Lawrence & Hanson Group Pty Ltd v Slade (No 2)
[2025] VSC 683
•5 November 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2025 05278
| LAWRENCE & HANSON GROUP PTY LTD (ACN 080 350 812) | Plaintiff |
| v | |
| SHANE JOHN SLADE | Defendant |
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JUDGE: | Waller J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 October 2025 |
DATE OF RULING: | 5 November 2025 |
CASE MAY BE CITED AS: | Lawrence & Hanson Group Pty Ltd v Slade (No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 683 |
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EVIDENCE — Privilege against self-incrimination — Freezing order — Disclosure order — Section 128A of Evidence Act 2008 (Vic) — Whether valid objection made — Whether separate affidavit adequately set out basis of objection — Whether reasonable grounds for objection — Whether real and appreciable risk of prosecution — Whether interests of justice require disclosure — Consideration of efficacy of freezing order where minimal assets disclosed — Balancing public interest in compliance with disclosure order against potential detriment to defendant — Confidential affidavit ordered to be returned to defendant — Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235, considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Sam B Rosewarne KC with Mr Harley G Schumann | Maddocks |
| For the Defendant | Ms Vicki Bell | Johnstone and Reimer Lawyers |
HIS HONOUR:
A. INTRODUCTION
On 10 September 2025, on the application of the Plaintiff, the Court made a freezing order against the assets of the Defendant (Freezing Order).
The Freezing Order required, among other matters, that the Defendant provide certain information concerning his assets on affidavit.
The Freezing Order stated that if the Defendant wished to object to providing such information on the grounds that some or all of the information required to be disclosed may tend to prove that he had committed an offence against or arising under an Australian law or a law of a foreign country or was liable to a civil penalty, he must:
(a) disclose so much of the information required to be disclosed to which no objection is taken;
(b) prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and
(c) file and serve on each other party a separate affidavit setting out the basis of the objection.
Pursuant to the Freezing Order:
(a) on 25 September 2025, the Defendant swore and filed an affidavit (Open Affidavit). The Open Affidavit set out a table of bank accounts in which the Defendant had an interest. Many of the accounts had zero balances. While some accounts had very small balances of no more than $2,000, there was also a personal loan account with a negative balance of more than $43,000. The Defendant also confirmed in the Open Affidavit that he had no real property assets in his name or any other beneficial interests where he was not the named owner of that property;
(b) on 29 September 2025, the Defendant filed a further affidavit, also sworn on 25 September 2025, which was sealed and marked ‘confidential’ (Confidential Affidavit); and
(c) on 29 September 2025, the Defendant filed an affidavit of his instructing solicitor, Mr Hayes, which asserted that the Defendant claimed the privilege against self-incrimination with respect to the Confidential Affidavit (First Hayes Affidavit).
In correspondence to the Defendant’s solicitors dated 30 September 2025, the Plaintiff’s solicitors objected to the First Hayes Affidavit on the basis that it failed to comply with the requirements of s 128A of the Evidence Act 2008 (Vic) (Evidence Act).
On 10 October 2025, the Defendant filed a further affidavit of Mr Hayes purporting to set out the factual and legal basis for the Defendant’s objection to produce the Confidential Affidavit (Second Hayes Affidavit).
In reliance on s 128A of the Evidence Act, the Defendant contends that there are reasonable grounds for the objection and that the interests of justice do not require the Confidential Affidavit to be disclosed.
Accordingly, the Defendant contends that the Court must return the Confidential Affidavit to the Defendant.
The Plaintiff disagrees. It contends that the Defendant has failed to establish that his objection meets the requirements of s 128A of the Evidence Act. The Plaintiff also argues that, even if s 128A is properly engaged and there are reasonable grounds for the objection, the interests of justice nonetheless require the Confidential Affidavit to be produced subject to the Defendant being given a certificate pursuant to s 128A(7).
B. FACTUAL BACKGROUND
The factual background of this proceeding is outlined in Lawrence & Hanson Group Pty Ltd v Slade [2025] VSC 578, in which I provided reasons for my decision to grant the Plaintiff’s freezing order application.
