Australian Securities and Investments Commission v Macdonald (No 4)

[2008] NSWSC 1101

CITATION:	Australian Securities and Investments Commission v Macdonald (No 4) [2008] NSWSC 1101
HEARING DATE(S):	29-30 September 2008, 1-3 October 2008, 7-8 October 2008, 13-15 October 2008, 20-22 October 2008
JUDGMENT DATE :	23 October 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	23 October 2008
DECISION:	Challenge to ruling that affidavit admissible rejected.
CATCHWORDS:	EVIDENCE - Admissibility and relevancy - Late application to file affidavit correcting mistakes in earlier affidavit and establishing document path to plaintiff of copies of documents of 11th defendant from substantial shareholder and its representatives on board of 11th defendant - Whether leave should be refused as aiding a construct method of proof and because the documents were not included in a tender bundle as ordered - Justice of the case - Whether leave should be granted to ground cross examination for if sought to give evidence in reply may be said to be unjust
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	Australian Securities and Investments Commission (Plaintiff) Peter Donald Macdonald (First Defendant) Peter James Shafron (Second Defendant) Phillip Graham Morley (Third Defendant) Michael Robert Brown (Fourth Defendant) Michael John Gillfillan (Fifth Defendant) Meredith Hellicar (Sixth Defendant) Martin Koffel (Seventh Defendant) Geoffrey Frederick O'Brien (Eighth Defendant) Gregory James Terry (Ninth Defendant) Peter John Willcox (Tenth Defendant) ABN 60 Pty Ltd (Eleventh Defendant) James Hardie Industries NV (Twelfth Defendant)
FILE NUMBER(S):	SC 1490/07
COUNSEL:	Mr A Bannon SC/ Mr R Beech-Jones SC/ Ms D Hogan-Doran/ Ms S Pritchard/ Ms J Single/ Mr A Kuklik (Plaintiff) Mr S Finch SC/ Mr D Studdy SC/ Mr D Mackay (First Defendant) Mr M Holmes QC/ Mr B Walker SC/ Mr R Lancaster/ Mr N Owens (Second Defendant) Mr B Oslington QC/ Mr R Dick/ Mr N Bender (Third Defendant) Mr T Bathurst QC/ Mr R Whitington QC/ Mr R Hollo/ Mr R Hardcastle/ Mr I Colquhoun (Fourth to Seventh Defendants) Mr P Wood/ Mr M Henry (Eighth Defendant) Mr R McHugh SC/ Mr S Nixon (Ninth Defendant) Mr T Jucovic QC/ Mr R Scruby (Tenth Defendant) Mr I Pike (Eleventh Defendant) Mr A Meagher SC/ Ms K Morgan (Twelfth Defendant)
SOLICITORS:	Clayton Utz (Plaintiff) Minter Ellison (First Defendant) Middletons (Second Defendant) Henry Davis York (Third Defendant) Atanaskovic Hartnell (Fourth to Seventh Defendants) Arnold Block Leibler (Eighth Defendant) Blake Dawson (Ninth Defendant) Kemp Strang (Tenth Defendant) Baker & McKenzie (Eleventh Defendant) Mallesons Stephen Jaques (Twelfth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 23 OCTOBER 2008

1490/07 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v PETER DONALD MACDONALD & ORS (NO 4)

EX TEMPORE JUDGMENT

1 My rulings in relation to the additional affidavit of Michael Taylor sworn on 21 October 2008 have been challenged in certain respects. It is submitted that I ought to have ruled that no portion of the affidavit should be admitted. It was submitted in support of that proposition that there was a different way in which this matter could be established and to adopt a construct rather than calling a person who was present at the material meeting of 15 February 2001 lacked justice, and the basic approach I should take in considering the affidavit was the justice between the parties.

2 It was also submitted that it was a matter of hearsay because s 69(3)(a) of the Evidence Act 1995 applied to exclude the exception from the hearsay rule with respect to business records.

3 The justice of the case was also said to have been infringed because some of the documents in question were not included in the tender bundle that the Chief Judge in Equity ordered should contain all documents upon which the plaintiff relied.

4 The affidavit seeks to deal with a number of errors in the earlier affidavit of Mr Taylor and then goes on to trace the history of reception by the plaintiff of the documents referred to in the affidavit.

5 Objection has been taken that the deponent lacked knowledge of the methods utilised by the plaintiff in relation to the reception of this material and, in consequence, the representations in the affidavit were inadmissible because the provisions of s 69(2) of the Evidence Act had not been satisfied.

6 In my view, however, s 69(5) of the Evidence Act applies. The deponent was the person in charge of the particular unit that received documents in relation to this matter. It may, therefore, be assumed that he would have first-hand knowledge of its operations.

7 The plaintiff has submitted that in addition to those matters there has arisen in the course of cross-examination a suggestion that documents which are not available may never have been available. In order to meet that contention and in order to lay a foundation for cross-examination of defence witnesses, should they elect to go into evidence, the document chain between BIL and BIL International and its representatives, the eighth and ninth defendants in these proceedings, to documents of JHIL is sought to be established. It is submitted by the plaintiff that if this is not done in its case and is left for a case in reply, considerations of unfairness would arise.

8 I am minded to accept the submissions of the plaintiff that there is a sufficient connection between the forensic approach to these proceedings and there is sufficient connection between the obtaining of documents that were said to be considered at the board meeting to which I have referred, to allow the material to go into evidence.

9 Much of the submissions that were made in support of the notion that the justice of the case demanded that I reject the affidavit entirely are matters of submission that may still be made, and I would expect will be made.

10 I reject the challenges to my rulings.

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