Ingot v Macquarie [No. 4] [2006] NSWSC 90

Ingot v Macquarie [No. 4] [2006] NSWSC 90

Because it was reasonably open on the plaintiffs' pleaded case to find that Mr Peck, as a Phillips Fox partner, had authority to make statements or otherwise act for Phillips Fox in relation to matters connected with his NCRH directorship, the transcript was admissible against Phillips Fox under s 87(1)(a) and (b) of the Evidence Act 1995. However, admitting compulsory examination material without Phillips Fox having an opportunity to cross-examine Mr Peck would be unfairly prejudicial, so admission was conditioned on Phillips Fox being able to call and examine him by leading questions if he did not give evidence in his own case.

Jurisdiction
Australia
Judgment Date
16 December 2005
Procedural Posture
Evidence Admissibility Ruling / Plaintiffs' Tender of Liquidator's Examination Transcript Against Phillips Fox
Outcome
Transcripts admitted into evidence against Phillips Fox on conditions protecting Phillips Fox's opportunity to examine Mr Peck.
Legal Topics
['admissions Made With Authority' 'admissibility of Liquidator Examination Transcript' 'partner as Agent of Partnership' 'unfair Prejudice and Cross Examination' 'interaction Between Evidence Act 1995 and Partnership Act 1892']
['evidence' 'partnership' 'corporations Law'] ['admissions Made With Authority' 'admissibility of Liquidator Examination Transcript' 'partner as Agent of Partnership' 'unfair Prejudice and Cross Examination' 'interaction Between Evidence Act 1995 and Partnership Act 1892']

Case Brief

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Procedural Posture

Evidence Admissibility Ruling / Plaintiffs' Tender of Liquidator's Examination Transcript Against Phillips Fox

Legal Issues

  1. 1 ["Whether a transcript of Mr Peck's liquidator's examination under Pt 5.9 of the Corporations Law was admissible against Phillips Fox under s 87 of the Evidence Act 1995." 'Whether s 87 of the Evidence Act 1995 should be read down by reference to s 15 of the Partnership Act 1892.' "Whether the transcript should be admitted only on a condition protecting Phillips Fox's opportunity to test Mr Peck's evidence."]

Ratio Decidendi

Because it was reasonably open on the plaintiffs' pleaded case to find that Mr Peck, as a Phillips Fox partner, had authority to make statements or otherwise act for Phillips Fox in relation to matters connected with his NCRH directorship, the transcript was admissible against Phillips Fox under s 87(1)(a) and (b) of the Evidence Act 1995. However, admitting compulsory examination material without Phillips Fox having an opportunity to cross-examine Mr Peck would be unfairly prejudicial, so admission was conditioned on Phillips Fox being able to call and examine him by leading questions if he did not give evidence in his own case.

Court Disposition

Transcripts admitted into evidence against Phillips Fox on conditions protecting Phillips Fox's opportunity to examine Mr Peck.

Orders

  • ["The transcripts of Mr Peck's examination should be admitted into evidence." 'The transcripts are admitted on the condition that Phillips Fox have liberty, if Mr Peck does not give evidence in his own case, to call Mr Peck pursuant to subpoena and to examine him by leading questions.' 'If that course becomes...