Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1560

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1560

Tibra's objections were rejected because an O 15A r 6 preliminary discovery application is directed to whether Optiver has reasonable cause to believe it may have a cause of action, not to final factual determinations; the application is interlocutory in nature, so the rules of evidence do not apply with the same rigidity as on a final hearing; and, in any event, strict application of hearsay and opinion rules at this preliminary stage would cause undue expense and delay and would warrant dispensing with those rules under s 190(3)(b) of the Evidence Act 1995 (Cth).

Jurisdiction
Australia
Judgment Date
12 October 2007
Procedural Posture
Application for Preliminary Discovery Under O 15 a R 6 of the Federal Court Rules 1979 (cth) / Ruling on Respondents' Objections to Affidavit Evidence
Outcome
Respondents' objections to Optiver's evidence were not sustained.
Legal Topics
['preliminary Discovery' 'admissibility of Evidence' 'reasonable Cause to Believe' 'interlocutory Applications' 'hearsay Evidence' 'opinion Evidence' 'discretion to Dispense With Rules of Evidence']
['practice and Procedure' 'evidence'] ['preliminary Discovery' 'admissibility of Evidence' 'reasonable Cause to Believe' 'interlocutory Applications' 'hearsay Evidence' 'opinion Evidence' 'discretion to Dispense With Rules of Evidence']

Case Brief

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Procedural Posture

Application for Preliminary Discovery Under O 15 a R 6 of the Federal Court Rules 1979 (cth) / Ruling on Respondents' Objections to Affidavit Evidence

Legal Issues

  1. 1 ["Whether the respondents' objections to evidence filed by affidavit by the applicant were sustainable." 'Whether evidence on an application for preliminary discovery under O 15A r 6 must be in a form admissible on a final hearing.' 'Whether an application for preliminary discovery under O 15A r 6 is interlocutory in nature.' 'Whether the Court should dispense with rules of evidence under s 190(3)(b) of the Evidence Act 1995 (Cth) where strict application would cause undue expense or delay.']

Ratio Decidendi

Tibra's objections were rejected because an O 15A r 6 preliminary discovery application is directed to whether Optiver has reasonable cause to believe it may have a cause of action, not to final factual determinations; the application is interlocutory in nature, so the rules of evidence do not apply with the same rigidity as on a final hearing; and, in any event, strict application of hearsay and opinion rules at this preliminary stage would cause undue expense and delay and would warrant dispensing with those rules under s 190(3)(b) of the Evidence Act 1995 (Cth).

Court Disposition

Respondents' objections to Optiver's evidence were not sustained.

Orders

  • ['The objections to evidence based on the grounds referred to in these reasons are disallowed.' "The matter be stood over until Optiver's application for preliminary discovery is to be heard, on a date to be fixed by the parties with the judge's associate."]