AMP General Insurance Ltd v Prasad - [1999] NSWSC 252

CITATION: AMP General Insurance Ltd v Prasad [1999] NSWSC 252 revised - 19/04/99

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1443/99

HEARING DATE(S): 19; 22 & 23 March 1999

JUDGMENT DATE:
23 March 1999

PARTIES :

AMP General Insurance Limited (P)
Sonya Vinita Prasad (D1)
Jesse Milford (D2)

JUDGMENT OF: Hamilton J

COUNSEL : A Lo Surdo (P)
C B Simpson (D1 & 2)

SOLICITORS: Corrs Chambers Westgarth (P)
Jack Rigg (D1 & 2)

CATCHWORDS: EQUITY [339] - Equitable remedies - Mareva injunctions - Other matters - Powers of Court - Discovery - Whether affidavits may be ordered over objection that the evidence may tend to criminate under cover of certificate under Evidence Act 1995 s 128. EVIDENCE [78] - Facts excluded from proof - On grounds of privilege - Criminating question - General - Effect of Evidence Act 1995 s 128 - Whether order ought be made compelling evidence to be given by way of Mareva relief under cover of certificate under s 128.

ACTS CITED: Evidence Act 1995
s 128

CASES CITED: HPM Industries Pty Ltd v Graham
17 July 1996
NSWSC
Young J
unreported
HPM Industries Pty Ltd v Graham (No 2)
28 August 1996
NSWSC
Young J
unreported
National Australia Bank Limited v Rusu
6 April 1998
Hamilton J
unreported

DECISION: Revocation of order made by Hodgson CJ in Eq refused.

KLV:CAT 2
~23/03/99 4

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 23 MARCH 1999

1443/99 AMP GENERAL INSURANCE LTD v SONYA VINITA PRASAD & 1 ORS

JUDGMENT
HIS HONOUR:
1 These proceedings were commenced by notice of motion filed on 19 February 1999 claiming relief by way of Mareva injunction against the first defendant who was or had been an employee of the plaintiff and her fiance, the second defendant. The allegation was that the first defendant, whilst an employee of the plaintiff, had misappropriated funds of the plaintiff in sums which might total as much as $600,000. Relief by way of Mareva injunction freezing the assets of the defendants was granted, initially on an ex parte basis on 18 February 1999 before the commencement of the proceedings, and has since been continued. At the same time it was ordered that the defendants inform the plaintiff in writing of their assets inside or outside Australia and this has since been done in the form of affidavits which have been filed.

2 However, a further order was sought and was made by Hodgson CJ in Eq on 8 March 1999. Those orders were as follows:

“1 Orders made by Windeyer J on 22 February 1999 that each of the First Defendant and the Second Defendant file and serve affidavits by 4.00 p.m. on 25 February 1999 outlining their best knowledge, information and belief the facts [sic] relating to the cashing of the cheques contained in the schedule to the Notice of Motion dated 22 February 1999 and the current whereabouts of the proceeds of those cheques and of any property derived directly or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 252
Decision Date: 23 March 1999

CaseChat Overview and Summary

The case of AMP General Insurance Ltd versus Prasad involved a dispute concerning equitable remedies, specifically Mareva injunctions, and issues related to discovery and the admissibility of evidence under the Evidence Act 1995. The Federal Court of Australia was tasked with determining whether affidavits could be ordered despite objections based on the potential for the evidence to incriminate the deponent, as well as whether the court could compel evidence to be given under the protection of a certificate under section 128 of the Evidence Act 1995. The central issue was whether the court's powers to grant Mareva injunctions and compel evidence extended to situations where the evidence might incriminate the deponent.

The court examined the scope of its powers in granting Mareva injunctions and the extent to which it could order discovery of documents, including affidavits, despite objections based on the potential for incriminating evidence. The primary legal question was whether the court could compel the production of affidavits and other documents under the cover of a certificate issued under section 128 of the Evidence Act 1995, which provides immunity from prosecution for the evidence given. The court also had to consider whether such orders could be made in the context of Mareva injunctions, which are typically used to prevent defendants from disposing of assets to frustrate the satisfaction of a judgment.

The court found that while Mareva injunctions could be granted to prevent the dissipation of assets, the court's power to compel discovery of documents, including affidavits, was subject to the limitations imposed by the Evidence Act 1995. The court concluded that it could not order the production of affidavits that might incriminate the deponent, even under the protection of a section 128 certificate, as this would contravene the protections provided by the Act. The court held that the potential for incriminating evidence was a significant factor that could not be overridden by the need for discovery in civil proceedings. Therefore, the court's powers to grant Mareva injunctions did not extend to compelling the production of evidence that might incriminate the deponent.

The court's decision underscored the importance of balancing the need for evidence in civil proceedings with the protections afforded by the Evidence Act 1995. The court's ruling clarified that while Mareva injunctions could be used to preserve assets, the court could not compel the production of evidence that might incriminate the deponent, even under the protection of a section 128 certificate. This decision reinforced the principle that the rights of defendants to avoid self-incrimination must be respected in civil proceedings, even where the court's powers are extensive.

Orders