Project 28 Pty Ltd v Barr & Ors [2007] NSWSC 715

Project 28 Pty Ltd v Barr & Ors [2007] NSWSC 715

McLaughlin AsJ erred by making an order that effectively allowed a corporate defendant to avoid the ordinary obligation to serve witness statements before the close of the plaintiff's case because possible individual witnesses might claim privilege against self-incrimination. Since privilege against self-incrimination is not available to corporations, Richtech Pty Ltd must deliver witness statements by a specified date, except where an individual witness claims the privilege; in that case, a witness statement should be provided only at the close of Project 28 Pty Ltd's case against Richtech Pty Ltd if Richtech proposes to call that witness.

Jurisdiction
Australia
Judgment Date
04 July 2007
Procedural Posture
Supreme Court of New South Wales Equity Division Appeal Concerning Orders for Service of Lay Witness Statements / Appeal From an Order of an Associate Justice Reviewing a Senior Deputy Registrar's Order
Outcome
The appeal was upheld in substance; McLaughlin AsJ was held to have erred, and the Court indicated that Richtech Pty Ltd should serve witness statements except for witnesses who claim privilege against self-incrimination.
Legal Topics
['privilege Against Self Incrimination' 'witness Statements' 'corporate Defendants' 'secret Commissions' 'appeal by Way of Rehearing']
['evidence' 'civil Procedure' 'corporations'] ['privilege Against Self Incrimination' 'witness Statements' 'corporate Defendants' 'secret Commissions' 'appeal by Way of Rehearing']

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Procedural Posture

Supreme Court of New South Wales Equity Division Appeal Concerning Orders for Service of Lay Witness Statements / Appeal From an Order of an Associate Justice Reviewing a Senior Deputy Registrar's Order

Legal Issues

  1. 1 ["Whether the Associate Justice erred in setting aside an order requiring Richtech Pty Ltd to serve lay witness statements before trial and instead requiring a solicitor's statement only before each lay witness was called in Richtech's case." "Whether a corporate defendant can resist service of witness statements before the close of the plaintiff's case on the basis that its lay witnesses may claim privilege against self-incrimination." 'Whether the appropriate protection is to defer witness statements only for witnesses who themselves claim privilege against self-incrimination.']

Ratio Decidendi

McLaughlin AsJ erred by making an order that effectively allowed a corporate defendant to avoid the ordinary obligation to serve witness statements before the close of the plaintiff's case because possible individual witnesses might claim privilege against self-incrimination. Since privilege against self-incrimination is not available to corporations, Richtech Pty Ltd must deliver witness statements by a specified date, except where an individual witness claims the privilege; in that case, a witness statement should be provided only at the close of Project 28 Pty Ltd's case against Richtech Pty Ltd if Richtech proposes to call that witness.

Court Disposition

The appeal was upheld in substance; McLaughlin AsJ was held to have erred, and the Court indicated that Richtech Pty Ltd should serve witness statements except for witnesses who claim privilege against self-incrimination.

Orders

  • ['Richtech Pty Ltd is to deliver witness statements by a specified date, except in the case of any witness who claims privilege against self-incrimination.' "If a witness claims privilege against self-incrimination and Richtech Pty Ltd proposes to call that witness, the witness statement is to be provided to Project...