Ross v Internet Wines Pty Ltd

Case [2004] NSWCA 195


Reported Decision:

60 NSWLR 436

Court of Appeal


CITATION: 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.
CASES CITED: Accident Insurance Mutual Holding Ltd v McFadden (1993) 31 NSWLR 412;
AMP General Insurance Ltd v Prasad [1999] NSWSC 349;
Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538;
Counsel v Hitchcock (1892) 142 US 547;
Duffy v Super Centre Development Corporation Ltd (1967) NSWR 382;
Griffin v Sogelease Australia Ltd [2003] NSWCA 158;
HPM Industries Pty Ltd v Graham (Young CJ in Eq, 17 July 1996, unreported);
National Australia Bank Ltd v Rusu (Hamilton J, 6 April 1998, unreported);
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319;
Reid v Howard (1995) 184 CLR 1;
Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (1978) AC 547;
Sorby v The Commonwealth (1983) 152 CLR 281.

PARTIES :

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…

Continue reading Ross v Internet Wines Pty Ltd

Sign in free to access the full text

Details
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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.