In summary, the Plaintiff sells lighting solutions and participated in the Victorian Energy Upgrades (VEU) scheme. Under that scheme, the Plaintiff was entitled to Victorian energy efficiency certificates (VEECs) in return for undertaking certain energy efficiency activities reducing a customer’s energy usage. The Defendant was an employee of the Plaintiff in charge of the Plaintiff’s account with the VEU scheme. In that capacity, the Defendant had unrestricted access to the Plaintiff’s VEECs, which could be transferred and sold for value.
The Plaintiff alleges that the Defendant caused a large number of the Plaintiff’s VEECs to be transferred to the Defendant for no payment. The Plaintiff further contends that the Defendant sold those VEECs and retained the proceeds.
C. LEGAL PRINCIPLES
Section 128A of the Evidence Act relevantly provides:
(2)If a relevant person objects to complying with a disclosure order on the grounds that some or all of the information required to be disclosed may tend to prove that the person—
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty—
the person must—
(c)disclose so much of the information required to be disclosed to which no objection is taken; and
(d)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken (the privilege affidavit) and deliver it to the court in a sealed envelope; and
(e)file and serve on each other party a separate affidavit setting out the basis of the objection.
(3)The sealed envelope containing the privilege affidavit must not be opened except as directed by the court.
(4)The court must determine whether or not there are reasonable grounds for the objection.
(5)Subject to subsection (6), if the court finds that there are reasonable grounds for the objection, the court must not require the information contained in the privilege affidavit to be disclosed and must return it to the relevant person.
(6)If the court is satisfied that—
(a)any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and
(b)the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(c)the interests of justice require the information to be disclosed—
the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties.
(7)If the whole or any part of the privilege affidavit is disclosed (including by order under subsection (6)), the court must cause the relevant person to be given a certificate in respect of the information referred to in subsection (6)(a).
(8)In any proceeding in a Victorian court—
(a)evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and
(b)evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information—
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned.
The High Court explained the requirements of s 128A in Deputy Commissioner of Taxation v Shi[1] (Shi).
[1](2021) 273 CLR 235 (Shi). The case concerned s 128A of the Evidence Act 2008 (Cth) which is in almost identical terms to s 128A of the Evidence Act 2008 (Vic).
Gordon J, in a comprehensive judgment, with which Kiefel CJ, Gageler and Gleeson JJ generally agreed, observed that s 128A deals with self-incrimination privilege in a particular context — compulsory disclosure of information because of an order ancillary to a freezing or search order.[2] Her Honour continued:
The context is important – the disclosure of the information has been compelled by court order and, except by application to set aside or vary the making of, relevantly, one or both of the freezing order and the disclosure order, the basis for the making of the orders, as well as the reasons for the making of the orders, and the ambit of those orders, have been established. Consideration of any application for a claim of self-incrimination privilege under s 128A must proceed from the premises that the court has ordered disclosure of the information; the information is relevant to and necessary for the efficacy of the relevant freezing order; and the person subject to the orders has not successfully applied for the setting aside of those orders. The context in which issues of self‑incrimination might arise at trial under s 128 of the Evidence Actis necessarily and markedly different.
[2]Ibid at [23].
Gordon J noted that s 128A provides a framework in many cases for considering the issues sequentially in the order in which the section is set out.[3]
[3]Ibid at [25].
In respect of the first step of the enquiry, the plurality noted that the requirements of s 128A(2) include the following:
(a) the relevant person must disclose so much of the information required to be disclosed to which no objection is taken;
(b) the relevant person must prepare and deliver to the court in a sealed envelope a privilege affidavit containing the information subject to the objection;
(c) the relevant person must file and serve a separate affidavit setting out the basis for the objection. This requires the separate affidavit to indicate, at least in outline, the legal and factual foundation for the objection.[4]
[4]Ibid at [6]–[7]; [27].
The relevant person asserting privilege bears the onus of establishing the factual basis for the privilege.[5] As for the threshold which the relevant person must meet:
·information “may tend to prove” the commission of an offence where it affords “a link in the chain of evidence” and is “a means of bringing home an offence”. In other words, disclosure of the information might, or is likely to, “set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character”;[6]
·however, there is no need for the person claiming privilege to prove that disclosure will, on the balance of probabilities, prove the commission of an offence. Neither are they required to explain fully how disclosure would bring about the incriminating effect, as doing so would in at least some circumstances “annihilate the protection that the section is designed to provide”;[7]
·on the other hand, the standard will be unlikely to be met where the relevant person advances no more than a mere statement that they believe disclosure will tend to incriminate them. Likewise where there are other circumstances which cause the court to believe that disclosure will not really tend to incriminate them.[8]
[5]Ibid at [28].
