Amp General Insurance Ltd v Prasad [1999] NSWSC 349 (16 April 1999)

Last Updated: 22 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: AMP General Insurance Ltd v Prasad [1999] NSWSC 349

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1443/99

HEARING DATE{S): 16 April 1999

JUDGMENT DATE: 16/04/1999

PARTIES:

AMP General Insurance Ltd (P)

Sonya Vinita Prasad (D1)

Jesse Milford (D2)

JUDGMENT OF: Hamilton J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

A Lo Surdo (P)

C B Simpson (D1 & 2)

SOLICITORS:

Corrs Chambers Westgarth (P)

Jack Rigg (D1 & 2)

CATCHWORDS:

EVIDENCE [82] - Facts excluded from proof - On grounds of privilege - Criminating questions - Statutory protection - Grant of certificate barring prosecution - Whether "the interests of justice required" that the evidence be given - Whether certificate may be granted in respect of affidavit or only oral evidence.

ACTS CITED:

Evidence Act 1995 s 128(5)

DECISION:

Affidavits directed to be read.

JUDGMENT:

~16/04/99 3

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

HAMILTON J

FRIDAY, 16 APRIL 1999

1443/99 AMP GENERAL INSURANCE LTD V SONYA VINITA PRASAD & 1 ORS

JUDGMENT (Objection to filing and reading of affidavits; see p1 of transcript)

HIS HONOUR:

1 Objection is taken on behalf of the defendants, Sonya Vinita Prasad and Jesse Milford, to the filing and reading of their longer affidavits sworn today, on the ground that the evidence may tend to prove that each of them has committed an offence against Australian Law. Those affidavits have been sworn and brought into Court to comply with my order made 23 March 1999. The objection is supported by their shorter affidavits sworn today. Although the longer affidavits are not yet filed or read, I have examined them for the purpose of determining whether there are reasonable grounds for those objections, and I find that there are reasonable grounds for the objections.

2 The next question that arises is the question of whether or not I ought, under s 128(5) of the Evidence Act 1995, require the witnesses to give the evidence. Mr C B Simpson, of counsel for the defendants, opposes my requiring the witnesses to give the evidence. He is entitled to do this because my earlier order was only that affidavits be created and brought into Court, not that they be read. The defendants have complied with my earlier order by swearing the affidavits and bringing them into Court. However, the grounds on which Mr Simpson takes that objection are the same grounds as those on which he objected to my making the earlier order for the affidavits to be created and brought into Court. It is not a foregone conclusion that I should now order the affidavits to be read, simply because they have been created and brought into Court. There may be circumstances where the material that appears in the affidavits would cause the Court to decide not to order their reading, and to hand them back for destruction in accordance with the procedure envisaged at the time the earlier order was made. That may arise from material in the affidavits themselves or from other events which have supervened between the earlier order and now. However, in this particular case there is nothing, to my mind, that changes the considerations which led me to make the earlier order. The matters that were in my mind at the time of my making that order, and which are set out in my earlier reasons for judgment, lead me to the conclusion that the interests of justice require that the witnesses give the evidence, and I require the witnesses to give the evidence. The particular form that that requirement will take is as follows.

3 I grant leave to the defendants to file in Court the affidavit of S V Prasad sworn 31 March 1999 and the affidavit of J Milford sworn 31 March 1999 (the longer affidavits). I direct that those affidavits be read in Court. I note that those affidavits are now read in Court without objection. By reason of the fact that this course has been taken, I am required by s 128(6) of the Evidence Act to give to those witnesses a certificate under s 128 in respect of that evidence. I direct that the originals of those affidavits remain on the Court file, but that they be placed in a sealed envelope on which the contents are identified, and I direct that that envelope not be opened without the leave of a Judge of this Court. I dispense with the requirement to serve copies of the affidavits on the plaintiff. However, in doing that, I indicate that I shall direct service of the affidavits upon the plaintiff after the defendants put to me any submissions that they are minded to put concerning any restriction as to the handling of and access to the copy affidavits when served.

4 The course I have followed is to direct that the affidavits be read in Court. This was the course envisaged by Young J in HPM Industries Pty Ltd v Graham, 17 July 1996, NSWSC, unreported, by myself in National Australia Bank Limited v Rusu, 6 April 1998, NSWSC, unreported, and by Hodgson CJ in Eq in this case on 8 March 1999, and is the course envisaged in my earlier reasons for judgment in this case: [1999] NSWSC 252. When the affidavits were brought into Court in the HPM Industries case, Young J decided that a certificate under s 128 of the Evidence Act applied only to oral evidence and accordingly directed that the evidence be given orally, or at least by written statement verified by the witness in the witness box: HPM Industries Pty Ltd v Graham (No 2), 28 August 1996, NSWSC, unreported. With respect, I agree with his Honour's first view rather than his second, as to whether s 128 applies to affidavit evidence. The Evidence Act is silent as to the giving of evidence in chief at trials by affidavit, perhaps strangely, in that, certainly now (and, indeed, by 1995), evidence in chief is given at almost all trials, at least in this Division, by affidavit, and the same is substantially so in the Federal Court of Australia. However, because this practice subsisted at the time of the Act, in my view the Act must be taken to contemplate the giving of evidence in this fashion, and it is also my view that the reading of the affidavits is the most convenient course in this case.

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LAST UPDATED: 20/04/1999