The Builders Warehouse Group Ltd T/as Campbells Hardware and Timber v Multinail Australia Pty Ltd & Ors [1995] FCA 164

The Builders Warehouse Group Ltd T/as Campbells Hardware and Timber v Multinail Australia Pty Ltd & Ors [1995] FCA 164

The Court granted the uncontested amendment but declined to make the requested pre-trial direction concerning tender of Mr Robertson's statement because it would not resolve any present issue, the statement was not then being tendered, any declaration would remain subject to the trial judge's admissibility ruling, exclusion of the evidence was not shown to require further amendment, and the asserted need to recast other witnesses' evidence was not apparent.

Jurisdiction
Australia
Judgment Date
24 March 1995
Procedural Posture
Application and Cross Claims / Interlocutory Motions for Leave to Amend, Directions as to Admissibility, and Strike Out
Outcome
Leave to amend granted; requested direction as to tender of deceased witness statement declined; respondent's strike out motion adjourned; costs ordered and otherwise reserved.
Legal Topics
['admissibility of Statement by Deceased Witness' 'hearsay' 'business Documents' 'leave to Amend Statement of Claim' 'directions Before Trial' 'strike Out Motion' 'costs']
['practice and Procedure' 'evidence'] ['admissibility of Statement by Deceased Witness' 'hearsay' 'business Documents' 'leave to Amend Statement of Claim' 'directions Before Trial' 'strike Out Motion' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application and Cross Claims / Interlocutory Motions for Leave to Amend, Directions as to Admissibility, and Strike Out

Legal Issues

  1. 1 ['Whether leave should be granted to the applicant cross-respondent to file and serve a further amended statement of claim.' "Whether the Court should make a pre-trial direction that the applicant cross-respondent may tender the deceased Mr Robertson's statement at trial and dispense with filing it in affidavit form." 'Whether there was utility in ruling on admissibility before the statement was tendered at trial.' "What costs orders should be made on the amendment, directions application, and respondent's strike out motion."]

Ratio Decidendi

The Court granted the uncontested amendment but declined to make the requested pre-trial direction concerning tender of Mr Robertson's statement because it would not resolve any present issue, the statement was not then being tendered, any declaration would remain subject to the trial judge's admissibility ruling, exclusion of the evidence was not shown to require further amendment, and the asserted need to recast other witnesses' evidence was not apparent.

Court Disposition

Leave to amend granted; requested direction as to tender of deceased witness statement declined; respondent's strike out motion adjourned; costs ordered and otherwise reserved.

Orders

  • ['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 applicant pay the respondent's costs occasioned by the amendment and the respondent's costs of and...