Richards v Macquarie Bank Limited (No 3) [2012] FCA 1523

Richards v Macquarie Bank Limited (No 3) [2012] FCA 1523

The Ensors' personal circumstances had a sufficient logical connection with the consumer fact in issue and paras 1 to 14 of their agreed statement were admitted. The proposed evidence from Mr McCulloch was relevant to whether Storm procured investors to borrow from Challenger or Macquarie, but it was hearsay as against Macquarie. Even if the statement could be an admission against Storm under s 81, s 83 prevented its use against Macquarie as a third party because Macquarie did not consent. Section 64 was not engaged and no general discretion to admit the evidence was identified.

Jurisdiction
Australia
Judgment Date
05 December 2012
Procedural Posture
Representative Proceedings Under Part IVA of the Federal Court of Australia Act 1976 (cth) / Reasons for Ruling on Evidentiary Objections
Outcome
Paras 1 to 14 of the Ensors' agreed statement of facts were admitted; Macquarie's hearsay objection to the proposed McCulloch evidence was upheld as against Macquarie.
Legal Topics
['relevance' 'hearsay' 'admissions' 'consumer Definition' 'managed Investment Scheme' 'margin Loans']
['evidence' 'corporations' 'consumer Protection' 'representative Proceedings'] ['relevance' 'hearsay' 'admissions' 'consumer Definition' 'managed Investment Scheme' 'margin Loans']

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Procedural Posture

Representative Proceedings Under Part IVA of the Federal Court of Australia Act 1976 (cth) / Reasons for Ruling on Evidentiary Objections

Legal Issues

  1. 1 ['Whether paras 1 to 14 of the agreed statement of facts of Mr and Mrs Ensor were relevant to whether investors were consumers within s 4B of the Trade Practices Act 1974 (Cth) and s 12BC of the Australian Securities and Investments Commission Act 2001 (Cth).' 'Whether evidence of what the Cassimatises told Mr McCulloch about the reason for a $200 million funds under management target was relevant to a pleaded program or plan of action by which Storm procured clients to borrow from Macquarie or Challenger.' 'Whether the proposed evidence from Mr McCulloch was inadmissible hearsay against Macquarie, notwithstanding the admissions exception in s 81 of the Evidence Act 1995 (Cth).' 'Whether s 64 of the Evidence Act 1995 (Cth) or a general discretion permitted admission of the hearsay evidence.']

Ratio Decidendi

The Ensors' personal circumstances had a sufficient logical connection with the consumer fact in issue and paras 1 to 14 of their agreed statement were admitted. The proposed evidence from Mr McCulloch was relevant to whether Storm procured investors to borrow from Challenger or Macquarie, but it was hearsay as against Macquarie. Even if the statement could be an admission against Storm under s 81, s 83 prevented its use against Macquarie as a third party because Macquarie did not consent. Section 64 was not engaged and no general discretion to admit the evidence was identified.

Court Disposition

Paras 1 to 14 of the Ensors' agreed statement of facts were admitted; Macquarie's hearsay objection to the proposed McCulloch evidence was upheld as against Macquarie.

Orders

  • ["Paras 1 to 14 of the Ensors' agreed statement of facts allowed to be admitted in evidence." "The proposed answer by Mr McCulloch could not be tendered as an admission against Macquarie without Macquarie's consent under s 83(2) of the Evidence Act 1995 (Cth)."]