[6]Ibid at [29], quoting Ex parte P; Re Hamilton (1957) 74 WN (NSW) 397 at 399 and Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443.
[7]Ibid at [29]–[30], citing Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 430.
[8]Ibid at [30].
As for the second step of the enquiry, Kiefel CJ and Gageler and Gleeson JJ explained that, in order for the court to find reasonable grounds for the objection under s 128A(4):
the court must be satisfied on the evidence before it that there is a legal and factual foundation for the objection that is sufficient for the court itself to conclude that the objection is reasonably maintained at the time the court makes its decision.[9]
[9]Ibid at [7].
Gordon J further explained that:
·the test as to whether or not there are reasonable grounds for the objection is objective and evaluative;[10]
·the court must assess whether there is a “real and appreciable risk” of prosecution upon disclosure;
·having regard to the circumstances of the case and the nature of the information sought to be disclosed, the court must consider whether there are reasonable grounds to apprehend danger to the claimant from being compelled to disclose the information. This involves consideration of whether the information may tend to prove the commission of an offence and the likelihood or risk of steps being taken to prosecute the offence;
·the reasonable grounds must be supported by materials on which the court can be satisfied of these matters. The materials the court can have regard to include both the privilege affidavit and any other material filed by the relevant person.[11]
[10]Ibid at [33].
[11]Ibid at [34].
Gordon J emphasised that if the court finds that there are reasonable grounds for the objection, then, subject to s 128A(6), the court must not require the information contained in the privilege affidavit to be disclosed and must return the privilege affidavit containing the information to the relevant person.[12]
[12]Ibid at [36] citing s 128(5) of the Evidence Act 2008 (Cth).
In connection with the last step of the enquiry under s 128A(6), Gordon J noted that this sub-section provides only a “limited” exception to a claim of self-incrimination privilege,[13] which only applies where the court is satisfied of three matters:
“(a) any information disclosed in the privilege affidavit may tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and
(b)the information does not tend to prove that the relevant person has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(c)the interests of justice require the information to be disclosed.”[14]
[13]Ibid at [36].
[14]Ibid at [36].
Further, Gordon J observed that:
if the court is satisfied of those three matters, then "the court may make an order requiring the whole or any part of the privilege affidavit containing information of the kind referred to in paragraph (a) to be filed and served on the parties" (emphasis added). Disclosure is not automatic.[15]
[15]Ibid at [36].
For present purposes, the Court’s comments in respect of the third matter (viz the interests of justice) are particularly relevant.
Kiefel CJ, Gageler J and Gleeson JJ noted that the evaluation of the interests of justice under s 128A(6)(c) is primarily informed by balancing the public interest in the relevant person complying with the disclosure order against the potential detriment to that person arising from the tendency of the information to prove that the person has committed an offence or is subject to a civil penalty. The potential detriment must be assessed with regard to the constraints on the use and dissemination of the disclosed information which may apply. For example, the party to whom disclosure is made may be prohibited from making use of the information other than for the purpose of the proceeding in question, and orders restricting the dissemination of the information may also be available.[16]
[16]Ibid at [12].
Gordon J explained that what the interests of justice require in a particular case is to be weighed having regard to the proceeding in which the question arises. The factors to be balanced are not and cannot be prescribed, but may include the nature of the information, the likelihood of an offence being prosecuted and any resulting unfairness to a party.[17]
[17]Ibid at [41].
Gordon J further stated that while the possibility of obtaining the same evidence by alternative coercive means is not relevant, the availability of other evidence that may tend to prove, to the same or some other degree, the information contained in the privilege affidavit may indicate that it is not in the interests of justice that the information over which privilege is claimed be disclosed.[18] Her Honour said:
[i]f the information over which the privilege is claimed is common with information already available to the party with the benefit of the disclosure order, or if alternative information relevant to the efficacy of the freezing order is in the possession of the party with the benefit of the disclosure order, the interests of justice may not require the information to be disclosed because the relative importance of the information over which privilege is claimed is diminished. Similarly, if the information is not particularly important to the efficacy of the freezing order, the interests of justice are not advanced by compelling the person claiming the privilege to disclose the information.[19]
[18]Ibid at [42]–[43].
