Kernahan v ACN 003 134 475 Pty Ltd [2010] NSWSC 51

Reported Decision : 77 ACSR 124 77 NSWLR 452

New South Wales Supreme Court

CITATION : Kernahan v ACN 003 134 475 Pty Ltd [2010] NSWSC 51 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 1,2 February 2010

JUDGMENT DATE : 11 February 2010

JUDGMENT OF : Hammerschlag J

DECISION : Report is not admissible under s 295 of the SIS Act in the proceedings as prima facie evidence of any fact or matter by reason only that the Report states Mr Edwards to have found it to exist. The plaintiff to provide to the defendants within 21 days, a list identifying each fact or matter which the plaintiff will contend at the hearing, the Report states an inspector to have found to exist, and in respect of which, he will contend that the Report is admissible as prima facie evidence.

CATCHWORDS : EVIDENCE – ruling on admissibility in advance of hearing - STATUTORY INTERPRETATION – meaning of "engage", "engaged" and "procedural irregularity" –Superannuation Industry (Supervision) Act 1993 (Cth) (the "SIS Act"), sections 10, 266(1), 295, 312(1) and 312(5) and the Australian Prudential Regulation Authority Act 1998 (Cth) (the "APRA Act") sections 3(1) and 47(1) – section 295 of the SIS Act provides that a copy of a report under Division 6 by an inspector is admissible in a proceeding (other than a criminal proceeding) as prima facie evidence of any facts or matters that the report states an inspector to have found to exist – section 266(1) of the SIS Act provides that an inspector may, by signed writing, delegate to a member of the staff of the Regulator any of the inspector's powers under this Part – under section 10 a member of the staff in relation to APRA means a person who is an APRA staff member within the meaning of the APRA Act – under sections 3(1)(c) and 47(1) of the APRA Act an APRA staff member means a person engaged to provide advice to it or perform services for it – where an inspector purports to delegate his powers to another person who is engaged by the inspector or other consultants to assist in the preparation of a Report – whether that person was engaged within the meaning of the statutory enactments – whether, if the person was not engaged because he did not satisfy the requirements of being a member of the staff of APRA the irregularity is a procedural irregularity – whether the court should make an order under section 312(5) of the SIS Act curing the irregularity.