Hamilton v Oades

On 9 April 1987 an order was made upon the application of the appellant pursuant to s. 541 of the Companies (New South Wales) Code ("the Code") requiring the respondent to attend before the Supreme Court of New South Wales on 25 May 1987 in order to be examined on matters relating to the promotion, formation, management, administration and winding up of D.C.L. The examination was adjourned and ultimately commenced on 17 August 1987 before a Deputy Registrar of that Court.

In the course of the examination on 17 August 1987, counsel for the appellant asked the respondent the following question: "For how long before 1985 were you a director of Darlington Commodities Pty. Ltd.?" Counsel for the respondent objected to the question on the basis that five of the pending charges related to offences alleged to have been committed by the respondent in his capacity as a director of D.C.L. prior to 1985.

Counsel for the respondent sought unsuccessfully from the Deputy Registrar a direction under s. 541(5) of the Code that the examination be restricted to those matters which were not the subject of pending criminal proceedings against the respondent. The examination was adjourned until the following day in order to allow the respondent to apply to the court to review the decision of the Deputy Registrar.

On 18 August 1987 McLelland J. dismissed with costs the respondent's application for an order restricting the examination. On appeal, the Court of Appeal (Mahoney, Priestley and Clarke JJ.A.) unanimously allowed the appeal and ordered that, during the pendency of the nineteen charges and until and in the course of any trial and until any further order or direction of that Court, the respondent was not to be compelled in the course of the examination to answer any questions the answers to which may tend to incriminate him in respect of any of those charges and which would either concern those facts constituting the ingredients of the offences the subject of the charges or would tend to disclose a defence to the charges.

The order does not amount in terms to a declaration that the respondent cannot be compelled to answer any questions the answers to which may incriminate him in relation to the offences charged. The order only precludes the respondent from being compelled to answer incriminating questions when one of the two stipulated conditions in the order applies. Nor does the order simply preclude questions on the basis that the answers to such questions may disclose a defence; such questions are only precluded if the answers to those questions may also tend to incriminate the respondent. However, the substantial effect of the order is that the respondent need not answer questions the answers to which may tend to incriminate him in relation to the offences charged and that the examination for practical purposes is stayed pending the determination of the charges.

The appellant and the Corporate Affairs Commission of New South Wales, which has intervened pursuant to s. 540 of the Code, have each appealed to this Court and seek to have the orders of McLelland J. restored.

(1) In this section, a reference, in relation to a corporation, to a prescribed person, shall be construed as a reference to an official manager, liquidator or provisional liquidator of the corporation or to any other person authorized by the Commission to make applications under this section or to make an application under this section in relation to that corporation.

(2) Where it appears to the Commission or to a prescribed person that -

(a) a person who has taken part or been concerned in the promotion, formation, management, administration or winding up of, or has otherwise taken part or been concerned in affairs of, a corporation has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to that corporation; or

(b) a person may be capable of giving information in relation to the promotion, formation, management, administration or winding up of, or otherwise in relation to affairs of, a corporation,

the Commission or prescribed person may apply to the Court for an order under this section in relation to the person.

(3) Where an application is made under sub-section (2) in relation to a person, the Court may, if it thinks fit, order that the person attend before the Court on a day and at a time to be fixed by the Court to be examined on oath or affirmation on any matters relating to the promotion, formation, management, administration or winding up of, or otherwise relating to affairs of, the corporation concerned.

(4) An examination under this section shall be held in public except to such extent (if any) as the Court considers that, by reason of special circumstances, it is desirable to hold the examination in private.

(5) The Court, on making an order for an examination, or at any later time, on the application of any person concerned, may give such directions as to the matters to be inquired into, and, subject to sub-section (4), as to the procedure to be followed (including, in the case of an examination in private, directions as to the persons who may be present), as it thinks fit.

(8) A person attending before the Court for examination pursuant to an order made under sub-section (3) shall not refuse or fail to answer a question that he is directed by the Court to answer.

Penalty: $10,000 or imprisonment for 2 years, or both.

(12) A person is not excused from answering a question put to him at an examination held pursuant to an order made under sub-section (3) on the ground that the answer might tend to incriminate him but, where the person claims, before answering the question, that the answer might tend to incriminate him, the answer is not admissible in evidence against him in criminal proceedings other than proceedings under this section or other proceedings in respect of the falsity of the answer.

(13) The Court may order the questions put to a person and the answers given by him at an examination under this section to be recorded in writing and may require him to sign that written record.

(14) Subject to sub-section (12), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules, may be used in evidence in any legal proceedings against the person.

(17) The Court may, if it thinks fit, adjourn the examination from time to time.

The Court of Appeal held that the respondent had not made out a case of abuse of process in the absence of proof of any vexatious or oppressive purpose or other abuse on the part of the liquidator. However, the Court granted relief in the exercise of what Clarke J.A. described as the Court's inherent power to control its own proceedings, with the object of avoiding the risk of injustice being caused by such proceedings.

The risk of injustice with which the Court of Appeal was concerned was that referred to by Gibbs C.J. in Sorby v. The Commonwealth [1] :

If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. See also at pp. 310, 312. This is because, in the words of Lord Wilberforce in Rank Film Ltd. v. Video Information Centre [2] : [W]hatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character. 1. (1983) 152 C.L.R. 281, at p. 294. 2. [1982] A.C. 380, at p. 443.

Clarke J.A. considered that, because a person charged is not ordinarily required to submit to pre-trial interrogation, to reveal his defences or to produce documents under compulsion, questions asked of that person pursuant to s. 541 may lead to the giving of incriminating answers in respect of matters central to the charge which may result in significant prejudice to the person charged and constitute "a real interference in the administration of criminal justice".

It is plain that an examination under s. 541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But it is well established that Parliament is able to "interfere" with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked: see Hammond v. The Commonwealth [3] ; Sorby [4] . There has been a long history of legislation governing examinations in bankruptcy and under the Companies Acts which abrogate or qualify the right of the person examined to refuse to answer questions on the ground that the answers may incriminate him: see Rees v. Kratzmann [5] . In that case Windeyer J. observed [5] :

The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy. This passage was cited with approval by Walsh J. (with whom Barwick C.J., Windeyer and Owen JJ. agreed) in Mortimer v. Brown [6] . 1. (1982) 152 C.L.R. 188. 2. (1983) 152 C.L.R. 281. 3. (1965) 114 C.L.R. 63, esp. at p. 80. 4. (1965) 114 C.L.R. 63, esp. at p. 80. 5. (1970) 122 C.L.R. 493, at p. 499.

