Plaintiff v Defendant

1 The plaintiff in these proceedings is a former partner of the defendant firm. In these proceedings, he seeks to challenge a decision made by the Board of the defendant firm ("the Board") on 7 September 2007 to require the plaintiff to leave the partnership ("the Decision").[1]

2 The plaintiff's claim is for breach of contract, the relevant contract being the Partnership Agreement, a contract which is admitted.[2] In order to succeed in this claim, the plaintiff must establish, the onus being on him, that the making of the decision constituted a breach of the Partnership Agreement and that the breach caused him to suffer the loss and damage claimed.[3]

3 By summons dated 10 July 2014, the plaintiff seeks - in addition to costs and directions for trial, including directions for the making of discovery, the filing of witness statements and mediation - the following substantive orders:

3. The trial of the proceeding be split on the basis that:

(a) in the plaintiff's case:

(i) the plaintiff not be required to lead evidence directed to any issue on which the defendant has the onus of proof, being the issues pleaded in paragraphs 49 to 145 of the Amended Defence;

(ii) unless the plaintiff has led evidence on the issue, there be no cross-examination of the plaintiff or any of his witnesses in relation to any issues pleaded in paragraphs 49 to 145 of the Amended Defence dated 3 October 2013;

(b) unless the plaintiff has led evidence on the issue, the plaintiff may have a case in rebuttal on any issue on which the defendant has the onus of proof, being the issues pleaded in paragraphs 49 to 145 of the Amended Defence;

(c) the plaintiff have leave to file a Further Amended Reply at the conclusion of the defendant's case in relation to any issue on which the defendant has the burden of proof, being the issues pleaded in paragraphs 49 to 145 of the Amended Defence.

1. The plaintiff be excused from compliance with the requirements of Supreme Court (General Civil Procedure) Rules 13.07, 13.10, 13.12 and 29 to the extent that compliance with those Rules may have a tendency to expose the plaintiff directly or indirectly to a civil penalty or a criminal proceeding in respect of the subject matter of this proceeding.

4 The orders sought by the plaintiff to "split" the trial of the proceeding are based on the rule of practice explained by Marks J in Protean (Holdings) Limited v American Home Assurance Co;[4] a case and principle conveniently referred to as Protean Holdings. The defendant, on the other hand, submits that the plaintiff's claim in this proceeding is not appropriate for a Protean Holdings "split". For the reasons which follow, I am of the opinion that this is not the correct view and that the orders sought by the plaintiff in this respect should be granted.

5 In order to assess the appropriateness or otherwise of a Protean Holdings "split" it is first necessary to understand the nature and extent of the plaintiff's claim.

6 It is common ground that the Decision was purportedly made pursuant to clause 16.1 of the Partnership Agreement; a provision which relevantly reads:[5]

Subject to this clause and without limiting the terms of appointment of any Fixed Income Partner, the Board has the power to make a Decision requiring a Partner to leave the Partnership if:

(a)(i) in the opinion of the Board she or he wilfully or persistently acts in a manner contrary to her or his obligations under this agreement or the Partnership Handbook or is guilty of any serious professional misconduct;

(ii) she or he is convicted (unless quashed on appeal) of any criminal offence involving dishonesty or if she or he acts in a manner which has caused, or is likely to cause, serious prejudice to the reputation of the Partnership;

...

7 It is also common ground that the information before the Board at the time of the Decision included a memorandum prepared by David Fagan (the then Chief Executive Partner of the defendant) dated 26 August 2005, together with annexures ("the Fagan Memorandum").[6]

8 The plaintiff alleges in his statement of claim that the Decision was unlawful and in breach of the Partnership Agreement on the following grounds,[7] and seeks damages for being deprived of membership of the defendant firm as a result:[8]

(a) first, the plaintiff alleges that no Board acting in utmost good faith could have reasonably formed the opinion required by clause 16.1(a)(i) and (ii) on the information provided to and considered by the Board in the absence of an explanation by the plaintiff;[9]

(b) secondly, the plaintiff alleges that the powers conferred by clause 16.1(a)(i) and (ii) could only be lawfully relied on by the Board if the plaintiff was first afforded a full opportunity to understand the details of the matters, facts and circumstances relied on by the Board and to state his case and explain his conduct in accordance with alleged requirements of natural justice and procedural fairness which requirements were denied to the plaintiff by the defendant;[10]

(c) thirdly, the plaintiff alleges that the Board was not entitled to rely on the power contained in the second limb of clause 16.1(a)(i) absent a finding of actual guilt of professional misconduct (or its equivalent) by a regulatory authority or a court;[11]

(d) fourthly, the plaintiff alleges that the Board acted for an improper purpose, being the removal of the plaintiff from the partnership prior to the facts, matters, circumstances and things referred to in the Fagan Memorandum becoming public;[12] and

(e) fifthly, the plaintiff alleges that the Board acted with actual bias against the plaintiff and, or alternatively, the circumstances give rise to a reasonable apprehension of bias against the plaintiff in making the Decision.[13]

9 The particulars to each of these claims by the plaintiff refer on numerous occasions to matters contained in the Fagan Memorandum. By way of example, the particulars to the bias claim (also relied on in the bad faith claim) allege that actual or apprehended bias is to be inferred from, inter alia:[14]

(a) the sustained reference in the Fagan Memorandum to the effect that the principal acts, facts, matters, circumstances and things set out in the Fagan Memorandum were proved to a standard necessary to permit the passage of a resolution requiring the plaintiff to leave the partnership when in fact each and every such principal act, fact, matter and circumstance was an unproved and untested allegation only;

(b) partisanship and hostility as evidenced in the totality of the Fagan Memorandum such as to show that Mr Fagan and the Board who voted in favour of the Decision had pre-judged the case against the plaintiff and were not open to persuasion in favour of the plaintiff;

(c) by proceeding on the statements of conclusion, set out in the Fagan Memorandum, to the effect that the plaintiff was guilty of criminal and unlawful conduct and breaches of fiduciary duties owed to the defendant firm when facts necessary to establish such conclusion had not been proved and were asserted as if proved, including:

