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Australian Securities and Investments Commission v Managed Investments Ltd (No 1)

 

[2012] QSC 59

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
(applicant)
v
MANAGED INVESTMENTS LIMITED

ACN 101634146
(first defendant)

MICHAEL CHRISTODOULOU KING

(fourth defendant)

GUY HUTCHINGS

(fifth defendant)

CRAIG ROBERT WHITE

(sixth defendant)

DAVID MARK ANDERSON

(seventh defendant)

MARILYN WATTS

(eighth defendant)

FILE NO:

DIVISION:

Trial 

PROCEEDING:

DELIVERED ON:

21 February 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

21 February 2012

JUDGE:

Fryberg J

ORDERS:

The objection of the seventh defendant to the affidavit of Mr David Starkoff is overruled.

CATCHWORDS:

Evidence – Admissibility and Relevancy – In general – Other cases – Evidence in other proceedings  

Uniform Civil Procedure Rules 1999 r 395

Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, considered

Printing, Telegraph & Construction Company of Agence Havas Limited v Drucker [1894] 2 QB 801, distinguished

COUNSEL:

DMB Derham QC and MT Brady for the plaintiff

T F Ritchie (solicitor) for the first defendant

P J Davis SC and DS Piggott for the fourth defendant

B Cohen (solicitor) for the fifth defendant

D L Williams SC for the sixth defendant

S Doyle SC and CK George for the seventh defendant

P A Freeburn SC for the eighth defendant

SOLICITORS:

Corrs Chambers Westgarth for the plaintiff

McCullough Robertson for the first defendant

Tucker Cowen for the fourth defendant 

Brian Bartley & Associates for the fifth defendant

Kennedys for the sixth defendant

Dibbs Barker for the seventh defendant

James Conomos Lawyers for the eighth defendant

FRYBERG J:  ASIC has read an affidavit by Mr David Starkoff, a solicitor, to which is exhibited several documents consisting of affidavits made by the seventh defendant, Mr Anderson, in other proceedings to which ASIC was not a party.  It puts the exhibits before this Court not as evidence of the truth of their contents but as evidence of the fact that the deposition was made by Mr Anderson.  It does so for the purpose of demonstrating on this interlocutory application regarding pleadings that there has been a waiver of the privilege which otherwise would entitle Mr Anderson to refrain from complying with the rules relating to pleading on the ground of privilege attracted by the risk of exposing himself to a penalty or incriminating himself.

 

The objection is taken on the basis that ASIC does not have leave under rule 395 of the Uniform Civil Procedure Rules to rely on Mr Anderson's affidavit or, to be more precise, the relevant extracts from it.  ASIC submits that the material is admissible.

 

The first ground on which it is contended that it is not admissible is that the affidavit has not been properly proved.  In my judgment, that ground must fail.  Mr Starkoff deposes to his information and belief about the exhibits to his affidavit in para 5.  He then deposes that the relevant exhibits are what they appear to be.  It is true that he does not depose to the signature of the documents but I do not think that is a matter of any great consequence.  It is plain from the other evidence to which no objection is taken, that is to say the Court order forms which are exhibited, that the affidavits were read in the proceedings to which reference is made and I think the conclusion is abundantly clear that the exhibited documents are indeed what they are said to be, that is affidavits made by Mr Anderson. 

 

They are tendered not to prove the truth of what is in them but to prove the fact that what is in them was said or, more accurately, deposed to by Mr Anderson.  Counsel for Mr Anderson submits that without leave under rule 395, the affidavits cannot be used and that no such leave should be given, and relies on cases such as Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 and Printing, Telegraph & Construction Company of Agence Havas Limited v Drucker [1894] 2 QB 801.  It is submitted that leave would be given only where the evidence was tendered in proceedings between the same parties or their privies and where the issues were the same.

 

In response ASIC submits that that rule applies only in cases where the evidence is tendered to prove the truth of what is in it.  Alternatively it seeks leave and submits that the cases apply only where the evidence is tendered to prove the truth of its contents.

 

In my judgment, ASIC's submissions on this aspect of the matter are correct. 

 

I do not think it is necessary to determine whether the matter is to be resolved on the basis that the rule simply has no application or that leave is necessary and the requirements for leave have been satisfied.  If leave be necessary, I would grant that leave.  I do not think that the statements made, for example, by the Court in Wentworth and by Lord Justice Kay in Drucker have application where the purpose of the tender is to prove the fact that the statement was made.  Counsel for Mr Anderson was unable to provide me with any case where such a limitation had been applied in circumstances where the purpose of the evidence was as I have said.

