Reported Decision : 57 NSWLR 257 New South Wales Court of Appeal CITATION : Griffin v Sogelease Australia Ltd & Ors [2003] NSWCA 158 HEARING DATE(S) : 14 May 2003 JUDGMENT DATE : 20 June 2003 JUDGMENT OF : Meagher JA at 1; Tobias JA at 2; McColl JA at 54 DECISION : A) On the summons for leave to appeal by David James Griffin (i) Leave to appeal granted (ii) Appeal allowed (iii) Order 4 made by Palmer J on 20 March 2003 set aside (iv) Order that Sogelease Australia Ltd and S G Australia Ltd pay the costs of the summons; B) On the cross-summons for leave to appeal by Sogelease Australia Ld adn S G Australia Ltd (i) Leave to appeal refused (ii) Order that Sogeleae Australia Ltd and S G Australia Ltd pay the costs of the cross-summons. CATCHWORDS : Applications for leave to appeal and cross-appeal - Misappropriation of funds - Discovery s76A Supreme Court - Privilege against self-incrimination - Leave to appeal granted - Appeal allowed - Leave to cross-appeal refused - D Fair Trading Act 1987 (NSW) Pt 17 r9 Supreme Court Rules Pt 23 r3 Supreme Court Rules LEGISLATION CITED : Pt 36 r12(1) Supreme Court Rules Pt 36 r16(1) Supreme Court Rules 76A Supreme Court Act 1970 (NSW) Section 128 Evidence Act (NSW) Sorby v The Commonwealth (1983) 152 CLR 281 Reid v Howard (1995) 184 CLR 1 Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207 CASES CITED : King v Associated Northern Collieries (1910) 11 CLR 738 Environment Protection Authority v Caltex Refining Co. Pty Ltd (1993) 178 CLR 447 Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538 PARTIES : David James Griffin Sogelease Australia Ltd & S G Australia Ltd FILE NUMBER(S) : CA 40269/03 COUNSEL : A: A W Street SC / G D Wendler R: G C Lindsay SC / P Fury SOLICITORS : A: North & Badgery R: Piper Alderman LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 2105/02 FILE NUMBER(S) : LOWER COURT Palmer J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40269/03 SC 2105/02 MEAGHER JA TOBIAS JA McCOLL JA 20 June 2003 GRIFFIN v SOGELEASE AUSTRALIA LTD & ORS Judgment 1 MEAGHER JA: I agree with Tobias JA. 2 TOBIAS JA: By summons dated 3 April 2002 Sogelease Australia Ltd and S G Australia Ltd (together called Sogelease) instituted proceedings against, inter alia, David James Griffin (Mr Griffin) and Maree Leigh Philip aka Maree Griffin (Mrs Griffin) in the Equity Division of the Supreme Court. On 19 July 2002 Sogelease filed a statement of claim in which it alleged that Mr Griffin, between October 1997 and March 2002, whilst engaged as an employee of S G Australia Ltd, dishonestly and without the knowledge or authority of Sogelease, and for the personal advantage of himself and Mrs Griffin, misappropriate some 76 cheques drawn upon certain identified bank accounts of Sogelease and totalling not less than $10,070,420.18. It was further alleged that of the 76 cheques referred to, all but three were deposited to an identified account of Mrs Griffin at a branch of National Australia Bank Limited (NAB). 3 The claims of Sogelease against Mr Griffin were based on a number of causes of action arising out of the same factual matrix including claims of breach of his employment contract, breach of his fiduciary duty as an employee, deceit, conversion, restitution and breach of the Fair Trading Act 1987 (NSW). Further causes of action were pleaded against Mrs Griffin arising out of her receipt of the proceeds of the allegedly misappropriated cheques. 4 Claims were also made against the recipients of the three cheques not banked to Mrs Griffin's account with the NAB and also against a number of other defendants who indirectly received the proceeds of the cheques as a consequence of, inter alia, various betting transactions made by Mr Griffin, it being alleged that he was a person who gambled beyond his means to those defendants' knowledge. 5 Sogelease claimed against all defendants but, relevantly for present purposes, against Mr Griffin, the relief set forth in paragraph 355 of the statement of claim which included damages, equitable compensation, an order for the taking of accounts, orders under the Fair Trading Act, an account of profits and other forms of equitable relief. 6 On 16 April 2002 Mr Griffin filed a Notice of Motion in the Equity Division of the Court seeking a stay of the proceedings against him on the grounds that he had cause to believe that criminal charges arising out of the facts pleaded in the statement of claim would soon be preferred against him and that, as a consequence, his defence would be self-incriminatory. That application was unsuccessful. However, as at the date of the hearing before Palmer J out of which this appeal arises, no charges had been preferred against Mr Griffin. However, his solicitor has averred that nothing has occurred which causes him to believe that criminal charges will not be forthcoming. 