(i) the statement at paragraph 15(b) of the Fagan Memorandum that the plaintiff received, retained and made use of a confidential document of Victoria Police that had been "leaked" to him i.e. obtained unlawfully;

(ii) the statement at paragraph 15(c) of the Fagan Memorandum that the plaintiff requested Milte to conduct unauthorised searches of Won and knowing that the searches so made were unlawful, nonetheless used the material obtained;

(iii) the statement at paragraph 15(d) of the Fagan Memorandum that the plaintiff was involved with Milte in retaining "rogue" police officers in Victoria and New South Wales and others to intimidate Won so that he would settle with Schmidt;

(iv) the statement at paragraph 15(e) of the Fagan Memorandum that the plaintiff had given Milte the amount of $50,000 of his personal funds on 19 April 2002 in an attempt to prevent Schmidt from raising complaints against the plaintiff and Milte with the police, the media and the firm;

(v) the statement at paragraph 15(f) of the Fagan Memorandum that the plaintiff had failed to record in the firm's transit register 6 cheques which he had received from Schmidt which has exposed the firm to the risk of prosecution;

(vi) the statement at paragraph 15(i) of the Fagan Memorandum that the plaintiff had received an amount of $180,000 from the client in contravention of Rule 8 of the Professional Conduct and Practice Rules then in force; and

(d) the failure of the Board to extend to the plaintiff a further 30 days in which to make responses to the Fagan Memorandum and the other material relied on by the Board in determining to expel the plaintiff.

10 The defendant submits that in pleading his case in this way, the plaintiff has assumed the burden of proving that the acts, facts, matters and circumstances referred to in the Fagan Memorandum were so unsubstantiated or uncertain that no Board acting in good faith could have formed the opinion that the requirements of clause 16.1(a)(i) or (ii) of the Partnership Agreement had been satisfied with respect to the plaintiff. Moreover, the defendant submits that it is inconceivable that the plaintiff could demonstrate that the Decision was in breach of the Partnership Agreement in this way without proving the acts, facts, and circumstances referred to in the Fagan Memorandum were not correct or reliable or were capable of innocent explanation.[15]

11 The plaintiff submits, however, that this is not his case. Rather, the plaintiff says that he pleads, and will seek to prove at trial, that he was denied natural justice and procedural fairness and that the defendant firm acted unlawfully and in breach of the Partnership Agreement, in bad faith, with bias, and for improper purposes, in expelling him.[16] On this basis, the plaintiff pleads repudiation and acceptance of repudiation and, by paragraph 48 of the Statement of Claim, pleads loss and damage.

12 On this basis, the plaintiff says that whilst no final decision has yet been made, he will, in his case, likely call only the plaintiff's then medical advisers (who will give factual evidence of his then psychiatric condition, hospitalisation and inability to assist in his defence) and his then legal advisers (who will give evidence of their inability to obtain instructions). At this point, the plaintiff would not necessarily be called.[17]

13 In any event, the plaintiff stressed that if he did give evidence, it would be confined to evidence necessary to establish his own case. This, it was said, would not require or involve evidence with respect to any of the matters which are sought to justify[18] his expulsion from the firm or the defendant firm's plea of no damage. Otherwise the plaintiff says he will rely upon the:

(b) significant admissions made by the defendant in its Defence, including admissions that the plaintiff's legal advisers requested adjournments (including on the basis of Mr Dale's then psychiatric condition and hospitalisation) and an appropriate time to prepare and put on Mr Dale's defence and which requests were denied;

14 The plaintiff emphasised in oral submissions that his case is a relatively simple and confined case. In essence, he says, it is a claim for damages for repudiation of the Partnership Agreement - namely the expulsion of the plaintiff from the partnership on the basis of the Decision which was a nullity as a result of a denial of natural justice and procedural fairness. Thus it is said it matters not that the plaintiff might, as the defendant says, have appealed the Decision to a meeting of the full partnership of the defendant firm. Why, the plaintiff says rhetorically, should he have appealed a decision which is a nullity - even assuming he was at the relevant time in a physical or mental state which would have enabled him to do so.

15 Before turning to the specific aspects of the application and the party contentions with respect to it, this discussion of the nature of the application is, in my view, helpfully illuminated by the following aspects of the plaintiff's oral reply submissions:[19]

We're seeking a Protean order about the order of evidence in relation to the trial. We're not splitting the trial and all the authorities he referred to about splitting the case we would agree with, if it was the fact that we were in a position where we were caught by our pleadings to be put in a position where you were going to have to embark on the merits of the Fagan Memorandum in the sense of the underlying truth or otherwise of the allegations to prove your damages or something of that nature, but that's not our case.

First of all he said the question ought to be determined at trial. Well the first thing is that this is a managed list, Your Honour will be the trial judge and in that context we say now is the appropriate time and before Your Honour makes the relevant directions that will proceed the matter to trial because how the evidence is to come out will determine the order in which witness statements are to be delivered and so forth.[20]

...

"The older case law indicates that there is no such entitlement absent mala fides".[21] Of course in our case there's an expressed contractual term and there's a couple of older cases. "However in Kerr v Morris [[1987] Ch 90], a case relating to a national health service medical practice, Lord Justice Dillon evidently regarded it as arguable that since a power of expulsion must be exercised in good faith", and in our case an expressed term to that effect, "a partner cannot be expelled unheard".

It may be that there is a right to a hearing where the partnership is set up under or reinforced by a statutory scheme and so forth". Then in His Honour's conclusions at Paragraph 3 [Variety Video [2001] NSWSC 5, [185]] he says, "Each of the defendant's [sic] was guilty on or prior to 27th of serious misconduct which prejudiced the partnership business".[22]

...

We deal with that matter and we say it just leaves the matter as a matter of law, but what it does is it highlights in the pleading the fact that we could obtain a result in this case on that point simply as a matter of construction of the contract. It also highlights arguably indirectly why there's a strong [argument not] to decide anything without hearing from us which is most of the paragraphs in the statement of claim, is a lack of good faith and therefore we would win on that basis.

