Desert Farms Pty Ltd v Shea & Ors [2025] NTSC 23

Williams W et al. Uniform Evidence in Australia, 2015

Desert Farms Pty Ltd v Shea & Ors [2025] NTSC 23

• [1] The Plaintiff makes application by summons filed 28 February 2025 for two orders under ss 135 and 136 of the Evidence (National Uniform Legislation) Act 2011 (the Act). The Plaintiff seeks relief under:
  1. Section 136 of the Act in relation to paragraphs [4]-[30] of the affidavit of David Andrew Shea sworn 31 January 2025; and
  2. Section 135 of the Act in relation to paragraphs [130]-[144] of the affidavit of David Andrew Shea sworn 31 January 2025.

• [2] The background to these proceedings, for the purpose of these applications, can be summarised succinctly. The proceedings relate to claims brought by the Plaintiff against the Third Defendant company and its directors (the First and Second Defendants) with respect to breach of contract and trespass to goods. The claim relates to an alleged breach of contract essentially constituting the failure of the First Defendant to provide beekeeping services to the Plaintiff and damages resulting therefrom. A similar claim is brought against the First Defendant with respect to an alleged breach of an employment contract between the First Defendant and the Plaintiff. The Plaintiff also brings claims against the Defendants with respect to certain property relating to beekeeping (bees and equipment), in conversion, detinue and trespass. The Defendants, in turn, bring a counterclaim with respect to certain goods of the Defendants' said to have been allegedly improperly held by the Plaintiff. At issue in the proceeding are matters such as the standard required of competent beekeepers in the relevant industry. In the usual course of programming orders, the parties were ordered to file and serve evidence, including expert evidence, sought to be relied upon in the proceedings. The First Defendant filed affidavit evidence which is the subject of the present applications.
• [3] The First Defendant's affidavit covers not only matters relating to what he saw or heard with respect to matters in issue, but sets out, in certain paragraphs (namely 4-30) his understanding or knowledge of certain beekeeping practices, including how bee colonies are constituted, commercial beekeeping practices, the practice of splitting hives and "requeening". Hive splitting, that is, the process of dividing one hive from another and "requeeening", and whether that was done adequately by the Defendants in performance of their respective contractual obligations, is in issue. It is evident that the First Defendant's evidence is not intended as expert evidence. The Plaintiff's concern, it would seem, relates to certain factual evidence in the First Defendant's affidavit as to beekeeping practices and what could be described as opinions given with respect to such matters. The other part of the First Defendant's affidavit (paragraphs 130-144) relate to his recollection of a meeting held on 20 May 2023, between him, his wife, a Director of the Plaintiff, Mr Paul McLaughlin, and two others, whereby there was allegation of poor beekeeping practices made against the Defendants, misappropriation of queen bees, the disclosure of the location of the Third Defendant's property now claimed to be in the possession of the Plaintiff (and the subject of the Defendants' counterclaim) and the signing of certain documents as a result of the meeting. The proposed evidence of the First Defendant would appear to be a full and frank account of what he recollects was said and done by those at the meeting held on 20 May 2023.
• [4] The application proceeded by way of initial written submissions followed by brief oral submissions.
• [5] As noted above, the s 136 application was targeted at certain parts of the First Defendant's proposed evidence of the beekeeping practices. As I understood the Plaintiff's Counsel's initial oral submissions, the Plaintiff did not seek a ruling that the First Defendant's evidence should be ruled entirely inadmissible, but rather a ruling be made that it be limited to a specific purpose (possibly as evidence of the First Defendant's subjective understanding of how he perceived best beekeeping practice should be done). That seems to have changed in subsequent written submissions, where certain paragraphs of the First Defendant's evidence were objected to on the basis that they infringed the rule against opinion evidence and therefore should be ruled inadmissible entirely. Counsel for the Defendants, in submissions, did not dispute that the proposed evidence contained evidence of fact or in some instances mixed opinion and fact, or possibly opinion, noting that the distinction between the two is one of degree than of kind.[1] It seems that the Defendants were somewhat taken aback by an apparent change in stance of the Plaintiff with respect to this application, that is, from initially seeking an order to limit the evidence to a ruling that some of the evidence be ruled inadmissible entirely. I acknowledge that s 136 of the Act has a role to play with respect to limiting evidence where otherwise it may be inadmissible under s 76 of the Act. For example, s 136 of the Act could be utilised where s 77 of the Act is relied upon (as an exception to the opinion rule). The argument, as to whether and how I should exercise the discretion in s 136 of the Act, was not well articulated by the Plaintiff in its application.
• [6] The s 135 application targeted that part of the First Defendant's proposed evidence relating to the meeting held on 20 May 2023. It was the Plaintiff's submission that, given subsequent amendments to the Defendants' counterclaim, that evidence was not relevant or probative, or if it was, its probative value was outweighed by its prejudicial nature. In response, the Defendants submitted that the evidence was relevant, going to a fact in issue, namely the circumstances in which the Plaintiff came into the possession of the disputed property the subject of the counterclaim. The Defendants also submitted that the evidence was relevant to the credibility of the Plaintiff's Director, Mr McLaughlin, the Plaintiff having proposed to put into evidence via an affidavit of Mr McLaughlin (at paragraph 26 of his affidavit, and at annexures PM4 and PM5) documents which were purportedly written or signed by the First Defendant at the 20 May 2023 meeting. Further, it was submitted that, in circumstances where the trial would be held by a judge alone, the risk of the evidence having prejudicial effect was minimal.

