Australian Securities and Investments Commission v Macdonald (No 4) [2008] NSWSC 1101

Australian Securities and Investments Commission v Macdonald (No 4) [2008] NSWSC 1101

The affidavit was admissible because the deponent was in charge of the unit and had first-hand knowledge, satisfying s 69(5) of the Evidence Act. Justice between the parties did not require its exclusion, and the forensic connection to the board meeting was sufficient for admission.

Source-derived case information.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Peter Donald Macdonald; Second Defendant: Peter James Shafron; Third Defendant: Phillip Graham Morley; Fourth Defendant: Michael Robert Brown; Fifth Defendant: Michael John Gillfillan; Sixth Defendant: Meredith Hellicar; Seventh Defendant: Martin Koffel; Eighth Defendant: Geoffrey Frederick O'Brien; Ninth Defendant: Gregory James Terry; Tenth Defendant: Peter John Willcox; Eleventh Defendant: ABN 60 Pty Ltd; Twelfth Defendant: James Hardie Industries NV
Jurisdiction
Australia
Judgment Date
23 October 2008
Procedural Posture
Civil / Interlocutory Application
Outcome
Objection to admissibility of affidavit rejected; affidavit admitted.
Legal Topics
Admissibility of Affidavit, Hearsay Exception, Business Records, Justice Between Parties
Evidence Admissibility of Affidavit Hearsay Exception Business Records Justice Between Parties

Source-derived case record

Summary, issues, holding and outcome

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Parties

Australian Securities and Investments Commission

Plaintiff

Peter Donald Macdonald

First Defendant

Peter James Shafron

Second Defendant

Phillip Graham Morley

Third Defendant

Michael Robert Brown

Fourth Defendant

Michael John Gillfillan

Fifth Defendant

Meredith Hellicar

Sixth Defendant

Martin Koffel

Seventh Defendant

Geoffrey Frederick O'Brien

Eighth Defendant

Gregory James Terry

Ninth Defendant

Peter John Willcox

Tenth Defendant

ABN 60 Pty Ltd

Eleventh Defendant

James Hardie Industries NV

Twelfth Defendant

Procedural Posture

Civil / Interlocutory Application

Legal Issues

  1. 1 Whether to admit an additional affidavit correcting mistakes and tracing document path to plaintiff
  2. 2 Whether the affidavit constitutes inadmissible hearsay under the Evidence Act 1995
  3. 3 Whether documents not included in the tender bundle should affect admissibility

Ratio Decidendi

The affidavit was admissible because the deponent was in charge of the unit and had first-hand knowledge, satisfying s 69(5) of the Evidence Act. Justice between the parties did not require its exclusion, and the forensic connection to the board meeting was sufficient for admission.

Court Disposition

Objection to admissibility of affidavit rejected; affidavit admitted.

Orders

  • Challenge to ruling that affidavit admissible rejected.