Specialty Fashion Group Limited v Muirhead Nominees Pty Ltd & ors

[2009] NSWSC 515

CITATION:	Specialty Fashion Group Limited v Muirhead Nominees Pty Ltd & ors [2009] NSWSC 515
HEARING DATE(S):	9 June 2009
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	9 June 2009
DECISION:	Application to set aside orders dismissed with costs
CATCHWORDS:	PROCEDURE - Setting aside orders - disclosure order provided for protection against self incrimination in terms of s 87 of the Civil Procedure Act 2005 - s 87 no longer applies if s 128A of the Evidence Act 1995 applies - whether order irregular and should be set aside - whether portion of order should be treated as struck out with s 128A then applying of its own motion
LEGISLATION CITED:	Civil Procedure Act 2005 Evidence Act 1995
PARTIES:	Specialty Fashion Group Limited (Plaintiff) Simon Feldman (Second Defendant) Beautree Pty Ltd (Third Defendant) Richard Bamford (Fourth Defendant) A.E.M. Holdings Pty Ltd (Eighth Defendant) Patricia Yonon (also known as Patricia Bamford) (Ninth Defendant) Stephen Morris Marks (Eleventh Defendant)
FILE NUMBER(S):	SC 2765/09
COUNSEL:	R Beech-Jones SC and M Friedgut (Plaintiff) P Bruckner (Third, Fourth, Eighth and Ninth Defendants)
SOLICITORS:	Arnold Bloch Liebler (Plaintiff) Whitehead Cooper Williams (Third, Fourth, Eighth and Ninth Defendants) Holding Redlich Solicitors (Eleventh Defendant) Milne Berry Berger & Freedman Solicitors (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 9 JUNE 2009

02765 of 2009 SPECIALTY FASHION GROUP LIMITED v MUIRHEAD NOMINEES PTY LTD & ORS

EX TEMPORE JUDGMENT

1 On a notice of motion for orders to produce documents and provide information, Bergin J made orders on 15 May 2009 in accordance with the terms of the notice of motion, save for the replacement of certain dates.

2 Under order 1, subject to two provisos, each of the defendants was to inform the plaintiff in writing of all of that defendant's assets world wide giving specified details.

3 Under order 2, subject to the two provisos, specified defendants were to inform the plaintiff in writing of amounts received under specified invoices, of the date of receipt and of the bank accounts into which those amounts were deposited.

4 Under order 3, subject to the two provisos, specified defendants were to produce copies of family trust deeds.

5 The first and second provisos were to similar effect. The first applied to each defendant that was not a corporation. The second applied to each defendant that was a corporation.

6 The first proviso was in the following terms:

“(a) The First Proviso applies to each defendant that is not a corporation and that wishes to object that compliance with the above orders (or one or more of the above orders) may tend to incriminate that defendant or make him or her liable to a civil penalty;

(b) That defendant must, on or before 5.00pm on Wednesday 27 May 2009, file a notice of motion applying to revoke the order/s made above pursuant to section 87 of the Civil Procedure Act 2005. The notice of motion must be supported by an affidavit which identifies the grounds for making the application;

(c) If any defendant files any such notice of motion, that defendant need comply with the above orders only to the extent, if any, that it is possible to do so without disclosure of the material which may tend to prove that that defendant has engaged in culpable conduct; and

(d) If any defendant files such a notice of motion, the Court may give directions as to the filing and service of affidavits setting out such matters as the defendant wishes to place before the Court in support of his or her application.”

7 Section 87 of the Civil Procedure Act 2005, relating to protection against self-incrimination in relation to interlocutory matters, contains subparagraph (2A) inserted with effect from 1 January 2009 providing that the section does not apply in circumstances in which s 128A of the Evidence Act 1995 applies. Section 128A, inserted with effect from 1 January 2009, provides in subsection (2) as follows:

“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."

8 There follow a series of provisions dealing with what the court must do with respect to the objection.

9 While providing for objection, the second proviso did not mention s 87 of the Civil Procedure Act.

10 No application was made under s 128A of the Evidence Act.

11 It was submitted that the protection offered in the provisos of the procedure under s 87 of the Civil Procedure Act was non-existent as that provision did not apply and what the Court had ordered the defendants to do could not be done.

12 It is common ground that s 128A of the Evidence Act applies of its own motion.

13 The result, in my view, is that paragraph (b) of the first proviso is to be regarded as struck out as having no effect since s 87 of the Civil Procedure Act did not apply. But, it having been struck out, s 128A of the Evidence Act operated of its own motion and gave to the defendants protection analogous to that which in the past was provided by s 87.

14 In my view the preliminary point fails. I dismiss the notice of motion filed on 28 May 2009. The third, fourth, eighth and ninth defendants are to pay the plaintiff’s costs.

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