[19]Ibid at [43].
D. SUBMISSIONS
Each party provided the Court with a written outline of submissions and made further oral submissions at the hearing on 31 October 2025.
D.1 Defendant’s submissions
The Defendant submits that there are reasonable grounds for his objection under s 128A(4) of the Evidence Act. He contends that the information required to be disclosed in the Confidential Affidavit — concerning the receipt, whereabouts, and proceeds of sale of VEECs — may tend to prove that he has committed offences of theft, obtaining property by deception, or obtaining a financial advantage by deception contrary to ss 74, 81, and 82 of the Crimes Act 1958 (Vic), as well as offences or civil penalties under ss 182–184 of the Corporations Act 2001 (Cth) relating to misuse of position or information.
The Defendant's primary submission is that the interests of justice do not require disclosure of the Confidential Affidavit. He argues that the Plaintiff's case remains inchoate, with only a freezing order in place and no substantive claim yet filed despite two months having passed. This makes it difficult to assess the relevance of the evidence.
More significantly, the Defendant submits that the Plaintiff already possesses the material information through other sources: the Plaintiff's own evidence indicates its current understanding that the Defendant transferred VEECs to his own account and traded them; a search of the VEU register would reveal current ownership; and the Defendant's Open Affidavit confirms that any proceeds are not held in his name.
Against this, the Defendant submits the Court should infer a high risk of criminal prosecution, and that compelling disclosure would impinge upon his fundamental right to silence. The Defendant contends the Plaintiff has not satisfied the "relatively high standard" required to demonstrate that the interests of justice favour disclosure.
The Defendant's written submissions contemplated that if disclosure were required, a certificate should be issued. However, in oral argument, the Defendant advanced a more emphatic position: that the sealed Confidential Affidavit ought to be returned to him rather than being disclosed with a certificate.
D.2 Plaintiff's submissions
The Plaintiff advances three principal arguments.
First, the Plaintiff submits that the Defendant has failed to make a valid objection under s 128A(2)(e) because the First and Second Hayes Affidavits do not adequately set out the legal and factual basis for the objection as required by Shi. While the Second Hayes Affidavit lists certain statutory provisions and employment facts, it provides no explanation as to how these factual matters give rise to any risk that the Confidential Affidavit may tend to prove commission of the identified offences. The Plaintiff submits this failure to satisfy the procedural prerequisite means the objection should be dismissed outright and the Confidential Affidavit released without a certificate.
Secondly, even if s 128A(2) is satisfied, the Plaintiff submits the Defendant has not demonstrated reasonable grounds for the objection under s 128A(4). The Plaintiff argues there is no evidence of a "real and appreciable risk" of prosecution: the Defendant concedes there is no evidence of any pending criminal investigation or charges, and the assertion that the Court should "infer" a high risk of prosecution is mere conjecture. Moreover, if criminal charges are likely to be brought in any event (because the alleged criminal conduct is obvious), then the disclosure adds nothing to the Defendant's jeopardy, which militates against rather than in favour of the objection.
Thirdly, if the Court finds reasonable grounds exist, the Plaintiff submits that the interests of justice nonetheless require disclosure. The Plaintiff emphasises that the Defendant has fundamentally misunderstood the applicable legal principles by failing to account for the public interest in compliance with extant disclosure orders. Relying on Shi, the Plaintiff submits that the context is critical: the disclosure has already been compelled by court order, and the relevance and necessity of the information for the efficacy of the freezing order has been established by the making of that order. The Plaintiff submits that the Defendant's argument concerning alternative sources of information is irrelevant — once a disclosure order is made, the fact that information might be obtained elsewhere does not bear upon whether the interests of justice require compliance with that order. The Plaintiff contends that any detriment to the Defendant is adequately addressed by the issuance of a certificate, which, together with other safeguards, provides sufficient protection. Accordingly, the interests of justice require disclosure of the sealed Confidential Affidavit with a certificate.
