Big Un Limited (in liquidation) v Evertz - [2024] NSWSC 878

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Big Un Limited (in liquidation) v Evertz (No 2) [2024] NSWSC 878
Hearing dates: 12 July 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Jurisdiction: Equity - Commercial List
Before: McGrath J
Decision:
Applicant relieved of procedural requirements to file and serve response or other defence, plead matters specifically, provide particulars, serve certain evidence, provide certain disclosure, and ancillary orders: see [69]

Catchwords:
CIVIL PROCEDURE — Procedural requirements under Practice Note SC Eq 3 and UCPR — where applicant seeks dispensation in limine from requirements to file and serve response or other defence, plead matters specifically, provide particulars, serve certain evidence and provide certain disclosure in the substantive proceedings — where substantive proceedings involve damages claims by plaintiff company against applicant and other company officers for breaches of Corporations Act 2001 (Cth) — where applicant is the subject of parallel criminal proceedings involving significant factual and temporal overlap with present proceedings — privilege against self-incrimination — general rule that a party to non-penalty civil proceedings will not be excused from discovery or interrogatories — rare exception where exemption from disclosure is only means of maintaining the privilege and there is a real and appreciable risk of prosecution — exact overlap of events and allegations not required — HELD — applicant incapable of responding to allegations in civil proceedings without exposing himself to liability in criminal proceedings — dispensation and cognate orders granted

Legislation Cited:
Corporations Act 2001 (Cth) ss 9, 180, 1042A(1), 1043A(1), 1311(1), 1317H
Practice Note SC Eq 3
Uniform Civil Procedure Rules 2005 (NSW) rr 14.3, 14.14, 15.1, 21.10, 34.1

Cases Cited:
Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32; [2007] FCA 1620
EL Bell Packaging Pty Ltd v Allied Seafoods Ltd (1990) 4 ACSR 85
MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612
Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
R v DCT; Ex Parte Briggs (1987) 71 ALR 86
ReKala Capital Pty Ltd (No 2) [2012] NSWSC 1293
Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204
Reid v Howard (1995) 184 CLR 1
Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (No 3) (2018) 128 ACSR 625; [2018] FCA 1107
Sorby v Commonwealth (1983) 152 CLR 281
Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207; [1999] NSWSC 161

Category: Procedural rulings
Parties: Big Un Limited (Plaintiff/Respondent)
Brandon Charles Evertz (First Defendant/ Respondent)
Sonia Thurston (Third Defendant/Respondent)
Andrew Scott Corner (Fourth Defendant/Applicant)
Representation:
Counsel:
No appearance (Plaintiff/Respondent)
H Rogers (First Defendant/Respondent)
E Holmes and S Murray (Third Defendant/Respondent)
P Afshar and J Pokoney (Fourth Defendant/Applicant)
Solicitors:
Cornwalls (Plaintiff/Respondent)
Christopher Farah (First Defendant/Respondent)
Polczynski Robinson (Third Defendant/Respondent)
KB Legals (Fourth Defendant/Applicant)

File Number(s): 2021/00307804
Publication restriction: Nil

JUDGMENT

INTRODUCTION

This is an application by the fourth…

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: [2024] NSWSC 878
Decision Date: 19 July 2024

CaseChat Overview and Summary

The case of Big Un Limited (in liquidation) v Evertz involved a dispute between the liquidator of Big Un Limited and the applicant, Evertz. The dispute centred on the liquidator's claims for damages against Evertz and other company officers for breaches of the Corporations Act 2001 (Cth). Evertz sought dispensation from filing a response or defence, pleading matters specifically, providing particulars, serving certain evidence, and providing certain disclosure in the proceedings. The basis for this request was the overlap between the current civil proceedings and parallel criminal proceedings involving Evertz, which raised the prospect of self-incrimination.

The legal issues before the court were whether Evertz could be granted dispensation from the procedural requirements of filing a response, pleading matters specifically, providing particulars, serving certain evidence, and providing certain disclosure, given the significant overlap with the criminal proceedings. The court had to consider the general rule that a party to non-penalty civil proceedings will not be excused from discovery or interrogatories, but also the rare exception where exemption from disclosure is necessary to maintain the privilege against self-incrimination. The court needed to determine whether Evertz's situation met the criteria for this exception, particularly whether there was a real and appreciable risk of prosecution and whether the overlap of events and allegations was sufficient to warrant exemption.

The court found that Evertz was incapable of responding to the allegations in the civil proceedings without exposing himself to liability in the criminal proceedings. It was determined that granting Evertz dispensation from the procedural requirements was necessary to maintain the privilege against self-incrimination. The court recognised that the exact overlap of events and allegations was not required for the exception to apply. Consequently, the court granted the applicant's application for dispensation and cognate orders. This decision acknowledged the necessity to balance the rights of the parties with the protection of the privilege against self-incrimination, particularly in circumstances where the parallel criminal proceedings posed a significant risk to the applicant.

Orders