FEDERAL COURT OF AUSTRALIA

Australian Communications and Media Authority v Bytecard Pty Ltd [2012] FCA 1191

THE COURT ORDERS THAT:

1.    The Statement of Agreed Facts tendered before the Court this day (22 October 2012), together with all of the documents referred to in that Statement, be admitted into evidence and marked as Exhibit A at the final hearing of the proceeding.

2.    The bundle of documents which was Exhibit A before Nicholas J on 26 September 2012 be admitted into evidence and marked as Exhibit B at the final hearing of the proceeding.

3.    Pursuant to s 190(3) of the Evidence Act 1995 (Cth), the following provisions of the Evidence Act, namely, Pts 2.2, 2.3 and 3.2 to 3.8, do not apply to Exhibit A.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR RULING

1    On 26 September 2012, this matter was listed before the Court upon the application of the applicant in order to deal with a problem that had arisen concerning a Statement of Agreed Facts which, save for one matter, had been agreed between the parties but had by that time not been signed. The matter came before Nicholas J who dealt with the problem to which I have referred and also reprogrammed certain outstanding interlocutory steps with a view to retaining the hearing date for the matter which had previously been fixed for today.

2    The relevant order which his Honour made on 26 September 2012 was in the following terms:

THE COURT ORDERS THAT:

1.    Subject to any other order that may be made by Foster J, the hearing of this proceeding shall take place upon the basis of the document entitled “Statement of Agreed Facts” dated 26 September 2012 being the document forming part of Exhibit A.

3    Exhibit A before his Honour comprised a bundle of documents and a proposed Statement of Agreed Facts.

4    The evidence tendered before his Honour established beyond argument that, but for the one matter to which I have referred at [1] above, the respondents had, through their solicitors, agreed that the facts stated in the Statement of Agreed Facts then in circulation were agreed for the purposes of this proceeding. Notwithstanding that agreement, neither the respondents nor their legal representatives have signed the Statement of Agreed Facts.

5    There has been tendered before me this morning a folder marked “Statement of Agreed Facts”. Included in that folder is the Statement of Agreed Facts which formed part of Exhibit A before Nicholas J on 26 September 2012 save that the one matter which was not by that date agreed has been excised from that Statement of Agreed Facts. Also included within Exhibit A as annexures to the Statement of Agreed Facts are all of the documents referred to in that Statement.

6    In the circumstances which I have outlined, I propose to admit at this final hearing the Statement of Agreed Facts tendered before me today (22 October 2012) together with all of the documents referred to in that Statement. I will mark the folder which contains those documents as Exhibit A.

7    To the extent that it may be necessary to do so, I rely upon s 191(1), (2) and (3)(b) of the Evidence Act 1995 (Cth), although I do not confine the basis upon which I have admitted Exhibit A to that section. Given that there is no real dispute as to the facts and matters proven by the documents contained in Exhibit A, I also propose to make an order pursuant to s 190(3) of the Evidence Act to the effect that Pts 2.2, 2.3 and 3.2 to 3.8 of the Evidence Act do not apply to Exhibit A. I note that the majority of the facts dealt with in Exhibit A have been admitted in the respondents’ Defence, in any event.

8    The bundle of documents which was Exhibit A before Nicholas J on 26 September 2012 will become Exhibit B.

Associate:

Dated:    30 October 2012