BCEG International (Australia) Pty Ltd v Xiao (No 2) [2023] NSWSC 289

Supreme Court New South Wales

Medium Neutral Citation: BCEG International (Australia) Pty Ltd v Xiao (No 2) [2023] NSWSC 289 Hearing dates: 24 March 2023 Date of orders: 24 March 2023 Decision date: 24 March 2023 Jurisdiction: Equity Before: Darke J Decision: Order that a notice to produce be set aside. Catchwords: CIVIL PROCEDURE – notice to produce issued pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 34.1 – application to set aside – where the first and second defendants have been found guilty of contempt – where the first and second defendants are exposed to penalties for contempt – whether the privilege against exposure to a penalty can be invoked to set aside the notice to produce – whether the first and second defendants waived the privilege against exposure to a penalty by serving affidavits in relation to the penalty hearing – notice to produce set aside – held that the privilege against exposure to a penalty remains available notwithstanding findings of guilt for contempt – held that the mere service of affidavits does not constitute a waiver of the privilege against exposure to a penalty beyond perhaps the contents of the affidavits themselves Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 21.10, 34.1 Cases Cited: Deputy Commissioner of Taxation v Shi (2021) 95 ALJR 634; [2021] HCA 22 Naismith v McGovern (1953) 90 CLR 336 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Sorby v Commonwealth (1983) 152 CLR 281 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Category: Procedural rulings Parties: BCEG International (Australia) Pty Ltd (Plaintiff) Yu Xiao (First Defendant) Yanying Chen (Second Defendant) Interlink Laboratory Pty Ltd (Third Defendant) Interlink Wagga Central Pty Ltd (Fourth Defendant) West Wyalong Marketplace Pty Ltd (Fifth Defendant) Representation: Counsel: Mr N D Riordan (Plaintiff) Mr J C Giles SC with Mr B Le Plastrier (Defendants)