Health Services Union NSW -v- Peter Mylan [2014] NSWSC 1026

Health Services Union NSW -v- Peter Mylan [2014] NSWSC 1026

Section 128 of the Evidence Act 1995 (NSW) is not engaged in the absence of a witness objecting to giving particular evidence under compulsion; a certificate cannot be granted solely to fulfil a contractual condition where no evidence is yet required and the witness has not been compelled or subpoenaed. The...

Source-derived case information.

Parties
Plaintiff: Health Services Union NSW; Third Defendant: Peter Mylan
Jurisdiction
Australia
Judgment Date
30 July 2014
Procedural Posture
Equity Commercial List / Interlocutory Motion for S 128 Evidence Act Certificate
Outcome
Certificate refused; motion dismissed
Legal Topics
Privilege Against Self Incrimination, Issue of S 128 Certificate, Compellability of Witnesses, Affidavit Evidence, Conditions for Grant of Certificate
Evidence Civil Procedure Employment Law Privilege Against Self Incrimination Issue of S 128 Certificate Compellability of Witnesses Affidavit Evidence Conditions for Grant of Certificate

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Parties

Health Services Union NSW

Plaintiff

Peter Mylan

Third Defendant

Procedural Posture

Equity Commercial List / Interlocutory Motion for S 128 Evidence Act Certificate

Legal Issues

  1. 1 Whether a certificate under s 128 of the Evidence Act 1995 (NSW) can be given to a witness who has not objected to giving particular evidence under compulsion
  2. 2 Whether s 128 of the Evidence Act is engaged where a party seeks a certificate to satisfy a contractual condition for assistance

Ratio Decidendi

Section 128 of the Evidence Act 1995 (NSW) is not engaged in the absence of a witness objecting to giving particular evidence under compulsion; a certificate cannot be granted solely to fulfil a contractual condition where no evidence is yet required and the witness has not been compelled or subpoenaed. The certificate is sought prematurely and is refused.

Court Disposition

Certificate refused; motion dismissed

Orders

  • The Union's motion filed 30 May 2014 is dismissed
  • A similar motion for another witness would be dismissed for similar reasons