FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 628

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LIQUORLAND (AUSTRALIA) PTY LTD AND ANOR

NSD 769 of 2003

ALLSOP J

11 MAY 2005

SYDNEY

THE COURT RULES THAT:

1. The first sentence of paragraph 52 of the statement of Mrs Barr dated 26 November 2003 be allowed.

REASONS FOR RULING

1                     Objection is taken to paragraph 52 of the statement of Mrs Barr dated 26 November 2003.  The second sentence is not read.  As to the first sentence, for the following reasons, I allow it.

2                     Section 78 deals with the exception to the inadmissibility of opinions.  It deals with lay opinions.  The terms of the section are as follows:

Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a)        the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b)        evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

3                     The opinion referred to in paragraph (a) of s 78 is required to be based on what the person saw, heard or otherwise perceived about a matter or event.

4                     The first sentence of paragraph 52 is in the following terms:

If Dry Dock Bottle Shop were able to take advantage of such promotions and discounts by placing bulk orders, it would be able to sell the same products at cheaper prices for the same profit because of the cost of buying the products would be less.

5                     Mrs Barr has personal knowledge and perception of the promotions.  She has personal knowledge and perception of the conduct of the store.  To the extent that she is seeking to give a lay opinion about the operation of the store, she is seeking to give an opinion about what would occur, were something else to occur, that is, the ability to take advantage of the promotions that she has perceived.

6                     In my view, the first limb of s 78 is sufficiently wide to encompass an opinion which is in part hypothetical.  In substance an attempt is being made here to give an opinion as to both the operation of the store and what its operation would be on a certain hypothesis.  If that opinion is based on what the person saw, heard or otherwise perceived about the matter or event, (the matter or event in these circumstances being the operation of the store and the receipt of the promotions and discount offers from liquor wholesalers referred to in the previous paragraph) it is admissible.

7                     For those reasons, I allow the first sentence of paragraph 52.

Associate:

Dated:              18 May 2005