National Consumer Credit Protection Act 2009

CHAPTER 6 - COMPLIANCE AND ENFORCEMENT  

PART 6-8 - EVIDENTIARY USE OF CERTAIN MATERIAL  

Division 2 - Evidentiary use of certain material  

SECTION 309   EXCEPTIONS TO ADMISSIBILITY OF REPORT  

309(1)   [ Application of section]  

This section applies if a party to proceedings tenders a copy of a report as evidence against another party.

309(2)   [ When copy of report is admissible under s 308]  

The copy is not admissible under section 308 in the proceedings as evidence against the other party unless the court or tribunal is satisfied that:

(a) a copy of the report has been given to the other party; and

(b) the other party, and the other party ' s lawyer, have had a reasonable opportunity to examine that copy and to take its contents into account in preparing the other party ' s case.

309(3)   [ Application for cross-examination]  

Before or after the copy referred to in subsection (1) is admitted in evidence, the other party may apply to cross-examine, in relation to the report, a specified person who, or 2 or more specified persons each of whom:

(a) was concerned in preparing the report or making a finding about a fact or matter that the report states ASIC to have found to exist; or

(b) whether or not pursuant to a requirement made under this Part, gave information, or produced a book, on the basis of which, or on the basis of matters including which, such a finding was made.

309(4)   [ Grant of application under subsection (3)]  

The court or tribunal must grant an application made under subsection (3) unless it considers that, in all the circumstances, it is not appropriate to do so.

309(5)   [ When court must refuse to admit copy of report]  

If:

(a) the court or tribunal grants an application or applications made under subsection (3); and

(b) a person to whom the application or any of the applications relate, or 2 or more such persons, is or are unavailable, or does not or do not attend, to be cross-examined in relation to the report; and

(c) the court or tribunal is of the opinion that to admit the copy under section 308 in the proceedings as evidence against the other party without the other party having the opportunity so to cross-examine the person or persons would unfairly prejudice the other party;

the court or tribunal must refuse so to admit the copy, or must treat the copy as not having been so admitted, as the case requires.