H M & O Investments Pty Limited v Ingram (No.4) [2011] NSWSC 566

Supreme Court New South Wales

Medium Neutral Citation: H M & O Investments Pty Limited v Ingram (No.4) [2011] NSWSC 566 Hearing dates: 9 June 2011 Decision date: 09 June 2011 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Evidence rejected. Catchwords: EVIDENCE - objection - defective in form - alternatively s 135 discretion - rejected - no question of principle. Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: H M & O Investments Pty Limited (First Plaintiff) Teach & Play Pty Limited (Second Plaintiff) Bradley Phillip Ingram (First Defendant) Glenda Louise Ingram(Second Defendant) Representation: Counsel: S A Gregory (Plaintiffs) G Curtin SC / J A English (Defendants) Solicitors: Owen Hodge Lawyers (Plaintiffs) TressCox Lawyers (Defendants) File Number(s): 2009/297464

Judgment (ex tempore) - ON ADMISSIBILITY OF EVIDENCE 1HIS HONOUR: The damages claimed by the plaintiffs, on one view of their case, include costs incurred, or said to have been incurred, by them attempting to produce equipment that was compliant with the applicable Australian standard. On this view of the plaintiffs' claim for damages, the components include, the plaintiffs say, costs referable to the salary expenses of people who, although employed not by one or other of the plaintiffs but by an associated company, nonetheless performed work for the plaintiffs in relation to the compliance issues that lie at the heart of this litigation. 2The plaintiffs have made several attempts to get this material into evidence. The final attempt, as I understand it, is found in the affidavit of Mr Glen John Rufford, a director of the second plaintiff. In his third affidavit (I think, intended to have been filed in reply but in fact raising new material in support of the plaintiffs' case in chief) Mr Rufford refers, in paragraph 8, to annexure B. He says that this annexure "identifies the percentage of time since April 2007 the people listed [in the annexure] were engaged in performing duties on behalf of the second plaintiff". 3Annexure B identifies some seven "operational and administrative staff and management." They include Mr Rufford and Messrs Salmon, Crellin and Abood who have already given evidence. The annexure asserts, in a tabular fashion for various identified periods of time, a percentage figure against the name of each of the employees. If one reads this in conjunction with paragraph 8, that percentage is presumably supposed to indicate the percentage of time that the various employees listed were engaged in performing duties for the second plaintiff. 4There is no documentary or other evidence, no form of primary accounting record, and no other underlying material that supports annexure B. Mr Gregory, for the plaintiffs, sought to justify it on the basis that Mr Rufford was engaged in the business of the second plaintiff as a director and could give the evidence (as he characterised it) set out in annexure B of his own knowledge. I do not agree. It may well be that Mr Rufford could give evidence, in a somewhat less summary and conclusory form, of the duties performed by the various people and the basis on which he purported or attempted to allocate their time in the manner set out in annexure B. But he does not do so. As I have indicated, annexure B is no more than a conclusion based on some unstated set of primary facts and some unstated process of reasoning. 5In my view, the document is inadmissible in its own terms. That is because it is not in any real sense evidence, as opposed to assertion. But in any event, even if the documents were technically admissible, I would reject it under s135 of the Evidence Act 1995 (NSW) on the basis that having regard to the form of the evidence and the totally unsubstantiated way that it is put, its use would be unfairly prejudicial to the defendants. 6As I have said I reject paragraph 8 of the affidavit in question and that includes annexure B. 7I reject the last two sentences of paragraph 6 of the same affidavit for the same reasons. 8As Mr Gregory accepts, what I have just said means that paragraph 12 of the same affidavit, including annexure C referred to in it, should be rejected and I do so.