| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 3382
| ROO-ROOFING PTY LTD (ACN 131 182 093) | First Plaintiff |
| MATSUH PTY LTD (ACN 105 461 818) | Second Plaintiff |
| v | |
| THE COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12, 15 June 2018 |
DATE OF RULING: | 21 June 2018 |
CASE MAY BE CITED AS: | Roo-Roofing Pty Ltd v The Commonwealth (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 338 |
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EVIDENCE – Privilege against self-incrimination – Whether reasonable grounds for objection – No reasonable grounds for objection – Witness required to answer – Certificate given - Evidence Act 2008 (Vic) s 128, Coroners Act 2003 (Qld) s 50A, Workplace Health and Safety Act 1995 (Qld) s 165, Workplace Health and Safety Act 2011 (Qld) s 232.
EVIDENCE – Admissibility – Whether document a business record – Tender permitted - Evidence Act 2008 (Vic) ss 48, 69.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Delaney QC with Dr C G Button, Ms C Van Proctor and Mr R Chaile | ACA Lawyers |
| For the Defendant | Ms R M Doyle SC with Ms R L Enbom, Mr L T Brown and Mr J Hooper | Australian Government Solicitor |
HIS HONOUR:
This ruling concerns two discrete issues in this proceeding:
(a) I overruled objections taken by Mr Nicholas Lindsay when giving evidence that his evidence might tend to incriminate him by tending to prove that he had committed an offence arising under an Australian law; and
(b) the admissibility of the document MSC.010.698.0001, from the Electrical Regulatory Authority Council entitled ‘Insulation Session’, dated May 2010, which the plaintiffs sought to tender, was contested by the defendant.
What follows are my reasons for the former ruling and my ruling and the reasons for it in respect of the admissibility of the document.
Evidence of Mr Lindsay
Mr Lindsay gave evidence for the defendant in this proceeding under subpoena. Senior and junior counsel announced an appearance on his behalf and indicated, by an advance submission, that he would object to certain questions or lines of questioning on the grounds of self-incrimination.
Although appearing via video link from Queensland, Mr Lindsay gave evidence before the Supreme Court of Victoria and the applicable rules governing his objections are found in s 128 of the Evidence Act 2008 (Vic) (the Act).
Mr Lindsay was a director of Titan Insulations Pty Ltd (Titan), a company that installed retro-fitted ceiling insulation under the Home Insulation Program (HIP). Titan engaged Mr Mitchell Sweeney as a sub-contractor to install ceiling insulation. Mr Sweeney died on 4 February 2010 when he was electrocuted while installing insulation for Titan under the HIP in a domestic ceiling space.
Mr Lindsay neither swore an affidavit nor gave evidence about any background matters relevant to his claim of privilege against self-incrimination. So far as I am aware there was no relevant material in the large body of…
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- Case
- [2018] VSC 338
- Decision Date
CaseChat Overview and Summary
The legal issues included whether there were reasonable grounds for the witness to object to answering questions on the basis of privilege against self-incrimination and whether the evidence obtained under the statutory provisions was admissible. The court had to consider the provisions of the Evidence Act 2008 (Vic) and the statutory powers of the coroner under the relevant Acts. Furthermore, the court had to assess whether the documents tendered were business records and whether they met the requirements of admissibility under the Evidence Act 2008 (Vic).
The court determined that there were no reasonable grounds for the witness to object to answering questions on the basis of privilege against self-incrimination. The court found that the statutory powers of the coroner under the Coroners Act 2003 (Qld) and the Workplace Health and Safety Act 1995 (Qld) and Workplace Health and Safety Act 2011 (Qld) were sufficient to compel the witness to answer questions. The court held that the evidence obtained under these statutory provisions was admissible. Additionally, the court found that the documents tendered were business records and met the requirements of admissibility under the Evidence Act 2008 (Vic).
The court ruled that the evidence obtained during the coroner's investigation was admissible, and the witness was required to answer questions. The court granted the Commonwealth's application for a certificate under the Evidence Act 2008 (Vic) s 128, which allowed the evidence to be used in the proceedings. The court also found that the documents tendered were admissible as business records under the Evidence Act 2008 (Vic) ss 48, 69.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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