ASIC v Managed Investments Ltd and Ors No.1 [2012] QSC 59

SUPREME COURT OF QUEENSLAND CITATION: ASIC v Managed Investments Ltd and Ors No.1 [2012] QSC 59 PARTIES: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (applicant) v MANAGED INVESTMENTS LIMITED ACN 101634146 (first defendant) MICHAEL CHRISTODOULOU KING (fourth defendant) GUY HUTCHINGS (fifth defendant) CRAIG ROBERT WHITE (sixth defendant) DAVID MARK ANDERSON (seventh defendant) MARILYN WATTS (eighth defendant) FILE NO: BS 12212 of 2009 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 21 February 2012 DELIVERED AT: Brisbane HEARING DATE: 21 February 2012 JUDGE: Fryberg J ORDERS: The objection of the seventh defendant to the affidavit of Mr David Starkoff is overruled. CATCHWORDS: Evidence – Admissibility and Relevancy – In general – Other cases – Evidence in other proceedings Uniform Civil Procedure Rules 1999 r 395 Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, considered Printing, Telegraph & Construction Company of Agence Havas Limited v Drucker [1894] 2 QB 801, distinguished -- 1 of 4 -- 2 COUNSEL: DMB Derham QC and MT Brady for the plaintiff T F Ritchie (solicitor) for the first defendant P J Davis SC and DS Piggott for the fourth defendant B Cohen (solicitor) for the fifth defendant D L Williams SC for the sixth defendant S Doyle SC and CK George for the seventh defendant P A Freeburn SC for the eighth defendant SOLICITORS: Corrs Chambers Westgarth for the plaintiff McCullough Robertson for the first defendant Tucker Cowen for the fourth defendant Brian Bartley & Associates for the fifth defendant Kennedys for the sixth defendant Dibbs Barker for the seventh defendant James Conomos Lawyers for the eighth defendant FRYBERG J: ASIC has read an affidavit by Mr David Starkoff, a solicitor, to which is exhibited several documents consisting of affidavits made by the seventh defendant, Mr Anderson, in other proceedings to which ASIC was not a party. It puts the exhibits before this Court not as evidence of the truth of their contents but as evidence of the fact that the deposition was made by Mr Anderson. It does so for the purpose of demonstrating on this interlocutory application regarding pleadings that there has been a waiver of the privilege which otherwise would entitle Mr Anderson to refrain from complying with the rules relating to pleading on the ground of privilege attracted by the risk of exposing himself to a penalty or incriminating himself. The objection is taken on the basis that ASIC does not have leave under rule 395 of the Uniform Civil Procedure Rules to rely on Mr Anderson's affidavit or, to be more -- 2 of 4 -- 3 precise, the relevant extracts from it. ASIC submits that the material is admissible. The first ground on which it is contended that it is not admissible is that the affidavit has not been properly proved. In my judgment, that ground must fail. Mr Starkoff deposes to his information and belief about the exhibits to his affidavit in para 5. He then deposes that the relevant exhibits are what they appear to be. It is true that he does not depose to the signature of the documents but I do not think that is a matter of any great consequence. It is plain from the other evidence to which no objection is taken, that is to say the Court order forms which are exhibited, that the affidavits were read in the proceedings to which reference is made and I think the conclusion is abundantly clear that the exhibited documents are indeed what they are said to be, that is affidavits made by Mr Anderson. They are tendered not to prove the truth of what is in them but to prove the fact that what is in them was said or, more accurately, deposed to by Mr Anderson. Counsel for Mr Anderson submits that without leave under rule 395, the affidavits cannot be used and that no such leave should be given, and relies on cases such as Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 and Printing, Telegraph & Construction Company of Agence Havas Limited v Drucker [1894] 2 QB 801. It is submitted that leave would be given only where the evidence was tendered in proceedings -- 3 of 4 -- 4 between the same parties or their privies and where the issues were the same. In response ASIC submits that that rule applies only in cases where the evidence is tendered to prove the truth of what is in it. Alternatively it seeks leave and submits that the cases apply only where the evidence is tendered to prove the truth of its contents. In my judgment, ASIC's submissions on this aspect of the matter are correct. I do not think it is necessary to determine whether the matter is to be resolved on the basis that the rule simply has no application or that leave is necessary and the requirements for leave have been satisfied. If leave be necessary, I would grant that leave. I do not think that the statements made, for example, by the Court in Wentworth and by Lord Justice Kay in Drucker have application where the purpose of the tender is to prove the fact that the statement was made. Counsel for Mr Anderson was unable to provide me with any case where such a limitation had been applied in circumstances where the purpose of the evidence was as I have said. Consequently, the objection is overruled. -- 4 of 4 --