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This article appeared in the Discontinued - Australian Litigation and Court Practice Tracker - Intelliconnect Archive (2010-2013)
Tendency evidence: Aristocrat v Global Gaming Supplies; Aristocrat v Allam: High Court fails to grant leave to appeal

On 10 May 2013, the High Court published its reasons for refusing special leave to appeal in the matter of Aristocrat Technologies Australia Pty Ltd & Ors v Global Gaming Supplies Pty Ltd & Ors; Aristocrat Technologies Australia Pty Ltd & Ors v Allam & Ors[2013] HCA 21.

The applicants were seeking to appeal two decisions of the Full Court of the Federal Court of Australia in which evidence considered to be tendency evidence was held to be inadmissible as such because the tendency evidence rule in s 97(1) of the Evidence Act 1995 (Cth) (the Act) had not been complied with at the first instance.

The main subject matter of the case was concerned with copyright law and claims that the respondents had infringed the applicant’s copyright by selling gaming machines, which had been constructed by using pirated copies of material over which the applicants held copyright. In order to prove their case, the applicants relied upon email evidence of the respondents which the primary judge found satisfied the knowledge requirement in s 97(1) of the Act.

Section 97(1) of the Act provides that evidence of tendency is not admissible unless reasonable notice is provided and the court believes that the evidence is of sufficient probative value to warrant its inclusion. In this case, the applicants had not complied with s 97(1) and, on appeal, the Full Court of the Federal Court held that the evidence could not be relied upon due to this lack of compliance. The appeal was therefore successful.

On application to the High Court for special leave to appeal, the court held that the decision of the Full Court was not sufficiently doubtful, nor was the subject matter of the case of sufficient public importance, to warrant the grant of special leave to appeal.

The court made the following comments at [2]:

“After hearing argument on 2 May 2013 this Court made orders dismissing the applications for special leave with costs and stated that reasons for its decision would be published subsequently. The question upon which special leave was sought was whether the Full Court had erred in characterising the primary judge’s reasoning about evidence of email communications as inferring a ‘tendency’ on the part of the respondents to engage in infringing conduct. Section 97 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) provides that, absent compliance with conditions including reasonable notice, evidence of a tendency that a person has or had is not admissible to prove that a person has or had a tendency to act in a particular way. The applicants argued that the Full Court was wrong to say that the primary judge used the email evidence to infer tendency and that the appeal to that Court should not have been allowed on that basis … . this Court was of the opinion that the Full Court’s characterisation of the primary judge’s reasoning was open to it and not attended with sufficient doubt to warrant the grant of special leave.”

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