The privilege against self-incrimination can only be abrogated by the manifestation of a clear legislative intention. The intention may none the less be demonstrated by reference to express words or necessary implication: Sorby [7] ; Police Service Board v. Morris [8] . But the privilege is not lightly abrogated, and the phrase "necessary implication" imports a high degree of certainty as to legislative intention.

1. (1983) 152 C.L.R., at p. 309. 2. (1985) 156 C.L.R. 397.

Mortimer v. Brown is a striking illustration of statutory abrogation of the privilege where the intention to abrogate was ascertained by necessary implication. Although Mortimer v. Brown was decided before Sorby established that the privilege is designed to protect a witness from indirect use of answers which may tend to incriminate, this circumstance in no way affects the authority of the decision. The relevant provision was s. 250 of The Companies Act 1961 Q.. The applicant was required to attend before the court pursuant to s. 250(1) for examination in relation to the conduct of a company's business and as to his conduct and dealings as a director or officer of the company. The section did not expressly abrogate the privilege against self-incrimination. Sub-sections (3) and (4) provided:

(3) The Court may put or allow to be put such questions to the person examined as the Court thinks fit.

(4) The person examined shall be examined on oath and shall answer all such questions as the Court puts or allows to be put to him.

Sub-section (7)(c) provided that notes of the examination might thereafter be used in evidence in any legal proceedings against the person examined. The court unanimously rejected an argument that, absent abrogation of the privilege in express terms, the provision should be construed as failing to disclose an intention to deny the privilege to a person being examined under the section. The court concluded that the purpose of the provision and the public interest it was intended to serve did not permit the section to be read down in the manner contended by the applicant. The provision contained, in the form of a judicial discretion, an adequate safeguard against any infringement of individual rights and any injustice or oppression which might be caused by the provision.

Compared with the statutory provision considered inMortimer v. Brown, s. 541 is significant in three respects. First, it expressly abrogates the privilege. Secondly, it specifically provides that answers which may otherwise have been privileged are not admissible in criminal proceedings other than proceedings under the section or other proceedings in respect of the falsity of the answer. Finally, it explicitly empowers the court to give directions concerning the examination. The second and third matters just mentioned are designed to reduce any element of unfairness to the witness that may arise as a result of abrogation of the privilege: see Sorby [9] .

Of course the section gives no protection to the witness against the use in criminal proceedings of derivative evidence, i.e., evidence which is obtained from other sources in consequence of answers given by the witness in his examination. It would be difficult for Parliament to provide for specific protection against derivative use of such answers given by a witness. Immunity from derivative use tends to be ineffective by reason of the problem of proving that other evidence is derivative: Sorby [10] . But in any case, by enacting s. 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth - the principal matter to which the privilege is directed. Thus the legislative resolution of the competition between public and private interest is to provide for a compulsory examination and to give specific protection in relation to the principal matter covered by the privilege but not otherwise, except in so far as a judge, in the exercise of a wide statutory discretion, may see fit in the particular circumstances of a case to give directions as to the matters to be inquired into.

In exercising this discretion the judge is confronted with a difficult task. He has to take account of the competing public and private interests. There are the two important public purposes that the examination is designed to serve. One is to enable the liquidator to gather information which will assist him in the winding up; that involves protecting the interests of creditors. The other is to enable evidence and information to be obtained to support the bringing of criminal charges in connexion with the company's affairs: Mortimer v. Brown [11] . Sub-section (2)(a) and (b) emphasizes the high public importance of these purposes. The examination is designed to elicit, among other things, evidence and information relating to the question whether the witness "has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to" the corporation.

On the other hand, in exercising his discretion under s. 541(5), the judge is bound to take into account the interests of the witness for, as Kitto J. pointed out in Mortimer v. Brown [12] , "cases are bound to arise in which immense harm may be done to the person being examined and to other individuals or to the community, by the allowing or disallowing of questions". In the light of the statutory provisions and the public purposes which I have outlined it would be going too far altogether to view the existence of the discretion as requiring ordinarily the giving of directions which will protect the witness from the consequences of abrogation of the privilege in so far as they include the derivative use of the answers of the witness. To give such directions as a matter of course would be to frustrate the statutory purpose. Clearly the lengthy delay of an examination due to the pendency of criminal charges would be highly likely to frustrate the liquidator in the carrying out of his duties towards the company and the creditors by denying him the use of a major instrument in the tracing of assets. It is significant that in the present case the appellant sought to ask questions directed towards establishing the making of preferential payments and the existence, location and ownership of valuable assets. In light of the purpose of the section, great weight must be given to the views of the liquidator when the court considers whether to order an examination: In re Rolls Razor Ltd. [No. 2] [13] ; In re John Arnold's Surf Shop Pty. Ltd. [14] . The same approach must be taken by the court when it makes orders or gives directions in relation to an examination in progress.

1. (1970) 122 C.L.R., at p. 496. 2. [1970] Ch. 576, at pp. 591-592. 3. (1979) 23 S.A.S.R. 222, at p. 230.

The cases in which a court has stayed an examination on the grounds now claimed when charges have not been laid are rare. The very purpose of the section is to create a system of discovery, which may cause defences to be disclosed, for the purpose of bringing charges. The section gives to the liquidator rights not possessed by an ordinary litigant: John Arnold [15] . In these circumstances it must be accepted that the section applies equally to proceedings which the liquidator "might be able to bring, proceedings he contemplates bringing, proceedings he has decided to bring, and proceedings he has already brought":Re Hugh J. Roberts Pty. Ltd. [16] ; Re Norman Baker Pty. Ltd.; Ex parte Hillman [17] ; Re Nalanda Pty. Ltd. [18] . To adopt the language of Kitto J. in Mortimer v. Brown [19] , to hold otherwise "would render the provision relatively valueless in the very cases which call most loudly for investigation".

