MacDonald v Australian Securities and Investments Commission

The New South Wales Court of Appeal considered an appeal by MacDonald against orders made by the Supreme Court concerning the filing of a defence in proceedings brought by the Australian Securities and Investments Commission (ASIC). The central dispute revolved around MacDonald's assertion of the privilege against self-incrimination as a basis for not complying with the usual requirements for filing a defence under the Uniform Civil Procedure Rules 2005 (NSW).

The Court was required to determine whether the privilege against self-exposure to a penalty could justify dispensing with the requirements of rule 14.14, which mandates that a defence must be verified by affidavit, and rule 15.1, which requires a defence to raise all grounds on which the defendant relies and to make positive assertions of fact with particulars. Specifically, the Court had to consider the extent to which the privilege could excuse a defendant from making positive assertions of fact in their defence.

The Court reasoned that while the privilege against self-incrimination is a fundamental right, it does not operate to excuse a party from the obligation to plead to a statement of claim. However, the Court acknowledged that in certain circumstances, the privilege could limit the extent to which a party is required to make positive assertions of fact. The Court held that the privilege could justify an unverified defence and that the requirements of rules 14.14 and 15.1 could be dispensed with to the extent necessary to accommodate the proper assertion of the privilege.

Consequently, the Court allowed the appeal in part, setting aside the previous direction for MacDonald to file an unverified defence by a specific date. Instead, the Court directed that MacDonald file an unverified defence within a further specified period, in accordance with the Court's reasons, thereby permitting a pleading that accommodated the assertion of the privilege against self-incrimination.