Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 949

Australian Competition and Consumer Commission v Lux Pty Limited [2003] FCA 949

Section 136 must be applied according to its terms. It does not introduce the s 135 test and does not justify giving evidence no weight; weight is determined at closing. After admission, s 136 may still be used if later trial developments show that a particular use of evidence would be unfairly prejudicial,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 September 2003
Procedural Posture
Civil Proceeding; Evidence Ruling / Ruling on the Applicant's Objections Seeking Exclusion or Limitation of Evidence Already Before the Court
Outcome
Applicant's objections resolved in accordance with the rulings; some evidence was limited or excluded as unfairly prejudicial or confusing, and other limitations were refused.
Legal Topics
['evidence Act 1995 (cth) Ss 135 and 136' 'limitation of Use of Evidence' 'expert Evidence' 'joint Expert Report' 'unfair Prejudice' 'misleading or Confusing Evidence' 'cross Examination of Unavailable Expert Witness']
['evidence' 'civil Procedure'] ['evidence Act 1995 (cth) Ss 135 and 136' 'limitation of Use of Evidence' 'expert Evidence' 'joint Expert Report' 'unfair Prejudice' 'misleading or Confusing Evidence' 'cross Examination of Unavailable Expert Witness']

Source-derived case record

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Procedural Posture

Civil Proceeding; Evidence Ruling / Ruling on the Applicant's Objections Seeking Exclusion or Limitation of Evidence Already Before the Court

Legal Issues

  1. 1 ['Whether s 136 of the Evidence Act 1995 (Cth) supports complete limitation or exclusion from use of previously admitted evidence.' 'Whether s 136 can be invoked after evidence has been admitted where later developments in the trial arise.' "Whether portions of evidence referring to the respondents' unavailable expert or the joint expert report should be limited because they are unfairly prejudicial, misleading or confusing."]

Ratio Decidendi

Section 136 must be applied according to its terms. It does not introduce the s 135 test and does not justify giving evidence no weight; weight is determined at closing. After admission, s 136 may still be used if later trial developments show that a particular use of evidence would be unfairly prejudicial, misleading or confusing. Applying those criteria, some transcript passages referring to Mr Wolowski or his unavailable opinions were limited or excluded, while other passages were not limited because the statutory criteria were not made out or because use was already limited to Ms Murphy's opinion.

Court Disposition

Applicant's objections resolved in accordance with the rulings; some evidence was limited or excluded as unfairly prejudicial or confusing, and other limitations were refused.

Orders

  • ["The Applicant's objections to evidence made in written submissions filed 10 June 2003 be resolved in accordance with the rulings in the attached reasons for decision."]