7 No defence having been filed by Mr Griffin, Sogelease filed a Notice of Motion for default judgment. That motion was unopposed by Mr Griffin as a consequence whereof on 23 March 2003 Palmer J entered default judgment against him pursuant to Pt 17 r 9 of the Supreme Court Rules (the Rules) for the full sum claimed by Sogelease by way of damages together with interest. However, that order did not finally dispose of the proceedings against Mr Griffin as Sogelease wished to pursue a number of ancillary claims for relief including an account of profits. These claims were reserved by his Honour for further consideration. The claim for production of documents by Mr Griffin 8 By Notice of Motion filed on 18 February 2003 Sogelease sought orders pursuant to Pt 23 r 3 of the Rules that each of Mr and Mrs Griffin provide discovery by way of verified lists in respect of a considerable number of specified categories of documents. Further, or in the alternative, Sogelease sought an order pursuant to Pt 36 r 12(1) that each of Mr and Mrs Griffin produce to the Court the documents within those categories. 9 At the commencement of the hearing of the Notice of Motion senior counsel for Sogelease called upon Notices to Produce dated 18 February 2003 served upon Mr and Mrs Griffin pursuant to Pt 36 r 16(1) of the Rules. Those notices called for production of the same categories of documents as were sought by way of discovery and under Pt 36 r 12. The issues arising out of the claims for production 10 By two affidavits sworn on 5 and 6 March 2003 respectively, John Frederick Stewart North, Mr Griffin's solicitor, deposed that he had been informed by Mr Griffin and verily believed that he objected to any order for discovery being made, and to any order for production of documents, on the ground that compliance with such orders would infringe his privilege against self-incrimination. Mr North further deposed that all of the documents in Mr Griffin's possession, custody or power in respect of which discovery or production had been sought by Sogelease were capable of being self-incriminatory and that even to list them in a discovery list, even if successful in resisting their inspection, might provide material which could be used as a basis for investigation leading ultimately to a criminal conviction. 11 It was on the basis of the foregoing averments that objection was taken to the production of the documents sought and to the preparation and filing of a list of those documents. The findings of the trial judge with respect to discovery by Mr Griffin 12 There was no issue before this Court that the documents the production of which was sought by Sogelease were other than discoverable by Mr Griffin. His Honour had so held and Mr Griffin does not seek to contest that finding in this Court. However, the issue litigated before his Honour, and which was repeated in this Court, was that it was not permissible for Mr Griffin to make a blanket objection to discovery by asserting that all discoverable documents in his possession are self-incriminatory. It was thus submitted that Pt 23 r 3(5)(a), (5)(b) and 6(d) of the Rules required that a verified list of documents be prepared and served which identified any documents over which a claim for privilege is made and that that list must be accompanied by an affidavit setting out the facts relied upon as establishing the existence of that privilege. In other words, it was submitted that objection must be taken to specific documents and the grounds of that objection identified. 13 His Honour rejected this submission upon the basis that although the rules referred to did require the provision of a list of documents including the identification of any document which was claimed to be privileged together with an affidavit stating the facts relied on as establishing the existence of the privilege, nonetheless the Court retained a discretion whether to order discovery at all and to what extent and at what stage of the proceedings. His Honour said (at paragraph 16): The Court exercises its discretion according to the dictates of justice and fairness in the circumstances of each particular case: see e.g. Attorney-General v North Metropolitan Tramways Co [1892] 3 Ch 70, at 74; Gollin Holdings Limited v Adcock [1981] 1 NSWLR 691, at 696; McLean v Burns Philip Trustee Co Pty Ltd at 646. 14 His Honour recognised that, as a general rule, a "blanket objection" could not be taken to discovery on the ground that the production of the discovered documents would offend the discovery party's privilege against self-incrimination. However, the rule was general but not immutable. Accordingly, he held that although it was usual to require the privilege against self-incrimination to be claimed separately for each disclosure so that the court could see for itself whether the claim was justified, it should be recognised that there may be cases where the court could readily see from the surrounding circumstances that all disclosures within a certain area of enquiry were likely to have a tendency to incriminate. So far as the present case was concerned, he concluded that (paragraph 19): "…. it is easy to see at a glance from the facts alleged in the Statement of Claim what would be the nature of the criminal charges which would be laid against Mr Griffin: