Ross v Internet Wines Pty Ltd & Ors [2004] NSWCA 195
HEARING DATE(S):
17 December 2003 and subsequent written submissions
JUDGMENT DATE:
21 June 2004
JUDGMENT OF:
Spigelman CJ at 1; Giles JA at 2; McColl JA at 111
DECISION:
(1) Appeal allowed in part; (2) Set aside orders 3, 4 and 5 made on 20 August 2003; (3) No order as to the costs of the appeal.
CATCHWORDS:
Orders for disclosure by affidavit of assets and funds removed from bank account - whether basis in proceedings or sufficient evidence warranting making orders - procedure described in Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538 followed - affidavit to be delivered to judge with notice of motion claiming privilege against self-incrimination - whether procedure infringed privilege - procedure disapproved. D.
David Martin Ross - Appellant Internet Wines Pty Ltd - First Respondent Bruce McIntosh - Second respondent Vera McIntosh - Third Respondent Palm Beach Cellars & Food Supplies Pty Ltd - Fourth Respondent Castlemoon Pty Ltd - Fifth Respondent John Flowers - Sixth Respondent
FILE NUMBER(S):
CA 40725/03
COUNSEL:
M L D Einfeld QC & J Horowitz - Appellant P T Russell - First to Fifth Respondents
SOLICITORS:
Verekers - Appellant Cridlands - First to Fifth Respondents Bertock & Associates - Sixth Respondent (submitting)
LOWER COURTJURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
ED 2332/03
LOWER COURT JUDICIAL OFFICER :
Austin J
CA 40725/03 ED 2332/98
SPIGELMAN CJ GILES JA McCOLL JA
Monday 21 June 2004
ROSS v INTERNET WINES PTY LTD & ORS
Judgment
1 SPIGELMAN CJ: I agree with Giles JA.
2 GILES JA: This was an appeal, by leave granted on 23 September 2003, from orders made by Austin J on 20 August 2003. The appellant was Mr David Ross. The active respondents (“the respondents”) were initially Mr Bruce McIntosh, Mrs Vera McIntosh and Internet Wines Pty Ltd (“Internet Wines”). At some point Internet Wines was deregistered. It was an unnecessary respondent, as it was not an applicant for the orders made by Austin J. The appellant elected to continue without it.
3 The substantive orders made on 20 August 2003…
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.
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AGLC
Ross v Internet Wines Pty Ltd [2004] NSWCA 195
Case
[2004] NSWCA 195
Decision Date
CaseChat Overview and Summary
The appeal concerned orders for disclosure of assets and funds removed from a bank account, sought by the respondent, Internet Wines Pty Ltd, against the appellant, Ross. The primary question before the Court of Appeal of New South Wales was whether the proceedings provided a sufficient basis or evidence to warrant the making of such disclosure orders.
The court was required to determine whether the procedure adopted for seeking disclosure, which involved an affidavit delivered to the judge with a notice of motion claiming privilege against self-incrimination, infringed upon the appellant's privilege against self-incrimination. The court also considered whether the basis for the disclosure orders was sufficiently established in the proceedings.
The court followed the procedure described in *Bax Global (Australia) Pty Ltd v Evans* (1999) 47 NSWLR 538, but ultimately disapproved of the procedure as it applied in this instance, finding that it infringed the privilege against self-incrimination. The court held that the basis for the disclosure orders was not sufficiently established.
Consequently, the appeal was allowed in part, and orders 3, 4, and 5 made on 20 August 2003 were set aside. There were no orders as to the costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed in part; (2) Set aside orders 3, 4 and 5 made on 20 August 2003; (3) No order as to the costs of the appeal.