The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd [2022] NSWSC 1382

As Stevenson J observed in Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951 at [5][6]:

It is useful to consider the circumstances in which courts have acceded to an application to make a ruling under section 192A, and where courts have declined to do so. A review of the cases indicates that it may be considered appropriate to give an advance ruling where:

Particular difficulties may be encountered where the objection to the admissibility of the evidence is on the grounds of relevance. As Kenny J observed in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288, the Court may refuse to make such a ruling where the Court cannot, in advance of trial, determine whether the evidence is inadmissible as irrelevant as the position may be nuanced and an advanced ruling may result in an error and consequent unfairness; “Much will depend on the way the case unfolds at trial”: at [23]-[29], [41]. Likewise, in Davaria v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473, Middleton J refused to make an advance ruling where the objection was on the grounds of relevance, being “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”: at [5].

An advance ruling will more likely be appropriate when the matter has been fixed for trial. In Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; (2009) 259 ALR 541, three sets of proceedings had been listed for hearing together in six months time, with evidence in each proceeding to be evidence in the other. While Foster J considered that the ACCC’s application for rulings on the admissibility of documents was unusual, “a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now”: at [12]. Similarly, in Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No. 97315 [2022] NSWCA 114, Brereton JA, with whom Kirk JA agreed, observed that Black J had determined the admissibility of an expert report under section 192A where the report was tendered in proceedings which, together with two other sets of proceedings, were set down for hearing for eight weeks commencing the following month: at [1]. Their Honours observed that the making of the ruling under section 192A did not preclude the parties from revisiting the admissibility of the disputed evidence, if the course of the trial so warranted it, for example, if the pleadings were amended: at [15].

In NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120, although the matter had not been listed for hearing, Biscoe J made an advance ruling on lay evidence in circumstances where a substantial amount of lay and expert evidence had been served, and the admissibility of that evidence was “in sufficient doubt to justify the making of advanced rulings”, and where the advance ruling would lead to a substantial saving of time and cost if some of the lay evidence was ruled to be inadmissible, as it may be no longer necessary to require the lay witnesses for cross-examination: at [45]. In Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953, Stevenson J considered that there was good reason to make advance rulings in relation to a foreign law expert’s report. If rulings as to admissibility were deferred to the hearing, it may be necessary for the expert to reformulate his report whilst in Sydney and remote from his research facilities in the United States; “it is likely that inconvenience and delay will occur it were to prove necessary for [the foreign law experts] to reformulate their reports on the run during the hearing” at [16]. In Searle v Commonwealth [2022] NSWSC 119, Garling J made rulings on the basis of “cost and efficiency benefits”, as doing so could potentially result in the plaintiff not having to call an additional 12 witnesses, nine of whom lived outside of Sydney: at [43]-[49].

The corollary is that the courts have demonstrated a clear reluctance to make rulings under section 192A where the proceedings are in their infancy, not all the pleadings have been filed or not all of the evidence has been served, such that the issues to be tried are not fully exposed or completely defined or it is uncertain whether the evidence sought to be the subject of the advance ruling will be relied upon at final hearing: Trusted Cloud Pty Ltd v Core Desktop Pty Ltd [2015] FCA 33 at [56][57], [60]-[61] (per Katzmann J); Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 at [24] (per Gleeson J).

For example, in B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64; (2019) 134 ACSR 404, Derrington J declined to make a ruling under section 192A where it was apparent that additional evidence was probably available to the applicant and the need for such evidence had been identified in the course of an application for summary judgment; “the time is not quite ripe for the exercise of power under s 192A … if after [the applicant’s] evidence is truly and finally completed its admissibility is wanting, it would then be appropriate to make such an application”: at [76]. Likewise, in Davaria v 7-Eleven Stores, Middleton J refused to make an advance ruling in circumstances where the rulings were sought over a large amount of affidavit material 13 weeks prior to trial and before completion of the applicants’ lay evidence. Further, the time necessary to deal with the objections would not be reduced if the Court undertook the exercise in advance of the trial: at [6].

In Wadsworth v Hamilton [2022] NSWSC 396, N Adams J refused to make section 192A rulings in relation to an expert report filed by the plaintiff in circumstances where the matter did not yet have a trial date, had not been allocated a judge for the final hearing, and where the defendant had not yet filed its expert evidence: at [32], [52]. Relevantly, her Honour considered that the making of the application well in advance of a hearing was a “discretionary factor weighing against any advance ruling being made”: at [51].

5 The section specifies only one test for the court to exercise its power, namely that it "considers it appropriate to do so". I agree with the observations of Biscoe J in NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [40]: –

"Whether the court should make advance rulings under s 192A is a discretionary case management decision to be made in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute."

6 It appears to me that some good reason should be advanced in order that the court exercise jurisdiction under s 192A but that it is not necessary to show "special circumstances" or to show that the circumstances are "out of the ordinary".

(a) it is apparent that there is a problem with the admissibility of the evidence in question: Sydney Attractions Group at [27], [31] (Stevenson J);

(b) it is inevitable that a ruling will need to be made in respect of that evidence, such that the Court’s time will not be wasted in doing so: Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 at [15] (Gzell J);

(c) the material necessary to make a ruling has been or can then be ascertained: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [42] (per Gaudron J); and

(d) such a ruling will assist with the efficient conduct of the final hearing, including by giving the party whose evidence is the subject of an adverse advance ruling the opportunity to marshall evidence in proper form, avoiding the need to call witnesses or to require other witnesses for cross-examination, or where there is an objection to the trial judge considering the evidentiary material: Coastal Service Centres Pty Ltd v United Petroleum Pty Ltd [2020] NSWSC 1870 at [53] (per Ward CJ in Eq).