Tan v King

[2023] NSWSC 1035

Supreme Court

New South Wales

Medium Neutral Citation:

Tan v King [2023] NSWSC 1035

Hearing dates:

24 August 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

First defendant required to give evidence on the basis of the Court giving of a certificate under s 128 of the Evidence Act 1995 (NSW) in answer to interrogatories administered in aid of freezing order notwithstanding the fact that those answers may tend to prove commission of offences; order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that up to 5pm on 8 September 2023 the evidence given by the first defendant on 24 August 2023 not be published

Catchwords:

EVIDENCE – privileges – self-incrimination privilege – whether certificate should be granted under s 128 or s 128A of the Evidence Act 1995 (NSW) – answers to interrogatories in aid of the freezing order – where respondent to interrogatories objects under s 128A of the Evidence Act 1995 (NSW) to answering on basis answers may tend to prove he has committed an offence under an Australian law – where certificate granted under s 128A of the Evidence Act 1995 (NSW) would not protect witness in proceedings in the Federal Court of Australia – where necessary for witness laboriously to give evidence to the effect of the answers given in interrogatories in order instead to gain protection of certificate under s 128 of the Evidence Act 1995 (NSW)

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Evidence Act 1995 (Cth)

Evidence Act 1995 (NSW)

Evidence Regulations 2018 (Cth)

Cases Cited:

Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22

Category:

Procedural rulings

Parties:

Eng Liang Tan (First Plaintiff)
Mary Tristyani Juwono (Second Plaintiff)
Kylaco Pty Ltd (Third Plaintiff)
Tiberias 96 Pty Ltd (Fourth Plaintiff)
Barry David King (First Defendant)
Total Financial Solutions Australia Limited (Second Defendant)
Wealth Effect Advisory Pty Ltd (Third Defendant)
Donbar Investments Pty Ltd (Fourth Defendant)
King Financial Group (NSW) Pty Ltd (Fifth Defendant)
Bonnie Ellen King (Sixth Defendant)

Representation:

Counsel:
J Hutton SC with A Byrne (Plaintiffs)
N Kirby (First Defendant)

Solicitors:
Deutsch Miller (Plaintiffs)
HWL Ebsworth Lawyers (First, Fourth and Fifth Defendants)
Baker McKenzie (Second Defendant)

File Number(s):

2023/196801

Publication restriction:

Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that up to 5pm on 8 September 2023 the evidence given by the first defendant on 24 August 2023 not be published

EX TEMPORE JUDGMENT (REVISED)

1. The plaintiffs allege that they have invested some $18.3 million with one or more of the corporate defendants. Those defendants comprise a group of financial planners, some of which are associated with the first defendant, Mr Barry King.

2. In June 2023, the plaintiffs commenced these proceedings and seek to recover their investment. The allegations made by the plaintiff in their List Statement are serious. In effect the plaintiffs allege fraud and that the $18.3 million is unaccounted for. If the allegations that are made by the plaintiffs in these proceedings are made out, there is a real prospect of criminal or civil penalties ensuing so far as concerns Mr King.

3. On 23 June 2023, the Court made freezing orders against Mr King and the fourth and fifth defendants. Those defendants have consented to those freezing orders being extended to the trial of these proceedings on a non‑admission basis.

4. On 14 July 2023, Robb J made orders that Mr King answer what are in effect interrogatories, albeit formally orders made in aid of the freezing order, directed to the whereabouts of the $18.3 million.

5. Mr King has provided the Court answers to those interrogatories and has claimed privilege over the whole of the answers on the basis that the answers may tend to prove that he has committed an offence or is liable to a civil penalty under identified Federal, New South Wales and Victorian statutes.

6. Mr King has also made affidavits setting out the basis of his objection to answering interrogatories. The plaintiffs seek disclosure of the information and the answers to the interrogatories. The plaintiffs do not oppose the claims of privilege and accept that Mr King should have a certificate to protect him against the use of the information in any subsequent criminal or civil penalty proceedings.

7. Mr King's affidavits proceed on the basis that the relevant procedure is that set out in s 128A of the Evidence Act 1995 (NSW) (“the New South Wales statute”). That section provides a certificate regime in substantially the same terms as is contained in s 128, except that it applies to disclosure of information that is required by an order, "as part of, or in connection with a freezing or search order," rather than the giving of evidence. ^[1]

   1. Evidence Act 1995 (NSW), s 128A(1).

8. The parties have conferred on the appropriate steps to be followed and propose a procedure whereby:

1. Mr King, through his counsel, will read his affidavits, setting out the basis upon which he makes his claim for privilege;

2. the plaintiffs, through their counsel, will seek to cross‑examine Mr King so as to require him to reveal the answers he has given to the interrogatories, but not to range more widely;

3. Mr King, through his counsel, will object to the answers being subject to those questions on the basis of privilege;

4. the parties will then invite the Court to consider whether:

