Phoenix Management Corporation Pty Ltd and Curl 2D Pty Ltd v Barrenjoey Road Bungan Beach Pty Ltd [2001] NSWSC 1098

Phoenix Management Corporation Pty Ltd and Curl 2D Pty Ltd v Barrenjoey Road Bungan Beach Pty Ltd [2001] NSWSC 1098

Because the material was apparently the affidavit in compliance with the Court order, may contain admissions relevant to the summary judgment applications, and was created and produced under compulsion of Mareva relief, it could be admitted into evidence and Mr Brachmanis should receive the protection of a certificate under Evidence Act 1995 s 128(6). The grant could be made by Hamilton J although antecedent determinations had been made by Knight AJ, because s 128 does not require the Court to be constituted by the same judicial officer for each step.

Jurisdiction
Australia
Judgment Date
16 November 2001
Procedural Posture
Equity Proceedings / Judgment on Grant of Certificate Under Evidence Act 1995 S 128 During Summary Judgment Applications
Outcome
Certificate under s 128 granted.
Legal Topics
['privilege Against Self Incrimination' 'certificate Under Evidence Act 1995 S 128' 'mareva Relief' 'production of Documents to Court' 'affidavit Evidence' 'summary Judgment Applications']
['evidence' 'civil Procedure' 'equity'] ['privilege Against Self Incrimination' 'certificate Under Evidence Act 1995 S 128' 'mareva Relief' 'production of Documents to Court' 'affidavit Evidence' 'summary Judgment Applications']

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Procedural Posture

Equity Proceedings / Judgment on Grant of Certificate Under Evidence Act 1995 S 128 During Summary Judgment Applications

Legal Issues

  1. 1 ['Whether a certificate under Evidence Act 1995 s 128(6) may be granted in respect of an affidavit or documents produced to the Court in compliance with Mareva relief.' 'Whether a certificate under Evidence Act 1995 s 128 may be granted without the personal presence in Court or in the witness box of the person whose evidence is to be protected.' 'Whether the Court must be constituted by the same judicial officer for antecedent determinations and for granting a certificate under Evidence Act 1995 s 128(6).' 'Whether documents produced pursuant to an order under Part 36 r 12 of the Supreme Court Rules 1970 should be admitted into evidence although unseen.']

Ratio Decidendi

Because the material was apparently the affidavit in compliance with the Court order, may contain admissions relevant to the summary judgment applications, and was created and produced under compulsion of Mareva relief, it could be admitted into evidence and Mr Brachmanis should receive the protection of a certificate under Evidence Act 1995 s 128(6). The grant could be made by Hamilton J although antecedent determinations had been made by Knight AJ, because s 128 does not require the Court to be constituted by the same judicial officer for each step.

Court Disposition

Certificate under s 128 granted.

Orders

  • ['Documents produced to the Court by Mr L F Harris were admitted into evidence and marked as Exhibit A6.' 'A certificate under Evidence Act 1995 s 128(6) was granted to Mr Brachmanis.' 'Leave was granted to the parties to open the packet containing Exhibit A6 and inspect the material in evidence.' 'No copies of any...