Australian Securities & Investments Commission v Macdonald (No 7) [2008] NSWSC 1367

New South Wales Supreme Court

CITATION : Australian Securities & Investments Commission v Macdonald (No 7) [2008] NSWSC 1367

HEARING DATE(S) : 16 December 2008 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 16 December 2008

DECISION : As the probative value was slight since the witness was unable to remember any of the matters put during the voir dire and unfair prejudice was established by the possible use of the evidence as going to credit, an order was made under s 135 of the Evidence Act not admitting the evidence on the voir dire as evidence in the proceedings.

CATCHWORDS : EVIDENCE - Admissibility and Relevancy - Transcript of evidence volunteered by 5th defendant to plaintiff under a protocol containing a provision that it would not be tendered in evidence against the 5th defendant in a proceeding for the imposition of a penalty against him - Civil penalty proceedings - Plaintiff ordered to provide transcript to other parties in the proceedings - 1st defendant sought to cross-examine on the transcript - 1st defendant not bound by the protocol or s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) - Whether 1st defendant bound by confidentiality - Whether equity would grant an injunction - Whether prevented from cross-examining by s 127(1)(a) of Australian Securities and Investments Commission Act or by the Evidence Act 1995, s 26, s 29, s 42, or s 44 - Voir dire held under s 189 to determine whether, in terms of s 135, the 5th defendant would be unfairly prejudiced by the admission of the cross-examination

LEGISLATION CITED : Australian Securities and Investments Commission Act 2001 (Cth) Evidence Act 1995

Australian Securities and Investments Commission (Plaintiff) Peter Donald Macdonald (First Defendant) Peter James Shafron (Second Defendant) Phillip Graham Morley (Third Defendant) Michael Robert Brown (Fourth Defendant) Michael John Gillfillan (Fifth Defendant) PARTIES : Meredith Hellicar (Sixth Defendant) Martin Koffel (Seventh Defendant) Geoffrey Frederick O'Brien (Eighth Defendant) Gregory James Terry (Ninth Defendant) Peter John Willcox (Tenth Defendant) ABN 60 Pty Ltd (Eleventh Defendant) James Hardie Industries NV (Twelfth Defendant)