My learned friend then went on ... by saying that the memorandum starts and he talks about that and he talks about those matters. Then he says well so if I may say so, admitted from my learned friend, saying well we haven't been convicted and they tossed us out you don't have to be convicted of a criminal offence involving dishonesty for the Board. What is necessary is the formation of the opinion.

Well we dispute that but at the end of the day it's not a matter that invokes a review of all of the facts of the case in the sense of the underlying facts that are rehearsed in the memorandum or indeed the other matters.[23]

...

He [Mr Karkar QC] then says effectively if one reads from Line 5 of 42 of our statement of claim, "It is alleged the expulsion decision was unlawful and in breach of the partnership agreement because", and he then cited, "No director acting in the utmost good faith could reasonably", and Your Honour will recall I said or good faith, "could reasonably have formed that opinion on the information provided to and considered by the board in the absence of an explanation by the plaintiff".

They're the key words in all of this. You have to set the stage because each time the Board is doing this they're doing it on the face of what is contained in the Fagan Memorandum and that's not to say of course we've got a tender that, it's admitted in the pleadings that they sent it to us and that was what they acted on.

It would be absurd to suggest that by tendering it as part of our case we're admitting to the underlying facts or matters that give rise to the conclusions and statements. It would be like saying if I may, it would be like saying in a defamation case that when the plaintiff proves publication of the article in the newspaper he's admitting to the truth - because he's put the newspaper article into evidence he's admitting the truth of everything that's stated in it which would then be hardly conducive to his case.[24]

I've never heard of that ever happening and there are clearly cases where people tender documents on a clear and fair basis that is proper based on the structure of the pleadings and it would be patently obvious that the plaintiff would not be tendering the document on the basis that he was accepting or proving the truth - by doing so the truth of all the underlying facts and matters in the statement.

Then he says - and this is where Mr Karkar slides into the fallacy. This is on p 73 at Line 2, "Now what the plaintiff is asserting here is this. Had you given me an opportunity to explain you would not have come to this decision. Now for good or ill", no (sic) what he's saying is you didn't give me the opportunity to explain therefore coming to this decision was unfair. I might say it's a point Your Honour picked up.

Now for good or ill that is his case[25] - that's not his case. What his case is in fact if you read it altogether that they were biased and determined to get rid of him wouldn't have made any difference probably. But the fact is that his case is clearly based on the breach of the obligation to act fairly, what was that breach? They didn't give him an opportunity to be heard and every one of the plaintiff's claims, almost every one of them, is based on that.

The others are that they're biased because they were prepared to accept without hearing from him the basis, the factual basis of the Fagan Memorandum when so much of it is expressed or couched in terms that are conclusionary and prejudicial and so forth and raise very serious matters.[26]

...

16 Emphasising the limited ambit of the plaintiff's case which he seeks to put - and having also emphasised that this proceeding is judge-managed in a Commercial Court managed list where the judge hearing this application is also the trial judge - Mr Wilson QC said:[27]

Well basically that's our case and Your Honour was onto that. We're saying to you if we're required to elect we elect now. That's how we're putting our case. We are not putting it on the basis that we will try to establish that had we given all the explanations the Board would have decided differently which then of course kills the causation argument and I'll come to that in a second.

Mr Karkar says, "Well Your Honour will have to wait until the opening of this case by the plaintiff in order to come to a conclusion". No you don't, I've told Your Honour today and I've told Your Honour the other day when we took Your Honour through the pleading and explained how the case was going to be put.

In my view, there is much to be said for the course proposed by the plaintiff. Having regard to the significance and effect of a Protean Holdings "split" delaying the issue until the commencement of the trial itself is both unnecessary in a judge-managed proceeding of this kind - managed by the same judge who will hear the trial - and does not assist either party in terms of procedural fairness as it means they must prepare for trial not knowing exactly how it will be conducted. Moreover, the approach advocated by the defendant by reference to Downs Irrigation Co-operative Australia Limited v The National Bank of Australasia Limited[28] does not assist in this respect - and if the approach of the Queensland Full Court with respect to rebuttal evidence were applied in the present circumstances, the possibility of a Protean Holdings "split and any advantages in terms of fairness are simply denied. This would be at odds with the approach in Protean Holdings itself and the other authorities in relation to such a "split" which are considered in these reasons.

Particular issues with respect to the application

17 It is against this background that attention is now directed to some particular issues with respect to the application. These arise out of both the party submissions and the pleadings.

18 The defendant responds to the plaintiff's case as pleaded[29] with denials[30] and then pleads further matters;[31] matters which the plaintiff contends are properly characterised as constituting a positive case, in relation to which the defendant bears the onus of proof. The plaintiff seeks to make good this contention by particular reference to parts and aspects of the defendant's pleadings.

19 In this respect, the plaintiff makes reference to paragraph 49 of the Defence where the defendant pleads:

1. Further, the Board's decision to require the plaintiff to leave the Partnership was made in good faith in the best interests of the partnership and in accordance with the power expressly conferred by clause 16.1 of the Partnership Agreement and:

(a) the Board held an opinion that the plaintiff had wilfully or persistently acted in a manner contrary to his obligations under the Partnership Agreement or the Partnership Handbook or was guilty of serious professional misconduct within the meaning of clause 16.1(a)(i) of the Partnership Agreement; and/or

Particulars

The above opinion was bona fide held by each of the Board members based on the materials before them at the time of making the Decision, including the Fagan Memorandum and annexures which made reference to the conduct of the plaintiff alleged in paragraphs 50 to 101 below.

(b) by engaging in the conduct alleged in paragraphs 50 to 144 below, the plaintiff had prior to the making of the Decision acted in a manner which had caused or was likely to cause serious prejudice to the reputation of the Partnership within the meaning of clause 16.1(a)(ii) of the Partnership Agreement.

20 The plaintiff contends that defendant's positive case culminates in paragraph 145 of the Defence in the pleading:

1. Further and alternatively, if (which is denied) the matters alleged in the plaintiff's Statement of Claim are established, by reason of:

(a) the circumstance that the allowing of any further time to the plaintiff would not have resulted in the Board not making a decision to require the plaintiff to leave the Partnership;

(b) ...