E. CONSIDERATION
E.1 Section 128A(2) – Valid Objection
The first question is whether the Defendant has made a valid objection under s 128A(2) of the Evidence Act. The Plaintiff submits that the First and Second Hayes Affidavits are insufficient to satisfy the requirement in s 128A(2)(e) that the Defendant "file and serve on each other party a separate affidavit setting out the basis of the objection".
As the High Court made clear in Shi, for a person to comply with s 128A(2)(e), the separate affidavit must indicate, at least in outline, the legal and factual foundation for the objection. Both elements of s 128A(2) are important: the sealed privilege affidavit and the separate affidavit setting out the basis for the objection. The purpose of the separate affidavit is to ameliorate the difficulty an opponent faces in negating the prima facie privilege without access to the relevant evidence.
I accept that the First Hayes Affidavit, standing alone, would be insufficient. It contains only a bare general assertion that the information may tend to prove that the Defendant has committed an offence against Australian law. However, the Second Hayes Affidavit goes further. It identifies:
(a) the factual basis of the objection: the Defendant's employment with the Plaintiff, his role in managing the Plaintiff's account with the VEU scheme, his exclusive access to the VEECs, the discovery of discrepancies, the investigation by forensic accountants, RSM, and the Defendant's resignation; and
(b) the legal basis of the objection: specific offences or civil penalties under ss 74, 81 and 82 of the Crimes Act 1958 (Vic) and ss 182–184 of the Corporations Act 2001 (Cth).
The Plaintiff's principal criticism is that the Second Hayes Affidavit fails to explain adequately how the factual matters give rise to any risk that the Confidential Affidavit may tend to prove commission of the offences, and that there is "no attempt... to draw together the factual and legal assertions to adequately explain the basis of the Defendant's objection". However, this submission conflates the requirements of s 128A(2)(e) with those of s 128A(4). The question at the s 128A(2) stage is whether the separate affidavit sets out, in outline, the basis for the objection — not whether reasonable grounds for the objection have been established or whether there is a demonstrated nexus between the specific contents of the Confidential Affidavit and the identified offences.
To require the Defendant to provide a more detailed explanation of how the specific contents of the Confidential Affidavit may prove the commission of offences would risk undermining the very protection that s 128A is designed to provide. As Gordon J stated in Shi at [30], a person claiming privilege is not required to explain fully how disclosure would bring about the incriminating effect, as doing so would, in at least some circumstances, “annihilate the protection that the section is designed to provide”. The Defendant must walk a careful line: providing sufficient information to enable the Court and the opposing party to understand the nature of the objection, while not disclosing the very information over which privilege is claimed. To say more would run the risk of defeating the privilege.
I consider that enough has been provided to satisfy the test of setting out the legal and factual basis for the objection. The Defendant has identified the factual matrix (his employment, role, and exclusive access to valuable certificates that are alleged to have been misappropriated) and the legal framework (specific criminal and civil penalty provisions). This is sufficient to provide, at least in outline, the legal and factual foundation for the objection. I am satisfied that the Defendant has complied with s 128A(2)(e) and made a valid objection.
E.2 Section 128A(4) – Reasonable Grounds
The second question is whether there are reasonable grounds for the objection. The test is objective and evaluative. As Gordon J explained in Shi at [33]-[34], the Court must assess whether there are reasonable grounds to apprehend danger to the Defendant from being compelled to disclose the information. This requires consideration of whether the information may tend to prove the commission of an offence, as well as the likelihood, or risk, of steps being taken to prosecute that offence. There must be a "real and appreciable risk" of prosecution if the relevant information is disclosed. The Defendant bears the onus of establishing reasonable grounds for the objection.
I have read the Confidential Affidavit in its entirety and have taken its contents into account in assessing whether there are reasonable grounds for the objection.
The Plaintiff advances two principal arguments. First, it submits that the Defendant has failed to establish a real and appreciable risk of prosecution because the Defendant concedes there is no evidence of any pending criminal investigation or charges, and the assertion that the Court should infer a high risk of prosecution is "mere conjecture and speculation". Secondly, the Plaintiff submits that if criminal charges are likely to be brought in any event (because the alleged conduct is obvious), then the disclosure adds nothing to the Defendant's jeopardy, which militates against rather than in favour of the objection.
