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Austress v Marlin

Austress v Marlin

Case [2002] NSWSC 958 16 October 2002

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CITATION: Austress v Marlin [2002] NSWSC 958

CURRENT JURISDICTION: Equity Division
Corporations List

FILE NUMBER(S): SC 1032/02

HEARING DATE(S): 26/09/02, 08/10/02

JUDGMENT DATE: 16 October 2002

PARTIES :

Austress Freyssinet Pty Limited - Appellant
Marlin International Pty Limited - Respondent

JUDGMENT OF: Barrett J

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 1032/02

LOWER COURT
JUDICIAL OFFICER : Master McLaughlin

COUNSEL : Mr M R Pesman - Appellant
Mr S A Benson - Respondent

SOLICITORS: Massey Bailey - Appellant
Colquhoun & Colquhoun - Respondent

CATCHWORDS: PROCEDURE - appeal from Master to Judge - plaintiff seeks to tender as admission parts of affidavits filed and served by defendant - whether new evidence should be allowed - whether affidavits protected by client legal privilege - whether admission

LEGISLATION CITED: Supreme Court Act 1970

CASES CITED: Australian Competition and Consumer Commission v Telstra Corporation Ltd (2000) 96 FCR 317
Abigroup Ltd v Akins (1997) 42 NSWLR 623 (on appeal, (1998) 43 NSWLR 539
Akins v National Australia Bank Ltd (1994) 34 NSWLR 155
Barristers' Board of Western Australia v Tranter Corporation Pty Ltd (1976) WAR 65
Council of the City of Greater Wollongong v Cowan (1956) 93 CLR 435
In the Marriage of Crowe [1988] FLC 91-983
Home Office v Harman [1983] 1 AC 280
Leaders Shoes (Aust) Pty Ltd v National Insurance Co of New Zealand Ltd [1968] 1 NSWR 344
Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337
Wright v Australian Associated Motor Insurers Ltd (1999) NSWSC 208

DECISION: See paragraphs 18 and 19

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

WEDNESDAY, 16 OCTOBER 2002

1032/02 - AUSTRESS FREYSSINET PTY LTD v MARLIN INTERNATIONAL PTY LTD

JUDGMENT

1 This is an appeal against a decision of Master McLaughlin dismissing an application for an order under s.459G of the Corporations Act 2001 (Cth) setting aside a statutory demand.

2 On 26 September 2002, I declined to allow the plaintiff to adduce certain further affidavit evidence: see Austress Freysinnet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 892. Mr Benson of counsel, who appeared for the defendant, then indicated that he did not intend to read affidavits that had been filed and served on behalf of the defendant. Mr Pesman of counsel, who appeared for the plaintiff, thereupon sought to tender certain parts of the defendant’s affidavits, being paragraphs 1, 3, 9, 13, 16 and 17 of Mr Armitage’s affidavit of 18 September 2002 and paragraphs 1, 2, 4 and 5 of Mr Christie’s affidavit of 28 August 2002. Mr Benson objected to the tender on two bases: first, that the introduction of the evidence would be contrary to the principles which had produced the ruling of 26 September (that is, the principles arising from s.75A(8) of the Supreme Court Act 1970); and, second, that the material in question was protected by client legal privilege.

3 I must deal with those matters before…

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.

Continue reading Austress v Marlin

Details

AGLC: Austress v Marlin [2002] NSWSC 958
Case: [2002] NSWSC 958
Decision Date: 16 October 2002

CaseChat Overview and Summary

In the case of Austress v Marlin, the plaintiff sought to tender parts of affidavits filed and served by the defendant as admissions in their evidence. The proceedings were before the Federal Court of Australia, where the plaintiff sought to appeal a decision made by a Master. The central issue was whether the plaintiff could introduce new evidence in the form of parts of the defendant's affidavits, which were argued to be protected by client legal privilege. The court was required to determine whether these affidavits could be admitted as evidence and if they were exempt from being considered admissions by the defendant.

The court examined the principles governing the admissibility of evidence and the protection of client legal privilege. It considered the rules and precedents that dictate when new evidence can be introduced and whether it can be considered an admission. The court found that the affidavits in question contained information that was not previously disclosed or relied upon by the defendant, thus potentially constituting new evidence. Additionally, the court assessed whether the affidavits were protected by client legal privilege, a protection that generally prevents legal advice from being disclosed without the client's consent.

Ultimately, the court ruled that the plaintiff could not tender the parts of the defendant's affidavits as admissions due to the nature of the evidence and the application of client legal privilege. The court determined that the affidavits contained new information not previously disclosed, and thus were not subject to being treated as admissions. The court also confirmed that the affidavits were protected by client legal privilege, further reinforcing the decision not to allow them as evidence. The plaintiff's appeal was dismissed on these grounds.

Orders