(c) the matters alleged in paragraphs 49 to 101 above;

(d) the matters alleged in paragraphs 102 to 119 above; and/or

(e) the matters alleged in paragraphs 120 to 144 above;

the plaintiff:

(i) has not suffered any loss and damage as a result of the Board's Decision to require him to leave the Partnership,

(ii) alternatively, the plaintiff has not suffered any loss and damage as a result of the Board's Decision to require him to leave the Partnership on 8 October 2005; and/or

(iii) further and alternatively, the plaintiff's claimed loss and damage should be wholly or substantially reduced to reflect the circumstance that the plaintiff would have been required to leave the Partnership in any event by subsequent decision of the Board after 7 September 2005.

21 Thus, it is said, the defendant, by paragraph 49 of the Defence, runs a positive case by which it seeks to justify the expulsion and then, by paragraph 145, relies upon the same positive case on the question of loss and damage even if the plaintiff establishes his case. Emphasising this point, the plaintiff says that the defendant, in support of its positive case of 97 paragraphs running to some 45 pages, provides 53 additional pages of what it describes as confidential particulars of the plaintiff's alleged wrongdoing. Continuing, the plaintiff observes that even the paragraphs in the Defence which deal with matters referred to in the Fagan Memorandum are greatly expanded upon, and paragraphs 102 to 150 plead matters not alleged in the Fagan Memorandum and not forming part of the expulsion record.[32] Thus the plaintiff contends, on any view, the Defendant has pleaded a positive case of serious professional misconduct and serious criminal conduct on which it has the onus of proof, including conduct which was not part of the expulsion record.

22 In support of his contention, the plaintiff submits:[33]

1. In substance, the defendant seeks, in this proceeding, to conduct a roving commission into the conduct of the plaintiff from as early as 1998 (which is 2 years prior to the establishment of the partnership from which he was expelled in 2005) and 7 years prior to the expulsion decision itself (which was made on 7 September 2005).
2. All of this conduct (that is, all of the conduct pleaded in paragraphs 49 to 101, 102 to 119 and 120 to 144) is said to:

(a) be in breach of the "terms, duties and obligations referred to in paragraph 3B" (see paragraphs 50, 101, 103, 110, 141, 142); and/or

(b) to constitute serious professional misconduct (see paragraphs 49(a), 102(a), 120(a)).

1. Paragraph 3B itself extends to 3½ pages and the defendant by reference to paragraph 3B alleges:

(a) breaches of the Partnership Acts of Victoria, NSW and the ACT;

(b) breaches of the relevant Legal Practice Acts of Victoria, NSW and the ACT and breaches of the Professional Conduct and Practice Rules of Victoria, NSW and the ACT;[34]

(c) breaches of the paramount duty of candour to the Court;

(d) dishonesty;

(e) intimidation;

(f) the making of false statements;

(g) acting without instructions; and

(h) borrowing monies from clients.

23 In concluding this aspect of his submissions, the plaintiff contends that there can be no doubt that:

(a) the defendant has the onus of proof on all of these allegations (yet what conduct is said to engage what terms, duties and obligations is entirely unexplained. The pleading is entirely embarrassing and uncross referenced in that regard); and

(b) many of the allegations made by the defendant also amount to serious criminal conduct including allegations of threat making to effect a settlement (in effect, blackmail, extortion and/or demanding money with menaces), false accounting and obtaining confidential immigration information and confidential police information through unlawful or improper means.

24 The defendant, on the other hand, in opposition to the plaintiff's application contends that the plaintiff has, as a result of the manner in which he has pleaded his case, assumed the obligation of proving the acts, facts, matters and circumstances referred to in the Fagan Memorandum were so unsubstantiated or uncertain that no Board acting in good faith could have formed the opinion that the requirements in clause 16.1(a)(i) or (ii) of the Partnership Agreement had been satisfied with respect to the claimant. In seeking to emphasise this position, the defendant submits that:[35]

1. ... It is inconceivable that the plaintiff could demonstrate that the Decision was in breach of the Partnership Agreement in this way without proving that the acts, facts, matters and circumstances referred to in the Fagan Memorandum were not correct or not reliable or were capable of innocent explanation. It remains to be seen how the plaintiff will seek to make good his pleaded case at trial in circumstances where the plaintiff challenges statements of fact in the Fagan Memorandum which were plainly supported by contemporaneous documents annexed thereto. For present purposes, it is sufficient to note that the plaintiff has thus voluntarily assumed the burden of proving this case at trial.

25 More particularly, the Defendant's submissions continue:[36]

1. The relevant allegations in the defendant's Defence which are the subject of the plaintiff's application are contained in paragraph 49 to 145.[37] The plaintiff mischaracterises those allegations in his submissions at [21] as amounting to a "roving commission into the conduct of the plaintiff". The allegations relate to specific and clearly identified conduct engaged in by the plaintiff concerning the defendant firm prior to the making of the Decision. The relevant paragraphs identify the salient matters referred to in the Fagan Memorandum. The defendant has exhibited a copy of the Fagan Memorandum to illustrate this point.[38] If the plaintiff wishes to establish his pleaded case, he will need to give evidence attempting to challenge the bona fides of what is alleged in paragraphs 50 to 101 of the defendant's Defence. If this amounts to "a roving commission" (which is rejected), it is of the plaintiff's own making because he has so framed his case to attract an enquiry into his conduct.
2. Further, to prove his claimed loss and damage, the plaintiff must prove - in his case - that the Board would not have decided to expel him had he been afforded the alleged procedural fairness and natural justice (i.e., a further 30 days in which to make responses to the Fagan Memorandum). For that purpose, if the plaintiff wishes to establish his claim for damages, he must again come forward and seek to challenge the bona fides of what is alleged in paragraphs 50 to 145 of the Defence.

26 For the reasons which follow, I am of the view that the defendant mischaracterises the plaintiff's case. As indicated in the submissions of the plaintiff to which reference has been made and as emphasised in the plaintiff's oral reply submissions, his case is much narrower. It is a case founded on a denial of natural justice, a denial of procedural fairness. The plaintiff's pleadings - in claim and reply - are, in my view, entirely consistent with this position. Moreover, in oral reply submissions - many of the relevant parts of which are set out above - Mr Wilson QC expressly stated the limitations of the plaintiff's case and committed the plaintiff to a case in these terms - as, in effect, by way of a statement of case definition in the plaintiff's opening. As observed previously, this is particularly significant as it is a statement made to the trial judge, the judge hearing the present application in what are judge-managed proceedings.

