Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474

FEDERAL COURT OF AUSTRALIA

Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 File number: VID 953 of 2015

Judge: MORTIMER J

Date of judgment: 9 May 2017

Catchwords: EVIDENCE – application of hearsay rule – application of s 135 of Evidence Act 1995 (Cth) – admissibility of evidence obtained from internet searches and internet archives – evidence not admissible

Legislation: Evidence Act 1995 (Cth), ss 59, 135

Cases cited: Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15; 241 CLR 144 E & J Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 934; 77 IPR 69

Date of hearing: 10 April 2017

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: Mr B Caine QC with Mr L Merrick

Solicitor for the Applicant: Cornwall Stodart

Counsel for the Respondent: Mr N Murray with Ms F St John

Solicitor for the Respondent: Turtons Lawyers

REASONS FOR RULING VID 953 of 2015

BETWEEN: SHAPE SHOPFITTERS PTY LTD ACN 082 590 323 Applicant

AND: SHAPE AUSTRALIA PTY LTD ACN 003 861 765 Respondent

JUDGE: MORTIMER J

1 The applicant objects to certain evidence contained in the affidavit of Gregory James Henry affirmed on 8 December 2016. The applicant objects to Mr Henry's evidence contained in paragraphs 22, 24, 25, 29, 37, 42, 45, 48, 51 and 55. The objections are that the evidence is hearsay, and or alternatively that the evidence should be excluded pursuant to the discretion in s 135 of the Evidence Act 1995 (Cth). To rule on the objections, it is necessary to set out the nature and context of the allegations in the proceeding.