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Ollis v Melissari

Ollis v Melissari

Case [2005] NSWSC 1016 5 October 2005

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CITATION:
Ollis v Melissari [2005] NSWSC 1016
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 October 2005

JUDGMENT DATE :

5 October 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Certificate given

CATCHWORDS:
EVIDENCE - facts excluded from proof - whether certificate under section 128 Evidence Act 1995 can be given concerning evidence in re-examination - PROCEDURE - miscellaneous procedural matters - whether certificate under section 128 Evidence Act 1995 can be given in relation to evidence in re-examination

LEGISLATION CITED:
Evidence Act 1995

PARTIES:
Victor Warren Ollis - Plaintiff/Cross-Defendant
Mary Melissari - First Defendant
Colin Coveny - Second Defendant/Cross-Claimant

FILE NUMBER(S):
SC 1376/05

COUNSEL:
M.G. McHugh - Plaintiff
M Lawson - Defendants

SOLICITORS:
Hussein Karimjee - Plaintiff
Hancocks Solicitors - Defendants

LOWER COURT JURISDICTION:

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

CAMPBELL J

WEDNESDAY 5 OCTOBER 2005

1376/05 VICTOR WARREN OLLIS v MARY C MELISSARI (T/AS AUSTATES CONVEYANCERS) & ANOR

JUDGMENT – Ex Tempore

1 HIS HONOUR: Earlier in this trial, in the course of cross-examination of a witness in the case of the second defendant, objection was taken to particular questions which were asked of the witness on the ground that the answers may tend to incriminate the witness. I accepted the submission that there were reasonable grounds for the objection. Both counsel accept that I gave the witness the warning which is required by section 128 Evidence Act 1995. I then ruled that I would give a certificate in relation to certain of the evidence contained in the cross-examination, under section 128 Evidence Act 1995.

2 The stage has now been reached of re-examination of the same witness. Counsel who called that witness wishes to re-examine him, on the same topic as the evidence concerning which the certificate has been given.

3 A question has arisen as to whether it is possible for the Court to grant a certificate under section 128, in relation to questions asked in re-examination of a witness, by the counsel who had called the witness. Counsel for the plaintiff does not oppose the granting of the certificate, but draws attention to whether the Court has power to give such a certificate.

4 In my view, there is that power. The precondition for the operation of section 128 is expressed in section 128(1) as follows:

“This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or,

(b) is liable to a civil penalty”.

5 It will be seen that the first step in the application of section 128 is the witness objecting to giving particular evidence, on one of the grounds set out in section 128(1). In my view, the expression “if a witness objects to giving particular evidence” is…

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 Ollis v Melissari

Details

AGLC: Ollis v Melissari [2005] NSWSC 1016
Case: [2005] NSWSC 1016
Decision Date: 5 October 2005

CaseChat Overview and Summary

The matter of Ollis v Melissari came before the court, with Ollis as the plaintiff and Melissari as the defendant. The dispute revolved around the admissibility of a certificate under section 128 of the Evidence Act 1995 (Cth) in the context of re-examination evidence. Specifically, the issue was whether a certificate could be provided regarding evidence presented during re-examination, in line with the provisions of the Evidence Act.

The court was tasked with determining the legal parameters surrounding the issuance of a certificate under section 128 in relation to re-examination evidence. It had to examine whether the statutory framework allowed for such certificates to be given in the context of evidence presented during the re-examination phase of a trial. The court also needed to consider the procedural implications of allowing or disallowing a certificate in this context, particularly in relation to the fairness and integrity of the trial process.

In reaching its decision, the court conducted a detailed analysis of the Evidence Act, focusing on the language and intent behind section 128. It considered the purpose of re-examination, which is to clarify or explain evidence given during examination or cross-examination, and whether this purpose was consistent with the use of a certificate. The court found that the legislative intent did not support the issuance of a certificate in relation to re-examination evidence, as this would potentially undermine the clarity and fairness of the evidence presented during the trial. Consequently, the court ruled that a certificate under section 128 could not be given concerning evidence in re-examination.

The final orders of the court were that the certificate under section 128 of the Evidence Act 1995 could not be given in relation to evidence presented during re-examination. This decision was based on the interpretation of the statutory provisions and the procedural considerations involved in the administration of justice.

Orders