27 At this point, it is appropriate to make reference to the, so called, rule in Shepherd v Felt and Textiles of Australia Ltd,[39] upon which it appears the defendant will seek to place some reliance. At this point, it is sufficient to treat Shepherd's case, a case concerned with a contract of agency, as authority for the primary proposition as stated in the headnote that: "The termination of an agreement may be justified by proof of circumstances existing prior to such determination but of which the party terminating the agreement was unaware until subsequently thereto". What might be described as the Shepherd's case approach on the part of the defendant is addressed in the plaintiff's reply. In terms of the ambit of his case, the die is really cast by the first paragraph of that pleading, in the following terms:[40]

1. In answer to paragraphs 49 to 144 and 145 of the Amended Defence, the Plaintiff says that the Defendant may not, as a matter of law, rely on any facts, matters or circumstances that were not before the Board when the Expulsion Decision was made for the reason that the rule, so-called, in Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 has no application in a partnership because:

(a) there is, and was, no basis in law upon which the Defendant was entitled to expel or remove the Plaintiff from the firm other than through, and in strict accordance with, a proper and bona fide exercise, by the Board, of the expulsion procedure set out in clause 16.1 the Partnership Agreement: see s 30 of the Partnership Act 1963 (ACT);

(b) further or alternatively, clause 16.1 of the Partnership Agreement is part of an exclusive code dealing with the removal of a partner for cause or otherwise, thus otherwise precluding any application of the rule, so-called, in Shepherd v Felt and Textiles of Australia Ltd;

(c) further or alternatively, clause 16.1 of the Partnership Agreement required a third party, being the Board, to form an "opinion" of the requisite matters there stated such as to preclude any removal or expulsion of the Plaintiff absent a proper and bona fide determination of such an opinion by a Board in accordance with clause 16.1.

28 The question whether the, so called, rule in Shepherd's case is applicable in the present circumstances is, of course, a matter for trial. Nevertheless, it is relevant with respect to the present application to observe that the plaintiff's pleaded response to any reliance upon Shepherd's case by the defendant is a responsive pleading. Moreover, it is a pleading which does not join issue with matters alleged by the defendant as to the actual conduct - the facts, matters and circumstances - alleged by the defendant against the plaintiff which would provide a basis, as it is contended, for the application of the, so called, rule. Consequently, the plaintiff's response in this respect does not, in my view, have the effect of expanding the plaintiff's case beyond that as already pleaded and reaffirmed in submissions. The other matters pleaded in reply are also consistent with this position.

Principles applicable to a Protean Holdings "split"

29 Protean Holdings[41] was a case where the insured sued its insurer for indemnity under a fire policy for fire damage to an abattoir which it owned. Defences were raised by the insurer, including an allegation that the insured had lit or connived in the lighting of the fire. The rulings of Marks J in that case - rulings which were embraced rather than doubted in any way by the Full Court - are presently of significant importance and are relied upon by the plaintiff.

30 Having regard to the nature of the present proceeding and the nature of the allegations made by and against the plaintiff, it is, I think, helpful and desirable to direct close attention to and to set out substantial parts of the ruling of Marks J on what might be called the Protean Holdings "split". In so doing, I preface this exercise by observing the emphasis which Marks J gave to the general rule of practice which prevents a plaintiff from splitting or dividing his or her case. Thus, it is clear that it is only in certain circumstances that a court is likely to exercise its discretion to order a Protean Holdings "split". It is to those that I now turn, aided by the ruling of Marks J, particularly as follows:[42]

I am asked to rule on submissions as to the order in which evidence may be presented in this action.

The plaintiffs' claim is pursuant to a policy of indemnity insurance against fire. The pleadings reveal that there is no issue about the existence of the policy or fire damage to the subject premises during its currency. However, the plaintiffs have been put to proof of the terms of the policy and by a foreshadowed amendment to the defence, to proof perhaps of an insurable interest and privity of contract.

It is conceded on behalf of the plaintiffs that they have the burden of proof in relation to all those matters.

By its defence, however, the defendant alleges a right to avoid the policy; that the plaintiffs lit the fire themselves or caused or connived at it being lit; made misrepresentations of material facts; were guilty of fraud and non-disclosure of material facts. In relation to all these latter allegations Mr O'Callaghan Q.C. for the defendant conceded that the defendant has the burden of proof.

Mr Chernov Q.C. for the plaintiffs submitted that he should not be required to lead evidence directed to the issues on which the defendant has the onus of proof, but be permitted to call rebutting evidence after the defendant has called its evidence on those issues. Mr O'Callaghan opposes this course. He submitted that the plaintiffs should begin and call the whole of their evidence before the defendant is called upon.

Mr Chernov conceded that he must begin in relation to those issues on which the plaintiffs have the burden of proof.

There is clearly, I think, a rule of practice which was succinctly stated by Stawell CJ delivering the judgment of this Full Court in Wharton v. Tuohy (1862) 1 W. & W. (L.) 217, at p. 219: "No rule of practice is better known than that prohibiting a plaintiff from dividing his case; on the other hand, a plaintiff is clearly entitled to reserve for the purpose of rebutting new matter, evidence which, if he, the plaintiff, were disposed, he might give in the first instance by way of anticipation. The correctness of rejecting or receiving the evidence in question depends, therefore, upon whether that evidence, if received, would or would not, have formed a rebutting case, properly speaking."

The rule was also stated by Pollock C.B. in Shaw v. Beck [1853] EngR 105; (1853) 8 Exch. 392, at p. 398; [1853] EngR 105; 155 E.R. 1401, at p. 1403, as follows: "Where there are several issues, some of which are upon the plaintiff and some upon the defendant, the plaintiff may begin by proving those only which are upon him leaving it to the defendant to give evidence in support of those issues upon which he intends to rely; and the plaintiff may then rebut the facts which the defendant has adduced in support of his defence."

