Trade Practices Commission v Sony (Australia) Pty Ltd

[1990] FCA 365

IN THE FEDERAL COURT OF AUSTRALIA	)	QLD G42 of 1989
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: TRADE PRACTICES COMMISSION

Applicant

AND:  SONY (AUSTRALIA\ PTY LIMITED

First Respondent

AND: ALEXANDER FRANCIS PAGONIS

Second Respondent

AND: MICHAEL BAXTER

Third Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	12 JULY 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.   The hearsay material objected to in Mr Ishida's affidavit will not be excluded in the exercise of the Court's discretion pursuant to Order 33 rule

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G42 of 1989
QlJEENSLAND DTSTRTCT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: TRADE PRACTICES COMMISSION

Applicant

AND: SONY (AUSTRALIA) PTY LIMITED

First Respondent

AND: ALEXANDER FRANCIS PAGONIS

Second Respondent

AND: MICHAEL BAXTER

Third Respondent

PINCUS J.
BRISBANE

12 JULY 1990

EX TEMPORE REASONS FOR JUDGMENT

Objection has been taken to certain hearsay material which has been sought to be put in evidence by the first respondent, viz. part of an affidavit of a M r Ishida. The procedural history of the matter is that allegations of

between the parties, the question of penalty was reserved. contraventions were made and determined and by agreement

The approach which was taken to evidence at the first stage was necessarily, I think, relatively strict. It seems to me that there is some justification for taking rather a different view of the requirements of the laws of evidence in respect of the penalty hearing. One of the pieces of evidence objected to is a letter purporting to be signed by a former president of the first respondent, saying in substance that he did not know what was going on. It is true that the presence of the gentleman himself, or an affidavit from him, would carry more weight than does the letter. Nevertheless, the fact that he is prepared to sign a letter and is presumably a senior man in the organisation, has some weight. The problem, as to the admission of the material to which Mr Keane refers is that insofar as it is hearsay, it is hearsay which is put forward by a gentleman who took up his duties as managing director of "Sony in Australia", as he puts it, only in March this year, well after the contraventions. That necessarily affects the weight of what he says.

The course I propose to take is to exercise my powers, insofar as it is necessary, under 0.33 r.3(b), on the ground that compliance in relevant respects with the rules of evidence might occasion or involve unnecessary or unreasonable expense or delay. I do so conscious of the circumstance to which Mr Keane QC has drawn attention, that the person making the affidavit is, by reason of his lack of connection with the first respondent at relevant times, rather ill-chosen and that will, subject to any submissions made, tend to affect the weight of what he says. But I do not propose to exclude the material to which Mr Keane QC takes objection, but will let it, in the exercise of my discretion.

I certify that this and the two preceding

pages are a true copy of the reasons for

judgment herein of M r Justice Pincus.

Counsel	f o r	the A p p l i c a n t :	M r P.A. Keane QC & I&
M. S t e w a r t

S o l i c i t o r s	f o r	t h e A p p l i c a n t :	A u s t r a l i a n	Government
S o l i c i t o r

Counsel	f o r the F i r s t Respondent:	M r J.D. Heydon QC and
M r A. 3. L. Bannon

S o l i c i t o r s f o r t h e F i r s t Respondent: Blake Dawson Waldron

Counsel f o r the Second Respondent: M r P . Dutney

S o l i c i t o r s f o r t h e Second Respondent: Adamson, Bernays , K y l e

and Jones

Counsel f o r t h e Th i rd Respondent: Mr C . Hodgekiss

S o l i c i t o r s f o r the T h i r d Respondent: S l y & Weiga l l

Date o f Hearing:  12 J u l y 1990