Australian Rugby Union Ltd v Hospitality Group Ltd [1999] FCA 1098

FEDERAL COURT OF AUSTRALIA

Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1098

AUSTRALIAN RUGBY UNION LTD v HOSPITALITY GROUP PTY LTD & ORS N 324 OF 1999 JUDGE: SACKVILLE J PLACE: SYDNEY

DATE: 9 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 324 OF 1999

BETWEEN: AUSTRALIAN RUGBY UNION LIMITED

Applicant

AND: HOSPITALITY GROUP PTY LIMITED

First Respondent

ICM (MARKETING) PTY LIMITED

Second Respondent

AUSTRALIAN TOURS FOR SPORT PTY LIMITED

Third Respondent

CAMERON JACKSON

Fourth Respondent

JUDGE: SACKVILLE J

DATE: 9 AUGUST 1999

PLACE: SYDNEY

RULING ON EVIDENCE 1 Objection has been taken to pars 5.5 to 5.9 of Professor Bewley's affidavit. Par 5.5 is illustrative of the issues that have been raised by Mr Gleeson's submission that these sections of the affidavit should be rejected. In par 5.5, Professor Bewley addresses the following question: "What is the likely effect in the Hospitality Market of the imposition by the ARU of the Condition on all ticket sales?" Professor Bewley answers this question by stating his opinion that the likely effect of the Condition on the Match Hospitality market is to reduce competition in that market, by preventing the development of a secondary market in premium tickets at the Matches (that is, the Centenary Test and the Bledisloe Cup). 2 Professor Bewley reasons that, since there are no primary allocations of premium tickets to unofficial March Hospitality providers (that is, those providers not approved by the ARU), the Condition excludes them from supplying their services at the Matches. Professor Bewley concludes that the Condition puts the ARU and its affiliated companies in the position of being a monopolist in the relevant market, that is, the market for hospitality services at the Matches. 3 Mr Gleeson's objection is that this is evidence that goes to the ultimate legal issue that I have to decide. 4 Section 80 of the Evidence Act 1995 (Cth) ("Evidence Act") provides as follows: "Evidence of an opinion is not inadmissible only because it is about (a) a fact in issue or an ultimate issue; ...". 5 On the face of it, s 80(a) would seem to provide an answer to Mr Gleeson's submission. However, he relies on the judgment of Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 64 FCR 79. In that case, his Honour rejected the evidence of an expert in United States law that certain omissions in a prospectus were materially misleading for the purposes of the Securities Act 1933 (US). 6 Lindgren J pointed out that, under the general law, a distinction is drawn between the content of foreign law, which is a question of fact on which evidence is receivable, and the application of the foreign law to the facts, which is a matter exclusively for the court. He considered that this distinction had been preserved by the Evidence Act, despite s 80(a) of the Evidence Act. The proffered evidence was inadmissible, not merely because it was about the "ultimate issue" but because it intruded into the "essential curial function of applying the law, whether domestic or foreign, to facts" (at 83). 7 Lindgren J pointed out that s 80(a) of the Evidence Act does not follow the form of legislation recommended by the Law Reform Commission: Final Report on Evidence (ALRC 38, 1987), Appendix A, cl 69. Nonetheless, he considered that the expression "ultimate issue", which was not in the Commission's draft bill, was merely intended to ensure that non-legal opinion evidence, including that proffered by an expert, should not be rejected merely because it "stumbles into the forbidden area of applying what could be regarded as a legal standard to the facts" (at 84). 8 The evidence proffered in the present case is different from that considered by Lindgren J. Professor Bewley is not giving an opinion as to the law. He is addressing the definition of the relevant market for hospitality services and considering the effect on that market of the assumed conduct of the ARU. The language used by Professor Bewley sometimes "stumbles" (to use Lindgren J's expression) into the area of legal standards. However, in essence, he is describing the consequences which will flow in the market, as he defines it, if the ARU enforces the Condition endorsed on its tickets. In a sense, what Professor Bewley says follows inexorably from the analysis earlier in his report. 9 Needless to say, the probative value of Professor Bewley's opinions will depend on the persuasiveness of the analysis leading to the expressions of opinion in the final sections of his report. In my view, however, the expressions of opinion themselves are admissible. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.