National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 2) [2006] FCA 1717

National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 2) [2006] FCA 1717

Paragraph 62(i) of the second applicant's affidavit is inadmissible as it constitutes opinion evidence that does not fall within any exception under the Evidence Act, and, even if it were admissible, it would be excluded under s 135; additionally, the deponent was not competent to express an opinion about the corporate purpose or conduct.

Parties
First Applicant: National Auto Glass Supplies (Australia) Pty Limited ACN 081 814 342; Second Applicant: Maggie Yeung Lo; Third Applicant: Harvey Hui Ouyang; First Respondent: Nielsen & Moller Autoglass (NSW) Pty Limited ACN 107 721 595; Second Respondent: Jack J Moller; Third Respondent: Carl Moller
Jurisdiction
Australia
Judgment Date
06 December 2006
Procedural Posture
Civil / Ruling on Evidentiary Objection During Trial
Outcome
Objection to paragraph 62(i) of second applicant's affidavit upheld; evidence rejected.
Legal Topics
Admissibility of Opinion Evidence, Trade Practices Act, Fair Trading Act, Defamation (imputation/opinion)
Evidence Trade Practices Defamation Admissibility of Opinion Evidence Trade Practices Act Fair Trading Act Defamation (imputation/opinion)

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Parties

National Auto Glass Supplies (Australia) Pty Limited ACN 081 814 342

First Applicant

Maggie Yeung Lo

Second Applicant

Harvey Hui Ouyang

Third Applicant

Nielsen & Moller Autoglass (NSW) Pty Limited ACN 107 721 595

First Respondent

Jack J Moller

Second Respondent

Carl Moller

Third Respondent

Procedural Posture

Civil / Ruling on Evidentiary Objection During Trial

Legal Issues

  1. 1 Whether paragraph 62(i) of the second applicant's affidavit is admissible as evidence
  2. 2 Whether the statement in paragraph 62(i) constitutes inadmissible opinion evidence under s 76 Evidence Act 1995 (Cth)

Ratio Decidendi

Paragraph 62(i) of the second applicant's affidavit is inadmissible as it constitutes opinion evidence that does not fall within any exception under the Evidence Act, and, even if it were admissible, it would be excluded under s 135; additionally, the deponent was not competent to express an opinion about the corporate purpose or conduct.

Court Disposition

Objection to paragraph 62(i) of second applicant's affidavit upheld; evidence rejected.

Orders

  • The objection to paragraph 62(i) of the affidavit of the second applicant sworn 30 October 2006 be upheld.
  • The evidence contained in the said paragraph 62(i) be rejected.