Preliminary Rulings with Respect to the Admission of Evidence

• [7] Sections 135 and 136 of the Act are found within Chapter 3 of the Act entitled "Admissibility of Evidence" and specifically Part 3.3 of the Act entitled "Discretionary and Mandatory Exclusions". Sections 135 and 136 of the Act provide:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

• [8] The provisions in Part 3.3 of the Act are intended to contain an exhaustive list of provisions with respect to excluding or limiting the use of evidence on policy grounds, supplanting the common law discretionary rules.[2]
• [9] The ordinary procedural process for the admission of evidence, particularly in civil proceedings, where evidence in chief is given by affidavit, is for objections with respect to the admissibility of proposed evidence to be made in advance, to the opposite party and the Court, and for those objections to be dealt with at the commencement of the trial on the opening of each party's case when affidavit evidence is sought to be read.[3]
• [10] However, the Act provides for the ability for advanced rulings before trial with respect to matters such as the admissibility of evidence proposed to be adduced. That is provided through s 192A of the Act which provides:

Section 192A Advance rulings and findings

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 section 192;

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

• [11] There is clearly a broad or open-ended discretion with respect to such advanced rulings, if the court "considers it appropriate to do so".
• [12] The exercise of discretion under s 192A of the Act, with respect to rulings under s 135 or s 136, can be made in civil or criminal proceedings. The usefulness of such rulings is apparent in criminal proceedings where juries are concerned. There can be utility in civil proceedings as well, particularly where cases are complicated and limiting evidence will have the effect of narrowing issues in dispute, reducing the length or complexity of proceedings or possibly encouraging settlement of the proceedings.[4] In Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No. 3), Forster J stated:[5]

The three sets of proceedings have been fixed for hearing together to commence on 23 March 2010. They are to be heard at the same time. The evidence in each set of proceedings is likely to be evidence in each of the others. To give an evidentiary ruling of the kind sought by the ACCC so far in advance of the trial would be unusual. There may be sound discretionary reasons for the Court declining to entertain the application even though it clearly has the power to make an order of the kind sought here (see s 192A of the Evidence Act 1995 (Cth) (the Evidence Act). However, in the present case, a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now."

• [13] However, there are equally some good reasons such advanced rulings should not be made as stated in Odgers:[6]

"The Court would have to assess the ability of the parties to anticipate the nature and extent of the evidence to be adduced as well as whether all matters relevant to the issue had been, or could be, ascertained. It may not be possible to rule in advance whether or not, for example, particular evidence would be "relevant" in a proceeding. Lack of the knowledge of the issues to be determined at trial, and the evidence which will be adduced, may make it impossible to exercise a power conferred under the Act. One of the discretionary considerations to be taken into account where relevant, is whether there is a risk that assumptions which are made about evidence to be given in a case prove ultimately not to be correct in light of the way in which a case is in fact presented. A court may have legitimate concerns that a ruling should not be made until the legal and factual issues in dispute have been clarified (perhaps by opening addresses at the trial), with any prejudice to a party being appropriately remedied by an order for costs...Each request for an advance ruling or advanced finding will have to be judged in the particular circumstances that it arises, taking these various considerations properly into account".

