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

New South Wales Supreme Court

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

Vaughan Constructions Pty Ltd (plaintiff) PARTIES : 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 producing a document, or swearing filing and serving an affidavit – and the person objects to the making of such order or applies for its revocation on the ground that the evidence it requires may tend to prove that the person has engaged in culpable conduct, the Court (if it finds that there are reasonable grounds for the objection or the application for revocation) is to inform the person or their legal representative that the person need not provide the evidence, and that if the person provides the evidence, the Court will give a certificate under the section and the effect of such a certificate. If the person informs the Court he or she will provide the evidence, the Court is to cause the person to be given a certificate in respect of the evidence. The effect of such a certificate is that evidence provided by a person in respect of which the certificate has been given, and evidence of any information document or thing obtained as a direct or indirect consequence of having provided such evidence, cannot be used against the person, except in a criminal proceeding in respect of the falsity of the evidence. 4 Section 87 is plainly enough based on (NSW) Evidence Act 1995, s 128. The notion of "reasonable grounds for the objection or application referred to in sub-section (2)(b)", which appears in sub-section (3), is, I think, directly referable to the grounds specified in sub-section 2(b) – namely, that the evidence required by the order may tend to prove that the person has engaged in culpable conduct. That requirement will be satisfied if there is a real and appreciable risk that the evidence will tend to establish that the person has committed a criminal offence [Sorby v Commonwealth (1983) 152 CLR 281, 289]. It is not always necessary that there be evidence in support of such a claim, as in many cases it may be obvious or sufficiently discernible that the evidence will have the relevant tendency to incriminate [Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436, 437, [90]]. 5 To my mind – having regard to the assertions in correspondence from the plaintiff to the defendants that they have "committed serious criminal offences", that the plaintiff has in the same letter expressly reserved its rights to report the first and second defendants' alleged misconduct to "all relevant authorities so as to ensure that they are properly sanctioned", and allegations made elsewhere by the plaintiff that the first and second defendants have "stolen" its property – there is a real and appreciable risk that the evidence required by the 13 August orders may tend to prove that the first and second defendants have engaged in culpable conduct. I am, therefore, satisfied that there are reasonable grounds for the application for revocation of the 13 August orders. Were only orders 4 and 7 involved that would not be so, since those orders expressly preserve the privilege against self-incrimination and would therefore not require production of self-incriminatory material. However, it does apply in respect of the other orders. 6 I have considered whether an application for revocation can be made after and in respect of an order that has been made by consent, or an order in respect of the application for which the respondents were on notice. The purpose of s 87 is to facilitate the adducing of evidence, of which the Court would otherwise be deprived by assertion of the privilege against self- incrimination, either where a party entitled to the privilege wishes to do so but only with the benefit of a certificate, or where the Court is satisfied in certain circumstances that the interests of justice require that the evidence be provided notwithstanding that the party does not wish to provide it, even with the protection of a certificate. The need to claim the privilege will not always be apparent when the order is made, it may become apparent only after searches are undertaken and documents found, consequent upon an order for discovery or production having been made, and I think it would be giving too narrow a construction to a section which was obviously intended to be beneficial and protective in its operation to limit its operation to orders made without notice or over opposition. 7 Being satisfied that there are reasonable grounds for the application, I am therefore required to inform the first and second defendants, as I now do, that they need not provide the evidence, but if they do provide the evidence the Court will give a certificate under the section, the effect of which is that evidence produced in respect of which a certificate has been given, and evidence of any information document or thing obtained as a direct or indirect result of the production of that evidence, cannot be used in any proceedings against them, except in a criminal prosecution for the falsity of that evidence. 8 The defendants have indicated, by their solicitor's affidavit, that they are prepared to provide the evidence required by the orders, if the Court grants a certificate under s 87(4). The first and second defendants thus having informed the Court that they will provide the evidence, I grant to the first and second defendants a certificate under Civil Procedure Act, s 87, in respect of the evidence to be produced by them under the orders made on 13 August 2008. I extend time for compliance by the defendants with the orders of 13 August 2008 to 8 September 2008. 9 I do not see why the plaintiff should have to bear the costs of this motion which is entirely for the benefit of the defendants. On the other hand, in circumstances where the plaintiffs could have consented to it and avoided the need for an appearance on their part today, I do not see why they should have the costs of the motion. I make no order as to the costs of the motion, to the intent that each party bear its own costs. 10 I vacate the appointment for hearing before the Registrar at 9.15am on 3 September 2008. The proceedings are adjourned for directions before the Registrar at 9.15am on Monday 8 September 2008. **********