FEDERAL COURT OF AUSTRALIA

McHugh v Australian Jockey Club Limited (No 11) [2011] FCA 1247

REASONS FOR RULING

1    These are my rulings on the documentary issues which were the subject of submissions on 27 October and 28 October 2011.

2    As to the outstanding documents in dispute and addressed by the fifth respondent, these are listed in MFI 66 and consist of:

(i)    the disc of material underlying the Lidums report, the disc being KMR 10 to the first affidavit of Mr Rodgers sworn on 14 October 2011:

This material was tendered by the applicant. It is not the subject of objection to the extent it is tendered to prove the facts and figures analysed in the reports of Mr Lidums and I admit it on that basis.

3    The applicant also seeks to reserve his position on whether he will, in submissions, seek to rely on other information or analysis from that disc. I defer that aspect of the matter until and unless that occurs. Correspondingly, the fifth respondent reserves its position to argue that any such future uses cause prejudice to it.

(ii)    MFI 58 to MFI 63:

4    Mr Messara was cross-examined on this material and he was the author of it. His cross-examination was limited to his opinions. In other words, with the exception of MFI 63, which I shall consider separately, none of the evidence he gave was admitted as the truth of the underlying facts. However, this material is sought to be tendered by the applicant on the basis that it is evidence of publication only. According to counsel for the applicant, this maintains a distinction between the expression of an opinion and whether Mr Messara held that opinion at the time of the writing of this material.

5    The respondents submit that the admission of these documents should not be limited in that way, that is, as evidence of publication only. The respondents accept that this would not prejudice the applicant’s ability to argue that particular statements were irrelevant or should be accorded little or no weight. In this respect, the respondents drew particular attention to certain parts of MFI 58 and MFI 61 and submitted that that material should be admitted to evidence the dominance of the Danzig/Danehill line amongst the stallions who serve the largest number of mares in Australia.

6    Because Mr Messara was cross-examined on these documents and it was not put to him that the opinions he there expressed were not the opinions he held and indeed, the assumption of at least many of the questions was that he had then held those opinions, some of which he had later modified, I admit this material as evidencing Mr Messara’s opinions. There was a reference in submissions to the admission of, on a limited basis, the material put to Mr Saunders in cross-examination but I contrast that cross-examination where the articles he had earlier written were put to him as going to credit, that is, to his partiality.

7    I do not admit Mr Messara’s conclusions on the gene pool question as evidence of the underlying facts. They were not tendered on that basis.

8    As to the extended use of parts of MFI 58 and MFI 61 by the respondents to evidence the dominance of the Danzig/Danehill line I will admit it but without prejudice to the applicant’s ability to argue that the level of generality and thus remoteness from Mr Messara’s knowledge of primary facts, at which the particular statement is sought to be used would make it of little or no weight. I also note the submission that Mr Messara was not cross-examined on or re-examined on these parts of the documents.

9    This leaves the relevance of MFI 63 which consisted of two paragraphs from an affidavit sworn in these proceedings by Mr Messara but directed to an interlocutory purpose, that is, the joinder of the Thoroughbred Breeders Australia Limited ("TBA") as a party. This was tendered by the applicant as going beyond publication but as relevant to the gene-pool issue and how the TBA could have, on the applicant’s submission, but did not deal with that issue in the litigation. I admit that material.

10    As to the outstanding documents in dispute listed in MFI 66 and addressed by all of the respondents, including the fifth respondent:

(iii)    a bundle of documents relating to reinforcement marked MFI 67:

11    Six of the documents in MFI 67 are contained in the Tender Bundle. Seven of them are not. Chronologically the two classes of documents begin on 31 October 2006 and end on 14 September 2007. It is common ground that Mr Messara was not cross-examined on this material. One of the objections to this material is relevance.

12    Subject to relevance and subject to any specific prejudice to the respondents, I will provisionally admit the six documents that are in the Tender Bundle. I will revisit this conclusion once the way in which the applicant seeks to use the material becomes apparent from his submissions. If the use seeks to go beyond what is apparent from the documents and the applicant asks me to draw inferences which the respondents have not had an opportunity to answer it is unlikely that I will permit that use.

13    As to the seven documents not presently included in the tender bundle, I admit them on the same provisional basis. I note that of the two TBA board meeting minutes, one of 13 April 2007 and one of 14 September 2007, as to the former only item 6 on page 5 has any apparent relevance and as to the latter, only item 7 on page 6 has any apparent relevance.

14    As to the outstanding documents addressed by the third respondent, these are listed in MFI 70, consisting of:

(i)    three emails which form part of MFI 56, that is only items 1, 3 and 4 of MFI 56 were tendered.

