Sader v Elgammal

The applicants, Sader and Elgammal, sought leave to appeal from an order of the Land and Environment Court of New South Wales, which had dismissed their notice of motion seeking access to the first respondent's property. The appeal concerned the interplay between an order for access to property and concurrent contempt proceedings, specifically the privilege against self-exposure to penalty and its potential waiver.

The central legal issue before the Court of Appeal was whether the applicants had waived their privilege against self-exposure to penalty by serving an affidavit in support of their access application, even though that affidavit had not been read to the court. The court was required to determine if the act of serving the affidavit, without it being formally presented or relied upon in court, constituted a waiver of the privilege.

The Court of Appeal found that the privilege against self-exposure to penalty is not automatically waived by the mere filing or service of an affidavit. It held that a waiver occurs only when the party relying on the privilege has voluntarily disclosed the information or has taken a step that clearly indicates an intention to abandon the privilege. In this instance, the court determined that serving the affidavit, without it being read or relied upon, did not amount to a voluntary disclosure or an abandonment of the privilege. Consequently, the appeal was allowed, the order dismissing the applicants' notice of motion was set aside, and the court made orders granting the applicants access to the property for the purpose of a structural inspection.