Vaughan Constructions Pty Ltd v Luong - [2008] NSWSC 1033

CITATION: Vaughan Constructions Pty Ltd v Alan Luong [2008] NSWSC 1033

HEARING DATE(S): 1 September 2008

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 1 September 2008

DECISION: Certificate pursuant to (NSW) Civil Procedure Act, s 87, granted.

CATCHWORDS: EVIDENCE – privilege – self-incrimination – (NSW) Civil Procedure Act 2005, s 87 – application for certificate pursuant to s 87 – where consent orders required defendants to produce self-incriminating documents – relationship between Civil Procedure Act 2005, s 87 and (NSW) Evidence Act 1995, s 128 – “real and appreciable risk” of self-incrimination – whether application for revocation can be made after an order made by consent.

LEGISLATION CITED: (NSW) Civil Procedure Act 2005, s 87
(NSW) Evidence Act 1995, s 128

CATEGORY: Procedural and other rulings

CASES CITED: Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436
Sorby v Commonwealth (1983) 152 CLR 281

PARTIES: Vaughan Constructions Pty Ltd (plaintiff)
Alan Luong (first defendant)
Mark Nelson (second defendant)
Urban Commercial Constructions Pty Ltd (third defendant)

FILE NUMBER(S): SC 4146/08

COUNSEL: Mr A Martin (plaintiff)
Mr Y Shariff (defendants)

SOLICITORS: Edwin Davey Solicitors (plaintiff)
Sparke Helmore (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday 1 September 2008

4146/08 Vaughan Constructions Pty Ltd v Alan Luong & ors

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff Vaughan Constructions Pty Limited alleges that the defendants Alan Luong, Mark Nelson, and Urban Commercial Constructions Pty Limited, have misappropriated and misused its confidential information. On 13 August 2008, orders were made by consent requiring the defendants to produce certain documents and provide certain information by way of affidavit. Certain of those orders – namely, orders 4 and 7 – were expressed to be subject to the privilege against self-incrimination, but the other orders – namely, orders 1, 2, 3, and 5 – were not so expressed. By Notice of Motion filed on 1 September 2008 the defendants seek an order under (NSW) Civil Procedure Act 2005, s 87, that orders 2, 3, 4, 5, 6 and 7 be revoked, and that the first and second defendants be granted a certificate under that section in respect of evidence to be provided by them in compliance with orders 2, 3, 4, 5, 6 and 7 – or further orders to be made to the same effect – and extending time for compliance with those orders for seven days from this date.

2 The defendants say that they have assembled the documents and the information required by the orders of 13 August, or at least substantially so, and are in a position substantially to comply with those orders, or will be at the latest by next Wednesday.

3 Civil Procedure Act, s 87, provides that where an application is made or the Court makes an interlocutory order requiring a person other than a body corporate to provide evidence to the Court – whether by providing an answer to a question, or…

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 Vaughan Constructions Pty Ltd v Luong

Details

AGLC: Vaughan Constructions Pty Ltd v Luong [2008] NSWSC 1033
Case: [2008] NSWSC 1033
Decision Date: 1 September 2008

CaseChat Overview and Summary

The matter of Vaughan Constructions Pty Ltd v Luong was heard in the Supreme Court of New South Wales. Vaughan Constructions, the plaintiff, had previously obtained consent orders that required the defendants, Luong and others, to produce documents that were potentially self-incriminating. Luong applied for a certificate under section 87 of the Civil Procedure Act 2005, seeking to challenge the requirement to produce these documents on the grounds of self-incrimination. The court was required to determine the relationship between section 87 of the Civil Procedure Act and section 128 of the Evidence Act 1995, as well as whether the application for a certificate could be made after the consent orders were made.

The court examined the interplay between the Civil Procedure Act and the Evidence Act, focusing on the "real and appreciable risk" of self-incrimination as outlined in section 128 of the Evidence Act. It considered whether the application for a certificate could be made post-consent orders and whether such an application could be successful given the circumstances. The court also evaluated whether the privilege against self-incrimination was applicable in the context of the consent orders, and if the risk of self-incrimination was substantial enough to warrant a revocation of the production order.

The Supreme Court found that the application for a certificate could indeed be made even after consent orders were issued, provided there was a real and appreciable risk of self-incrimination. The court held that the privilege against self-incrimination could be invoked in this context and that the risk of self-incrimination was significant enough to warrant consideration. Consequently, the court granted the application for a certificate, effectively allowing Luong to challenge the requirement to produce the self-incriminating documents. The court's decision provided clarity on the interplay between the Civil Procedure Act and the Evidence Act, ensuring that the privilege against self-incrimination was protected in civil proceedings.

Orders