Legge v Universal Hospitality Group Pty Limited (No 2) [2020] NSWSC 1411

Legge v Universal Hospitality Group Pty Limited (No 2) [2020] NSWSC 1411

The disputed categories of evidence could not be tendered because, although some internet promotional material met the low threshold of relevance, the disputed material was hearsay and no applicable exception was established; the Pont material beyond his own observations was hearsay, unauthorised admission evidence or opinion with slight probative value substantially outweighed by prejudice; the YouTube material was hearsay and unsupported by evidence bringing it within a business records exception; and the Wayback Machine material was hearsay with no evidentiary basis that it was a business record.

Jurisdiction
Australia
Judgment Date
13 October 2020
Procedural Posture
Procedural Ruling on Admissibility of Evidence in Proceedings Involving an Insurance Indemnity Issue / During Cross Examination in the Separate Preliminary Determination of Questions Concerning Universal 1919's Duty of Disclosure, Alleged Misrepresentation and Neon's Entitlement Under S 28 of the Insurance Contracts Act 1984 (cth)
Outcome
The four categories of evidence in issue were not admissible and could not be tendered, apart from the extracted photographs and description of Mr Pont's own observations that had been tendered by consent or without opposition.
Legal Topics
['admissibility' 'relevance' 'hearsay' 'admissions' 'business Records' 'insurance Duty of Disclosure' 'insurance Misrepresentation' 'preliminary Determination']
['evidence' 'insurance Law' 'civil Procedure'] ['admissibility' 'relevance' 'hearsay' 'admissions' 'business Records' 'insurance Duty of Disclosure' 'insurance Misrepresentation' 'preliminary Determination']

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Procedural Posture

Procedural Ruling on Admissibility of Evidence in Proceedings Involving an Insurance Indemnity Issue / During Cross Examination in the Separate Preliminary Determination of Questions Concerning Universal 1919's Duty of Disclosure, Alleged Misrepresentation and Neon's Entitlement Under S 28 of the Insurance Contracts Act 1984 (cth)

Legal Issues

  1. 1 ["Whether Mr Pont's affidavit, investigation report and annexures, apart from extracted photographs and a description of his observations, were admissible." 'Whether promotional or advertising material printed from the internet was admissible to prove that the Civic Hotel or Civic Underground was marketed or operated as a nightclub.' 'Whether YouTube videos and screenshots were admissible to prove that nightclub-style events occurred at Civic Underground.' 'Whether blogs and Wayback Machine material were admissible.']

Ratio Decidendi

The disputed categories of evidence could not be tendered because, although some internet promotional material met the low threshold of relevance, the disputed material was hearsay and no applicable exception was established; the Pont material beyond his own observations was hearsay, unauthorised admission evidence or opinion with slight probative value substantially outweighed by prejudice; the YouTube material was hearsay and unsupported by evidence bringing it within a business records exception; and the Wayback Machine material was hearsay with no evidentiary basis that it was a business record.

Court Disposition

The four categories of evidence in issue were not admissible and could not be tendered, apart from the extracted photographs and description of Mr Pont's own observations that had been tendered by consent or without opposition.

Orders

  • ["The balance of Mr Pont's affidavit, investigation report and annexures was excluded." 'The promotional or advertising material in MFIs 5 and 6 was rejected.' 'The YouTube videos and screenshots in MFI 7 were rejected.' 'The blog material was not pressed.' 'The Wayback Machine material was excluded.']