Goodman Fielder Pte Ltd v Conga Foods Pty Ltd [2019] FCA 2053

Goodman Fielder Pte Ltd v Conga Foods Pty Ltd [2019] FCA 2053

Annexures BDA-2 to BDA-9 were extracted from the Quantium CheckOut database and prepared in separate form for the purposes of the present litigation, so they were excluded by s 69(3) and were not admissible under the business records exception. Section 48(1)(d) did not overcome the hearsay rule because it concerns a method of adducing contents, not admissibility. Paragraphs 23 to 34, which relied on those annexures, were inadmissible because their factual basis had not been proved. Annexure BDA-1 was prepared in the ordinary course of business for an internal workshop and was admissible under s 69(2), with its probative value not substantially outweighed by unfairness to the respondents.

Jurisdiction
Australia
Judgment Date
03 December 2019
Procedural Posture
Trade Marks Proceeding Concerning Alleged Infringement and a Cross Claim for Cancellation of Trade Marks / At the Commencement of the Hearing, Application for Leave to Rely on Affidavit Evidence and Determination of Evidentiary Objections
Outcome
Leave to rely on paragraphs 23 to 34 of the affidavit of Brett Darren Allan affirmed on 20 November 2019, and annexures BDA-2 to BDA-9, was refused; annexure BDA-1 and paragraphs 1 to 22 of the affidavit were admitted.
Legal Topics
['hearsay' 'business Records Exception' 'evidence Prepared for Litigation' 'admissibility of Database Extracts' 'unfair Prejudice']
['evidence' 'intellectual Property' 'trade Marks'] ['hearsay' 'business Records Exception' 'evidence Prepared for Litigation' 'admissibility of Database Extracts' 'unfair Prejudice']

Case Brief

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Procedural Posture

Trade Marks Proceeding Concerning Alleged Infringement and a Cross Claim for Cancellation of Trade Marks / At the Commencement of the Hearing, Application for Leave to Rely on Affidavit Evidence and Determination of Evidentiary Objections

Legal Issues

  1. 1 ['Whether hearsay materials in annexures BDA-2 to BDA-9 were admissible as business records under s 69(2) of the Evidence Act 1995 (Cth).' 'Whether s 69(3) of the Evidence Act 1995 (Cth) excluded annexures BDA-2 to BDA-9 because they were prepared for the purposes of the proceeding.' 'Whether s 48(1)(d) of the Evidence Act 1995 (Cth) provided a route to adduce the extracted database materials.' 'Whether s 135 of the Evidence Act 1995 (Cth) justified exclusion on the basis of unfair prejudice.' 'Whether annexure BDA-1 was admissible as a business record.']

Ratio Decidendi

Annexures BDA-2 to BDA-9 were extracted from the Quantium CheckOut database and prepared in separate form for the purposes of the present litigation, so they were excluded by s 69(3) and were not admissible under the business records exception. Section 48(1)(d) did not overcome the hearsay rule because it concerns a method of adducing contents, not admissibility. Paragraphs 23 to 34, which relied on those annexures, were inadmissible because their factual basis had not been proved. Annexure BDA-1 was prepared in the ordinary course of business for an internal workshop and was admissible under s 69(2), with its probative value not substantially outweighed by unfairness to the respondents.

Court Disposition

Leave to rely on paragraphs 23 to 34 of the affidavit of Brett Darren Allan affirmed on 20 November 2019, and annexures BDA-2 to BDA-9, was refused; annexure BDA-1 and paragraphs 1 to 22 of the affidavit were admitted.

Orders

  • ['Leave to rely on paragraphs 23 to 34 of the affidavit of Brett Darren Allan affirmed on 20 November 2019, and annexures BDA-2 to BDA-9, be refused.']