fraudulent misappropriation, embezzlement, larceny by a servant, and so on. Further, it is easy to see at a glance from the categories of documents sought in the Motion for discovery that the documents relate to M Griffin's financial dealings and that if produced, they could provide evidence of a series of dispositions designed to hide the proceeds of fraud, thereby providing cogent circumstantial evidence of guilt. It is also easy to see that the very listing by Mr Griffin of documents in the specified categories which are in his possession may provide indirect or derivative evidence which could ultimately be used in a criminal prosecution or as a basis for further criminal investigation: see e.g. Vasil v National Australia Bank Ltd (1910) 11 CLR 738, at 747." 15 In the foregoing circumstances, his Honour considered that the better course was to stop the discovery process in limine by refusing to make an order for discovery. However, he considered that it would not be right to foreclose to Sogelease the right to apply again for a discovery order against Mr Griffin if, after the lapse of a reasonable period of time, no criminal charges had been laid against him. Accordingly, in paragraph 2 of the orders made by him on 27 March 2003, he reserved liberty to Sogelease to apply for an order for discovery by Mr Griffin at any later stage in the proceedings. The claim for production of documents by Mrs Griffin 16 Sogelease also sought orders for further discovery against Mrs Griffin. The categories of documents sought included her cheque books and other documents relating to a number of accounts with various financial institutions some of which were solely in Mrs Griffin's name, one of which was in her maiden name (Philip) and some of which were in the joint names of herself and Mr Griffin. 17 Mrs Griffin swore an affidavit on 4 March 2003 in which she deposed that Mr Griffin kept all their personal papers in his study and that, in effect, he had taken possession of all her bank and other financial records with respect to all the accounts in respect of which she would otherwise have had to make discovery. Mr Griffin had told her that he was taking all the cheque books, butts and statements to his solicitors. There is no suggestion that Mr Griffin took possession of these records without Mrs Griffin's consent. However, her solicitors have received no response to letters written to Mr Griffin's solicitors requesting the return of the documents or at least a general description of them to enable her to file a supplementary verified list. 18 In his affidavit sworn on 6 March 2003 Mr Griffin's solicitor also deposed that he had been informed by Mr Griffin and verily believed that all of the documents held by him on behalf of Mr Griffin and which included those relating to Mrs Griffin's bank accounts in which she had either a sole or joint interest, were in the possession and control of Mr Griffin only and that none of them had ever been in the possession or control of Mrs Griffin. Further, the solicitor, on behalf of Mr Griffin, also objected to the production of these documents upon the basis of his client's privilege against self-incrimination. 19 His Honour held that the documents relating to the accounts in Mrs Griffin's sole name as well as those in the joint names of herself and Mr Griffin were documents within her "power" within the meaning of Pt 23 r 3(5)(a) of the Rules as a consequence whereof she had an obligation to discover or to produce them for inspection. In his view, Mrs Griffin had legal title to the documents in question and was therefore entitled to their return from Mr Griffin or his solicitors. He thus concluded that (paragraph 31): "…if the documents are the property of Mrs Griffin and she claims no privilege against self-incrimination, Mr Griffin cannot prevent her from complying with her obligation to discover and produce the documents on the ground that if she did so she would make available evidence which could incriminate him." 20 Having cited authority for the proposition that it was no objection to the giving of discovery that the production of the relevant documents would affect or prejudice the interests of a third party, his Honour determined this issue in the following terms: "33 In the present case, by parity of reasoning, disclosure by Mrs Griffin in compliance with orders for discovery and inspection of documents which might incriminate Mr Griffin cannot fall within the reach of Mr Griffin's privilege against self incrimination because the disclosure is not compelled from Mr Griffin himself and he is not required to convict himself out of his own mouth: rather, disclosure is the result of another person complying with her own obligations to make discovery and give inspection under the law. 34. If it were otherwise, a wrongdoer, knowing that a party had documents incriminating the wrongdoer, could gain possession of those documents by theft, misrepresentation or otherwise and then resist with impunity the return of those documents to that party and object to their production in compliance with a subpoena, notice to produce or discovery order, on the ground that return of the documents or production would tend to incriminate him. Such a ploy, if available, would legitimise the stifling of evidence in the hands of others; it would have nothing to do with the privilege against self incrimination which prevents a person from being compelled to provide evidence against himself or herself." 