1. (1979) 23 S.A.S.R., at p. 232. 2. (1970) 91 W.N. (N.S.W.) 537, at p. 541. 3. [1982] W.A.R. 349, at pp. 351-352; (1982) 1 A.C.L.C. 79, at p. 81; 6 A.C.L.R. 257, at pp. 259-260. 4. [1983] 1 Qd R. 269, at p. 271. 5. (1970) 122 C.L.R., at p. 496.

Pincus J. in Re Gordon [20] in deciding not to follow the Court of Appeal's decision in the present case, drew attention to the absence of any statutory distinction between pending and future proceedings in the provision in the Bankruptcy Act 1966 Cth, analogous to s. 541, in these terms:

It must have been obvious to the draftsman of s. 541 that attempts by a liquidator to recover a failed company's property and criminal proceedings against alleged malefactors in relation to the affairs of the company may be lengthy and concurrent. There would have been no difficulty, had that been the legislature's true intention, in adding a qualification that the express requirement to answer questions though they might tend to incriminate should not apply where charges had actually been laid, as opposed to being merely expected. The statute considered by the Court of Appeal contains no such qualification; nor does the provision with which I am concerned. This conclusion is strengthened by reference to the legislative history of s. 541, which discloses that s. 367A of the Companies Act 1961 N.S.W., from which s. 541 is partly derived, made specific reference to "subsequent" criminal proceedings in the sub-section which preceded s. 541(12). 1. (1988) 18 F.C.R. 366, at p. 372.

The court retains its power to give directions and to restrain questions in cases where the examination is being conducted for an improper purpose or constitutes an abuse of process: s. 541(5). Thus if a liquidator were to conduct an examination directed to compel the examinee to disclose defences or to give pre-trial discovery, or to establish guilt, this examination may be restrained as an abuse of process: Hugh J. Roberts [21] ; Huston v. Costigan [22] ; Re Gordon [23] . But this is not the present case.

1. (1970) 91 W.N. (N.S.W.), at p. 541. 2. (1982) 45 A.L.R. 559, at p. 563. 3. (1988) 18 F.C.R. 366.

Again, the inherent powers of the court are retained and the duty of the court to ensure the proper administration of justice may require that orders be made of types other than those which restore the privilege against self-incrimination or which serve to defeat the purposes of the section. For example, an examination may need to be held in private, or the publication of names or evidence restricted: Huston v. Costigan [22] . Or it may be that the court in conducting the examination may feel it necessary, in accordance with the statutory purpose, not to permit a particular question to be asked which would prejudice the examinee's fair trial: Mortimer v. Brown [24] ; Barton v. Official Receiver [25] . But the types of questions which may warrant such a course should not be predicted by a court in advance of their being asked: Barton [26] . None of these situations encompasses the present case because the orders the subject of this appeal are not orders of the kind permissible under the section.

1. (1982) 45 A.L.R. 559, at p. 563. 2. (1970) 122 C.L.R., at pp. 502-503. 3. (1977) 13 A.L.R. 283, at pp. 289-290. 4. (1977) 13 A.L.R., at p. 290.

It is not clear to me why the Court of Appeal invoked the inherent power instead of exercising the statutory discretion. The exercise of the inherent power requires the court, in the context in which it is being exercised, to take account of the very considerations that need to be balanced when the discretion is applied. The inherent power is not a charter which enables a court to turn its back on the statute.

There are two other matters to be mentioned. The Court of Appeal referred to the respondent's right not to disclose his defences to the pending charges. Except in the sense that a witness enjoys what is known as the right to silence, the respondent has no relevant right, either at common law or by virtue of statute. The privilege against self-incrimination would not ordinarily protect a person against disclosure of his defence to a criminal charge. The so-called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed. In some instances there is such a specific requirement, e.g., in relation to alibi defences. And there is implicit in the general words of s. 541 such a general requirement. The possibility of disclosure of a defence is, accordingly, not a matter in respect of which a witness needs to be protected, except perhaps in the most exceptional circumstances. The second matter to be mentioned is Clarke J.A.'s reference to the fact that an accused person is not required ordinarily to submit to pre-trial discovery. Granted that this is so, it is a consideration which must yield to the statutory abrogation of the privilege unless the circumstances of the particular case are so compelling as to call for an exercise of the statutory discretion.

The appeals should be allowed and the orders of the Court of Appeal set aside.

The respondent should pay the costs of the appeal by the liquidator. The Corporate Affairs Commission should pay its own costs in both appeals.

Michael George Oades ("the respondent") presently stands charged in New South Wales with a number of offences arising out of his association with Darlington Commodities Pty. Ltd. (In liq.) ("the company"). Those charges include the indictable offence of conspiracy. An order has also been made pursuant to s. 541(3) of the Companies (New South Wales) Code ("the Code") for the public examination of the respondent in the Supreme Court of New South Wales on oath or affirmation as to matters concerning the affairs of the company. The Court of Appeal of the Supreme Court of New South Wales, allowing an appeal from a decision of McLelland J. refusing an application for review of a decision by the Deputy Registrar before whom the examination was listed for hearing, has ordered that during the pendency of the criminal charges the examination be restricted so that the respondent not be compelled to give answers tending to criminate him in the offences charged. From that decision and order the Corporate Affairs Commission of New South Wales and the liquidator of the company, William James Hamilton, ("the appellants") bring the present appeals.

Section 541(12) of the Code denies to an examinee the right to refuse to answer questions on the ground of self-incrimination in the following terms:

A person is not excused from answering a question put to him at an examination held pursuant to an order made under sub-section (3) on the ground that the answer might tend to incriminate him but, where the person claims, before answering the question, that the answer might tend to incriminate him, the answer is not admissible in evidence against him in criminal proceedings other than proceedings under this section or other proceedings in respect of the falsity of the answer.

The rules of statutory construction require a clear expression of legislative intent before a provision will be held effective to abrogate or limit a privilege as fundamental as the privilege against self-incrimination: Hammond v. The Commonwealth [27] ;Sorby v. The Commonwealth [28] . In the present case that intent is made manifest by the words of s. 541(12). The absence from sub-s. (12) of any qualification or exception by reference to charges pending (cf. the provisions of the Royal Commissions Act 1902 Cth considered in Sorby) precludes a construction which would allow for the operation of that sub-section to vary according to whether or not criminal charges are pending against an examinee. An intent to abrogate or limit the privilege may also be made manifest by the purpose of the provision in question and the public interest which it is intended to serve: Mortimer v. Brown [29] . The evident purpose of s. 541, that purpose being, according to s. 541(2), the examination of persons who "[have] been or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to [a] corporation", is a further indication of the relevant statutory intent to abrogate the privilege whether or not there are pending criminal proceedings. So much is not put in issue by the respondent in the present appeals.

