Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265

Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265

Leave to file the affidavit was refused because annexure AG 1 was created by Mr Gilfedder for use in the proceeding and did not form part of Fintrax's business records for the purposes of s 48(1)(e), and the extracted data was a representation prepared for or in connection with a proceeding so that s 69 did not take it outside the hearsay rule. The Court also considered the evidence late, insufficient as to timing, not shown to address sufficiency, and in any event excludable under s 135 because its probative value would be substantially outweighed by the danger of misleading or confusing the issues or causing undue waste of time.

Jurisdiction
Australia
Judgment Date
11 March 2014
Procedural Posture
Ruling on Leave to File Affidavit in Patent Proceedings / At the Commencement of the Hearing on 10 March 2014
Outcome
Leave to file the affidavit of Anthony John Gilfedder affirmed 9 March 2014 was refused.
Legal Topics
['leave to File Affidavit' 'hearsay Rule' 'business Records Exception' 'proof of Contents of Documents' 'discretionary Exclusion of Evidence' 'sufficiency of Amended Specification']
['evidence' 'civil Procedure' 'patents'] ['leave to File Affidavit' 'hearsay Rule' 'business Records Exception' 'proof of Contents of Documents' 'discretionary Exclusion of Evidence' 'sufficiency of Amended Specification']

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Procedural Posture

Ruling on Leave to File Affidavit in Patent Proceedings / At the Commencement of the Hearing on 10 March 2014

Legal Issues

  1. 1 ['Whether the second applicant should be granted leave to file the affidavit of Anthony John Gilfedder affirmed 9 March 2014.' 'Whether extracted data from the Fintrax database was admissible as a business record or by tendering an extract under the Evidence Act 1995 (Cth).' 'Whether the affidavit evidence was filed too late and adequately addressed the timing and issues in the proceeding.' 'Whether the evidence should be excluded because its probative value was substantially outweighed by the danger that it might be misleading or confusing or cause or result in undue waste of time.']

Ratio Decidendi

Leave to file the affidavit was refused because annexure AG 1 was created by Mr Gilfedder for use in the proceeding and did not form part of Fintrax's business records for the purposes of s 48(1)(e), and the extracted data was a representation prepared for or in connection with a proceeding so that s 69 did not take it outside the hearsay rule. The Court also considered the evidence late, insufficient as to timing, not shown to address sufficiency, and in any event excludable under s 135 because its probative value would be substantially outweighed by the danger of misleading or confusing the issues or causing undue waste of time.

Court Disposition

Leave to file the affidavit of Anthony John Gilfedder affirmed 9 March 2014 was refused.

Orders

  • ['In NSD 1517 of 2007, leave to file the affidavit of Anthony John Gilfedder affirmed 9 March 2014 be refused.' 'In NSD 2247 of 2011, leave to file the affidavit of Anthony John Gilfedder affirmed 9 March 2014 be refused.']