There was, I think, recognition of such a principle in the ruling of Lowe J. in Portelli v. Port Waratah Stevedoring Co. Pty. Ltd. [1959] VicRp 31; [1959] V.R. 195, although his Honour in that case did not accede to the application. The rule, however, was acted upon and reasserted by McInerney J. in Re Hardiman, deceased [1967] VicRp 63; [1967] V.R. 577, at p 580. It was discussed at length by the Court of Appeal in Beevis v. Dawson [1957] 1 Q.B. 195 which was followed by the Supreme Court of Canada, comprising a bench of five Judges, in Jerome v. Anderson (1964) 44 D.L.R. (2d) 516, at pp. 526 et seq. But there is high authority for the rule as early as 1825 when Lord Abbott C.J. in Browne v. Murray (1825) Ry. & Mood. 254; 171 E.R. 1012, said: "In actions of this nature, the plaintiff may, if he thinks fit, content himself with proof of the libel, and leave it to the defendant to make out his justification, and then the plaintiff may, in reply, rebut the evidence produced by the defendant." However, Lord Abbott went on to say as do many, if not all, subsequent authorities, that the plaintiff cannot split his case, so that once he enters upon evidence in relation to an issue he cannot seek to call further evidence after the defendant to supplement it.

In Beevis v. Dawson, at ([1957] 1 Q.B.) p. 204 Singleton L.J. said: "The authorities seem to me to show that the practice is based on general convenience. It must depend, of course, upon the issues which are raised; obviously it must depend upon the pleadings in the case in which the issues are set out." He added: "In most cases there are other pleas, and the question arises as to what is the most convenient way of dealing with the matter in the interests of justice, in the interests of the parties, and from the point of view of the court. Those interests are really all the same. If, after hearing submissions, the Judge decides that one course is preferable to another, his decision should in general be treated as final."

At p. 215 Jenkins L.J. said: "For my part, I do not think the principle which is stated in the case of Browne v. Murray, to which my Lord has referred, really amounts to a rule of law, or a right to which the plaintiff may invariably lay claim as a matter of law."

His Lordship added: "I think that the principle there stated may well reflect a practice which in appropriate circumstances it is right to follow, but is subject to the overriding discretion of the court to give such directions as to the order in which the onus of proof is to be dealt with and in which witnesses are to be called as the court may find just and convenient in the circumstances of the particular case."

Jenkins L.J. said he thought that his view was supported by the observations of Parke B. in Shaw v. Beck [1853] EngR 105; (1853) 8 Exch. 392, at p. 398.

I consider that they were, and that what Singleton L.J. said in the passage to which I have referred, is also consisted with the existence of a discretion.

Accordingly, I am minded for the purposes here; to consider that there is left in the Court a discretion in the matter. All authorities refer to the rule being one of practice and not law, and that is consistent with an exercise of discretion being involved in a ruling as to the order of presentation of evidence. But it ought I think, to take place against the background of the practice.

In the exercise of my discretion in this case, I place some importance on what was said in McLaren & Sons v Davis (1890) 6 T.L.R. 372 by Cave J. as a member of a bench of three Judges in the Queen's Bench Division, at p. 373: "It was never convenient to prove a negative. When the defendant had set up something affirmative then was the time to dispose of it. The learned Baron [a reference to Huddleston B. who sat with the jury at first instance] had exercised an erroneous discretion in refusing to allow the rebutting evidence".

Further, in Jerome v. Anderson (1964) 44 D.L.R. (2d) 516, Cartwright J. at p. 531, observed: "In view of the nature of the particulars of the plea of justification delivered in this action, it would, I think, have been highly inconvenient to call upon the plaintiff to prove the negative of that issue before having heard the evidence offered by the defendants in support of it."

In each case, emphasis was laid on the burden which the plaintiff is likely to have of proving a negative if he is to go first in relation to issues on which the defendant has the burden of proof.

In the exercise of a discretion, I think it is proper to take into account the extent to which this so-called proof of a negative would be placed on a plaintiff. This aspect in this case, I think, is highly pertinent and of considerable weight.

Here it would be not only inconvenient but quite unfair and contrary to the interests of justice if the plaintiffs are called upon to adduce all their evidence in disproof of a case with respect to which they have heard no evidence.

I am further persuaded in favour of the plaintiffs, by the circumstance that there appears at this time very little difficulty in separating out the issues with respect to which the plaintiffs have the burden of proof, and permitting them to lead the whole of their evidence in relation to them without embarking on evidence to counter anticipated evidence of the defendant.

Accordingly, I rule as follows: The plaintiffs may choose not to call evidence in relation to any issue on which the defendant has the burden of proof until after the defendant has closed its case on it.

The plaintiffs must begin in respect to the issues on which it has the burden of proof. However, the plaintiffs cannot split their case on any issue. Once embarked on evidence in relation to an issue, they must call all the evidence on which they wish to rely in relation thereto.

This means that if they call any evidence before the defendant, which is directed solely at an issue on which the defendant has the burden of proof, they will not, without good reason, be permitted to call further evidence after the defendant's evidence in relation to that issue.

31 The issue whether a Protean Holdings "split" was appropriate and permissible also arose more recently before the Court of Appeal in Wong v Carter.[44] This appeal arose out of Magistrates' Court proceedings with respect to the ownership of a motor vehicle. This is, of course, to state the issue rather generally because the unusual circumstances involved were the basis upon which the question whether such a "split" should be ordered arose. In any event, these issues are summarised and Protean Holdings endorsed and explained as to its possible application in the judgment of Chernov JA (with whom Winneke P and Tadgell JA agreed):[45]

