Marvoe Management Pty Ltd v Plantation Management Services (WA) Pty Ltd (2) [2016] NSWSC 1368

Supreme Court New South Wales

Medium Neutral Citation: Marvoe Management Pty Ltd v Plantation Management Services (WA) Pty Ltd (2) [2016] NSWSC 1368 Hearing dates: 5–7 September 2016 Date of orders: 07 September 2016 Decision date: 07 September 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1) Admit the record of results at page 92 of the bundle as exhibit E65. Catchwords: EVIDENCE – admissibility – whether document can rationally affect determination of a fact in issue Legislation Cited: Evidence Act 1995 (NSW), s 55 Category: Consequential orders (other than Costs) Parties: Marvoe Management Pty Ltd t/as The Sweetlife (Plaintiff) Plantation Management Services (WA) Pty Ltd (Defendant) Representation: Counsel: G P McNally SC with A J Barnett (Plaintiff) R Cavanagh SC with Mr S Walsh ( First and Second Defendants)

Solicitors: Rural Law with Peter Long (Plaintiff) Gilchrist Connell (First and Second Defendants) File Number(s): 2011/00377173

EX TEMPORE JUDGMENT (Revised) 1. Mr McNally SC tenders a report of test results relating to seeds of a watermelon grower other than the plaintiff. Mr Cavanagh SC objects on the grounds of relevance. 2. I am satisfied the report contains a previous representation made in the course of a business by a person with direct knowledge and the representation is that samples of the seedlings grown from the varieties indicated on the document in all cases were positive for fusarium wilt and that the period of testing is 17 June 2011 to 26 July 2011. 3. It seems to me that the real question is, and as has been argued, whether that evidence is relevant in the sense discussed in s 55 of the Evidence Act 1995 (NSW); that is, if accepted, it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. 4. I am of the view that it can, in this way. The fact in issue in the proceedings is the source of the fusarium oxysporum f. sp. niveum ("FON") in the plaintiff's seedlings planted in May 2011. As I understand the issues, there are contentions that it came from either the seeds supplied by the plaintiff to the defendant for propagation at its nusery, or what has been referred to as "the media" used by the Territory Tree Nursery ("TTN") in the course of propagating the seeds. That issue is perhaps best illustrated by the differing opinions of the plant pathologists, Professor Martyn and Professor Everts. 5. I am of the view that this document, or results of the tests, are capable of affecting the assessment of the probability that the source of the contamination was the media used at TTN in as much as the evidence so far received clearly establishes that the plaintiff used one particular variety of watermelon seed, being the Nightshade variety. These test results show that plant grown from other varieties, namely the Royal Armada and the SP1 varieties, by other growers who were customers of TTN were also affected. 6. That does not, of course, as Mr Cavanagh argues, establish of itself on the probabilities that TTN was the source of the contamination. It is not necessary that each piece of evidence itself should be capable of proving that matter on the probabilities. All that matters is that it may rationally affect, even indirectly, the assessment of that question. 7. I am of the view that this evidence is capable of doing that because it might be put that if plants seeded with a number of different varieties showed, or tested positive to, FON that might make it less likely that the Nightshade seeds themselves were the source of the contamination, or to put that another way, that the seeds supplied were already contaminated. 8. For these reasons I will admit the record of results at page 92 of the bundle as exhibit E65.