I reject both of these submissions.
As to the first submission, the absence of evidence of a pending investigation or charges does not preclude a finding that there is a real and appreciable risk of prosecution. The question is whether there are reasonable grounds to apprehend that, if the information is disclosed, steps may be taken to prosecute an offence. The nature of the alleged conduct — the misappropriation of valuable certificates entrusted to the Defendant's control by his employer — is serious. The amounts involved appear to be substantial. It is not speculative or conjectural to conclude that if evidence of such conduct came to the attention of prosecuting authorities, there would be a real and appreciable risk of prosecution.
As to the Plaintiff's second submission, it fundamentally misconstrues the inquiry required by s 128A(4). The question is not whether the Defendant faces some abstract risk of prosecution based on what may already be known or suspected. The question is whether the disclosure of the specific information in the Confidential Affidavit would tend to prove the commission of an offence and whether there is a real and appreciable risk of prosecution if that information is disclosed.[20]
[20]Ibid at [34].
The Plaintiff's argument appears to be that because the alleged criminal conduct is "obvious", charges are likely to be brought regardless of whether the Confidential Affidavit is disclosed, and therefore disclosure "adds nothing to the individual's jeopardy". This argument misapprehends what is meant by "jeopardy" in this context. As Gordon J explained in Shi at [35], there can be no real and appreciable risk of prosecution where "the taking of the step in question [the disclosure] will not add to the individual's jeopardy". This principle applies where, for example, the information is already in the possession of prosecuting authorities or is otherwise publicly available, such that the compelled disclosure adds nothing new that could be used against the person. It does not apply where, as here, the information in the Confidential Affidavit is not in the possession of prosecuting authorities and would, if disclosed, provide direct evidence from the Defendant himself as to potentially incriminating matters.
Having regard to the nature and content of the information in the Confidential Affidavit, which I have read, I am satisfied that it may tend to prove the commission of the offences and contraventions identified by the Defendant.
Given the serious nature of the alleged conduct and the probative value of the information in the Confidential Affidavit, I am satisfied that there is a real and appreciable risk that, if disclosed, this information could trigger prosecution. The fact that prosecuting authorities may already have suspicions about the Defendant's conduct, or that the Plaintiff may have formed views about what occurred, does not mean that the disclosure of the specific information in the Confidential Affidavit — which comes directly from the Defendant and addresses the very matters that would need to be proved in any prosecution — adds nothing to the Defendant's jeopardy. On the contrary, compelled disclosure of this information would significantly increase the risk of successful prosecution.
Accordingly, I am satisfied that there are reasonable grounds for the objection under s 128A(4).
E.3 Section 128A(6)(c) – Interests of Justice
The third question is whether the interests of justice require that the information be disclosed notwithstanding the reasonable grounds for the objection.
As Edelman J observed in Shi at [89], and as Delany J noted in Timeless Sunrise Pty Ltd v Big J Enterprises Pty Ltd (No 7),[21] there is some debate as to whether any party bears an onus on the question of the interests of justice. However, it is not necessary for me to resolve that debate in this case. Having considered all the materials and submissions, I am not satisfied that the interests of justice require disclosure of the information in the Confidential Affidavit.
[21]Timeless Sunrise Pty Ltd v Big J Enterprises Pty Ltd (No 7) [2022] VSC 549 at [56]–[60].
As Kiefel CJ, Gageler and Gleeson JJ explained in Shi at [12], the evaluation of the interests of justice under s 128A(6)(c) is primarily informed by balancing the public interest in the Defendant complying with the disclosure order against the potential detriment to the Defendant arising from the tendency of the information to prove that he has committed an offence or is subject to a civil penalty.
The public interest in compliance with disclosure orders ancillary to freezing orders is undoubtedly significant. Freezing orders are an important tool to prevent the dissipation of assets pending the determination of civil claims, and ancillary disclosure orders may be necessary to ensure the efficacy of the freezing orders. However, the weight to be given to the public interest in compliance must be assessed having regard to the particular circumstances of the case, including the efficacy and utility of the Freezing Order in light of what is already known about the Defendant's assets.