21 His Honour then posed for himself the question of what was to occur in the event that Mr Griffin and/or his solicitors refused to return the documents to Mrs Griffin or her solicitors. He resolved the question by holding that he had power under s 76A of the Supreme Court Act 1970 (the Act) to direct Mr Griffin himself to produce the documents in question to Mrs Griffin and/or her solicitors in order to enable her to comply with the order for further discovery which he proposed to make against her. Accordingly, on 27 March 2003 he made the following order: "4. By 5.00 pm on 11 April 2003 the First Defendant (by himself and his solicitors, North & Badgery) produced to the Second Defendant and the Second Defendant's solicitors, Watts McCray, Lawyers all documents sought by the Second Defendant in accordance with the steps taken by the Second Defendant in compliance with Order 3 above." 22 In his Honour's opinion Mr Griffin would not be entitled to disregard the direction addressed to him by Order 4 by an appeal to his privilege against self-incrimination. Accordingly, he considered (paragraph 39) that any failure of Mr Griffin to comply with that direction would be a contempt of court. The same consequence would be visited upon Mr Griffin's solicitors if they complied with instructions from him not to produce the documents. The appeals to this Court 23 The orders of Palmer J being interlocutory, leave to appeal is required from this Court against the decisions of his Honour on the issues referred to. Accordingly, Mr Griffin (as Claimant) seeks leave to appeal against paragraphs 2 and 4 of the orders made by Palmer J on 27 March 2003 being the reservation of liberty to Sogelease to apply for an order for discovery by Mr Griffin at a later stage of the proceedings and the order that Mr Griffin produce to Mrs Griffin and/or her solicitors the documents in his possession which she is otherwise required to discover. 24 Sogelease (as Cross-claimant) also seeks leave to appeal against the refusal by Palmer J to order compliance by Mr Griffin with the provisions of Pt 23 r 3(5)(a), (b), 6(a) and (d)(ii) of the Rules. An order for the concurrent hearing of the applications for leave and the substantive appeals has been made. The claim of Mr Griffin 25 The following submissions were made on behalf of Mr Griffin: a) Section 76A of the Act does not provide power to abrogate the privilege against self-incrimination which is a substantive right which cannot be abrogated by a statutory provision except in clear terms; b) His Honour erred in holding his order that Mr Griffin produce the relevant documents to Mrs Griffin and/or her solicitors to enable her to comply with her obligation to discover those documents did not fall within the reach of Mr Griffin's privilege against self-incrimination as disclosure of those documents was not compelled from Mr Griffin himself but rather would be the result of Mrs Griffin complying with her own obligation to make discovery and give inspection; c) His Honour erred in holding that Mrs Griffin had legal title and therefore, an enforceable legal right, to the documents in the possession of Mr Griffin; d) His Honour erred in reserving liberty to Sogelease to apply for an order for discovery by Mr Griffin in the event that criminal charges were not laid against him within a reasonable time. 26 It is convenient to deal with the first two of these submissions together. Notwithstanding the width of s 76A there can be no doubt that the section does not empower the court to override or abrogate a person's privilege against self-incrimination. Thus, in Sorby v The Commonwealth (1983) 152 CLR 281 at 289 Gibbs CJ said that: "a statute will not be construed as excluding so valuable a privilege unless an intention to do so clearly appears" and at 294-5: "if the legislature intends to render the privilege unavailable it must manifest clearly its intention to do so." 27 Again, in the joint judgment of Mason, Wilson and Dawson JJ, their Honours observed at 309 that "(t)he privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right , including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication." Murphy J used even stronger language requiring an intent to exclude or qualify the privilege to be conveyed " in unmistakable language ". 28 In my opinion it is clear that s76A of the Act is directed to empowering the court with respect to procedural matters and was not intended to impact upon substantive rights. Accordingly, an examination of the language and purpose of that provision leads to the inevitable conclusion that it was not intended to abridge the privilege against self-incrimination. Accordingly, the section cannot be used by the court in a manner which would have that effect. 