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This case considered whether summary judgment should be granted for the plaintiff in circumstances where the case against the defendant relied on affidavit evidence from persons who were accomplices in the defendant’s misconduct. Ryan J concluded that, although the witnesses for the plaintiff could invoke the privilege against self-incrimination at a trial, they could nonetheless be directed to identify their affidavits, which “amply supported” the case against the defendant. Accordingly, there was no need for a trial.
28 October 2021
The plaintiff, ASD, is a distributor of stainless steel and aluminium products. . The defendant, Mr Stacey, was previously ASD’s State Manager for Queensland. . During the course of his employment, Mr Stacey “acted dishonestly in various ways, causing loss to ASD”. . His conduct included the misappropriation of stock from ASD, intentional overpayments to other employees, and the authorisation of payments for services not received by ASD. . ASD claimed $200,000 in compensation from Mr Stacey, and sought declarations as to his dishonesty and breaches of duties. .
The plaintiff sought summary judgment under r 292 Uniform Civil Procedure Rules 1999 (“UCPR”). . That application was “amply supported” by affidavit evidence, including from some of Mr Stacey’s “accomplices”. . An affidavit filed by Mr Stacey’s lawyer indicated that Mr Stacey did not object to any affidavit evidence filed by the plaintiff, would not take part in any trial against him (including that he would not cross-examine any of the plaintiff’s witnesses, nor adduce evidence in his own defence), and neither opposed nor supported the plaintiff’s application for summary judgment. .
In the result, Ryan J concluded that there ought to be summary judgment for the plaintiff. Her Honour made orders requiring the payment of compensation by Mr Stacey, and made declarations about his conduct (including that he had breached various contractual, fiduciary and statutory duties). . However, in determining whether or not a trial was necessary (concluding that it was not), her Honour gave noteworthy consideration to the following question:
“On an application for summary judgment, based substantially on the self-incriminatory evidence of a witness, can it be said that there is no need for a trial when the court has no evidence before it that the witness would not claim the privilege against self-incrimination at trial?”
That question arose because the affidavit evidence supporting the plaintiff’s case was given by accomplices of Mr Stacey who had incriminated themselves in Mr Stacey’s conduct. .
Why there was no need for a trial of the action
Justice Ryan noted that a “statement maker” could be subpoenaed to appear as a witness under r 414 of the UCPR. However, the fact that any statement makers (in this case, the accomplices) had made self-incriminatory statements prior to being called as witnesses did not mean they had “waived the privilege against self-incrimination” (citing Accident Insurance Mutual Holdings v McFadden (1993) 31 NSWLR 412). . However, if the accomplices were called, and invoked the privilege against self-incrimination, they could nonetheless be directed to identify their affidavits, because doing so “does not add to the jeopardy already created by the written statement” (citing ASIC v Managed Investments Pty Ltd (No 6)  QSC 355). . Further, the affidavits of the accomplices would be admissible under s 92(1)(a) Evidence Act 1977 (although they could be rejected by the court in the exercise of a discretion under s 98, and the weight attached to any affidavit was to be decided having regard to matters set out in s 102). , .
In summary, at any trial of the action, “if it were necessary (because an accomplice claimed privilege), the accomplice would be directed to identify his affidavit; and his affidavit would be admitted into evidence to support, without challenge or contradiction or further context, the plaintiff’s claims”. . Nothing in the material suggested that it would not be in the interests of justice to admit the accomplices’ affidavits, and the affidavits were “persuasively plausible” and supported by other evidence. . Further, Mr Stacey would not cross-examine any of the accomplices, or adduce any evidence of his own (as per his lawyer’s affidavit). . Accordingly, the defendant had no real prospect of defending the claim, and it was therefore appropriate to grant summary judgment. .