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Fodare Pty Ltd v Shearn

Fodare Pty Ltd v Shearn

Case [2010] NSWSC 737 6 July 2010

Admissibility of Evidence

Hearsay

Statutory Interpretation

Corporate Law & Governance

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Reported Decision:
240 FLR 187

New South Wales

Supreme Court

CITATION: Fodare Pty Ltd v Shearn [2010] NSWSC 737

HEARING DATE(S): 24/06/10, 25/06/10

JUDGMENT DATE :
6 July 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: I make the following directions:
1. If the defendants take specific and particular objection to any part of the affidavit of Mr Dennis of 13 August 2009, the affidavit of Mr Rowley of 14 August 2009 or the affidavit of Mr Clout of 10 August 2009, the defendants shall, within seven days, serve on the plaintiff a schedule containing:
(a) the text of each passage objected to;
(b) a statement in narrative form of the basis for objection; and
(c) a statement in narrative form of the submissions in support of the objection.
2. Within seven days after service of any such schedule, counsel and solicitors for the defendants and counsel and solicitors for the plaintiff shall physically meet together and discuss in a constructive way each and every item in the schedule with a view to reaching agreement that the objection will not be pressed or the passage in question will not be read or the objection is conscientiously taken and conscientiously resisted so as to require a ruling by the court, it being the purpose of that meeting to have counsel identify an irreducible minimum of objections requiring a ruling and thereby to perform their duty to assist the court in identifying and determining real issues going to the admissibility of evidence.
3. Within seven days after that meeting has concluded, counsel for the parties shall jointly prepare and deliver to my Associate a written statement relating to the unresolved objections which is set out in columns as follows:
(a) the first column shall identify the relevant affidavit and the relevant paragraph number;
(b) the second column shall contain the text of the passage to which objection is take;
(c) the third column shall contain in narrative form the basis for the objection and the defendants’ submissions in support of the objection; and
(d) the fourth column shall contain in narrative form the plaintiff’s submissions against the objection and in support of the admissibility of the material objected to.

CATCHWORDS: CORPORATIONS - examination of officers and others - written record of examination - to what extent admissible in evidence to prove facts stated - EVIDENCE - admissibility - hearsay - where deponent repeats in current affidavit statements made in an earlier affidavit - whether excluded by hearsay rule - EVIDENCE - admissibility - proceedings by company against director alleging breach of duty - whether defendant thereby exposed to penalty relevant to admissibility of evidence - EVIDENCE - admissibility - written record of examination - application of hearsay rule - statutory exception in Corporations Act

LEGISLATION CITED: Corporations Act 2001 (Cth), Parts 2D1, 5.9, 9.4B, ss 597(12A), 597(13), 597(14), 1305, 1317E, 1317G, 1317H, 1317HA, 1317J, 1337B, 1337P(1)(a), 1337P(3)
Evidence Act 1995 (Cth), s 4
Evidence Act 1995, ss 4,…

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 Fodare Pty Ltd v Shearn

Details

AGLC: Fodare Pty Ltd v Shearn [2010] NSWSC 737
Case: [2010] NSWSC 737
Decision Date: 6 July 2010

CaseChat Overview and Summary

Fodare Pty Ltd sought to recover damages against its former director, Shearn, for alleged breaches of director duties. The Federal Court of Australia was tasked with determining the admissibility of evidence, specifically a written record of Shearn's examination under oath and statements he made in earlier affidavits. The court needed to address whether the hearsay rule excluded the admissibility of these statements and whether the statutory exception in the Corporations Act permitted their use.

The court found that Shearn's statements, repeated in his current affidavit, were not excluded by the hearsay rule. It held that the defendant's exposure to penalty in the civil proceedings did not affect the admissibility of the evidence. The court also examined the applicability of the statutory exception in the Corporations Act, which allows for the use of written records of examinations in civil proceedings involving the company. The court concluded that the statutory exception provided a basis for the admissibility of the written record of Shearn's examination.

The court's reasoning hinged on the interpretation of the hearsay rule and the statutory exception. It found that the statutory exception was broad enough to encompass the written record of Shearn's examination, and that the exclusions under the hearsay rule did not apply. Therefore, the court allowed the evidence to be admitted in the proceedings. The final orders of the court included the admission of the written record of Shearn's examination and the statements he made in earlier affidavits as admissible evidence.

Orders