Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552

Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552

The Wayback materials were hearsay and did not satisfy s 69 because the archived content was the output of the Internet Archive rather than an internal business record recording its business activities; s 147 was also unavailable because it required the document to be part of, or kept for the purposes of, a business. However, the materials were likely reliable, relevant and probative, there was no genuine dispute about their accuracy, and Orica advanced only a technical objection. The Court therefore waived the hearsay rule under s 190(3)(a) and admitted the materials, limited under s 136 to proving the availability and contents of the identified website pages on particular dates and not...

Jurisdiction
Australia
Judgment Date
17 September 2019
Procedural Posture
Evidence Objection in Patent Revocation and Infringement Proceedings / Ruling on Objection to Wayback Machine Evidence on the First Day of the Substantive Hearing
Outcome
Wayback materials admitted subject to a limitation; hearsay rule waived for those materials.
Legal Topics
['hearsay' 'business Records Exception' 'wayback Machine Archived Webpages' 'waiver of Rules of Evidence' 'limitation on Use of Evidence' 'patent Obviousness']
['evidence' 'intellectual Property' 'patents'] ['hearsay' 'business Records Exception' 'wayback Machine Archived Webpages' 'waiver of Rules of Evidence' 'limitation on Use of Evidence' 'patent Obviousness']

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Procedural Posture

Evidence Objection in Patent Revocation and Infringement Proceedings / Ruling on Objection to Wayback Machine Evidence on the First Day of the Substantive Hearing

Legal Issues

  1. 1 ['Whether print-outs from archived webpages obtained through the Wayback Machine were hearsay evidence under s 59 of the Evidence Act 1995 (Cth).' 'Whether the Wayback materials qualified as business records under s 69 of the Evidence Act 1995 (Cth).' 'Whether s 147 of the Evidence Act 1995 (Cth) applied to the Wayback materials.' 'Whether the Court should dispense with the hearsay rule under s 190(3) of the Evidence Act 1995 (Cth).' 'Whether any admission of the Wayback materials should be limited under s 136 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The Wayback materials were hearsay and did not satisfy s 69 because the archived content was the output of the Internet Archive rather than an internal business record recording its business activities; s 147 was also unavailable because it required the document to be part of, or kept for the purposes of, a business. However, the materials were likely reliable, relevant and probative, there was no genuine dispute about their accuracy, and Orica advanced only a technical objection. The Court therefore waived the hearsay rule under s 190(3)(a) and admitted the materials, limited under s 136 to proving the availability and contents of the identified website pages on particular dates and not...

Court Disposition

Wayback materials admitted subject to a limitation; hearsay rule waived for those materials.

Orders

  • ['Pursuant to s 190(3) of the Evidence Act 1995 (Cth), the application of the hearsay rule under s 59 of the Act is dispensed with in relation to paragraphs 6 to 11 of the affidavit of Christopher Butler affirmed on 2 July 2019 and the evidence annexed therein (the Wayback materials).' 'The Wayback materials are...