Ford v Benness [2021] NSWSC 319

Ford v Benness [2021] NSWSC 319

The cross-examination was not prohibited by s 16(3) of the Parliamentary Privileges Act 1987 (Cth) because its purpose was to challenge the honesty of representations made by Ms Ford to her employer and of her evidence in the proceedings about the physical consequences of the disputed surgery, not a prohibited purpose concerning proceedings in Parliament. However, the questioning gave rise to reasonable grounds for a s 128(1) objection because it concerned evidence that may tend to prove an offence against or arising under Australian law, so Ms Ford should be given the certificate sought under s 128 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
31 March 2021
Procedural Posture
Claim for Damages for Alleged Professional Negligence and Breach of Duty of Care Arising From Surgical Procedures / During the Plaintiff's Cross Examination the Matter Settled; the Court Made Consent Orders and Addressed Issues Under the Parliamentary Privileges Act 1987 (cth) and S 128 of the Evidence Act 1995 (nsw)
Outcome
By consent, judgment was entered for the defendant against the plaintiff, each party was ordered to pay his or her own costs, and the Court determined that Ms Ford should be given the s 128 certificate she sought.
Legal Topics
['cross Examination Concerning Proceedings in Parliament' 'prohibited Purposes Under S 16(3) of the Parliamentary Privileges Act 1987 (cth)' 'privilege Against Self Incrimination and S 128 Certificates' 'consent Judgment']
['evidence' 'parliamentary Privilege' 'professional Negligence'] ['cross Examination Concerning Proceedings in Parliament' 'prohibited Purposes Under S 16(3) of the Parliamentary Privileges Act 1987 (cth)' 'privilege Against Self Incrimination and S 128 Certificates' 'consent Judgment']

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Procedural Posture

Claim for Damages for Alleged Professional Negligence and Breach of Duty of Care Arising From Surgical Procedures / During the Plaintiff's Cross Examination the Matter Settled; the Court Made Consent Orders and Addressed Issues Under the Parliamentary Privileges Act 1987 (cth) and S 128 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ["Whether cross-examination about evidence which accorded with a statement previously made in a Senate inquiry and sent to the plaintiff's employer was prohibited by s 16(3) of the Parliamentary Privileges Act 1987 (Cth)." 'Whether the questioning engaged s 128 of the Evidence Act 1995 (NSW) because the evidence may tend to prove that the witness had committed an offence against or arising under an Australian law or was liable to a civil penalty.' 'Whether a certificate under s 128 of the Evidence Act 1995 (NSW) should be issued.']

Ratio Decidendi

The cross-examination was not prohibited by s 16(3) of the Parliamentary Privileges Act 1987 (Cth) because its purpose was to challenge the honesty of representations made by Ms Ford to her employer and of her evidence in the proceedings about the physical consequences of the disputed surgery, not a prohibited purpose concerning proceedings in Parliament. However, the questioning gave rise to reasonable grounds for a s 128(1) objection because it concerned evidence that may tend to prove an offence against or arising under Australian law, so Ms Ford should be given the certificate sought under s 128 of the Evidence Act 1995 (NSW).

Court Disposition

By consent, judgment was entered for the defendant against the plaintiff, each party was ordered to pay his or her own costs, and the Court determined that Ms Ford should be given the s 128 certificate she sought.

Orders

  • ['Judgment for the defendant against the plaintiff' 'Each party to pay his or her own costs']