In this case, the Open Affidavit makes clear that the Defendant has few, if any, assets available to satisfy any prospective judgment. The Defendant has disclosed in the Open Affidavit the limited assets he possesses. The Confidential Affidavit does not disclose further assets in his possession. In these circumstances, the relative importance of obtaining disclosure of the information in the Confidential Affidavit for the efficacy of the Freezing Order is diminished.
This is not to say that the Confidential Affidavit contains no information of relevance to the Freezing Order. Having read it, I accept that it contains information that would ordinarily be relevant to understanding what has become of the VEECs and any proceeds from their sale. However, the question is not merely whether the information is relevant, but whether the interests of justice require its disclosure.
Where, as here, the Open Affidavit demonstrates that the Defendant has minimal assets, the utility of compelling disclosure of the Confidential Affidavit for the purpose of the Freezing Order is substantially reduced. The Freezing Order operates to prevent dissipation of assets, but if there are few assets to dissipate, the importance of the disclosure order ancillary to that Freezing Order is correspondingly diminished.
The Plaintiff emphasises the public interest in compliance with disclosure orders. However, as the Plaintiff correctly notes in its submissions, what the interests of justice require must be weighed having regard to the proceeding in which the question arises. In this proceeding, the Freezing Order was made on the basis that there was a risk the Defendant would deal with or dispose of assets to frustrate any judgment. The Open Affidavit reveals that the Defendant's disclosed assets are minimal. In these circumstances, while there remains a public interest in compliance with the disclosure order, the practical utility of that compliance for the purpose for which the disclosure order was made is limited.
The Plaintiff also submits that the Defendant's argument concerning alternative sources of information is irrelevant, relying on Shi at [11] and [42]–[43]. The Plaintiff is correct that the possibility of obtaining the same information by alternative coercive means is not relevant to the interests of justice inquiry. However, that is not the basis upon which I have concluded that the interests of justice do not require disclosure in this case. Rather, my conclusion is based on the limited efficacy of the Freezing Order itself, as revealed by the Open Affidavit, and the consequent diminished importance of the information in the Confidential Affidavit to the operation of that order.
As Gordon J explained in Shi at [43], if information is not particularly important to the efficacy of the freezing order, the interests of justice are not advanced by compelling disclosure. That is the position here. The information in the Confidential Affidavit may be relevant to understanding what happened to the VEECs, but its importance to the efficacy of a Freezing Order directed to preserving assets (that, it appears, largely do not exist) is limited.
Against this limited public interest in disclosure must be weighed the significant detriment to the Defendant. As I have found, there is a real and appreciable risk of prosecution if the information in the Confidential Affidavit is disclosed. While ss 128A(7) and (8) provide protection through the certificate mechanism — such that the information cannot be used against the Defendant in any proceeding in a Victorian court (save in respect of the falsity of the evidence) — this protection is not absolute. The certificate does not prevent the Plaintiff from using the information for the purposes of this civil proceeding. More significantly, it does not bind prosecuting authorities in other jurisdictions or prevent the information from being discovered through other investigative means once its existence and nature are revealed.
Balancing these considerations, I am not satisfied that the interests of justice require disclosure of the information in the Confidential Affidavit. The public interest in compliance with the disclosure order is diminished by the limited efficacy of the Freezing Order (given the minimal assets disclosed in the Open Affidavit), while the potential detriment to the Defendant from compelled disclosure of information that tends to prove serious criminal offences remains substantial notwithstanding the protections afforded by the certificate.
F. CONCLUSION AND ORDERS
For the reasons set out above:
(a) I am satisfied that the Defendant has made a valid objection under s 128A(2)(e);
(b) I am satisfied that there are reasonable grounds for the objection under s 128A(4); and
(c) I am not satisfied that the interests of justice require the information in the Confidential Affidavit to be disclosed under s 128A(6).
Accordingly, pursuant to s 128A(5), I will order that the Confidential Affidavit of the Defendant sworn on 25 September 2025 and filed on 29 September 2025 be returned to the Defendant.
The parties are required to confer and, within seven days, either submit a consent minute in respect of the appropriate costs order or, failing agreement, file and serve submissions of no more than 2 pages addressing costs.
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