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Pascoe v Divisional Security Group Pty Ltd

Pascoe v Divisional Security Group Pty Ltd

Case [2007] NSWSC 211 14 March 2007

Legal Privilege

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Jurisdiction

Standing

Civil Litigation & Procedure

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Reported Decision:
61 ACSR 381

New South Wales

Supreme Court

CITATION: Scott Darren Pascoe in his capacity as liquidator of Charter Workforce Pty Ltd (In Liq) & Anor v Divisional Security Group Pty Ltd & Ors [2007] NSWSC 211

HEARING DATE(S): 27/11/06

JUDGMENT DATE :
14 March 2007

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: White J

DECISION: See paragraph 53 of judgment.

CATCHWORDS: PRACTICE AND PROCEDURE – Privilege – Privilege against self-exposure to a penalty – Production and inspection – Pleadings – Evidence – Whether privilege available in proceedings for compensation orders under a civil penalty provision – Whether defendant can rely on privilege to avoid filing and serving a defence, or filing a defence not verified by affidavit and without certificate required under s 347 of Legal Profession Act 2004 (NSW) – Whether defendant can rely on privilege to avoid giving discovery, producing documents for inspection or filing or serving evidence in proceedings until after close of the plaintiffs’ case – Whether a corporation can rely on privilege to avoid giving evidence which would tend to expose a natural person to a penalty – Where prospect of penalty arises from no more than a possibility of future proceedings – Considered (CTH) Corporations Act 2001, ss 588G(2), 588M(2), 1317E(1)(e), 1317F, 1317G, 1317H, 1317HA, 1317J(2) and 1317J(4) – Held that privilege not available. - PRACTICE AND PROCEDURE – Application for stay until further and better particulars provided by plaintiff – Application to strike out plaintiffs’ statement of claim – Applications refused – No question of principle.

LEGISLATION CITED: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Legal Profession Act 2004 (NSW)

CASES CITED: One.Tel Limited (In Liq) v Rich & Ors (2005) 53 ACSR 623
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204
Australian Securities and Investments Commission v Rich & Ors (2004) 50 ACSR 500; 22 ACLC 1232
Derby Corporation v Derbyshire County Council [1897] AC 550
The King v Associated Northern Collieries (1910) 11 CLR 738
Pyneboard Pty Ltd v Trade Practices Commission & Anor (1983) 152 CLR 328
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
Australian Securities and Investments Commission v Rich (2003) 45 ACSR 305
Rich v Australian Securities and Investments Commission (2003) 203 ALR 671
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
McMahon v Gould (1982) 7 ACLR 202
Sidebottom v Commissioner of Taxation (Cth) (2003) 6 VR 302
Australian Competition and Consumer Commission v FFE Building Services Ltd (2003) 130 FCR 37
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Chief Executive Officer of Customs v Camile Trading Pty Ltd [2004] NSWSC 1256
Trade Practices Commission v Abbco Iceworks Pty Ltd & Ors (1994) 52 FCR 96
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385

PARTIES: Scott Darren Pascoe in his capacity as liquidator of Charter Workforce Pty Ltd (In Liq) & Anor
v

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.

Continue reading Pascoe v Divisional Security Group Pty Ltd

Details

AGLC: Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211
Case: [2007] NSWSC 211
Decision Date: 14 March 2007

CaseChat Overview and Summary

The case of Pascoe v Divisional Security Group Pty Ltd involved the plaintiff, Pascoe, suing the defendant, Divisional Security Group, for compensation orders under a civil penalty provision. The central dispute was whether the defendant could rely on privilege to avoid various procedural obligations in the litigation process. The case was heard by the court, which had to decide if privilege against self-exposure to a penalty could be invoked in these proceedings, and if so, under what circumstances.

The legal issues that the court needed to resolve included whether the defendant could claim privilege to avoid filing and serving a defence, or filing a defence not verified by affidavit and without the certificate required under section 347 of the Legal Profession Act 2004 (NSW). The court also needed to determine if the defendant could rely on privilege to avoid giving discovery, producing documents for inspection, or filing or serving evidence in the proceedings until after the close of the plaintiff's case. Additionally, the court had to consider whether a corporation could claim privilege to avoid giving evidence that would tend to expose a natural person to a penalty, particularly when the prospect of penalty arises from a mere possibility of future proceedings.

The court's reasoning and outcome were that privilege was not available in these circumstances. The court found that the privilege against self-exposure to a penalty did not apply to prevent the defendant from meeting its procedural obligations in the litigation process. The court held that the privilege could not be relied upon to avoid filing and serving a defence, or to avoid giving discovery, producing documents for inspection, or filing or serving evidence until after the close of the plaintiff's case. The court also ruled that a corporation could not rely on privilege to avoid giving evidence that would tend to expose a natural person to a penalty, even if the prospect of penalty arose from only a possibility of future proceedings. The court considered relevant sections of the Corporations Act 2001, concluding that the privilege did not apply in this case.

The court also dismissed the defendant's applications for a stay until further and better particulars were provided by the plaintiff and for striking out the plaintiff's statement of claim. The court found that there was no question of principle involved in these applications.

Orders