29 Nevertheless, the issue is whether Order 4 of his Honour's orders has the effected contended for by Mr Griffin. There can be no doubt that it compulsorily requires him, on pain of being in contempt of court, to produce the subject documents notwithstanding that his Honour had held (paragraph 19) that their production could provide evidence of a series of dispositions designed to hide the proceeds of fraud, thereby providing cogent circumstantial evidence of guilt. The only issue, therefore, is whether the fact that Mr Griffin was required by the court's order to produce the documents to Mrs Griffin and/or her solicitors rather than directly to Sogelease takes his Honour's order outside the reach of Mr Griffin's privilege against self-incrimination. As I have already noted, his Honour thought this was the case (paragraph 33): "…because the disclosure is not compelled from Mr Griffin himself and he is not required to convict himself out of his own mouth: rather, disclosure is the result of another person complying with their own obligations to make discovery and give inspection under the law." 30 In my opinion, objection to the production of documents based on the privilege against self-incrimination is available to any person who, by compulsory process, is required to produce the relevant documents. Thus, Mason, Wilson and Dawson JJ in Sorby made the point (at 310) that "….the privilege protects the witness not only from incriminating himself directly under a compulsory process , but also from making a disclosure which may lead to incrimination or to discovery of real evidence of an incriminating character (emphasis added)." This passage was cited with approval by Deane J in Reid v Howard (1995) 184 CLR 1 at 7. 31 Accordingly, the vice against which the privilege protects a person from self-incrimination is the requirement to compulsorily produce the offending documents. Of course, apart from the privilege being abridged by statute, it may be waived by a person voluntarily producing the documents in question but, as Toohey, Gaudron, McHugh and Gummow JJ observed in Reid at 12, statute and waiver aside, it has generally been accepted that the privilege is without "real exception". In the same case, Deane J (at 5) pointed out that subject to the privilege being overridden or modified by the legislature or waived by the person entitled to claim it, it was otherwise "unqualified". In particular, his Honour said that "it should not be modified by judicially devised exceptions or qualifications." See Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207 at 216-221. 32 It is thus clear that the privilege against self-incrimination is not susceptible, as Deane J pointed out in Reid (at 8), to being overridden by the courts in the interests of justice in the circumstances of a particular case. Thus his Honour observed that: "…privilege is not subject to judge-made exceptions or qualifications and in the absence of statutory authority, cannot properly be disregarded or overridden by the courts either to meet the exigencies of hard cases or at all." 33 To like effect is the following passage from the joint judgment of Toohey, Gaudron, McHugh and Gummow JJ in Reid (at 17): "Quite apart from the difficulties which the orders of the Supreme Court present for the administration of justice, to which reference has already been made, it is inimical to the administration of justice for a civil court to compel self-incriminatory disclosures, while fashioning orders to prevent the use of the information thus obtained in a court vested with criminal jurisdiction with respect to the matters disclosed. Nor is justice served by the ad hoc modification or abrogation of a right of general application, particularly not one as fundamental and as important as the privilege against self-incrimination." 34 With respect, it is my opinion that what his Honour did in the present case infringed these principles. By ordering Mr Griffin to produce the relevant documents to Mrs Griffin or her solicitors he was requiring their production by compulsory process, that is, by order of the court. Although Mr Griffin was not required to produce the documents directly to Sogelease he was indirectly required to do so for, once they were in the possession of Mrs Griffin or her solicitors, she was obliged, by the order for discovery against her, to list the documents and produce them for inspection. In my opinion, such an order was impermissible and constituted, without statutory warrant, an justified abrogation of Mr Griffin's rights. 