Phoenix Management Corporation Pty Ltd and Curl 2d Pty Ltd v Barrenjoey Road Bungan Beach Pty Ltd
[2001] NSWSC 1098
•16 November 2001
CITATION: Phoenix Management Corporation Pty Ltd and Curl 2D Pty Ltd v Barrenjoey Road Bungan Beach Pty Ltd [2001] NSWSC 1098 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 4382/01; 4553/01 HEARING DATE(S): 16 November 2001 JUDGMENT DATE:
16 November 2001PARTIES :
4382/01
Phoenix Management Corporation Pty Limited (P1)
Phoenix Fidelity Corporation Pty Limited (P2)
Barrenjoey Road, Bungan Beach Pty Limited (D1)
Beach Road, Bungan Beach Pty Limited (D2)
Timothy Mark Brachmanis (D3)
Haydn Harvey Prior & Jill Rodney Prior (D4)
Sydney Project Management Pty Limited (D5)
Worldwide Prestige Vehicles Pty Limited (D6)
4553/01
Curl 2D Pty Limited (P1)
Lilant Pty Limited (P2)
Acelan Pty Limited (P3)
Emsco Pty Limited (P4)
Hi Tech Property Services Pty Limited (P5)
Lisa Noone (P6)
Phillip Owen & Alison Brady (P7)
Flash Electrical Contractors Pty Ltd (P8)
Barrenjoey Road, Bungan Beach Pty Limited (D1)
Beach Road, Bungan Beach Pty Limited (D2)
Timothy Mark Brachmanis (D3)
Haydn Harvey Prior & Jill Rodney Prior (D4)
Sydney Project Management Pty Limited (D5)
Worldwide Prestige Vehicles Pty Limited (D6)JUDGMENT OF: Hamilton J
COUNSEL : 4382/01
P Larkin (P1 & 2)
L Harris, Solicitor (D1-3, 5 & 6 to file notice of ceasing to act & by leave as amicus curiae)
No appearance (D4)
4553/01
R J Webb (P1-8)
L Harris, Solicitor (D1-3, 5 & 6, to file notice of ceasing to act & by leave as amicus curiae)
No appearance (D4)SOLICITORS: 4382/01
Michell Sillar (P1 & 2)
M D Nikolaidis & Co (D1-3, 5 & 6 until notice of ceasing to act filed)
Champion Legal (D4)
4553/01
Riley Lawyers (P1-8)
M D Nikolaidis & Co (D1-3, 5 & 6 until notice of ceasing to act filed)
Champion Legal (D4)CATCHWORDS: EVIDENCE [82] - Facts excluded from proof - On grounds of privilege - Criminating questions - Statutory protection - Grant of certificate barring prosecution - Whether certificate may be granted only in respect of oral evidence - Whether certificate may be granted in respect of affidavit or documents produced to Court in compliance with Mareva order - Whether Court must be constituted by same judicial officer for purpose of making antecedent findings and granting certificate under Evidence Act 1995 s 128(6). LEGISLATION CITED: Evidence Act 1995 s 128 (3) & (6)
Supreme Court Act s 37(3A)
Supreme Court Rules 1970 Part 36 r 12CASES CITED: AMP General Insurance Ltd v Prasad [1999] NSWSC 349
Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538
National Australia Bank Limited v Rusu NSWSC 6 April 1998 Hamilton J unreported
Phoenix Management Corporation & ors v Barrenjoey Road Bungan Beach Pty Ltd & ors; Curl 2D Pty Ltd & ors v Barrenjoey Road Bungan Beach Pty Ltd & ors 2 October 2001 Knight AJ unreportedDECISION: Certificate under s 128 granted.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITYDIVISION
HAMILTON J
FRIDAY, 16 NOVEMBER 2001
4382/01 PHOENIX MANAGEMENT CORPORATION PTY LIMITED & ORS v BARRENJOEY ROAD, BUNGAN BEACH PTY LIMITED & ORS
4553/01 CURL 2D PTY LIMITED & ORS v BARRENJOEY ROAD, BUNGAN BEACH PTY LIMITED & ORS
JUDGMENT – On grant of Certificate under Evidence Act 1995 s 128
1 HIS HONOUR: Mr Webb, of counsel for the plaintiff Curl 2D Pty Limited, has tendered and there will be admitted into evidence and marked as Exhibit A6 the documents produced to the Court today by Mr L F Harris, solicitor, pursuant to an order made under Part 36 r 12 of the Supreme Court Rules 1970 (“the SCR”). This morning Mr L F Harris, of M D Nikolaidis & Co, appeared before the Court for the defendants other than the two persons described as the fourth defendants. He sought and was granted leave to file in Court a notice of ceasing to act in both sets of proceedings, subject to an assurance by him that his firm would inform the Court as required what had been done in satisfaction of a direction made by Santow J on 2 November 2001. Mr Harris asked for and was granted leave to continue to appear as amicus curiae and continued to appear in that role for some time. I found the course he was following a little curious in some regards, but continued to permit him to appear in that role until he withdrew a short time ago, when I announced my determination of Mr Webb's tender of what is now Exhibit A6.
