is that this is a matter within a rather small compass which, as I apprehend it, arose clearly only in the course of Mr Booth’s oral evidence and which, it seems to me, should not, if admitted, result in any particular prejudice to the applicants or prolongation of the trial.  I confess to some hesitation about it because of its lateness and also, perhaps, because I am by no means convinced that it is likely to be of critical significance.  In my view, however, that evidence can and should be admitted. 

The result is that I will accept into evidence paragraphs 5, 6 and 7 of the affidavit of David Alan Atchison sworn on 12 August 1997 but no other portions of that affidavit.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated:            14 August 1997

Counsel for the Applicants:	Christopher Harris
Solicitor for the Applicants:	Willis & Bowring
Counsel for the Respondents:	Nigel Cotman SC Matthew Dicker
Solicitor for the Respondents:	Minter Ellison
Date of Hearing:	14 August 1997
Date of Judgment:	14 August 1997