1. (1982) 152 C.L.R. 188, at pp. 197-198, 200. 2. (1983) 152 C.L.R. 281, at pp. 289, 294-295, 309, 311. 3. (1970) 122 C.L.R. 493, at pp. 495, 496.

The issues in the present appeals are the extent, if any, to which sub-s. (12) limits the powers of the Supreme Court to control and supervise its proceedings and the considerations relevant to the exercise of those powers. In this respect the respondent claims that nothing in the Code detracts from the Supreme Court's power and duty to effectuate his right to "due process" which, it is claimed, derives from Magna Carta. The interesting legal and historical considerations raised by this submission need not be pursued for the appeals may be disposed of by reference to the considerations upon which the Court of Appeal relied.

A power to control and supervise examinations is necessarily comprehended in s. 541(5) which confers on the Supreme Court a power "on making an order for an examination, or at any later time, on the application of any person concerned, [to] give such directions as to the matters to be inquired into, and, subject to sub-section (4), as to the procedure to be followed as it thinks fit". Sub-section (4) requires that an examination be held in public except to the extent, by reason of special circumstances, it is considered desirable to hold the examination in private. It may at once be noted that whereas s. 541(5) expressly limits the power to give procedural directions by reference to sub-s. (4) no such limitation is expressed, whether by reference to sub-s. (12) or otherwise, as to the power to give directions concerning the matters to be inquired into.

The power conferred by sub-s. (5) is conferred in terms importing a wide discretion. This and the fact that the power relates directly to curial proceedings serve to indicate that the sub-section also confirms, subject to sub-s. (4), the powers ordinarily possessed by the Supreme Court to control and supervise its proceedings, including those powers which are usually described as "inherent powers".

The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice: see Cocker v. Tempest [30] . In the case of the Supreme Court of New South Wales that power is confirmed by s. 23 of the Supreme Court Act 1970 N.S.W. which states that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales": see Riley McKay Pty. Ltd. v. McKay [31] ; Jackson v. Sterling Industries Ltd. [32] .

1. (1841) 7 M. & W. 502, at pp. 503-504 [151 E.R. 864, at p. 865]. 2. [1982] 1 N.S.W.L.R. 264. 3. (1987) 162 C.L.R. 612, at p. 617.

The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories: Jackson v. Sterling Industries Ltd. [33] ; Tringali v. Stewardson Stubbs & Collett Ltd. [34] . In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms "oppressive" and "vexatious" are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Co. Inc. v. Fay [35] , per Deane J.

1. (1987) 162 C.L.R., at p. 639. 2. (1966) 66 S.R. (N.S.W.) 335, at pp. 340, 344. 3. (1988) 165 C.L.R. 197, at pp. 247-250.

The public examination on oath or affirmation of a person charged with an indictable offence on matters with which the charge is concerned will ordinarily be viewed as seriously and unfairly burdensome, prejudicial or damaging if for no reason other than that it will ordinarily be viewed as constituting a real risk to the fairness and integrity of the trial of that charge. That is so whether or not the examination involves questions the answers to which have a tendency to incriminate. If the answers have a tendency to incriminate, an even greater risk is constituted by the public claiming of the privilege against self-incrimination. That claim must be made to ensure that an answer given in a s. 541 examination is not used in criminal proceedings other than those specified in sub-s. (5). Public adherence to the procedure of claiming privilege followed by the equally public giving of answers thus acknowledged as tending to incriminate may involve an additional and greater unfairness to the examinee, notwithstanding that the answers given may not be used in the trial of the pending charge. For example, quite apart from the danger of the creation of an atmosphere of pre-trial prejudice, there is the possibility that the answer may involve the disclosure of a defence or lead to the discovery of other evidence, these being consequences against which a person charged with a criminal offence is usually entitled to be protected: see Rank Film Ltd. v. Video Information Centre [36] ; Sorby [37] .

1. [1982] A.C. 380, at p. 443. 2. (1982) 152 C.L.R., at pp. 293-294.

It was suggested in argument that s. 543 of the Code might prevent an exercise of the power to control and supervise proceedings to prevent injustice in the present case. Section 543 provides that "[n]o civil proceedings under this Code shall be stayed by reason only that the proceeding discloses, or arises out of, the commission of an offence". It is not necessary to decide whether s. 543 applies to an examination under s. 541, for the injustice occasioned when an examination will involve matters the subject of pending criminal charges is not only that the examination arises out of or will disclose the commission of an offence, but that the examination will impose an unfair burden upon the examinee in defending the pending charges.

The power to control and supervise examinations for the purpose of preventing injustice conferred and confirmed by sub-s. (5) produces an inescapable tension between the operation of that sub-section and the operation of sub-s. (12) in cases where the examinee is charged with a criminal offence arising out of matters intended to be the subject of examination. The pendency of the charge will ordinarily constitute a special circumstance warranting the conduct of the examination in private and a direction to that effect may be an appropriate resolution of that tension in some cases. But if it is not, the powers conferred and confirmed by s. 541(5) are apt to encompass other means, including the giving of directions limiting the matters to be examined. Given the wide terms of sub-s. (5) and given that it extends to authorize directions limiting the matters to be examined, there is no reason why it should not be construed to encompass a power to adjourn or defer an examination either in whole or in part.

In the present case the order made by the Court of Appeal was expressed to operate "during the pendency of the charges". It was thus, in effect, an order for adjournment of so much of the examination as would go to the matters the subject of the pending criminal proceedings and upon which the respondent might otherwise be compelled to incriminate himself. That being so, the power conferred and confirmed by s. 541(5) will sustain the order made.

Finally, there is implicit in the decision and order of the Court of Appeal a finding that the examination, in so far as it would compel the respondent to give answers tending to criminate him in the offences charged, would constitute a serious and unfair burden, prejudice or damage to the respondent during the pendency of those charges. Having regard to the offences charged and the matters intended to be put to the respondent in the course of examination that finding was clearly open.

