Beadcrete Pty Ltd v Fei Yu trading as Jewels 4 Pools [2012] FCA 1091

Beadcrete Pty Ltd v Fei Yu trading as Jewels 4 Pools [2012] FCA 1091

Leave to admit Mr Mahaffey's affidavit as experimental proof should be refused because of significant forensic prejudice arising from non-compliance with r 34.50(1), lack of opportunity for the applicants to observe or participate in the experiments (which destroyed the samples), and absence of sufficient explanation for the delay in seeking leave. The discretionary factors weigh heavily against admission of the evidence.

Parties
First Applicant: Beadcrete Pty Ltd (ACN 071 743 961); Second Applicant: Designer Concrete Coatings Pty Ltd (ACN 102 760 234); Third Applicant: Buyrite Steel Supplies Pty Ltd (ACN 053 173 041); Fourth Applicant: Designerite Pty Ltd (ACN 146 670 706); First Respondent: Fei Yu trading as Jewels 4 Pools; Second Respondent: Jeffrey Stuart McAlister; Third Respondent: Pebble Masters Pty Ltd (ACN 087 540 734); Fourth Respondent: Twin Coast Pools Pty Ltd (ACN 104 149 484); Fifth Respondent: Melken Developments Pty Ltd trading as Bayside Pools & Paving (ACN 052 945 169); Sixth Respondent: Grin Distributions Pty Ltd (ACN 133 541 563)
Jurisdiction
Australia
Judgment Date
04 October 2012
Procedural Posture
Application for Leave to Tender Affidavit as Experimental Proof Under Federal Court Rules 2011 / Interlocutory Application for Leave to Tender Evidence
Outcome
Leave to tender the report of Mr Mahaffey refused
Legal Topics
Admissibility of Experimental Proof, Federal Court Rules 2011 R 34.50, Discretion to Grant Leave for Late Tender of Experimental Evidence
Evidence Admissibility of Experimental Proof Federal Court Rules 2011 R 34.50 Discretion to Grant Leave for Late Tender of Experimental Evidence

Case Brief

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Parties

Beadcrete Pty Ltd (ACN 071 743 961)

First Applicant

Designer Concrete Coatings Pty Ltd (ACN 102 760 234)

Second Applicant

Buyrite Steel Supplies Pty Ltd (ACN 053 173 041)

Third Applicant

Designerite Pty Ltd (ACN 146 670 706)

Fourth Applicant

Fei Yu trading as Jewels 4 Pools

First Respondent

Jeffrey Stuart McAlister

Second Respondent

Pebble Masters Pty Ltd (ACN 087 540 734)

Third Respondent

Twin Coast Pools Pty Ltd (ACN 104 149 484)

Fourth Respondent

Melken Developments Pty Ltd trading as Bayside Pools & Paving (ACN 052 945 169)

Fifth Respondent

Grin Distributions Pty Ltd (ACN 133 541 563)

Sixth Respondent

Procedural Posture

Application for Leave to Tender Affidavit as Experimental Proof Under Federal Court Rules 2011 / Interlocutory Application for Leave to Tender Evidence

Legal Issues

  1. 1 Whether evidence by affidavit constituting experimental proof may be admitted despite non-compliance with r 34.50(1) of the Federal Court Rules 2011
  2. 2 Whether leave should be granted under r 34.50(2)(b) for late tender of such evidence

Ratio Decidendi

Leave to admit Mr Mahaffey's affidavit as experimental proof should be refused because of significant forensic prejudice arising from non-compliance with r 34.50(1), lack of opportunity for the applicants to observe or participate in the experiments (which destroyed the samples), and absence of sufficient explanation for the delay in seeking leave. The discretionary factors weigh heavily against admission of the evidence.

Court Disposition

Leave to tender the report of Mr Mahaffey refused

Orders

  • Leave to the tender of the report of Mr Mahaffey be refused.