35 In so holding, I have not overlooked the points made by his Honour in paragraph 34 of his judgment and which I have set out in paragraph 20 above. There is, of course, nothing to suggest that Mr Griffin gained possession of the relevant documents in the present case by inappropriate or unlawful means. But once he had obtained possession then, in my opinion, he was entitled to object to any mandatory order requiring him to produce them in contravention of his right not to do so based upon his privilege against self-incrimination. Given the uncompromising terms in which the High Court in Reid has expressed itself as to there being "no real exception" to the privilege except where it is abridged by statute or waived, it is not for this Court to create an exception to the otherwise unqualified nature of the privilege based on the fact, if it be the fact, that the person claiming the privilege has deliberately obtained possession of the documents, whether lawfully or unlawfully, for the very purpose of frustrating their production by some other person who might otherwise be bound to produce them. In any event, it was not suggested that, in this case, Mr Griffin either obtained possession of the documents from Mrs Griffin unlawfully or that he did so for the express purpose of frustrating any obligation she may have to disclose them pursuant to any order of discovery made against her. 36 Accordingly, I am of the opinion that Mr Griffin should be given leave to appeal, that that appeal should be allowed and that Order 4 of the orders made by his Honour on 27 March 2003 should be set aside. In these circumstances it is unnecessary to deal with the third submission of Mr Griffin referred to in paragraph 24(c) above. 37 That leaves the question of Order 2. There may be some dispute as to whether the reservation of liberty to apply is in fact an order of the court. Irrespective of that reservation, it would be open to Sogelease to renew an application for an order for discovery against Mr Griffin at any time and that application would then need to be dealt with on its merits. However, to the extent to which his Honour may have indicated that he would be favourably disposed towards such an application in the event that criminal charges were not preferred against Mr Griffin "after lapse of a reasonable time", I cannot agree with the basis upon which his Honour reserved liberty to apply. 38 It is well established that the privilege against self-incrimination is available whether or not the person claiming the privilege has been charged with a criminal offence or not. No doubt this is because, as was noted by Mason, Wilson and Dawson JJ in Sorby, the privilege extends to the making of a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character. Thus in Reid, Deane J (at 6) observed that the protection which the privilege against self-incrimination confirms extends not only to the risk of incrimination by direct evidence (that is evidence of the fact of disclosure and of the material disclosed) but also to incrimination by indirect or "derivative" evidence (ie "evidence obtained by using" the disclosed material "as a basis of investigation"). 39 In my opinion, it would be contrary to principle to suggest that the privilege is abrogated or otherwise ceases to be available to a person required by compulsory process to produce documents after the lapse of some period of time from what would otherwise be an arbitrary date. I would, however, be hesitant to set aside Order 2 as there would be no bar to Sogelease renewing an application for an order for discovery against Mr Griffith at any stage of the proceedings whether or not liberty to apply was expressly reserved. I content myself, therefore, with the observation I have made above to the effect that the right of Mr Griffin to object to any future application for an order of discovery against him based upon his privilege against self-incrimination is in no way dependent upon whether, at the time that application is made, criminal charges have been preferred against him or not. The cross-claim of Sogelease 40 Sogelease contends that although Palmer J had a discretion whether or not to make an order for discovery pursuant to Pt 23 r 3(1) of the Rules, that discretion miscarried as his Honour erred in principle in acceding to the "blanket objection" of Mr Griffin to the production of the subject documents. It is submitted that he should have made an order for discovery which would, pursuant to Pt 23 r 3(4), have required Mr Griffin to comply with r 3(5) and (6). In other words, compliance with these rules would have required Mr Griffin to prepare a list of the discoverable documents and then to claim privilege in respect of each setting out in an affidavit the facts relied upon by him as establishing the existence of that privilege. 41 His Honour rejected a similar submission made to him upon the basis set out in paragraph 19 of his judgment which I have extracted at paragraph 14 above. His Honour's remarks were, in my opinion, consistent with the observation of Isaacs J in the King v Associated Northern Collieries (1910) 11 CLR 738 at 742 where his Honour said "The Court can see the effect of discovery from the nature of the proceeding." and, further, with the statement of Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 447 at 502 that "…..by producing the documents described, the person producing them admits that the documents existed, were in his or her possession or power and that they are authentic in the sense that they match the description which they have been given." 