• [14] In Ahern v Aon Risk Services Australia [2014] NSWSC 1697, Button J refused a s 192A application:[7]

"In support of that order, the plaintiffs submitted that I was in just as good a position as the trial judge to determine all aspects of the admissibility of the report of Mr Parnell. They submitted that I am empowered to do so pursuant to s 192A of the Evidence Act 1995 (NSW), which was designed to overcome the effect of TKWJ v R [2002] HCA 46; 212 CLR 124. They further submitted that it would be conducive to the orderly preparation of the trial for me to do so. It was made clear in written submissions that there were two bases for the proposition that the foreshadowed evidence of Mr Parnell is inadmissible: first, its alleged failure to comply with the test contained in s 79 of the Evidence Act, and, secondly, the contention that I should exercise the discretion contained in s 135 of the Evidence Act to exclude it.

I respectfully reject the threshold proposition of the plaintiffs. I do not see any sound reason why I should embark upon that task, unaided by the deep understanding of the real issues and the other evidence that will inevitably be vouchsafed to the trial judge. Nor do I see any great advantage in a discrete question of admissibility being determined well before the trial and on an interlocutory basis. If it be the case that, having been put firmly on notice of the objections of the plaintiffs, senior counsel for the defendants maintains his reliance on the report and suffers adverse forensic consequences at the hearing as a result, so be it. To my mind, that is not a sound reason for me to embark upon this interlocutory determination now. And that is especially the case when one of the bases of "objection" is exclusion pursuant to s 135 of the Evidence Act. That basis in particular will require an appreciation of the actual conduct of the trial in practice, not a predictive exercise undertaken by me on the basis of folders of documents.

It follows that, on the threshold basis that it is not appropriate for me to determine this question of admissibility before the trial pursuant to s 192A of the Evidence Act, I would decline to make order one in the motion."

(A) The Section 136 Application

• [15] With respect to the exercise of the advance ruling, the Defendants submitted that there was nothing out of the ordinary with respect to the First Defendant's evidence such that it warranted such an advanced ruling. Evidentially, the case was rather straightforward with only a few affidavits in support relied upon by each party. Additionally, subsequent to the hearing of this application I had made further orders (extending previous orders) allowing the Plaintiff to file affidavit expert evidence and had accorded the Defendants the same opportunity. In written submissions, the Plaintiff did not substantially or directly address the threshold requirement in s 192A of the Act, other than presumably it was appropriate to make an advance ruling by reference to one of the factors in s 136 being enlivened.[8]
• [16] I accept the Defendants' submission on the threshold issue. Although this matter is not at an early stage, there is likely further evidence to come. Further, it is not an overly complicated matter. This proceeding, and the evidence in it, is such that it is not an appropriate vehicle to warrant the order sought under s 136 of the Act. I cannot see any reason why the evidence of the First Defendant cannot be dealt with in the ordinary course, with advance and specific objections to his evidence (if they are in fact ultimately taken) raised at the appropriate time before the trial judge at the commencement of the trial on openings by the parties. Thus, for similar reasons as expressed by Button J in Ahern v Aon Risk Services Australia, I would decline to make order 1 as sought. Having said that, I acknowledge that there will be appropriate situations where such rulings would be of great utility, but the case with respect to the appropriateness to make them would need to be significantly more advanced, compelling and cogent than those put to me in this matter.

(B) The Section 135 Application

• [17] This application involves the proposed evidence of the First Defendant from the meeting held on 20 May 2023. The application, when foreshadowed, was put on the basis that the proposed evidence was unfairly prejudicial which outweighed any probative value and therefore it should not be admitted into evidence pursuant to s 135(a) of the Act. On written submissions the Plaintiff appears to seek a ruling that the evidence is not relevant at all[9] and therefore is not admissible. However, the Plaintiff's application seeks an advanced ruling, under s 135 of the Act, that the proposed evidence should not be admitted on the basis that its probative value may be substantially outweighed by the danger of its prejudicial effect, or possibly will cause additional evidence to be called wasting further time or be misleading or confusing. An argument that the evidence is wholly inadmissible on the grounds of relevance is somewhat inconsistent with an application under s 135 of the Act, that is, s 135 of the Act is based on an assumption that the evidence in question is otherwise admissible. As stated in Dyldam Developments Pty Ltd v Jones:[10]