On 1 September 1986 an order was made for the winding up of Darlington Commodities Pty. Ltd. Subsequently, on 3 April 1987, the respondent Michael George Oades was charged with a number of offences in relation to the company including the indictable offence of conspiracy to cheat and defraud. Five of the charges relate to offences alleged to have been committed by the respondent in his capacity as a director of the company. On 9 April 1987 an order was made under s. 541 of the Companies (New South Wales) Code ("the Code") for the examination of the respondent in relation to the affairs of the company. The order was made upon the application of the liquidator of the company.

The examination of the respondent commenced before a Deputy Registrar of the Supreme Court of New South Wales on 17 August 1987. During the course of the examination, counsel for the liquidator asked the question: "For how long before 1985 were you a director of Darlington Commodities Pty. Ltd.?" Counsel for the respondent objected to the question upon the basis that it directly raised an element in each of the five charges pending against the respondent as a director of the company and sought a direction under s. 541(5) of the Code that the examination be restricted to those matters which were not the subject of pending criminal proceedings against the respondent. The Deputy Registrar refused to give the direction sought and an application was made on behalf of the respondent to McLelland J. for an order restricting the examination in the same way. The application to McLelland J. was also made under s. 541(5) of the Code.

Putting to one side any procedural difficulties arising from the manner in which the application was made, McLelland J. refused it on its merits. The respondent appealed from that refusal to the Court of Appeal which upheld the appeal and made an order that, during the pendency of the relevant charges against him, the respondent should not be compelled to answer any questions the answers to which might tend to incriminate him in respect of those charges, either because they concerned those facts which constituted the ingredients of the offences the subject of the charges or because they tended to disclose a defence to those charges. The liquidator and the Corporate Affairs Commission of New South Wales appeal by special leave to this Court against the decision and order of the Court of Appeal.

Section 541 of the Code provides, so far as is relevant, as follows:

(1) In this section, a reference, in relation to a corporation, to a prescribed person, shall be construed as a reference to an official manager, liquidator or provisional liquidator of the corporation or to any other person authorized by the Commission to make applications under this section or to make an application under this section in relation to that corporation.

(2) Where it appears to the Commission or to a prescribed person that -

(a) a person who has taken part or been concerned in the promotion, formation, management, administration or winding up of, or has otherwise taken part or been concerned in affairs of, a corporation has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to that corporation; or

(b) a person may be capable of giving information in relation to the promotion, formation, management, administration or winding up of, or otherwise in relation to affairs of, a corporation,

the Commission or prescribed person may apply to the Court for an order under this section in relation to the person.

(3) Where an application is made under sub-section (2) in relation to a person, the Court may, if it thinks fit, order that the person attend before the Court on a day and at a time to be fixed by the Court to be examined on oath or affirmation on any matters relating to the promotion, formation, management, administration or winding up of, or otherwise relating to affairs of, the corporation concerned.

(4) An examination under this section shall be held in public except to such extent (if any) as the Court considers that, by reason of special circumstances, it is desirable to hold the examination in private.

(5) The Court, on making an order for an examination, or at any later time, on the application of any person concerned, may give such directions as to the matters to be inquired into, and, subject to sub-section (4), as to the procedure to be followed (including, in the case of an examination in private, directions as to the persons who may be present), as it thinks fit.

(8) A person attending before the Court for examination pursuant to an order made under sub-section (3) shall not refuse or fail to answer a question that he is directed by the Court to answer.

(12) A person is not excused from answering a question put to him at an examination held pursuant to an order made under sub-section (3) on the ground that the answer might tend to incriminate him but, where the person claims, before answering the question, that the answer might tend to incriminate him, the answer is not admissible in evidence against him in criminal proceedings other than proceedings under this section or other proceedings in respect of the falsity of the answer.

(13) The Court may order the questions put to a person and the answers given by him at an examination under this section to be recorded in writing and may require him to sign that written record.

(14) Subject to sub-section (12), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules, may be used in evidence in any legal proceedings against the person.

(17) The Court or another court before which an examination under this section takes place may, if it thinks fit, adjourn the examination from time to time.

In Mortimer v. Brown [38] , this Court examined s. 250 of the uniform Companies Act 1961 Q., a predecessor of s. 541. Sub-section (1) of s. 250 provided that, where a liquidator has reported his opinion that there has been a fraud or the concealment of a material fact in the promotion, formation or conduct of the affairs of a company, the court might order that the promoters, officers of the company and certain other persons be publicly examined. Sub-section (3) provided that the court might put or allow to be put such questions as it thought fit and sub-s. (4) provided that the person examined should be examined on oath and should answer all such questions as the court put or allowed to be put to him. Paragraph (c) of sub-s. (7) provided that notes of the examination might be used in evidence in any legal proceedings against the person examined. It is to be noted that s. 250 did not, as does s. 541, expressly provide that a person should not be excused from answering a question put to him on the ground that the answer might tend to incriminate him. It was never the less held that a person might not, under s. 250, decline to answer a question upon that ground.

Walsh J., with whom Barwick C.J., Windeyer and Owen JJ. agreed, expressed the view that, notwithstanding the absence of any express abrogation of the privilege against self-incrimination, the character and purpose of the legislation were such that its operation ought not to be curtailed by the application of the privilege. Reference was made to the judgment of Windeyer J. in the earlier case of Rees v. Kratzmann [39] , in which his Honour referred to the traditional common law objection to compulsory interrogations. In that case Windeyer J. went on to observe, however, that equity had other concerns and that in the bankruptcy jurisdiction the privilege had been largely displaced. He continued:

For example, a debtor upon his public examination in bankruptcy cannot refuse to answer questions on the ground that the answers may incriminate him (Re Paget; Ex parte Official Receiver [40] ; Re Jawett [41] ), the purpose of the bankruptcy statute being to secure a full and complete examination and disclosure of the facts relating to the bankruptcy in the interests of the public. The provisions of The Companies Act reflect, it seems to me, the same idea. The honest conduct of the affairs of companies is a matter of great public concern today. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy. 1. (1965) 114 C.L.R. 63, at p. 80. 2. [1927] 2 Ch. 85. 3. [1929] 1 Ch. 108.