1. there are reasonable grounds for the objection;

2. the information disclosed in Mr King's affidavits may tend to prove that he has committed an offence or is liable to a civil penalty under Australian law;

3. the information does not tend to prove that Mr King has committed an offence or is liable to a civil penalty under a foreign law;

4. the interests of justice require that the information nonetheless be disclosed to the plaintiffs; and

5. if satisfied about those matters, issue a certificate giving Mr King the requisite protection. ^[2]

   2. Subsections 128A(6) and (7).

9. By what appears to have been a legislative oversight, a certificate granted under s 128A(7) of the New South Wales statute would not have the effect of preventing the use of information provided in the manner I have described against Mr King in proceedings in the Federal Court of Australia.

10. That is because, although s 128A(11) of the Evidence Act 1995 (Cth) (“the Commonwealth statute”) provides that a person given a certificate under a "prescribed" state or territory provision gains the same protection as a person to whom a certificate is given under s 128A of the Commonwealth statute, s 128A of the New South Wales statute has not been prescribed for the purposes of the Commonwealth statute. ^[3] Indeed, it appears that no state or territory provisions are prescribed. That is despite the fact that the Commonwealth statute contains a provision in the same form as s 128A of the various state statutes, including that in the State of New South Wales.

    3. Cf Evidence Regulations 2018 (Cth), reg 9.

11. The parties agree that this problem can be overcome if, as is proposed, Mr King reads his affidavit, and gives evidence to the effect of the material contained in the answers to the interrogatories, in which case, assuming I was satisfied as to the relevant matters, he may be given a certificate under s 128(4) of the New South Wales statute, which is not the subject of the same lacuna concerning proceedings in the Federal Court that would arise were the Court to proceed under s 128A.

12. With the agreement of the parties, I have read Mr King's affidavits setting out his basis for objecting to answering interrogatories and I have read the answers he has given to the interrogatories.

13. Having read those documents, I am satisfied that there are reasonable grounds for Mr King to object to answering the interrogatories and that the answers given may tend to prove that he has committed an offence against or arising under, or is liable to, a civil penalty under an Australian law.

14. There is no question that the information might tend to prove that Mr King has committed an offence or is liable to a civil penalty under any foreign law.

15. I am also satisfied that it is in the interests of justice that the information and the answers to interrogatories be disclosed to the plaintiffs. As the plaintiffs submit, the information is vital to the claims that they make and any recovery they may seek to make.

16. It is said that there may be other means by which the plaintiffs could obtain the relevant information, for example, by issuing subpoenas, assuming the plaintiffs were aware who might appropriately be the object of such subpoenas. This is not a presently relevant consideration. ^[4] In any event, having read the interrogatories and without revealing their content, I am satisfied that the answers given would, one way or the other, expedite and make more efficient such process that the plaintiffs may wish to undertake to seek to discover what has occurred in relation to their funds.

    4. Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22 at [11] (Kiefel CJ, Gageler and Gleeson JJ).

17. Mr Kirby on behalf of Mr King seeks an order under s 7 of the Court Suppression and Non‑publication Orders Act2010 (NSW) in relation to the evidence that Mr King will give once the procedures I have outlined are followed.

18. Mr Kirby's submission is that I may make a suppression order on one or other of the grounds in s 8(1)(a) or (e) of the Court Suppression and Non‑publication Orders Act: that is because the order is necessary to prevent prejudice to the proper administration of justice or because it is otherwise necessary in the public interest for the order to be made and that such public interest significantly outweighs the public interest in open justice.

19. I propose to make an order under s 7 of the Court Suppression and Non‑publication Orders Act, but for the moment, to make that order up to 5pm on 8 September 2023 and invite submissions from Mr Kirby as to why the order should be extended beyond that date.

20. The details in relation to that can be dealt with in due course.

21. I propose now to proceed upon the basis that the parties have proposed.

POSTSCRIPT

22. After the above reasons were given, the matter proceeded on the basis that I have set out above.

23. Counsel for the plaintiffs asked Mr King questions to the effect of the interrogatories and Mr King gave answers to those questions by reading from a “script” prepared by his legal representatives. Because of the complexity and detail of the answers, this process took several hours. Mr Kirby submitted that it was necessary that this laborious process be followed as it was not clear that the “script” could be characterised as a “document … obtained as a direct result or indirect consequence” of the freezing order for the purposes of s 128(7)(b) (or s 128A(8)(b)) of the New South Wales statute, and thus not clear that giving evidence by reference to the “script” without reading onto the record all its contents could give Mr King the full protection of a certificate.

24. It is obviously desirable that the legislative and regulatory lacuna that has led to the necessity for the parties and the Court, not to mention the transcription service, to engage in this inconvenient process be remedied as soon as possible.

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Endnotes

Decision last updated: 30 August 2023