(ii)    paragraph 2(f) and KMR6 of the first affidavit of Kevin Rodgers sworn on 14 October, there being no objection to the balance of that affidavit. I also note that the first page of KMR6 is the same as the first page of MFI 56, with the result that only items 1, 3 and 4 of the first page of KMR6 were tendered.

(iii)    the entirety of the second affidavit of Kevin Rodgers sworn on 14 October 2011, and lastly

(iv)    the entirety of the affidavit sworn by Kevin Rodgers on 27 October 2011 was also in dispute.

15    The primary basis of objection by the respondents to this material was relevance. Related to that submission was the contention that material in MFI 56 should be excluded under s 135 of the Evidence Act 1995 (Cth). There was a further objection, on the basis of inconsistency with a claim for legal professional privilege, to that part of the material that was a schedule of documents prepared by the third respondent for the purpose of advancing a claim of privilege in respect of a category the subject of a notice to produce by the applicant, access to which category was subsequently not pressed by the applicant. I deal here with all of these matters by reference to MFI 56 because the balance of the material that I have listed depends for its relevance on MFI 56.

16    I shall not at this time, divorced from other surrounding facts, exclude this material on the basis of relevance and I therefore admit it. The applicant submits that the material shows that the named overseas authorities were contacted but only two of them gave evidence in relation to an issue raised in the respondents’ defences. I will be asked in due course to draw a Jones v Dunkel (1958) 101 CLR 298 inference but that will be in the context of all the surrounding facts. In my view, I should not anticipate whether ultimately I will draw that inference or not. There should be, in final submissions, competing contentions on each side as to whether the circumstances are appropriate for the drawing of such an inference.

17    I do not now rule on the submission that an inference of this kind is not available where a basis for it as a document brought into existence for the purposes of a claim by that party for legal professional privilege in respect of documentary communications. That matter can also be addressed in final submissions.

18    I reject the submission that I should exclude this material under s 135.

19    As to the outstanding documents in dispute which were addressed by the first, second and sixth respondents. The first of these was:

(i)    MFI 68, a topic index to a bundle of media articles, the bundle being MFI 49:

20    MFI 49 was tendered by the respondents as publications on the basis that publicity about certain matters was sufficient to justify admissibility. It was also said, as part of that proposition, that there were a number of instances where there was evidence linked to the articles. I note the applicant’s relevance objection. I admit this material on the basis that it is not tendered to prove any underlying fact.

(ii)    MFI 69 dealt with the documents referenced in the report of Mr Houston dated 22 June 2011. Only one document remaining in dispute which was document 24 in MFI 64 which was an extract or extracts from a paper by Renee Geelen called "Foal Wastage in the Australian Thoroughbred Industry", February 2011.

21    At pages 1870 and 1871 of the transcript I had rejected the tender of this paper by Renee Geelen as tendered to prove the facts in it. When I say I had rejected it, ultimately the tender of the paper by Renee Geelen was not pressed, on the basis though I had admitted paragraphs 34 and following of the affidavit of Mr Ford which summarised some of the Geelen material.

22    There was no objection on behalf of the applicant to the extent, if at all, that this material was the same as that referred to in Mr Ford’s paragraphs. My provisional view is that it is not the same as the material referred to in Mr Ford’s paragraphs.

23    On that basis and to the extent that it is not the same material, I reject pages 3, 17, 23, 27, 29 and 30, as highlighted of the Geelen material, being that which is referred to in paragraphs 100 and 104 of Mr Houston’s report of 22 June 2011. Those pages from the Geelen report which I have referred to detail data extracted from other material which is not in evidence. Further, Ms Geelen was not called. Thus, this material at either level is unable to be tested and that is the basis on which I reject those pages.

24    I also note, in respect of MFI 64, that the documents at tabs 30 and 31 of MFI 64 were not pressed.

(iii)    An extensive schedule relating to the Tender Bundle.

25    The very last matter is the extensive schedule relating to the Tender Bundle which, because time did not permit, was not the subject of oral submissions last Friday.

26    There are, I was informed, some 150 documents in dispute as listed in a document entitled "Schedule of Documentary Issues in Dispute between the Applicant and the First, Second and Sixth Respondents" which I now mark as MFI 72.

27    The parties agreed I should defer ruling on these documents until it could be seen how the parties, particularly the applicant, sought to use these documents in submissions. In my view, although not orthodox, this is a necessary approach in the circumstances and I defer ruling on the admissibility of these documents until those submissions are made. Those submissions should state whether the objections in that schedule, that is MFI 72, are maintained.

Associate:

Dated:    4 November 2011