Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd & Anor (No 7) [2012] NSWSC 384

Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd & Anor (No 7) [2012] NSWSC 384

The seven tax invoices appeared authentic and admissible as business records and were not excluded under s 135, subject to a reserved discovery issue. The 877 pages of point of sale records, and extracts from them, were rejected under s 135 because tendering them on the last day of evidence without proof of authenticity or adequate opportunity for the Cross-Defendants to investigate or cross-examine would be unfairly prejudicial and a further adjournment was not appropriate. The balance of Mr Vella's report was admitted only subject to a s 136 limitation that it did not prove its assumptions or instructions.

Jurisdiction
Australia
Judgment Date
13 April 2012
Procedural Posture
Interlocutory Applications / Applications to Tender Documents in Course of Trial
Outcome
Rulings on tenders made: tax invoices allowed subject to reserved discovery issue; point of sale records and extracts rejected; balance of expert report admitted subject to limitation.
Legal Topics
['tender of Documents' 'business Records' 'discretionary Exclusion' 'expert Reports' 'limiting Orders' 'discovery Obligations']
['practice and Procedure' 'evidence'] ['tender of Documents' 'business Records' 'discretionary Exclusion' 'expert Reports' 'limiting Orders' 'discovery Obligations']

Case Brief

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Procedural Posture

Interlocutory Applications / Applications to Tender Documents in Course of Trial

Legal Issues

  1. 1 ["Whether seven tax invoices referred to in Mr Vella's report should be admitted or excluded because of unfair prejudice or any breach of discovery obligations." 'Whether 877 pages of point of sale records tendered during cross-examination of Mr Vella should be admitted.' 'Whether extracts and a summary schedule from the point of sale records should be admitted.' "Whether the balance of Mr Vella's report should be admitted and, if so, subject to a limiting order."]

Ratio Decidendi

The seven tax invoices appeared authentic and admissible as business records and were not excluded under s 135, subject to a reserved discovery issue. The 877 pages of point of sale records, and extracts from them, were rejected under s 135 because tendering them on the last day of evidence without proof of authenticity or adequate opportunity for the Cross-Defendants to investigate or cross-examine would be unfairly prejudicial and a further adjournment was not appropriate. The balance of Mr Vella's report was admitted only subject to a s 136 limitation that it did not prove its assumptions or instructions.

Court Disposition

Rulings on tenders made: tax invoices allowed subject to reserved discovery issue; point of sale records and extracts rejected; balance of expert report admitted subject to limitation.

Orders

  • ["The parties' solicitors were directed to advise the Court in a joint document by 4.00pm on Friday, 20 April whether the documents comprised in Exhibit D97 and tab A44 to Exhibit D66 were discovered, and to include any submissions as to whether the documents were discoverable." 'The question of exclusion of the tax...