1. I turn to consider ground 1. As I understand it, it was contended that the Magistrate should have permitted the appellant to "split" the case; that is to say, allow the appellant to defer calling evidence on the question whether he used the name John D. Young as an alias in connection with the registration of the vehicle until after the respondents had led their evidence on this issue.
2. Ms Lieder argued that the respondents' contention that the appellant used the name John D. Young as an alias amounted to an allegation of deceit or fraud on the part of the appellant, particularly since their principal case was that, at least at the outset, John D. Young did not exist and that therefore the appellant was using a fictitious name for registration purposes.
3. Consequently, it was argued, the respondents bore the onus of proof on this issue and should have been required to lead their evidence in relation to it with the appellant being entitled to lead rebutting evidence. It was submitted, in effect, that the appellant's position on this issue was similar to that of the insured in Protean (Holdings) Ltd (Receivers and Managers appointed) v. American Home Assurance Co [1985] VicRp 18; [1985] V.R. 187.
4. Moreover, it was said that her Honour erred in holding that the Magistrate's decision to refuse the appellant the right so to split its case was a discretionary decision on a matter of practice and procedure. Ms Lieder claimed that the decision determined what she called substantive rights and therefore the usual rule that appellate courts exercise particular caution in reviewing discretionary decisions relating to practice and procedure did not apply.
5. Turning first to the last matter mentioned, it is clear that a decision of a trial judge on the question of whether the plaintiff can defer the calling of its evidence on an issue until after the defendant has presented its evidence on it, and thereby split its case, is a discretionary decision on a matter of practice and procedure and not one which deals with substantive rights; Protean at 191; Re Hardiman dec'd [1967] VicRp 63; [1967] V.R. 577 at 580; and Beevis v. Dawson [1957] 1 Q.B. 195 at 204 per Singleton, L.J. and at 215 per Jenkins, L.J. Moreover, other than in exceptional circumstances, the judge's decision on the matter is final; Beevis v. Dawson at 204 per Singleton, L.J.. In this case, no such exceptional circumstances have been made out and there is, therefore, no basis for interfering with the decision of the Magistrate.
6. In my view, there was, in any event, no scope in this case for permitting the appellant to defer calling further evidence on the ownership issue until after the respondents' evidence on it was concluded. A party in the position of the appellant might be permitted relevantly to divide its case in relation to an issue in respect of which the other party carries the legal onus of proof. Thus, in Protean the defendant insurer carried the legal onus of establishing fraud on the part of the insured. Similarly, in Re Hardiman dec'd the caveator carried the onus of establishing lack of testamentary capacity. In a defamation case where justification is set up as a defence, it is for the defendant to make out his plea of justification before the plaintiff is called upon to give evidence in rebuttal of that plea; Beevis at 204 per Singleton, L.J. and 215 per Jenkins, L.J.[46]
7. In those circumstances, there is a proper basis on which the court can consider whether it would be appropriate to permit the plaintiff to lead evidence on the relevant issue by way of rebuttal. No such circumstances, however, arise in this case if for no other reason than that the issue whether the appellant had acted fraudulently was not before the court. Fraud was not pleaded, as I have said, or otherwise alleged by the respondents, and the Magistrate did not find fraud on the part of the appellant.
8. The appellant alleged trespass and, in the circumstances of this case, he carried the legal onus of establishing that he was not the owner of the vehicle at all relevant times. It was for the appellant to call evidence to make good that claim.
9. As part of their defence, the respondents alleged that the vehicle was owned by the appellant and the name of John D. Young was used as an alias. In my view, that is not an allegation of fraud. It is clear that the Magistrate found as a fact that the appellant acquired ownership of the vehicle in the first half of 1985 and, as I have said earlier, this finding has nothing to do with fraud.
10. Ms Lieder agreed (properly, I think) that unless the respondents' case could be characterised as raising an allegation of fraud against the appellant, the question of whether the appellant can split his case cannot arise. Since, in my view, the respondents' case did not raise the issue of fraudulent conduct on the part of appellant, there was no basis on which the appellant could have properly sought to have deferred calling evidence on the issue of ownership of the vehicle.
11. Another reason why such a division of the appellant's case would not be permissible is that the application to split the case was made after the appellant had led some evidence on the issue of ownership of the vehicle. In those circumstances it could not properly seek to call the balance of its evidence after the respondents had led their evidence on that matter; Re Hardiman at 580. Thus, in my view, her Honour made no reviewable error in relation to this issue and therefore ground 1 must fail.

32 The final point made in the passages set out from the ruling of Marks J and the judgment of Chernov JA in Protean Holdings[47] and Wong,[48] respectively, is that, critically, if the plaintiff embarks on evidence in relation to which it bears the burden of proof, it must call all evidence on that issue. Moreover, if the plaintiff calls any evidence prior to the defendant in relation to an issue upon which the defendant bears the burden of proof - absent good reason - the plaintiff will not be permitted to split its case by calling further evidence on that issue after the defendant's evidence thereon. Apart from sounding a helpful warning to parties in the arena of a Protean Holdings "split", these statements do highlight a potential problem which, in particular circumstances, may negate the possibility of such a "split". This is, of course, a reference to circumstances where the issues upon which the plaintiff and the defendant bear the onus of proof are so intertwined that it is not possible to disentangle them to avoid, on the plaintiff's part, entering into the matters upon which the defendant bears the burden of proof. Thus, in considering the issue of a Protean Holdings "split" in the present proceedings, the question whether there is fatal "entanglement" of the plaintiff's and defendant's cases is critical. It is to this question in the context of considering the possible application of these authorities in the present circumstance to which attention is now directed.

Application of the Protean Holdings principles

33 As discussed previously, the plaintiff contends that his case - hence the extent of the burden he bears - is quite limited. In this context, the plaintiff submits that there can be no doubt in this case that the defendant -

(a) alleges serious professional misconduct and serious criminal conduct. Its Submission dated 19 September 2013 makes that clear, and it is clear enough from the Defence; and

In these circumstances, it is contended that there is a proper basis on which the court can consider whether it would be appropriate to permit the plaintiff to lead evidence on the relevant issue by way of rebuttal.

