FEDERAL COURT OF AUSTRALIA

Axent Holdings Pty Ltd v Compusign Australia Pty Ltd (No 5) [2018] FCA 675

RULING (REVISED FROM TRANSCRIPT)

1    During the course of the trial in these proceedings, there was a ruling on 27 April 2018 that was not included in the daily transcript. This ruling was noted in the transcript of 27 April 2018 at page 311, line 35 merely as “JUDGMENT DELIVERED”.

2    Chambers staff subsequently made enquiries of the transcript provider to obtain a transcribed copy of the ruling. The ruling, which has been revised from transcript, is reproduced below.

ruling made on 27 april 2018

3    In his affidavit filed on 8 September 2017, Mr Sozio deposed that he has located computer-aided drawings amongst Hi-Lux’s records and that these drawings were given to him by Mr Robin Trebilcock. Mr Sozio further deposed that Mr Trebilcock and Mr Sozio worked together at AWA until Mr Trebilcock left AWA to start a business called Futura Controls. The drawings in question in this ruling bear the name of Futura Controls. In his first affidavit, Mr Sozio further deposed that Futura Controls did the designs for all fibre optic signs that Hi-Lux manufactured from about 1991 until Mr Trebilcock sold the business about 2008.

4    Mr Sozio also deposed that Mr Trebilcock gave him the “CAD designs for Hi-Lux to use.” In his second affidavit filed on 8 March 2018, Mr Sozio deposed that Mr Trebilcock died in 2013.

5    The applicant objects to the admissibility of SVS-19, SVS-20 and SVS-23 essentially on the basis of hearsay. SVS-19 is a design drawing identified as FUT.278 and part of the summary index to the designs apparently provided by Mr Trebilcock to Mr Sozio with the drawings. SVS-20 is a design drawing, FUT.312, and what appears to be the entirety of the summary index provided by Mr Trebilcock to Mr Sozio. I would provisionally infer that Mr Trebilcock was the maker of the drawings and summary index on the basis that he was the proprietor of the business of Futura Controls and on the basis of the affidavit evidence of Mr Sozio.

6    Plainly enough, Mr Trebilcock is unavailable to give evidence about the representations made in the drawings and summary index and prima facie, therefore, s 63(2) is engaged. This provision is, however, subject to a notice requirement. Section 67(1) provides that s 63(2) “does not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.” Notices under s 67(1) are to be given in accordance with the regulations or rules of court made for the purposes of this section. There are, indeed, such regulations and rules of court: see rule 30.29 of the Federal Court Rules and regulation 5 of the Evidence Regulations 1995.

7    Further, pursuant to s 67(3), the notice must state reliance on the particular provision of the Division. Notwithstanding this, however, under s 67(4), if notice is not given the court may, on application, direct that s 63(2) apply. No notice has been given in accordance with s 67(1) that takes account of the requirements in s 67(2) and possibly (3). Mr Smith is to be understood, I think, to make the application to which s 67(4) refers. It may be borne in mind that the respondents haven’t notified of reliance on s 63(2) in response to objections to admissibility on 20 April 2018.

8    Mr Smith submitted that it should in any event have been clear from the reference to Mr Trebilcock’s death in Mr Sozio’s second affidavit that reliance would be placed on s 63(2). Ms Gatford submitted, on the other hand, that the purpose of the notice requirement would not be met if I were to direct reliance on s 63(2) were possible and that this would be unfair to the applicant. Prejudice to the parties is clearly relevant to any decision to permit reliance on s 63(2) in the absence of notice. I propose to admit SVS-19 and SVS-20 on a provisional basis only pending final submissions as to whether the respondents should be permitted to rely on s 63(2) in the absence of notice bearing in mind the limited nature of the submissions made by the parties this morning.

9    There is also a further issue relevant to admissibility. This concerns the basis of the inference that Mr Trebilcock was the author of the drawings and summary index. I would give the respondents leave to adduce evidence-in-chief from Mr Sozio concerning what he knew about matters relevant to the authorship of the drawings and the summary index. I emphasise that I’ve expressed a view on a provisional basis only on this issue.

10    I also note that the admissibility of SVS-23 may be a little firmer than the other two annexures. Mr Sozio’s evidence is that the design, which is FUT.321, was prepared “in order to convert existing fibre optic applications to LED which were required for upcoming school zone and shopping strip jobs that Hi-Lux was considering tendering for.”

11    Although Mr Sozio does not say in so many words that he recognises this document as a document that Mr Trebilcock prepared for Hi-Lux in or about mid-2002, it may be inferred that this is the intended effect of his evidence. It may be that Mr Sozio can identify this document from his own knowledge and that the document will be admissible on this basis. In consequence, I would also admit SVS-23 provisionally on the basis that either it may be found to be admissible under s 63(2) or it may be confirmed by Mr Sozio in evidence that this is a document that he can identify which was prepared for Hi-Lux on or around the date it bears. Mr Smith will have leave to elicit any relevant evidence from Mr Sozio in-chief.

12    It may also be that Mr Sozio can identify SVS-20, although the basis for this is less clear. Mr Sozio has deposed that he recalls liaising with Mr Trebilcock for the design of the signs on the Western Ring Road with a view to on-supply to the successful tenderer. Mr Sozio does not, however, depose that he recognises or can identify the document as a document prepared by Mr Trebilcock for Hi-Lux. The respondents’ counsel shall also have leave to elicit matters relevant to this issue from Mr Sozio in-chief.

Associate:

Dated:    11 May 2018