Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361

Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361

The subject affidavits were prepared and served for the purposes of the litigation and were treated as subject to the Hearne v Street implied undertaking, but special circumstances justified release. The affidavits appeared to contain evidence of serious dishonesty offences, including obtaining a financial advantage by deception, and effective reporting and police investigation of suspected crime required disclosure. The First and Second Defendants had served the affidavits while legally represented and without invoking privilege against self-incrimination or seeking protection under s.87 Civil Procedure Act 2005; although the incriminating tendency and personal circumstances of the First...

Jurisdiction
Australia
Judgment Date
01 May 2009
Procedural Posture
Procedural and Other Ruling; Possession Proceedings Concerning Alleged Mortgage Default / Interlocutory Notice of Motion for Leave to Provide Affidavits, Annexures and Exhibits to the New South Wales Police Force
Outcome
Application granted; no order as to costs; execution of the disclosure order stayed until 5.00 pm on Friday, 22 May 2009.
Legal Topics
['implied Undertaking' 'release From Implied Undertaking' 'affidavits Filed and Served But Not Read in Open Court' 'public Interest in Investigation and Prosecution of Crime' 'privilege Against Self Incrimination' 'special Circumstances Test' 'costs of Interlocutory Application']
['civil Procedure' 'evidence' 'mortgage Possession' 'criminal Law'] ['implied Undertaking' 'release From Implied Undertaking' 'affidavits Filed and Served But Not Read in Open Court' 'public Interest in Investigation and Prosecution of Crime' 'privilege Against Self Incrimination' 'special Circumstances Test' 'costs of Interlocutory Application']

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Procedural Posture

Procedural and Other Ruling; Possession Proceedings Concerning Alleged Mortgage Default / Interlocutory Notice of Motion for Leave to Provide Affidavits, Annexures and Exhibits to the New South Wales Police Force

Legal Issues

  1. 1 ['Whether the Plaintiffs should be released from the implied undertaking so as to provide the subject affidavits, annexures and exhibits to officers of the New South Wales Police Force.' 'Whether special circumstances existed to justify release from or modification of the implied undertaking.' 'Whether the privilege against self-incrimination or prejudice to the First and Second Defendants should prevent disclosure.' 'Whether the application was premature or would give the Plaintiffs an improper advantage in the proceedings.' 'What costs order should be made on the application.']

Ratio Decidendi

The subject affidavits were prepared and served for the purposes of the litigation and were treated as subject to the Hearne v Street implied undertaking, but special circumstances justified release. The affidavits appeared to contain evidence of serious dishonesty offences, including obtaining a financial advantage by deception, and effective reporting and police investigation of suspected crime required disclosure. The First and Second Defendants had served the affidavits while legally represented and without invoking privilege against self-incrimination or seeking protection under s.87 Civil Procedure Act 2005; although the incriminating tendency and personal circumstances of the First...

Court Disposition

Application granted; no order as to costs; execution of the disclosure order stayed until 5.00 pm on Friday, 22 May 2009.

Orders

  • ['The Plaintiffs are granted leave to provide the affidavits, annexures and exhibits referred to in paragraph [4] of the judgment to an officer or officers of the New South Wales Police Force for the purpose of reporting the possible criminality of the First, Second and Third Defendants and other persons mentioned...