Australian Competition & Consumer Commission v Lux Pty Ltd [2003] FCA 843

Australian Competition & Consumer Commission v Lux Pty Ltd [2003] FCA 843

Leave was granted because Mr Wolowski's unavailability was not caused by the respondents, the Hayes report potentially had probative value no less than the Wolowski report, any unfair prejudice to the applicant could be addressed by giving it an appropriate opportunity to respond, the report was not shown to create a sufficient danger of being misleading or confusing or to cause undue waste of time, and substitution would give the parties certainty about the future progress of the trial.

Jurisdiction
Australia
Judgment Date
01 August 2003
Procedural Posture
Notice of Motion / Interlocutory Application During a Substantially Progressed Trial for Leave to File and Serve an Expert Witness Statement
Outcome
Leave granted to the respondents to file and serve the expert witness statement of Associate Professor Susan Hayes; matter set down for directions; costs in the cause.
Legal Topics
['expert Evidence' 'substitution of Expert Witness' 'leave to File and Serve Witness Statement' 'unavailability of Witness' 'evidence Act 1995 (cth) S 135']
['procedure' 'evidence'] ['expert Evidence' 'substitution of Expert Witness' 'leave to File and Serve Witness Statement' 'unavailability of Witness' 'evidence Act 1995 (cth) S 135']

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Procedural Posture

Notice of Motion / Interlocutory Application During a Substantially Progressed Trial for Leave to File and Serve an Expert Witness Statement

Legal Issues

  1. 1 ["Whether the respondents should be given leave to file and serve an expert witness statement from Associate Professor Susan Hayes based upon her report dated 27 May 2003 in substitution for Mr Wolowski's expert evidence." 'Whether, by reference to Evidence Act 1995 (Cth) s 135 as a guide, the likely probative value of the Hayes report was substantially outweighed by unfair prejudice to the applicant, the danger of being misleading or confusing, or undue waste of time.']

Ratio Decidendi

Leave was granted because Mr Wolowski's unavailability was not caused by the respondents, the Hayes report potentially had probative value no less than the Wolowski report, any unfair prejudice to the applicant could be addressed by giving it an appropriate opportunity to respond, the report was not shown to create a sufficient danger of being misleading or confusing or to cause undue waste of time, and substitution would give the parties certainty about the future progress of the trial.

Court Disposition

Leave granted to the respondents to file and serve the expert witness statement of Associate Professor Susan Hayes; matter set down for directions; costs in the cause.

Orders

  • ['The respondents to be given leave to file and serve an expert witness statement from Associate Professor Susan Hayes based upon her report dated 27 May 2003.' 'The matter be set down for directions on 26 August 2003 at 11.30 am.' 'Costs be in the cause.']