42 Again, it is well established that the privilege extends to protect a person against a requirement that he or she produce or identify incriminating documents or reveal their whereabouts or explain their contents in an incriminating fashion: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393; Sorby v Commonwealth ibid at 291-292; Vasil v National Australia Bank ibid at 213 (paragraph 24). 43 In the present case, the statement of claim alleges, in plain words, that Mr Griffin fraudulently misappropriated Sogelease's funds. It cannot be gainsaid that the categories of documents in respect of which Sogelease seeks discovery are, as his Honour found, related to Mr Griffin's financial dealings including his dealings with the money alleged to have been misappropriated. Accordingly, I can see no basis upon which it can be contended that the exercise of his Honour's discretion to refuse an order for discovery which relieved Mr Griffin of the obligation of preparing a list of documents in accordance with the Rules, involved an error on his part or otherwise constituted a miscarriage of the exercise of that discretion. For these reasons, I would refuse leave to appeal to Sogelease with respect to his Honour's refusal to order Mr Griffin to give discovery. 44 Sogelease also seeks leave to appeal against Order 7 of the orders made by his Honour on 27 March 2003 whereby he stood over generally with liberty to apply on 3 day's notice paragraph 3 of Sogelease's Notice of Motion dated 18 February 2003 whereby, as an alternative to the court ordering Mr Griffin to provide discovery by way of a verified list of documents pursuant to Pt 23 r 3 of the Rules, it sought an order pursuant to Pt 36 r 12 that Mr Griffin produce to the Court the same documents. In the same order his Honour also stood over the calling by Sogelease upon a Notice to Produce dated 18 February 2003 served upon Mr Griffin pursuant to Pt 36 r 16(1) of the Rules calling for production of the same categories of documents. 45 Sogelease submits that, having refused an order for discovery, his Honour ought to have made an order under Pt 36 r 12(1) requiring Mr Griffin to attend and produce the subject documents or should otherwise have permitted Sogelease to call upon the Notice to Produce served pursuant to Pt 36 r 16(1) to produce the same documents. It was submitted that, upon the making of any application for an order under Pt 23 r 12(1) or upon calling on the Notice to Produce served pursuant to Pt 36 r 16(1), the claim for privilege could have been pursued by Mr Griffin pursuant to Pt 36 r 13(2). Relevantly for present purposes, that sub-rule is in the following terms: (2) The court shall not compel and Rule 16 shall not require, production of a document….unless and until the court directs that the production….shall not be prevented by this sub-rule: (c) if the person required to produce ….is a natural person and…the contents or production of the document would tend to prove that the person: (i) has committed an offence against or arising under an Australian law… within the meaning of s 128 of the Evidence Act 46 As I understand Sogelease's argument, the effect of Pt 36 r 13(2) was to incorporate or otherwise enable s 128 of the Evidence Act to be invoked. In particular, it was submitted that having objected to producing the subject documents upon the ground set forth in r 13(2)(c) which mirrors, in part, the provisions of s 128(1) of the Evidence Act, the invoking of the privilege would then enliven s 128(2) of that Act. Accordingly, so the submission went, the court would be required to inform Mr Griffin that he need not produce the documents or, if he does that, the court would give him a certificate pursuant to s 128(6) or, alternatively, if he continued to object to the production of the documents, the court could require him to produce them pursuant to s 128(5) upon the basis that he was given a certificate in respect of that production. 47 It was thus submitted that the procedure referred to in the preceding paragraph would afford Mr Griffin protection from self-incrimination whilst at the same time permitting the interests of Sogelease in obtaining production of the documents to be accommodated. Reference was made to a similar procedure which, so it was submitted, has been adopted in the Equity Division of the Court in the context of a Mareva injunction: see Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538 at 545-551. 48 An important issue arises as to whether s 128 of the Evidence Act can be invoked at the pre-trial stage of proceedings and, in particular, on an interlocutory application for an order for discovery or the production of documents. Thus, s 128(1) provides that the section applies "if a witness objects to giving particular evidence". Does that include a person, whether a party or not, who is subject to an application for an order for discovery or for the production of documents? What is the position if such a person with respect to whom an application is made for discovery or production declines to swear an affidavit in support of his objection such as is contemplated by Pt 23 r 5(b)? Again, even if the practice adopted by Equity Division with respect to disclosure orders ancillary to a Mareva order can be adapted to the compulsory production of documents pursuant to the rules referred to, is such a procedure consistent with the requirements of s 128(1) properly construed? 