"Section 135 has a number of features which should be identified at the outset. First, it is based on an assumption, namely that the evidence in question is otherwise admissible. Secondly, it confers a power to refuse to admit such evidence if a particular opinion is formed. Even if the power is engaged, it would seem to be discretionary, and the Court could still admit the evidence. Thirdly, the opinion involves a balancing exercise. That which is to be put into the balance on one scale is the probative value of the evidence, namely "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue": Evidence Act, Dictionary. A trial judge will frequently be asked to make rulings involving such an assessment, without being able to determine with any certainty the likely effect of the particular evidence, depending on the stage the trial has reached. In the other scale, the court must assess a "danger" that the evidence might, if admitted, have one of three classes of effect. Fourthly, the power to reject the evidence will only be engaged if the probative value is "substantially outweighed" by a danger of the kind identified in one of paragraphs (a), (b) or (c)."

• [18] The Defendants submitted the proposed evidence was admissible and probative, it was proposed evidence of the relevant meeting and what was said and done, and relevant to a matter in issue, namely whether the beehives seized by the Plaintiff belonged to the Third Defendant (which is denied by the Plaintiff). It was also put that the proposed evidence was relevant to the assessment of the credibility of evidence given by the Plaintiff's director, Mr McLaughlin.
• [19] As was the case with respect to the s 136 application, as an advanced ruling pursuant to s 192A of the Act, I must be satisfied that it is appropriate to make such an order. If so, I may proceed to the considerations raised in s 135 of the Act.
• [20] For the same reasons given with respect to the s 136 application, with respect to s 192A of the Act, I am of the view that it is not appropriate to make the order sought. There is nothing in the nature of evidence which cannot be easily dealt with at trial in the ordinary course. That the potential admission of this aspect of the evidence may lead to additional evidence from others present at the meeting held on 20 May 2023, does not dissuade me otherwise. That could be done relatively expeditiously without prejudicing or complicating the matter to any significant extent. Nor do I propose to make an order as to wholesale inadmissibility of the proposed evidence on the basis of relevance, which in my view was not properly made under the umbrella of s 135 of the Act. I will add, even if I had exercised the discretion and was of the view that it was appropriate to make an advanced ruling, I would not have been satisfied, on the basis of the submissions, proposed evidence and pleadings, that the probative value of the proposed evidence was substantially outweighed by the danger that it would be unfairly prejudicial. I accept that the evidence has probative value, and whilst the nature of the evidence may have an air of unfair prejudice, the test in s 135 of the Act requires any probative value to be substantially outweighed by the danger of unfair prejudice. Where the tribunal of fact is a jury, it is more likely that the danger of unfair prejudice will arise than where the tribunal of fact is a judge or magistrate.[11] Nor would I have been satisfied that the other limbs of

s 135 of the Act had been made out to the required extent. I therefore decline to make order 2 sought.

(1) The Plaintiff's applications, made by summons dated 28 February 2025, under s 135 and s 136 of the Evidence (National Uniform Law) Act 2011 are dismissed.

(2) I will hear the parties as to costs.

[1] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 per Kirby J at [52].

[2] See Williams et al. Uniform Evidence in Australia, 2015 p 769.

[3] Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 at [25].

[4] Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWCA 349 at [15]; Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No. 3) [2009] FCA 1075.

[5] Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No. 3) [2009] FCA 1075 at [12].

[6] Odgers Uniform Evidence Law 14th edition pp1598-1599.

[7] Ahern v Aon Risk Services Australia [2014] NSWSC 1697 at [12].

[8] There were however early oral submissions foreshadowing the application referring to the benefit of an order perhaps streamlining the proceeding.

[9] On the basis it infringes s 56(2) of the Act "evidence that is not relevant is not admissible".

[10] Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 at 78 per Basten JA.

[11] See Williams et al. Uniform Evidence in Australia, 2015 p 773 and cases cited therein including ACCC v Australian Safeway Stores Pty Ltd [1999] FCA 1269 at [29] per Goldberg J citing CDJ v VAJ (1998) ALR 787 at 721; Seven Network Ltd v News Ltd (No. 8) [2005] FCA 1348 at [21]. See also Odgers Uniform Evidence Law 14th edition, 2019 at p 1214.