Australian Stainless Distributors Pty Ltd v Stacey

Link copied
Case Copied 53 min read

SUPREME COURT OF QUEENSLAND

CITATION:

Australian Stainless Distributors Pty Ltd v Stacey [2021] QSC 278

PARTIES:

AUSTRALIAN STAINLESS DISTRIBUTORS PTY LTD
ACN 097 677 980

(plaintiff)

v
ADAM PAUL STACEY

(defendant)

FILE NO/S:

BS No 717 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2021

JUDGE:

Ryan J

ORDER:

Summary judgment for the plaintiff

Orders and declarations as per paragraph [107] of the reasons

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – where the defendant was an employee of the plaintiff  company – where the plaintiff claims the defendant acted dishonestly and in breach of his contractual, fiduciary, and statutory duties – where in pursuance of an agreement made between the parties, the plaintiff applies for summary judgment – where the defendant neither supports nor opposes the application – where the defendant did not appear at the application – whether summary judgment should be granted

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – SELF-INCRIMINATION PRIVILEGE – where the plaintiff produced evidence from “accomplice” employees on the application for summary judgment – where the defendant does not challenge the evidence produced by the plaintiff – where the unchallenged affidavit evidence produced by the plaintiff established the pleaded allegations – where the defendant did not suggest that there was a need for a trial of the claim – whether a trial of the claim was required to determine whether the “accomplice” employees would seek to rely on the privilege against self-incrimination at trial and decline to give oral evidence for ASD – whether, notwithstanding a claim of privilege, a witness, having made a self-incriminatory statement, may be directed to identify the statement as their own – whether such a statement is admissible under section 92 of the Evidence Act 1977 (Qld) even if the statement maker successfully claims the privilege and gives no oral evidence (in chief or under cross-examination)


Corporations Act 2001 (Cth), s 9, s 180, s 181, s 182, s 1317H
Evidence Act 1977 (Qld), s 92, s 98, s 102
Uniform Civil Procedure Rules 1999, r 292

Accident Insurance Mutual Holdings v McFadden & another (1993) 31 NSWLR 412, considered
ASIC v King (2020) 376 ALR 1, cited
Australian Securities and Investments Commission v Managed Investments Pty Ltd (No 6) [2013] QSC 355, considered
Australian Securities and Investments Commission v Managed Investments Pty Ltd & Ors (No 7) [2014] QSC 72, considered
Hilton v Lancashire Dynamo Nevelin Ltd, considered
Macks v Viscariello (2017) 130 SASR, cited
Thompson v Bella-Lewis [1997] 1 Qd R 429, considered

COUNSEL:

D Piggott QC for the plaintiff
No appearance for the defendant

SOLICITORS:

Talbot Sayer for the plaintiff
No appearance for the defendant

  1. The plaintiff, Australian Stainless Distributors (ASD), is a distributor of stainless steel and aluminium products.  The defendant, Mr Stacey, was its State Manager.…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Australian Stainless Distributors Pty Ltd v Stacey and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] QSC 278
Decision Date

CaseChat Overview and Summary

The case of Australian Stainless Distributors Pty Ltd v Stacey involved a dispute between the plaintiff, a company, and its former employee, the defendant. The plaintiff sought summary judgment against the defendant, alleging that he acted dishonestly and breached his contractual, fiduciary, and statutory duties. The defendant neither supported nor opposed the application and did not appear at the hearing. The primary issue was whether summary judgment should be granted under these circumstances. The court considered the admissibility of evidence from "accomplice" employees who had provided statements to the plaintiff. The defendant did not challenge the evidence, and the unchallenged affidavits established the pleaded allegations. The court explored whether a trial was necessary to determine whether the "accomplice" employees would claim privilege against self-incrimination and decline to give evidence. The court found that even if the "accomplice" employees claimed privilege, their affidavits would still be admissible under section 92 of the Evidence Act 1977 (Qld). The reasoning hinged on the precedent set in Australian Securities and Investments Commission v Managed Investments Pty Ltd (No 6), where it was held that compelling a witness to identify their affidavit did not add to their jeopardy if the witness to the affidavit could be called to prove it. Consequently, the court granted summary judgment in favour of the plaintiff. The final orders included granting the plaintiff summary judgment and specific declarations and orders as outlined in paragraph [107] of the reasons.

Orders

Orders of the court

Summary judgment for the plaintiff

Orders and declarations as per paragraph [107] of the reasons

Background

Background to the litigation

Section 92 states – 92Admissibility of documentary evidence as to facts in issue(1)In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if— (a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or (b) the document is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.(2)The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where— (a) the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness; or (b) the maker or supplier is out of the State and it is not reasonably practicable to secure the attendance of the maker or supplier; or (c) the maker or supplier can not with reasonable diligence be found or identified; or (d) it can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; or (e) no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness; or (f) at any stage of the proceeding it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling the maker or supplier as a witness. (3)The court may act on hearsay evidence for the purpose of deciding any of the matters mentioned in subsection (2)(a), (b), (c), (d) or (f). (4)For the purposes of this part, a statement contained in a document is made by a person if— (a) it was written, made, dictated or otherwise produced by the person; or (b) it was recorded with the person’s knowledge; or (c) it was recorded in the course of and ancillary to a proceeding; or (d) it was recognised by the person as the person’s statement by signing, initialling or otherwise in writing. In arguing (unsuccessfully) that X did not have to identify his affidavit, X relied upon the decision of Clark JA in the New South Wales Court of Appeal in Accident Insurance Mutual Holdings v McFadden & another (1993) 31 NSWLR 412. That decision considered inter alia whether the primary judge was correct in refusing to admit into evidence in the appellant’s case the written statements of its witness who claimed privilege at trial.

