Fodare Pty Ltd v Shearn [2010] NSWSC 737

Fodare Pty Ltd v Shearn [2010] NSWSC 737

Affidavit material is not rendered inadmissible merely because the deponent repeats statements from earlier affidavits; s 59 of the Evidence Act applies to the previous representation, not to direct evidence given anew. Transcripts of Part 5.9 examinations are generally inadmissible under the business records...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
06 July 2010
Procedural Posture
Corporations/equity Proceedings / Procedural Evidentiary Ruling
Outcome
Objections allowed in part and overruled in part; directions made for further objections to be particularised and conferred upon by counsel.
Legal Topics
['admissibility of Evidence' 'hearsay' 'business Records Exception' "director's Duties" 'civil Penalty Proceedings' 'affidavits' 'part 5.9 Examinations']
['corporations' 'evidence' 'civil Procedure'] ['admissibility of Evidence' 'hearsay' 'business Records Exception' "director's Duties" 'civil Penalty Proceedings' 'affidavits' 'part 5.9 Examinations']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Corporations/equity Proceedings / Procedural Evidentiary Ruling

Legal Issues

  1. 1 ['Whether affidavit material and annexed documents are admissible in evidence given alleged hearsay, business record, or privilege objections' 'Whether previous representations made in earlier affidavits or other proceedings are inadmissible by virtue of hearsay, issue estoppel, or procedural fairness' 'Whether transcripts of Part 5.9 Corporations Act 2001 (Cth) examinations are admissible as evidence against the defendants' 'Whether documents obtained under compulsion in Part 5.9 examinations are inadmissible']

Ratio Decidendi

Affidavit material is not rendered inadmissible merely because the deponent repeats statements from earlier affidavits; s 59 of the Evidence Act applies to the previous representation, not to direct evidence given anew. Transcripts of Part 5.9 examinations are generally inadmissible under the business records exception due to s 69(3), but are admitted against the examinee under s 597(14) of the Corporations Act. Documents produced under compulsion but created in the ordinary course of business are not made inadmissible because of how they came into evidence. Arguments based on penalty exposure are misplaced because the court cannot grant a declaration of contravention on the application...

Court Disposition

Objections allowed in part and overruled in part; directions made for further objections to be particularised and conferred upon by counsel.

Orders

  • ["Federal Court judgments annexed to Mr Dennis's affidavit are admitted but cannot be used to prove facts in issue in the relevant Federal Court proceedings." "Transcript of Ms Shearn's Part 5.9 examination is admitted against her only." "Transcript of Ms Hirtzell's Part 5.9 examination is admitted against her...