2 During the morning Mr Harris informed the Court that he had received documents from Mr Brachmanis, the third defendant, which, apparently, purported to be an answer to the Court's requirement of Mr Brachmanis by way of Mareva relief to furnish material by affidavit in relation to certain funds. Upon being informed of this by Mr Harris I made an order under Part 36 r 12 of the SCR that Mr Harris produce those documents to the Court. I indicated that immediately after their production the documents would be kept in the sealed packet in which they were produced, which would be marked not to be opened without the leave of a Judge.
3 The reason for that is that, when the making of an affidavit by way of Mareva relief was ordered by Knight AJ, his Honour in his judgment (Phoenix Management Corporation & ors v Barrenjoey Road Bungan Beach Pty Ltd & ors; Curl 2D Pty Ltd & ors v Barrenjoey Road Bungan Beach Pty Ltd & ors 2 October 2001 unreported at [22]) indicated that he would grant a certificate under s 128(6) of the Evidence Act 1995 (“the EA”), when the affidavit was made, in respect of the affidavit which he ordered. Knight AJ is no longer sitting as a Judge of this Court and has returned to his duties as a permanent Judge of the District Court of New South Wales. I am not sure of the status of his Honour's commission as an Acting Judge: see Supreme Court Act 1970 s 37(3A). From the terms of what his Honour said in [22] of his judgment, it may be that his Honour's grant of a certificate is a completed judicial act, and that all that remains to be done is the purely ministerial act of execution of the certificate. On the other hand, it may be suggested that what his Honour said should be taken, not as the grant of a certificate, but merely as an indication of an intention to grant a certificate at an appropriate time, since it may be suggested that the time at which the grant of a certificate is appropriate is the time at which the relevant material is actually tendered in evidence: see EA s 128(3) and (6).
4 At the moment, the material in Exhibit A6 has not been seen by anyone since its production to the Court. However, its nature is known, not simply from statements made from the bar table by Mr Harris this morning, by reference to which its production to the Court was ordered, but Mr Brachmanis during the course of the morning left a telephone message on the mobile telephone of Mr Schneider, the solicitor for the plaintiff Phoenix Management Corporation Pty Limited. Mr Schneider has sworn an affidavit as to the contents of that message. Mr Brachmanis in that conversation described what is clearly the same material as now constitutes Exhibit A6 as "the full sworn Affidavit in Compliance with court order." On the basis of this description, although it is unseen, Exhibit A6 is plainly material which may contain admissions relevant to the motions at present before the Court, namely, summary judgment applications brought by the plaintiffs in both sets of proceedings. In these rather unusual circumstances I have ruled that the material should be admitted into evidence although unseen. If, perchance, it prove completely irrelevant to the proceedings, then, either it may remain as an exhibit, but will have no effect on the proceedings because of lack of relevance, or anyone who is minded to may make an application for it to be removed from evidence, although this would seem to be superfluous. In admitting Exhibit A6 into evidence, however, I have done so on the basis that I shall grant a certificate under s 128(6) of the EA to Mr Brachmanis. The determinations necessary to the grant of such a certificate have already been made by the Court constituted by Knight AJ as set out in his Honour's judgment. The grant under sub s (6) is now made by the Court constituted by me. I see nothing in the terms of s 128 to compel the constitution of the Court to be identical for the purpose of making a grant under s 128(6) as was its constitution when antecedent determinations under the section were made. All that matters is that each of the relevant acts is carried out and carried out by the Court. If at any stage it is thought that I am wrong in this, it will in my view be open to Mr Brachmanis to pursue the execution of a certificate either by Knight AJ in pursuance of the grant stated to be made in his Honour's judgment, or by ministerial act of a Court officer pursuant upon that grant. It is clear that Mr Brachmanis, having been compelled by the Court to create and bring forward this document, ought to have the protection envisaged by the section. In my view he is given it by the grant of the certificate which I have just announced.
5 Mr Harris has now withdrawn, but upon his presenting to me this afternoon or tomorrow morning an engrossed certificate I shall execute the same. It is my view (and in my experience it is the practice in this Division of this Court) that certificates be granted without the personal presence in the Court or in the witness box of the person whose evidence is to be protected. This has been done on occasions in this Division in Mareva situations by directing that an affidavit that has been brought in be read in open court and by granting the certificate upon the reading of the affidavit: see my decisions in National Australia Bank Limited v Rusu NSWSC 6 April 1998 unreported and AMP General Insurance Ltd v Prasad [1999] NSWSC 349 and that of Austin J Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538. It is equally available, in my view, for the certificate to be granted upon the tender of a document created by an absent party, the creation of which has been compelled by order of the court.
6 I grant leave to the parties to open the packet containing Exhibit A6 and to inspect the material which is now in evidence and, therefore, in the public arena. However, I order that no copies of any of that material be made without the leave of a Judge and a notice to that effect will be placed upon the packet, which will be resealed after its necessary use upon the hearing of these applications.
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