Kitto J. in Mortimer v. Brown [42] pointed to the evident purpose of s. 250, namely, "to enable a suggestion of fraud or concealment of a material fact to be fully investigated by means of the public examination of certain classes of persons". He stated that:

Such a question in its nature must frequently involve consideration of evidence tending to incriminate individuals. To read down the wide terms of the section so as to allow a danger of self-incrimination as a valid ground for refusing to answer a question would render the provision relatively valueless in the very cases which call most loudly for investigation. 1. (1970) 122 C.L.R., at p. 496.

The scheme of the present section, s. 541, is such as to make the conclusion inevitable that the privilege against self-incrimination has been excluded as a basis for refusing to answer a question. That is so whether the answer tends to incriminate directly by way of admission or indirectly by providing information from which guilt may be established. The character and purpose of the present section remain the same as in Mortimer v. Brown, but there is now express provision excluding the privilege and providing a measure of protection which was previously unavailable to a person being examined, namely, the inadmissibility in evidence in criminal proceedings of an answer where the privilege has been claimed during the examination. As Mason and Wilson JJ. and I pointed out in Sorby v. The Commonwealth [43] , the purpose of the latter provision can only be to give compensatory protection to a witness when the legislature abrogates the privilege. It may, however, be observed that the provision affords protection only in relation to incrimination of a direct rather than of a derivative kind.

Nor, in my opinion, is there any basis for discerning a difference in intent according to whether or not criminal proceedings have actually been commenced. In the context of a public examination, the time at which charges, if any, are laid will often be merely adventitious. Moreover, having regard to the protection given against the answer being used, the effect of being required to answer a question after criminal proceedings have begun does not necessarily carry consequences which are more adverse than if the question is asked at an earlier time. In any event, the purpose of the section remains the same whether charges have been laid or not. The concern for an individual is not, beyond the safeguard provided, to prevail over the public need to be informed about misconduct in relation to the affairs of a company under examination.

It was submitted on behalf of the respondent that the requirement that he should answer questions tending to incriminate him was an impairment of his right to a fair trial to which he was entitled in accordance with due process of law. Reliance was placed upon a passage in the judgment of Gibbs C.J. in Hammond v. The Commonwealth [44] :

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Never the less, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. In the Builders Labourers' Case [45] I expressed the opinion that, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings. 1. (1982) 152 C.L.R. 188, at p. 198. 2. (1982) 152 C.L.R. 25.

But that passage is preceded by the observation that the urgency of the matter then before the Court required an immediate decision and that cases such as Rees v. Kratzmann [46] ; Mortimer v. Brown [47] and Mitcham v. O'Toole [48] were not discussed. Moreover, the legislation in question in Hammond v. The Commonwealth [49] was of a different kind, being concerned in general terms with executive inquiry by means of a Royal Commission or Board of Inquiry without reference to subject-matter or purpose. And the privilege against self-incrimination is not under our system of law inviolable, however clearly the legislature will need to express itself before the courts will discern an intention to abrogate or even weaken such an ingrained principle of the common law. In the case of s. 541, as I have pointed out, the legislature could hardly have expressed itself more clearly.

1. (1965) 114 C.L.R. 63. 2. (1970) 122 C.L.R. 493. 3. (1977) 137 C.L.R. 150. 4. (1982) 152 C.L.R. 188.

In truth the appeal to due process of law can amount to no more than an appeal to the principle that the courts will not interpret legislation as departing from fundamental common law doctrine unless an intention to do so emerges in the clearest of terms. For due process of law, as we know it in this country, is a concept which derives its meaning only from the law, whether common or statute law, as it exists from time to time. It is not, as in the United States, a concept with a content of its own, procedural or substantive, against which the constitutional validity of particular laws may be tested.

Nor does it carry the matter any further to invoke the inherent power of the Supreme Court to protect its own process. That power, which is confirmed by s. 23 of the Supreme Court Act 1970 N.S.W., is subject to validly enacted legislation and contains no warrant for the disregard of a clearly expressed legislative intent. Reliance upon the inherent power is the less understandable in this case where power is expressly conferred upon the court by s. 541(5) to give such directions as to the matters to be inquired into and, subject to sub-s. (4), as to the procedure to be followed, as it thinks fit. Sub-section (4) imposes little restriction for it merely requires an examination to be held in public unless the court considers that, by reason of special circumstances, it is desirable to hold the examination in private. The requirement that an examination be held in public is, of course, an important indication of the purpose of the section.

Whilst the discretion conferred upon the court to control proceedings under s. 541 is to be exercised within the limits indicated by the nature and purpose of the examination for which the section provides, it may never the less be a safeguard against the use of the section in an oppressive or unjust way: Rees v. Kratzmann [50] ; Mortimer v. Brown [51] . No doubt the fact that an answer might tend to incriminate, notwithstanding the exclusion of the privilege by sub-s. (12), is a matter to be taken into account in determining what questions may be asked, provided that it is borne in mind that, where there is a conflict between the court's performance of its duty under the section to inquire into misconduct of the kind comprehended and the privilege against self-incrimination, it is the duty which must prevail. As was pointed out in Mortimer v. Brown [51] :

in many cases, the possibility or even the certainty that an answer would incriminate the person being examined would not itself provide a sufficient reason for disallowing the question, since questions will normally be directed to the investigation of all the relevant facts in order that it may be ascertained whether or not there has been fraud or concealment of material facts. The present section extends, of course, beyond fraud or concealment of material facts. But, as was also pointed out in Mortimer v. Brown, where a question has only a remote or doubtful bearing upon the matters which the section requires to be investigated and the harm which may be done to an individual by requiring an answer to be given outweighs any benefit to be obtained, it may be proper to disallow the question. It would be undesirable to attempt to add to what was said in that case in this respect, save perhaps to observe that, although the discretion conferred upon the court by s. 541(5) must be exercised within its statutory context and that an examination must generally be conducted in public, it is otherwise unlimited. 1. (1965) 114 C.L.R., at pp. 73-74. 2. (1970) 122 C.L.R., at p. 502. 3. (1970) 122 C.L.R., at p. 502.

In the present case the Court of Appeal made its order because of the consequences which it apprehended that answers tending to incriminate the respondent, given by him upon his public examination, might have upon his subsequent trial. That, as I have explained, is of itself an insufficient basis for the order having regard to the provisions of s. 541. I would allow the appeal.

