MIDDLETON J:
1 I have most recently set out the procedural background to these proceedings, VID180/2018 and VID182/2018, in Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 8) [2021] FCA 295 at [8]-[13].
2 An application has now been made under s 192A of the Evidence Act 1995 (Cth) ('Act'), which provides:
Where a question arises in any proceedings, being a question about:
(a) the admissibility or use of evidence proposed to be adduced; or
(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or
(c) the giving of leave, permission or direction under s 192;
the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to that question before the evidence is adduced in the proceedings.
3 A number of judges have considered this provision and its application: see, eg, Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 ('Gondarra'); Australian Securities Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 ('Whitebox'); McNickle v Huntsman Chemical Co Australia Pty Ltd (Expert Evidence) [2021] FCA 370; Australian Communications Media Authority v V Marking Proprietary Limited (in liq) [2020] FCA 1326; and Beslic v MLC Ltd [2015] NSWSC 908.
4 The provision can be used in a variety of situations but it is important to consider the factual circumstances before the Court, the nature of the proceedings and, more importantly, the questions that the Court is being asked to decide in advance of the trial. I fully understand the position of the respondent ('7-Eleven'), in bringing the application, having regard to what it needs to do prior to trial. But, in my view, this could be one of the most inappropriate circumstances to undertake the task that has been asked of the Court.
5 This is not a situation where we are dealing with an isolated question of principle, or even just a few affidavits that have come before the Court to determine whether they will be rejected or accepted at trial. This is a situation which, basically, involves the Court taking a great deal of time at this stage of the proceeding (being 13 weeks' from trial and before the completion of the applicants' lay evidence), to deal with relevance - a concept that relates to the interrelationship of all the material that is before the Court - without the benefit, even, of all the evidence that may be adduced in the proceedings.
6 It may well be that the time of the trial will be reduced if the Court, now, undertakes this exercise. However, the same amount of time will be taken by the Court, and, probably, the legal representatives, if the exercise is undertaken before then. Having regard to the volume of objections to lay evidence, I expect it would take at least a week, either in open Court or in Chambers, to go through all of the affidavit material that is relevant to this application.
7 In my view, this problem is not solved by the suggestion of 7-Eleven that the Court could make decisions by reference to sample exercises, and then the parties go away and apply the reasoning of the Court to determine what is admissible or not admissible. If I may say so, having regard to the history of this matter, I am not at all optimistic that such a process would lead to final agreement, and would likely only mean that the matter would come back to the Court again to deal with individual paragraphs, affidavits, or sentences. This is not a useful exercise for the Court, or the parties, to undertake. And then there is the other problem of a high risk of error in determining what is relevant and not relevant, which raises the possibility of interlocutory appeals and unfairness, and is another reason why I should not undertake this task: see Gondarra at [29] (Kenny J).
8 In Whitebox, Gleeson J set out some propositions in relation to the exercise of the discretion:
[21] Section 192A permits, but does not compel, advance rulings to be given on the admissibility of evidence: Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515 at [55]. Whether the Court should make an advance ruling is "a discretionary case management decision": NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (No 4) at [40]; Beslic v MLC Ltd [2015] NSWSC 908…at [33]. In this Court, that directs attention to the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth)… namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
[22] The authorities indicate that "some good reason should be advanced in order that the court exercise jurisdiction under s 192A": Beslic at [33], quoting Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 at [13]. It may, for example, be appropriate to give an advance ruling "if all matters relevant to the issue have been or can then be ascertained and if it is clear that a ruling will inevitably be required" TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [42] (Gaudron J). Further, the giving of a ruling, or the making of a finding, under s 192A may be appropriate where "a considerable" amount of time, effort and money might be saved if the documents were ruled to be admissible now": ACCC v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; (2009) 259 ALR 541 at [12].
[23] In some cases, trial preparation may be assisted by an evidentiary ruling in advance of the trial so as to justify departure from the procedure in the ordinary case of dealing with objections at or shortly before the hearing: Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288 at [25].
[24] A sound reason to refuse to give a ruling under s 192A may exist where the proceeding is in its infancy, the issues have not yet been joined because the pleadings have not closed, and it is uncertain whether the evidence sought to be the subject of the advance ruling will be relied upon at final hearing: cf. Trusted Cloud Pty Limited v Core Desktop Pty Limited [2015] FCA 33 at [56] to [57].
9 I adopt those general comments. However, there is no specific test to apply in order for the Court to make an advance ruling under s 192A of the Act. It will be a matter of discretion, having regard to the circumstances before the Court and implementing the purpose of s 192A, having regard to good case management principles.
10 I do not intend to go into any detail about the nature of the various objections that have been made to the applicant's lay evidence. But I do say, as a general matter, that when one looks at the detail of what needs to be undertaken by the Court in relation to the objections that are still pressed, it is quite apparent that, when dealing with evidence, it is not possible to silo individual aspects of the case: one has to look at all of the aspects of the litigation (including the pleading and the common questions) in context. It may well be that one objection in relation to one particular area appears sound, but then, when put it in context with the rest of the case, the conviction about that soundness goes away.
11 One of the submissions made by 7-Eleven is that the parties should have a common understanding of what is to be dealt with at trial. I agree that this should occur, and this will be done by the finalisation of the common questions.
12 The trial would normally be conducted with all the relevant issues being identified prior to the trial commencing (by the specification of common questions. However, as the Full Court (Jagot, Murphy and Lee JJ) has said in Ethicon Sàrl v Gill (2021) 387 ALR 494; [2021] FCAFC 29 at [56]:
A routine misconception is that the common questions specified in the originating application or supporting documentation define the common questions for the balance of the proceeding. This cannot be the case. For one thing, issues which are common may narrow considerably upon a joinder of issue by way of pleadings. Similarly, issues which are common to the claims may arise by way of a positive averment made in a subsequent pleading, whether it be a defence, a reply, a rejoinder or so on. Further common issues of fact may arise upon the filing of lay or expert affidavit evidence.
13 And as long as the Court is mindful to be fair to each of the parties, and to look after the interests of the group members, then common questions may be altered (even, if necessary, as the trial progresses).
14 Undoubtedly, as counsel for 7-Eleven has stressed with me, the common questions in VID180/2018 have been in existence for some time and have formed the framework for the way in which the case has been managed, including discovery. No issue has yet arisen that has caused any difficulty. The Court will make sure that the common questions are specified for the trial as soon as possible.
15 Finally, I am mindful that, on the basis of how 7-Eleven see the case, they may be now having to consider, forensically or otherwise, how to respond to some of the material in the applicant's lay evidence. This is not an unusual circumstance. And whilst it may involve (from 7-Eleven's point of view), more time and expense than if the Court was to give some indication one way or the other as to what is relevant and what is not relevant, that exercise is something which, on balance, is simply too risky for the Court to undertake now. Such an exercise may also cause further difficulties down the track, particularly if during the course of the trial it were to be determined that any of the matters I had ruled to be irrelevant turned out to be relevant in the context of all the material.
16 For these reasons, I reject the application that is made for the Court to entertain an application under s 192A of the Act.
17 I will order that the costs of and in connection with the application under s 192A of the Act be paid by 7-Eleven to the applicants.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Middleton.