FEDERAL COURT OF AUSTRALIA Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265 Citation: Mainline Corporate Holdings Ltd v Fexco Merchant Services [2014] FCA 265 Parties: MAINLINE CORPORATE HOLDINGS LTD and ELECTRONIC TAX-FREE SHOPPING LIMITED v FEXCO MERCHANT SERVICES, FIRST CURRENCY CHOICE PTE LTD and TRAVELEX OUTSOURCING PTY LTD ACN 127 747 586 MAINLINE CORPORATE HOLDINGS LTD and ELECTRONIC TAX-FREE SHOPPING LIMITED v FEXCO MERCHANT SERVICES, NATIONAL WESTMINSTER BANK PLC, TRAVELEX OUTSOURCING PTY LTD ACN 127 747 586, AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 and FIRST CURRENCY CHOICE PTE LTD File number(s): NSD 1517 of 2007 NSD 2247 of 2011 Judge(s): YATES J Date of judgment: 11 March 2014 Legislation: Evidence Act 1995 (Cth) ss 47, 48, 69, 135 Date of hearing: 10, 11 March 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 NSD 1517 of 2007: Counsel for the First Applicant: The First Applicant did not appear Solicitor for the First Applicant: Shelston IP Lawyers Counsel for the Second Applicant: Mr A Franklin SC with Mr JS Cooke Solicitor for the Second Applicant: Shelston IP Lawyers Counsel for the First Respondent: Ms S Goddard SC with Mr B Fitzpatrick Solicitor for the First Respondent: Truman Hoyle Counsel for the Second Respondent: Mr A Fox Solicitor for the Second Respondent: Herbert Smith Freehills Counsel for the Third Respondent: Ms S Goddard SC with Mr B Fitzpatrick Solicitor for the Third Respondent: Herbert Smith Freehills NSD 2247 of 2011: Counsel for the First Applicant: The First Applicant did not appear Solicitor for the First Applicant: Shelston IP Lawyers Counsel for the Second Applicant: Mr A Franklin SC with Mr JS Cooke Solicitor for the Second Applicant: Shelston IP Lawyers Counsel for the First Respondent: Ms S Goddard SC with Mr B Fitzpatrick Solicitor for the First Respondent: Truman Hoyle Solicitor for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondent: Ms S Goddard SC with Mr B Fitzpatrick Solicitor for the Third Respondent: Herbert Smith Freehills Counsel for the Fourth Respondent: Ms S Goddard SC with Mr B Fitzpatrick Solicitor for the Fourth Respondent: Ashurst Australia Counsel for the Fifth Respondent: Mr A Fox Solicitor for the Fifth Respondent: Herbert Smith Freehills IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1517 of 2007 BETWEEN: MAINLINE CORPORATE HOLDINGS LTD First Applicant ELECTRONIC TAX-FREE SHOPPING LIMITED Second Applicant AND: FEXCO MERCHANT SERVICES First Respondent FIRST CURRENCY CHOICE PTE LTD Second Respondent TRAVELEX OUTSOURCING PTY LTD ACN 127 747 586 Third Respondent JUDGE: YATES J DATE OF ORDER: 11 MARCH 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave to file the affidavit of Anthony John Gilfedder affirmed 9 March 2014 be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2247 of 2011 BETWEEN: MAINLINE CORPORATE HOLDINGS LTD First Applicant ELECTRONIC TAX-FREE SHOPPING LIMITED Second Applicant AND: FEXCO MERCHANT SERVICES First Respondent NATIONAL WESTMINSTER BANK PLC Second Respondent TRAVELEX OUTSOURCING PTY LTD ACN 127 747 586 Third Respondent AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 Fourth Respondent FIRST CURRENCY CHOICE PTE LTD Fifth Respondent JUDGE: YATES J DATE OF ORDER: 11 MARCH 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave to file the affidavit of Anthony John Gilfedder affirmed 9 March 2014 be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1517 of 2007 BETWEEN: MAINLINE CORPORATE HOLDINGS LTD First Applicant ELECTRONIC TAX-FREE SHOPPING LIMITED Second Applicant AND: FEXCO MERCHANT SERVICES First Respondent FIRST CURRENCY CHOICE PTE LTD Second Respondent TRAVELEX OUTSOURCING PTY LTD ACN 127 747 586 Third Respondent JUDGE: YATES J DATE: 11 MARCH 2014 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2247 of 2011 BETWEEN: MAINLINE CORPORATE HOLDINGS LTD First Applicant ELECTRONIC TAX-FREE SHOPPING LIMITED Second Applicant AND: FEXCO MERCHANT SERVICES First Respondent NATIONAL WESTMINSTER BANK PLC Second Respondent TRAVELEX OUTSOURCING PTY LTD ACN 127 747 586 Third Respondent AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 Fourth Respondent FIRST CURRENCY CHOICE PTE LTD Fifth Respondent JUDGE: YATES J DATE: 11 MARCH 2014 WHERE MADE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 At the commencement of the hearing on 10 March 2014, the second applicant sought leave to file the affidavit of Anthony John Gilfedder, affirmed 9 March 2014. In that affidavit Mr Gilfedder deposes to extracting certain data from a database identified as the Fintrax database. Mr Gilfedder is the Group Payments Manager of Fintrax Treasury Services Limited (Fintrax), a company within the same group of companies as the second applicant. 2 The purpose of the affidavit is to introduce the extracted data into evidence. The extracted data is annexure AG 1 to the affidavit. I marked a copy of the affidavit for identification: MFI 1. 