Evidence

Evidence Before The Court

On the strength of Mr Conomos’ evidence, ASD submitted that there was no need for a trial of the action because this court was materially in the same position as any trial court would be – that is, left to determine ASD’s claim on the unchallenged evidence produced by ASD.The relevance – if any – of the self-incriminating nature of the evidence relied upon by ASD in support of its application for summary judgment On the strength of Mr Conomos’ affidavit, it may be accepted that, if this case followed the normal procedural route, there would be no challenge by the defendant to any of the evidence upon which ASD wished to rely. However, ASD did not deal with the fact that the evidence of the accomplices either did, or tended to, incriminate them, as well as Mr Stacey, in wrongdoing. Although it was obvious that the accomplices’ statements had been taken by ASD’s solicitors, there was no evidence before me about the circumstances in which they had agreed to give statements about Mr Stacey’s and their own misconduct; or their preparedness to waive their privilege against self-incrimination (or self-exposure to penalty) if called to give evidence. I was initially concerned that it might not be possible for me to conclude that there was no need for a trial of the action, because – ·the accomplices were critical witnesses;·the evidence before me said nothing about what they might do (that is, assert a privilege claim or not) if called to give evidence for ASD at a trial of ASD’s claim;·it would only be at such a trial that the evidence available to ASD would be known – in that, if an accomplice were to successfully claim the privilege, then they could not be directed to give oral evidence for ASD; and ·therefore, it was not possible to evaluate the defendant’s prospects of success prior to trial. At my request, Queen’s Counsel for ASD made further written submissions to me about 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? In its further written submissions, ASD acknowledged that it was possible that one or more of the accomplices might claim the privilege against self-incrimination at a trial of the claim. However, it submitted that such a possibility did not prevent me from concluding that (for the purposes of rule 292) there was no need for a trial. This was because – (a)Whether an accomplice intended to make a claim for privilege or not, they would be compelled by subpoena to attend court and give evidence;(b)Having already provided a sworn or affirmed affidavit, the court could direct them to identify their affidavits because to do so would not place them in further jeopardy of incrimination – following Australian Securities and Investments Commission v Managed Investments Pty Ltd (No 6) [2013] QSC 355 (Douglas J) (Managed Investments (No 6));(c)Their affidavits would be admissible under section 92(1)(a) of the Evidence Act 1977 (Qld);(d)Mr Stacey would not object to the admission into evidence of the affidavits, nor would he cross-examine the accomplices; and(e)The court would not exclude the affidavit evidence, either under section 98 of the Evidence Act or under the common law discretion to exclude evidence obtained “unlawfully”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On further consideration, I wondered whether I had unduly complicated things by raising the issue of the witnesses’ privilege. However, having considered the additional submissions and the relevant authorities, as explained below, I concluded that, even if the accomplices successfully claimed privilege at trial, their affidavit evidence would be admissible in support of ASD’s claim. Consideration of authorities In Managed Investments (No 6), to which ASD referred, ASIC had obtained an affidavit from a witness (X). After giving his affidavit, X was charged with offences against the Securities Act 1978 (NZ). ASIC called X to give evidence at trial, but X refused to identify the affidavit as his, claiming the privilege against self-incrimination. ASIC accepted that X had a valid claim for privilege but wished only to ask him whether he had signed the affidavit. Douglas J held that requiring X to identify the affidavit (by answering the question whether he had signed it) did not add to the jeopardy in which X already stood because the witness to X’s affidavit could be called to prove it. His Honour directed X to answer the question whether he signed the affidavit, before receiving submissions as to whether X’s affidavit ought to be admitted into evidence under section 92 of the Evidence Act 1977 (Qld). Section 92 states – 92Admissibility of documentary evidence as to facts in issue(1)In any proceeding (not being a criminal proceeding) where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, subject to this part, be admissible as evidence of that fact if— (a) the maker of the statement had personal knowledge of the matters dealt with by the statement, and is called as a witness in the proceeding; or (b) the document is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding.(2)The condition in subsection (1) that the maker of the statement or the person who supplied the information, as the case may be, be called as a witness need not be satisfied where— (a) the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness; or (b) the maker or supplier is out of the State and it is not reasonably practicable to secure the attendance of the maker or supplier; or (c) the maker or supplier can not with reasonable diligence be found or identified; or (d) it can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; or (e) no party to the proceeding who would have the right to cross-examine the maker or supplier requires the maker or supplier being called as a witness; or (f) at any stage of the proceeding it appears to the court that, having regard to all the circumstances of the case, undue delay or expense would be caused by calling the maker or supplier as a witness. (3)The court may act on hearsay evidence for the purpose of deciding any of the matters mentioned in subsection (2)(a), (b), (c), (d) or (f). (4)For the purposes of this part, a statement contained in a document is made by a person if— (a) it was written, made, dictated or otherwise produced by the person; or (b) it was recorded with the person’s knowledge; or (c) it was recorded in the course of and ancillary to a proceeding; or (d) it was recognised by the person as the person’s statement by signing, initialling or otherwise in writing.