On 9 April 1987 an order was made by the Registrar of the Supreme Court of New South Wales, pursuant to s. 541 of the Companies (New South Wales) Code, for the examination of the respondent in connexion with the affairs of Darlington Commodities Pty. Ltd. ("the company"). The order was made on the application of William James Hamilton as liquidator of the company. Mr. Hamilton is one of the appellants in the proceedings before this Court. The other appellant is the Corporate Affairs Commission of New South Wales. The Commission joined in the application for special leave to this Court though it had played no active part in earlier proceedings.

At the time the order was made the respondent had been charged with a number of offences arising out of his association with the company. At the hearing of this appeal those charges were still pending.

The present appeals are from an order of the Court of Appeal of New South Wales that, during the pendency of the charges against the respondent, he "is not to be compelled to answer any question the answers to which may tend to incriminate the examinee in respect of any of the criminal charges and either (a) concern those facts which constitute the ingredients of the offences the subject of the said criminal charges; or (b) which would tend to disclose a defence to the said criminal charges".

There is a problem with the form of order. On its face, both pars. (a) and (b) are qualified by what precedes them. One can understand qualifying the general prohibition against self-incrimination by reference to the ingredients of the offences in question. But the disclosure of a defence is not ordinarily an aspect of self-incrimination though there may well be objection to such a disclosure on other grounds.

The present appeals focus on s. 541(12) which reads:

A person is not excused from answering a question put to him at an examination held pursuant to an order made under sub-section (3) on the ground that the answer might tend to incriminate him but, where the person claims, before answering the question, that the answer might tend to incriminate him, the answer is not admissible in evidence against him in criminal proceedings other than proceedings under this section or other proceedings in respect of the falsity of the answer. The balance of s. 541, so far as is relevant, appears in the judgment of Mason C.J. and need not be repeated.

Sub-section (12) removes the common law privilege against self-incrimination in the clearest of terms. No distinction is drawn between a situation in which charges are pending against a person in respect of whom an order for examination is made and a situation in which charges are not pending. The respondent did not contend otherwise. The question presented by these appeals is whether, never the less, the Supreme Court (hereinafter referred to as "the court"), in the exercise of its power to control the proceedings, may make an order such as was made in the present case. The Court of Appeal was of the opinion that the proceedings could be so controlled and that, because of the pendency of the charges, they should be so controlled.

Sub-section (5) expressly empowers the court to give directions as to the matters to be inquired into. It also expressly empowers the court, subject to sub-s. (4), to give directions as to the procedure to be followed. Sub-section (4) requires a public examination unless the court otherwise orders.

The question to which the respondent took objection and which was the catalyst for these proceedings was as follows: "Q. For how long before 1985 were you a director of Darlington Commodities Pty. Ltd.?" Objection was taken on the ground that the question raised directly an ingredient of each of the charges the respondent was facing. Before the Court of Appeal counsel for the appellant liquidator specified those areas in regard to which his client wished to examine the respondent. They were identified by Clarke J.A. in these terms: "(1) Whether any preferential payments were made and, if so, which payments were preferential? (2) Whether three million dollars worth of gold bullion which had apparently been referred to in the accounts of D.C.L. existed and if so what happened to it? and (3) Who is the true owner of one million dollars worth of gold which is in the possession of the liquidator of another company?"

Counsel for the appellants did not dispute that these areas of questioning bore upon matters which were relevant to the charges against the respondent. But they pointed, of course, to the fact that s. 541(12) expressly removed the privilege against self-incrimination. The respondent countered by relying upon s. 541(5) and, more broadly, upon the inherent power, indeed duty, of the court to protect his right to due process and his right to a fair trial of the charges against him. These rights, it was said, stood to be jeopardized by the lines of questioning foreshadowed. In the Court of Appeal Clarke J.A., with whom Mahoney J.A. agreed, accepted the arguments of the respondent. Priestley J.A. delivered a concurring judgment. All members of the Court of Appeal approached the matter, not by reference to abuse of process (for there was no suggestion that the liquidator was acting with any ulterior motive), but in terms of the court's power "to stay proceedings in the interests of justice". The crux of Clarke J.A.'s reasoning may be found in this passage:

Once a charge is laid an accused person is, statutory exceptions apart, entitled to all the protection afforded by well-established principles of the criminal law. In particular he is not required to submit to pre-trial interrogation, nor is he amenable to the subpoena process. The Crown is obliged to prove the case against him and he is not required to assist the prosecution or to disclose his defence.

It follows that the exposure of a person charged with a criminal offence to questioning which may lead to the furnishing of incriminating answers in respect of matters at the heart of the criminal charge may cause significant prejudice to the examinee and constitutes a real interference in the administration of criminal justice.

There are two comments that may be made on that passage. The first is that to set statutory exceptions apart from the broad principles enunciated tends to beg the question that has to be decided. That question is the extent to which s. 541(12), taken in context, diminishes these well-established principles. The second comment is that, in a sense, answers required to be given in the course of an examination are not incriminating for they cannot be used against the person examined other than in proceedings under s. 541 "or other proceedings in respect of the falsity of the answer". This is in marked contrast to certain other statutes providing for comparable examinations. Thus, s. 250 of The Companies Act 1961 Q., considered in Mortimer v. Brown [52] , permitted notes of the examination to be used "in any legal proceedings" against the person examined. Section 367A(5) of the Companies Act 1961 N.S.W., introduced following Mortimer v. Brown, rendered answers which might incriminate inadmissible in subsequent criminal proceedings, other than for perjury. However, too much cannot be made of the second comment for, though answers may be inadmissible, they "may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character": Lord Wilberforce in Rank Film Ltd. v. Video Information Centre [53] .

1. (1970) 122 C.L.R. 493. 2. [1982] A.C. 380, at p. 443.

There is much force in the submission of Mr. Handley, senior counsel for the Commission, that these appeals do not turn "on whether or not a particular question should be allowed and an answer enforced" but that what is involved is "a challenge to the whole examination proceeding while criminal charges are pending". Since an examination is designed to throw light on the affairs of the company concerned, it is apparent that an order such as that made by the Court of Appeal may stultify the examination to a considerable extent.