3 The respondents object to the affidavit being filed. They submit that the second applicant has not explained how, if the affidavit were to be read, it would overcome the hearsay rule. They also raise objections to filing based on other matters to which I will refer. 4 The second applicant says that the extracted data is admissible as a business record pursuant to s 69 of the Evidence Act 1995 (Cth) (the Act). It then points to s 48(1)(e) of the Act which provides that: A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods – … (e) tendering a document that: (i) forms part of the records of or kept by a business (whether or not the business is still in existence); and (ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary; 5 The expression "document in question" is defined in s 47(1) of the Act. A "document in question" is: … a document as to the contents of which it is sought to adduce evidence. 6 It can be seen from the statutory language that the document to be tendered under s 48(1)(e) is not a "document in question". It must, however, be a document that forms part of the records of a business. 7 Annexure AG 1 purports to contain an extract from the document in question, namely, the Fintrax database. However, it is not a document that forms part of the records of Fintrax. It is a document that was created for use in this proceeding by Mr Gilfedder. Therefore, s 48(1)(e) does not apply to it. 8 Moreover, although s 69 of the Act creates an exception to the hearsay rule in relation to business records, this section does not apply to a representation if it was prepared or obtained for the purpose of conducting, or for or in contemplation of, or in connection with, an Australian or overseas proceeding. The extracted data is such a representation. Therefore, the intended use of the extracted data does not stand outside the hearsay rule. The extracted data is not admissible as an exception to that rule. For these reasons alone, it would be appropriate, at this point, to refuse leave to file the affidavit. 9 There are, however, additional matters. First, in submissions, the second applicant advanced Mr Gilfedder's affidavit as a response to certain statements made in Mr Ingham's affidavit, affirmed on 1 November 2012 and filed on 2 November 2012. The second applicant seeks to challenge Mr Ingham's statement that a bank identification number is associated with a single currency. If that statement was to be challenged, it should have been challenged by affidavit evidence filed in accordance with the Court's order that affidavit evidence of the (now) first applicant be filed no later than 26 April 2013. 10 In oral argument, senior counsel for the second applicant said that the issue – which I understand to mean the need to respond to this particular statement in Mr Ingham's affidavit – only arose very recently during the course of preparation of the matter for hearing. I do not accept that as a satisfactory excuse. This case has been a long time in preparation. This issue should have been addressed much earlier. It should have been addressed by no later than 26 April 2013. 11 Secondly and importantly, the affidavit does not state when the extracted entry in the Fintrax database was made. The priority date of the claims of the opposed patent application is July 1999. From the perspective of timing, therefore, the affidavit does not squarely address the issues of construction and disclosure that arise in the present case. 12 The second applicant also sought to rely on the affidavit as addressing the question of sufficiency of the amended specification, in terms of s 40(2)(a) of the Patents Act 1990 (Cth). I am presently unable to see how the affidavit does address that issue. In any event, the problems of admissibility and proof, to which I have already referred, remain. 13 Thirdly, senior counsel for the respondents pointed out what she contends to be an error in the extracted information in the affidavit. Senior counsel for the second applicant disputed any such error and provided an interpretation of the data in that regard. I do not propose to resolve that debate in this ruling. It is sufficient to note that the affidavit itself has provoked a debate of that nature, which cannot be resolved by recourse simply to the explanations given by Mr Gilfedder in the body of the affidavit. 14 Therefore, even if I were otherwise persuaded that leave to file the affidavit should be granted, and even if the other problems of admissibility and proof to which I have referred could be overcome, I would not admit the evidence because, in reliance of s 135 of the Act, the probative value of that evidence would be substantially outweighed by the danger that it might be misleading or confusing or cause or result in undue waste of time. 15 In these circumstances, it would be futile to grant leave to file the affidavit. Therefore, leave to file the affidavit is refused. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 31 March 2014