FEDERAL COURT OF AUSTRALIA Ample Source International Limited v Bonython Metals Group Pty Ltd; In the Matter of Bonython Metals Group Pty Limited (No 5) [2011] FCA 864 Citation: Ample Source International Limited v Bonython Metals Group Pty Ltd; In the Matter of Bonython Metals Group Pty Limited (No 5) [2011] FCA 864 Parties: AMPLE SOURCE INTERNATIONAL LIMITED BVCIN 1575638 v BONYTHON METALS GROUP PTY LIMITED ACN 141 357 294, JOHN HILLAM, CFM MEDIA HOLDINGS PTY LIMITED ACN 143 465 909, SAROBOL TEERANUKUL and WENTWORTH METAL GROUP PTY LIMITED ACN 139 532 719; IN THE MATTER OF BONYTHON METALS GROUP PTY LIMITED (CAN 141 257 294) File number: NSD 1784 of 2010 Judge: ROBERTSON J Date of judgment: 25 July 2011 Catchwords: EVIDENCE – Judicial discretion to admit or exclude evidence – Evidentiary matters relating to witnesses – Expert evidence based on reports written by others - the reports were not identified or disclosed - no reasoning process exposed – evidence not admissible to prove the facts contended Legislation: Evidence Act 1995 (Cth) s 79 Cases cited: Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 Date of hearing: 22 July 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Counsel for the Plaintiff: Mr B O'Donnell and Mr JC Giles Solicitor for the Plaintiff: McCullough Robertson Counsel for the First Defendant: The First Defendant submitted save as to costs Counsel for the Second, Third, Fourth and Fifth Defendants: Mr DE Perrignon Solicitor for the Second, Third, Fourth and Fifth Defendants: Allsop Glover IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1784 of 2010 IN THE MATTER OF BONYTHON METALS GROUP PTY LIMITED (ACN 141 257 294) BETWEEN: AMPLE SOURCE INTERNATIONAL LIMITED BVCIN 1575638 Plaintiff AND: BONYTHON METALS GROUP PTY LIMITED ACN 141 357 294 First Defendant JOHN HILLAM Second Defendant CFM MEDIA HOLDINGS PTY LIMITED ACN 143 465 909 Third Defendant SAROBOL TEERANUKUL Fourth Defendant WENTWORTH METAL GROUP PTY LIMITED ACN 139 532 719 Fifth Defendant JUDGE: ROBERTSON J DATE OF ORDER: 25 JULY 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The evidence at page 474 lines 12-13 and page 476 lines 8-9, 21-22 of the transcript is rejected. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1784 of 2010 IN THE MATTER OF BONYTHON METALS GROUP PTY LIMITED (ACN 141 257 294) BETWEEN: AMPLE SOURCE INTERNATIONAL LIMITED BVCIN 1575638 Plaintiff AND: BONYTHON METALS GROUP PTY LIMITED ACN 141 357 294 First Defendant JOHN HILLAM Second Defendant CFM MEDIA HOLDINGS PTY LIMITED ACN 143 465 909 Third Defendant SAROBOL TEERANUKUL Fourth Defendant WENTWORTH METAL GROUP PTY LIMITED ACN 139 532 719 Fifth Defendant JUDGE: ROBERTSON J DATE: 25 JULY 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On Friday 22 July 2011, certain evidence was given by Mr Hillam which I admitted provisionally and subject to the objection of the plaintiff so that the plaintiff could consider the detail of the proposed evidence with a view to maintaining or withdrawing its objection to the evidence. 2 When the hearing resumed on Monday 25 July 2011, counsel for the plaintiff indicated that there was only one aspect of the material to which the plaintiff's objection was maintained. 3 That material was Mr Hillam's evidence in relation to three Wentworth tenements not the subject of the farm in agreements as to whether or not they contained any iron ore. 4 The evidence in question was at transcript 474 lines 12-13: The other three tenements are entirely different geological event time [sic] and contain no iron ore. and at transcript 476 lines 8-9: I came to the conclusion that there was no iron ore potential in these leases. and at transcript 476 lines 21-22: The reason, because they (sic) no iron ore whatsoever. 5 This material was tendered, on the basis that it is was expert opinion, to prove there was no iron ore in the three tenements. It was common ground that the opinion was not based on any investigations of the land itself by Mr Hillam but upon his reading of reports. Mr Hillam said: "Some of them are hundreds of pages long". 6 It was also submitted on behalf of the plaintiff that the material was "new" to the proceedings. It was submitted that the material was not served as expert opinion. It was also submitted that the reports on which Mr Hillam based his evidence were not identified. 7 It was clear that the witness was not basing his opinion on his own field work but on a number of reports on the tenements written or produced by others. 8 In my opinion the evidence given provisionally by Mr Hillam, which I have set out above, was not admissible to prove the fact for which it was tendered. This is because it did not disclose or identify the reports on which it was based. It also follows that it did not state the facts or assumptions upon which the opinion was based. Nor was any reasoning process exposed. I reject it as inadmissible: see s 79 of the Evidence Act 1995 (Cth) and Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 at [23]. I note that the reports referred to at [5] above have not been produced to the plaintiff. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 5 August 2011