 

Consequently, the objection is overruled.

Close

Editorial Notes

  • Published Case Name:

    ASIC v Managed Investments Ltd and Ors No.1

  • Shortened Case Name:

    Australian Securities and Investments Commission v Managed Investments Ltd (No 1)

  • MNC:

    [2012] QSC 59

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    21 Feb 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment [2012] QSC 59 21 Feb 2012 Objection by the seventh defendant to the use of an affidavit annexing affidavits from other proceedings overruled: Fryberg J.
Primary Judgment [2012] QSC 72 16 Mar 2012 Plaintiff's application for leave to proceed against the first defendant (a company in liquidation) granted: Fryberg J.
Primary Judgment [2012] QSC 74 28 Mar 2012 Certain paragraphs of defences struck out and directions made that fourth, fifth, sixth, seventh and eighth defendants to comply with UCPR pleading regime: Fryberg J.
Primary Judgment [2013] QSC 15 29 Jan 2013 Plaintiff's application for summary judgment against the first defendant refused; fifth defendant's application seeking to restrain plaintiff from obtaining summary judgment against first defendant refused: Fryberg J.
Primary Judgment [2013] QSC 280 17 Oct 2013 Declaration that notices to the fourth to eighth defendants given by the plaintiff pursuant to s 79(1) of the Australian Securities and Investments Commission Act (Cth) are invalid: Douglas J.
Primary Judgment [2013] QSC 313 11 Nov 2013 Applications to stay trial until determination of New Zealand prosecutions refused: Fryberg J.
Primary Judgment [2013] QSC 355 28 Nov 2013 Direction made that a witness answer a question: Douglas J.
Primary Judgment [2014] QSC 72 [2015] 2 Qd R 32 22 Apr 2014 Determination as to the use to which an affidavit may be put without the deponent being cross-examined in relation to it: Douglas J.
Primary Judgment [2014] QSC 204 07 Aug 2014 Determination made that witness not permitted to be cross-examined by being shown his answer to a question in an examination of him pursuant to s 597 of the Corporations Act 2001 (Cth) where he had claimed privilege against self-incrimination in that examination: Douglas J.
Primary Judgment [2016] QSC 109 23 May 2016 Primary judgment: defendants' found to have contravened ss 601FC and 601FD of the Corporations Act 2001 (Cth): Douglas J.
Primary Judgment [2017] QSC 96 26 May 2017 Declaratory relief ordered; fourth, fifth, sixth, seventh and eighth defendants ordered to pay pecuniary penalties and compensation; fourth, fifth, sixth, seventh and eighth defendants disqualified from managing any corporation; costs orders made against fourth, fifth, sixth, seventh and eighth defendants: Douglas J.
Notice of Appeal Filed File Number: Appeals 6281/17; 6289/17; 6306/17; 6319/17; 6320/17 23 Jun 2017 Appeals from [2016] QSC 109 and [2017] QSC 96.
Appeal Determined (QCA) [2012] QCA 301 [2013] 2 Qd R 401 02 Nov 2012 Appeal from [2012] QSC 74 allowed; each of the fourth, fifth, sixth, seventh and eighth defendants to be partly excused from compliance with the UCPR pleading regime: Holmes and White JJA and McMurdo J.
Appeal Determined (QCA) [2013] QCA 88 19 Apr 2013 Application by Australian Securities and Investments Commission to vary costs order in [2012] QCA 301 refused: Holmes and White JJA and McMurdo J.
Appeal Determined (QCA) [2013] QCA 357 03 Dec 2013 Appeal from [2013] QSC 313 (refusal of application to stay proceedings) dismissed: Muir and Gotterson JJA and Applegarth J.
Appeal Determined (QCA) [2018] QCA 352 18 Dec 2018 Appeals from [2016] QSC 109 and [2017] QSC 96. All appeals (and cross-appeals by ASIC) dismissed save for Appeal 6320/17 whereby appealed allowed in part with respect to the conclusion that Mr King was an officer and therefore Mr King's appeal allowed to the extent that he contravened the duties prescribed by s 601FD of the Corporations Act 2001 (Cth): Morrison and McMurdo JJA and Applegarth J.
Special Leave Granted (HCA) [2019] HCATrans 104 17 May 2019 Special leave application instituted by Australian Securities and Investments Commission against Mr King (Appeal 6320/17) granted: Bell and Keane JJ

Appeal Status

{solid} Appeal Determined (QCA) {hollow} Special Leave Granted (HCA)