49 There is no judicial authority directly in point. However, the learned author of Odgers, "Uniform Evidence Law", 5th ed, at paragraph 1.3.12860 suggests that s 128 applies only in court and that pre-trial contexts are still governed by the common law. The learned authors of Anderson, Hunter & Williams, "The New Evidence Law" at page 451 also express the view that the language and scheme of s 128 indicate that it only operates in a hearing context where there is a witness who objects to giving particular evidence and that the common law, and not s 128, governs the privilege against self-incrimination at the pre-trial stage and with respect to pre-trial processes: see, in particular, footnote 159 on page 451. The learned authors at page 452 expressly query whether the procedure adopted in Bax Global is consistent with the decision of the High Court in Reid given that s 128 may not be applicable to an order for the preparation and delivery of an affidavit of assets under the Mareva procedures. 50 It is also pertinent to note that, as Austin J recognised in Bax Global (at 547), the practice of the Equity Division referred to was the subject of some obiter remarks by Fitzgerald JA in Vasil (at 222) which could be seen as casting doubt on that procedure. His Honour noted that Fitzgerald JA had raised a question as to whether the Equity Division practice which he had described encountered some of the objections referred to in the majority judgment in Reid (at 16-17). However, notwithstanding Fitzgerald JA's remarks in Vasil, Austin J in Bax Global affirmed that the Equity Division practice with respect to Mareva injunctions conformed to s 128. 51 It is apparent from the foregoing that there are a number of outstanding issues with respect to the procedure adumbrated by Sogelease which require resolution. However, we do not have the advantage of the matter having been first determined by Palmer J for his Honour stood over the Notice of Motion for production and the calling upon the Notice to Produce as it was unnecessary for him to deal with these issues given his making of Order 4. However, if Order 4 is set aside then it would be open to Sogelease to reinstate the matters referred to in paragraph 7 of his Honour's orders. We were informed that the relationship of s 128 to the orders sought was the subject of at least some argument before his Honour but, of course, we have no guide as to the course that his Honour might have taken had it been necessary for him to determine Sogelease's application with respect to the Notice of Motion for production and the Notice to Produce. 52 In the foregoing circumstances, I am of the opinion that this Court should not enter upon the debate with respect to the issues to which I have referred unless and until those issues have first been determined at first instance. I should add that it was submitted on behalf of Mr Griffin that we should deal with these issues as it was unlikely that Mr Griffin would be able to fund legal representation with respect to any further applications that Sogelease might make with respect to the Notice of Motion for production and/or the Notice to Produce. This was because we were informed that a sequestration order would be made against Mr Griffin's estate on 15 May, being the day following the hearing of his application for leave to appeal. However, I do not accept that the possibility adverted to on behalf of Mr Griffin should persuade us to enter upon difficult and complex issues which have not been the subject of a determination at first instance. If applications as foreshadowed by Sogelease eventuate, I have no doubt that Mr Griffin will be provided with legal representation pro bono particularly if questions of principle are involved and the court requires the assistance of counsel to resolve them. The Bar Association has in place mechanisms to deal with this situation. Conclusion 53 For the foregoing reasons, I propose the following orders: a) On the summons for leave to appeal by David James Griffin: (i) Leave to appeal granted; (ii) Appeal allowed; (iii) Order 4 made by Palmer J on 20 March 2003 set aside; (iv) Order that Sogelease Australia Ltd and S G Australia Ltd pay the costs of the summons. b) On the cross-summons for leave to appeal by Sogelease Australia Ltd and S G Australia Ltd: (i) Leave to appeal refused; (ii) Order that Sogelease Australia Ltd and S G Australia Ltd pay the costs of the cross-summons. 54 McCOLL JA: I agree with Tobias JA. ********** Last Modified: 06/24/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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