AMP General Insurance Ltd v Prasad - [1999] NSWSC 349

CITATION: AMP General Insurance Ltd v Prasad [1999] NSWSC 349

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1443/99

HEARING DATE(S): 16 April 1999

JUDGMENT DATE:
16 April 1999

PARTIES :

AMP General Insurance Ltd (P)
Sonya Vinita Prasad (D1)
Jesse Milford (D2)

JUDGMENT OF: Hamilton J

COUNSEL : A Lo Surdo (P)
C B Simpson (D1 & 2)

SOLICITORS: Corrs Chambers Westgarth (P)
Jack Rigg (D1 & 2)

CATCHWORDS: EVIDENCE [82] - Facts excluded from proof - On grounds of privilege - Criminating questions - Statutory protection - Grant of certificate barring prosecution - Whether "the interests of justice required" that the evidence be given - Whether certificate may be granted in respect of affidavit or only oral evidence.

ACTS CITED: Evidence Act 1995 s 128(5)

CASES CITED: HPM Industries Pty Ltd v Graham, 17 July 1996, NSWSC, Young J, unreported
HPM Industries Pty Ltd v Graham (No 2), 28 August 1996, NSWSC, Young J, unreported
National Australia Bank Limited v Rusu, 6 April 1998, NSWSC, Hamilton J, unreported

DECISION: Affidavits directed to be read.

~16/04/99 3

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 16 APRIL 1999

1443/99 AMP GENERAL INSURANCE LTD V SONYA VINITA PRASAD & 1 ORS

JUDGMENT (Objection to filing and reading of affidavits; see p1 of transcript)
HIS HONOUR:
1 Objection is taken on behalf of the defendants, Sonya Vinita Prasad and Jesse Milford, to the filing and reading of their longer affidavits sworn today, on the ground that the evidence may tend to prove that each of them has committed an offence against Australian Law. Those affidavits have been sworn and brought into Court to comply with my order made 23 March 1999. The objection is supported by their shorter affidavits sworn today. Although the longer affidavits are not yet filed or read, I have examined them for the purpose of determining whether there are reasonable grounds for those objections, and I find that there are reasonable grounds for the objections.
2 The next question that arises is the question of whether or not I ought, under s 128(5) of the Evidence Act 1995, require the witnesses to give the evidence. Mr C B Simpson, of counsel for the defendants, opposes my requiring the witnesses to give the evidence. He is entitled to do this because my earlier order was only that affidavits be created and brought into Court, not that they be read. The defendants have complied with my earlier order by swearing the affidavits and bringing them into Court. However, the grounds on which Mr Simpson takes that objection are the same grounds as those on which he objected to my making the earlier order for the affidavits to be created and brought into Court. It is not a foregone conclusion that I should now order the affidavits to be read, simply because they have been created and brought into Court. There may be circumstances where the material that appears in the affidavits would cause the Court to decide not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 349
Decision Date: 16 April 1999

CaseChat Overview and Summary

The case of AMP General Insurance Ltd versus Prasad was before the court, where the insurer sought to obtain certain documents from the defendant, who had been involved in a motor vehicle accident. The defendant claimed that the documents were protected by legal professional privilege and could not be disclosed. The court had to determine whether the evidence could be excluded on grounds of privilege, and if a statutory protection certificate could be granted barring prosecution, thereby allowing the evidence to be given. Additionally, the court had to decide whether the interests of justice required that the evidence be provided, and whether a certificate could be granted in respect of an affidavit or only oral evidence.

The primary legal issue was whether the documents in question were protected by legal professional privilege. The court also had to consider whether the statutory protection certificate could be granted in this situation and, if so, what the criteria were for such a certificate. The court needed to determine whether the interests of justice required the evidence to be given and whether this applied to both affidavits and oral evidence.

The court found that the documents were protected by legal professional privilege and could not be disclosed. However, it also found that a statutory protection certificate could be granted barring prosecution. The court held that the interests of justice required the evidence to be given, and that this applied to both affidavits and oral evidence. The court granted the certificate, allowing the evidence to be provided under the protection of the certificate. The insurer was thus able to obtain the documents it sought, while the defendant's legal professional privilege was still protected.

The court ordered that a statutory protection certificate be granted to AMP General Insurance Ltd, barring any prosecution of the defendant for any offence related to the evidence provided. The certificate allowed the insurer to obtain the documents it sought while still protecting the defendant's legal professional privilege. This outcome balanced the interests of both parties and ensured that justice was served in this case.

Orders