A useful starting point in the consideration of the relevant law, given the existence of s. 541(12), is the decision of this Court in Mortimer v. Brown. As already noted, the decision concerned a public examination under s. 250 of The Companies Act 1961 Q.. Section 250(3) empowered the Court to "put or allow to be put such questions to the person examined as the Court thinks fit". There was no provision comparable to s. 541(12) of the Code. In the view of this Court, an examinee could not decline to answer a question on the ground that the answer might tend to incriminate him.

The main judgment was given by Walsh J., with whom Barwick C.J., Windeyer and Owen JJ. agreed. But a passage from the judgment of Barwick C.J. [54] , is particularly apposite here:

As appears from the reasons of my brothers the language of the statute makes the answering of every question imperative. The Parliament has made it abundantly clear that the so-called right to be silent which the common law sought to protect was not to be available to the examinee: and, as both my brother Kitto and my brother Walsh observe, the very purpose of the inquiry makes such a course inevitable if that purpose is not frustrated and the inquiry rendered nugatory. The common law cannot maintain a right in the citizen to refuse to make incriminating answers in the face of a statute which by its expression clearly intends, as does the present, that all questions allowed to be put shall be answered.

In my opinion, it being the question and not the answer with which [the judge] is primarily concerned, the mere circumstances that a question appropriate to the nature and the stage of the particular inquiry might or certainly would incriminate the examinee could rarely, if ever, be itself a reason for disallowance of the question. But, of course, the question may be so peripheral, or seek merely confirmation of facts of which proof is already firmly in the hands of the liquidator or that some other circumstance exists that it would be oppressive or unjust to place the examinee in the position of being bound by his answer to incriminate himself, or even placed in jeopardy of doing so.

I respectfully agree with those observations. A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s. 541(12). And that is so notwithstanding the qualification expressed in the words "concern those facts which constitute the ingredients of the offences ". The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the court by s. 541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick C.J. pointed out in Mortimer v. Brown [55] , a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category: see also Huston v. Costigan [56] . But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s. 541(12) allows so that the affairs of the company may be relevantly investigated.

1. (1970) 122 C.L.R. 493. 2. (1982) 45 A.L.R. 559, at p. 563.

Hammond v. The Commonwealth [57] does not stand in the way of the approach suggested in these reasons. This Court there directed an end to the examination of a witness in a Royal Commission about a conspiracy upon which he had been committed for trial, even though answers by the witness would not be admissible against him except in proceedings for an offence against the Royal Commissions Act 1902 Cth. The approach taken by the members of this Court was not identical; I adhere to the opinion I expressed, as a member of the Federal Court, in Huston v. Costigan [56] , that in Hammond "the basis for restraining the Commissioner from examining the plaintiff on oath, at least in the view of the majority of the court, lay in the fact that if the plaintiff were required to answer questions designed to establish that he was guilty of the offence with which he had been charged, there would be a real risk that the administration of justice would be interfered with" (emphasis added). As Pincus J. pointed out in Re Gordon [58] , Priestley J.A. (in the present appeals) has taken a wider view of the decision in Hammond and has treated it as making the law as laid down in Mortimer v. Brown "inapplicable to incriminating questions relating to the facts involved in criminal charges which are already on foot". Pincus J. added: "If that is so, the law has, in my respectful opinion, developed in an unfortunate way." I agree with his Honour that such a distinction results in a situation where, if no charges are pending, questions may be asked however incriminating they are but that, if charges are pending, an incriminating question may not be asked however important it may be to the examination and even if any harm to the person examined is minimal.

1. (1982) 152 C.L.R. 188. 2. (1982) 45 A.L.R. 559, at p. 563. 3. (1988) 18 E.C.R. 366, at pp. 373-374.

In Sorby v. The Commonwealth [59] , Mason, Wilson and Dawson JJ. spoke of Mortimer v. Brown as "a compelling illustration of a statute which abrogates the privilege [against self-incrimination] by necessary implication". Nothing in their Honours' judgment or indeed in the judgments of the other members of this Court suggests that the authority of Mortimer v. Brown is weakened by Hammond. In the matter now before this Court no inference is necessary; s. 541(12) speaks in the clearest terms. It is reading far more into s. 541(5) than is warranted to find in that sub-section authority to relieve a person who is being examined from the obligation of answering a question that may incriminate him on no ground other than that the answer may tend to incriminate.

Equally, in the face of a clear statutory abrogation of the privilege against self-incrimination, it is asking too much of the inherent jurisdiction of the court to treat it as justifying a power to reject a question in examination merely because the answer may tend to incriminate the person being examined. The phrase "inherent jurisdiction" may encompass powers arising expressly or by implication from the statute establishing a court and powers incidental and necessary to the exercise of jurisdiction or to those powers: see Jackson v. Sterling Industries Ltd. [60] . The inherent jurisdiction of the Supreme Court of New South Wales does not enable that court to set at naught a clear statutory provision. Nor can such a power be derived from s. 23 of the Supreme Court Act 1970 N.S.W. which gives the court "all jurisdiction which may be necessary for the administration of justice in New South Wales". That general statement must yield to the specific provision in s. 541(12).

The power of the court to control an examination sufficiently appears in s. 541. But that power does not permit the court to direct that a question need not be answered if the only objection to the question is that the answer may tend to incriminate the person under examination, even if the direction is qualified in the way par. (a) of the order qualifies what precedes it. After all, one of the bases on which an order for examination may be obtained is that it appears that the person to be examined has been guilty of misconduct in relation to the company; the other is that he may be capable of giving information in regard to its affairs. Subject to the sort of limitations I have indicated, the person may be questioned on any matter relating to the affairs of the company.

As it happens, somewhat paradoxically, questions the answers to which would tend to disclose a defence to pending criminal charges are questions which might well fall within this area of discretion. But it is not on the ground of self-incrimination, as suggested by the order of the Court of Appeal. It is because the disclosure may be unfair to the person being examined; equally, it may have no relevance to the area of inquiry.

In my view the order of the Court of Appeal should be set aside because the limitations imposed on the examination of the respondent are not authorized by s. 541 or otherwise. McLelland J., the primary judge, had refused to order a stay of the examination of the respondent or to restrict the examination to matters not the subject of pending criminal proceedings. In all the circumstances, I am of the opinion that his Honour's decision should stand.