Baker v Paul - [2011] NSWSC 957

Supreme Court

New South Wales

Medium Neutral Citation: Baker & anor v Paul & anor [2011] NSWSC 957
Hearing dates: 17/06/2011
Decision date: 17 June 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Grant leave to plaintiffs/cross-defendants to use affidavit of director of defendant company in security for costs proceeding.

Catchwords: PRACTICE AND PROCEDURE - Plaintiff seeks to use affidavit evidence filed by defendant pursuant to asset preservation order in security of costs application - whether leave required to use evidence for purpose other than for what it was given - use to be made of evidence in same proceeding relevant factor - nature of asset preservation order and connection with security for costs order also relevant factor - leave granted.
Legislation Cited: (UK) Matrimonial Causes Act 1973
(NSW) Uniform Civil Procedure Rules 2005, r 42.21
Cases Cited: Bhattcharya v Freedman [2001] NSWSC 498
Hearne v Street (2008) 235 CLR 125
Medway v Doublelock Ltd [1978] 1 WLR 710
Rajski v Computer Manufacture and Design Pty Ltd (1982) 2 NSWLR 443
Category: Procedural and other rulings
Parties: Kenneth James Baker (first plaintiff)
KJB Media Pty Ltd (second plaintiff)
Anthony Christopher Paul (first defendant)
ACN 129 258 546 Pty Ltd (second defendant)
Representation: Counsel:
Mr M W Sneddon (plaintiffs)
Solicitors:
McLaughlin & Riordan (plaintiffs)

File Number(s): 2010/285602

Judgment (ex tempore)

By notice of motion, the plaintiffs Kenneth James Baker and KJB Media Pty Ltd (who are also the cross-defendants, the second defendant ACN 068 258 546 Pty Ltd having brought a cross-claim against them), seek a security for costs order pursuant either to (NSW) Uniform Civil Procedure Rules (2005), r 42.21, or the inherent power of the Court to make such orders to "procure the proper and effective administration of justice and prevent abuse of process" [see Rajski v Computer Manufacture and Design Pty Ltd (1982) 2 NSWLR 443, [447]-[448], (Holland J); Bhattcharya v Freedman [2001] NSWSC 498, [27], (Badgery-Parker AJ). In support of that application, the plaintiffs wish to rely on evidence contained in an affidavit of Anthony Christopher Paul, sworn 14 September 2010. That affidavit is itself annexed to an affidavit sworn 24 May 2011 by Andrew Gordon Cameron, a partner in the firm of solicitors who represent the plaintiffs/cross-defendants, relied on by the plaintiffs for the purposes of the present application, which arises from the fact that Mr Paul's affidavit was sworn as an affidavit of assets and liabilities in compliance with obligations imposed by an asset preservation order made by Slattery J on 1 September 2010.

In Hearne v Street (2008) 235 CLR 125, the High Court dealt with a case involving directors of a defendant corporation who had disclosed material, contained in an affidavit and a report sworn and filed by the plaintiffs in proceedings before the Court, but not yet adduced in evidence, to a Minister of the Crown and her staff, in an endeavour to have laws pertaining to the amusement park known as 'Luna Park' changed. Parliament…

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 Baker v Paul

Details

AGLC: Baker v Paul [2011] NSWSC 957
Case: [2011] NSWSC 957
Decision Date: 17 June 2011

CaseChat Overview and Summary

In the case of Baker v Paul, the plaintiff sought to use affidavit evidence filed by the defendant pursuant to an asset preservation order in a security of costs application. The dispute revolved around whether the plaintiff was required to obtain leave to use the defendant's evidence for a purpose other than what it was originally given. The matter was heard in the Supreme Court of Queensland. The court had to decide whether the use of the defendant's evidence in the security of costs application was permissible without additional leave, considering the nature of the asset preservation order and its connection with the security for costs order. The court found that the use of the evidence in the same proceeding was a relevant factor, as was the nature of the asset preservation order and its relationship with the security for costs order.

The court examined the circumstances surrounding the use of the defendant's evidence in the security of costs application. It considered that the evidence was filed pursuant to an asset preservation order, which was designed to protect the defendant's assets in the event of a potential judgment against them. The court held that the nature of the asset preservation order and its connection with the security for costs order were relevant factors in determining whether leave was required. The court concluded that, in this instance, the use of the defendant's evidence in the security of costs application was appropriate without the need for additional leave, given the connection between the orders and the context in which the evidence was obtained.

The court granted the plaintiff's application to use the defendant's affidavit evidence in the security of costs application. The reasoning behind this decision was that the use of the evidence in the same proceeding was a relevant factor, along with the nature of the asset preservation order and its connection with the security for costs order. The court found that these factors justified the use of the defendant's evidence without the need for additional leave. This decision highlights the importance of considering the context and purpose of an order when determining whether leave is required to use evidence for a different purpose.

Orders