Australian Securities and Investments Commission v Macdonald (No 10) [2009] NSWSC 53

New South Wales Supreme Court

CITATION : Australian Securities and Investments Commission v Macdonald (No 10) [2009] NSWSC 53

HEARING DATE(S) : 13 February 2009 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 13 February 2009

DECISION : Tender rejected except for reports relevant to other issue with limitation of use to that issue under s 136 of the Evidence Act.

CATCHWORDS : EVIDENCE - Admissibility and Relevancy - Application in 12th defendant's case to tender 87 financial market analysts' reports relevant to an assessment of the circumstances that existed at the time it is alleged by the Australian Securities and Investments Commission that it was in breech of provisions of the Corporations Act 2001 (Cth) - Reports not put to expert merchant banker called by ASIC who opined on 69 other reports and who gave his evidence in October 2008 - Evidence in case completed except for 12th defendant's tender of documents including the reports - ASIC had initially treated the reports as relevant to the case - Whether in the circumstances it was open to the 12th defendant to challenge underlying assumptions of the expert by the tender of the reports Browne v Dunn (1894) 6 R 67 - Whether tender should be rejected or ASIC should be at liberty to re-open its case or present a case in reply by recalling the expert - Whether discretion should be exercised under the Evidence Act 1995, s 135 - Relevance of some reports to another issue

Corporations Act 2001 (Cth) LEGISLATION CITED : Civil Procedure Act 2005 Evidence Act 1995

CASES CITED : Browne v Dunn (1894) 6 R 67

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)