34 In support of his contention that a Protean Holdings "split" should be ordered in the present circumstances, the plaintiff makes reference to the relatively recent case of Hodgson v Amcor Ltd; Amcor Ltd v Barnes.[49] The plaintiff draws attention to submissions in favour of such a course accepted by Vickery J in that case, submissions which the plaintiff says are entirely apt in this case:[50]

1. Finally, (and alternatively) it was submitted that there should be a Protean Holdings split between Mr Hodgson's claim and the Amcor claims. Mr Hodgson's case is essentially a simple money claim, he can lead evidence and be cross-examined on those matters.
2. In support of this contention, it was submitted that the Amcor counterclaim is complex and factually dense. It makes serious allegations in the nature of fraud against Mr Hodgson. The Amcor parties should bear the onus of proof of those matters and lead evidence first on those issues. To the extent that there is some overlap with Amcor's defence, these matters should also be included. This is not only fair to Mr Hodgson (so that he is not required to respond to allegations in advance) but logical insofar as Amcor has knowledge of its case and can present it first. It was submitted that it would be inconvenient, unfair, and contrary to the interests of justice if Mr Hodgson were required to disprove the Amcor parties' case and to be cross-examined, in advance of the Amcor parties showing by evidence what their case actually is.

35 The plaintiff submits that the applicability of the approach adopted by Vickery J in Hodgson v Amcor Ltd to this case is clear, for the following reasons:[51]

(a) the plaintiff pleads a relatively simple claim;

(b) the defendant's positive Defence is, on any view, complex and factually dense;

(c) the defendant bears the onus of proof and should lead evidence first on those issues;

(d) this is not only fair to the plaintiff (so that he is not required to respond to allegations in advance) but logical insofar as the defendant has knowledge of its case and can present it first;

(e) it would be inconvenient, unfair, and contrary to the interests of justice if the plaintiff were required to disprove the defendant's case and to be cross-examined, in advance of the defendant showing by evidence what their case actually is; and

(f) the plaintiff should not be required to prove a negative in his case or to be subjected to cross-examination on the defendant's positive case before it has been opened and before the defendant has called its evidence in support of its case.

Moreover, the plaintiff submits that not only is he being asked to prove a negative - but a hypothetical negative because by paragraph 145 the defendant pleads that the plaintiff "would have been required to leave the Partnership in any event by subsequent decision of the Board after 7 September 2005" [plaintiff's emphasis].

36 Thus, the plaintiff submits that the case must be the subject of a Protean Holdings "split" and that he must be permitted a case in rebuttal to the matters raised in the defendant's case. Moreover, it is submitted that the plaintiff should not be required to prove a negative in his case or to be subjected to cross-examination on the defendant's positive case before it has been opened and before the defendant has called evidence in support of its case. The plaintiff submits that the defendant really opposes this application because it wishes to strip away his right to put the defendant to its proof and his right to make an election at the conclusion of the defendant's case. It is submitted that this is not fair in the context of a proceeding of this kind where the plaintiff is accused of serious professional misconduct and serious criminal conduct. The defendant should not, it is contended, be entitled to seek to prove its case through cross-examination without having opened its case and called its evidence in support of its case.

37 The plaintiff did put his request for a Protean Holdings "split" to the defendant. That request was, however, denied in a letter of 3 June 2014 from the defendant's solicitors.[52] It is said in this letter that:

Unlike the Protean case, the matters in our client's Amended Defence which you suggest could be "split" are not clearly distinguishable from the matters pleaded by the plaintiff. The matters raised by paragraphs 50 to 144 of our client's Amended Defence largely occurred during the same period of time as, and are factually intertwined with, those matters which were before the Board of our client at the time of its decision in respect of your client. It would obviously be undesirable for witnesses to give evidence twice (in separate stages) about factually intertwined matters. To do so would add to the complexity and length of the trial and, in our view, would be unworkable.

38 The plaintiff submits that there is no basis for such an assertion. The matters raised by paragraphs 101 to 144 of the Defence are, it is said, not factually intertwined and the plaintiff misconceives the plaintiff's case, which is a process complaint not a merits review. In this respect, the plaintiff reaffirms that he will not be seeking to demonstrate what his defence would have been had he been provided with the natural justice and procedural fairness he was denied. Moreover, the plaintiff says that the only witness who might conceivably give evidence twice is the plaintiff himself, and his evidence in his case will not deal with the defendant's positive case if a Protean Holdings "split" is ordered. It would follow, it is said, that the defendant's witnesses would give evidence only once. In any event, it is submitted that the fact that one (or even some) witnesses might be required to give evidence twice is a consequence of an order providing for a case in reply, not a reason to deny it. Moreover, it is submitted that there is nothing unworkable about such a proposal and in any event the test is how are the interests of justice best served. In this respect, reference is made to French v Triple M Melbourne Pty Limited Ruling (No 2) where J. Forrest J relevantly said:[53]

I think that the relevant principles can be distilled as follows:

(a) in normal circumstances a plaintiff will not be permitted to split his or her case;

(b) however in some cases particularly where the burden of proof shifts to the defendant a court will entertain the splitting of the case to enable the plaintiff to rebut evidence led on a particular issue by the defendant. This is a rule of practice, not one of substantive law;

(c) the paramount question is how are the interests of justice best served. This discretionary consideration includes taking into account the interests of the parties and also the orderly presentation of evidence before the jury. Two relevant considerations as disclosed by the authorities in relation to the exercise of the discretion are -

(i) the inconvenience to a party in proving a negative;

(ii) where a plea of justification in a libel action is raised a plaintiff will not have had the opportunity to hear the evidence said to justify the alleged defamatory matter. In those circumstances a court may permit the splitting of the case. Indeed, the earlier authorities indicate that in such cases this was the norm rather than the exception.

39 The defendant, on the other hand, contends that "this case does not begin to resemble Protean Holdings or any of the cases that have applied the rule of practice referred to by Marks J".[54] Further, in support of this position, the defendant contends that in those cases, a discrete naked issue was raised by the defendant upon which it had the onus of proof and in respect of which the plaintiff was not required to lead evidence in its case. In Protean Holdings, it was a defence that the insured lit the fire in an action upon an admitted policy of insurance. In French v Triple M Melbourne Pty Ltd Ruling (No 2),[55] it was a defence of justification in an action for defamation, and a "split" was ordered in respect of certain expert evidence (and not the plaintiff's evidence). In Hodgson v Amcor Ltd,[56] the plaintiff's claim was "a simple money claim" which was met by a counterclaim which was "complex and factually dense ... [making] serious allegations in the nature of fraud"[57] and which were quite unrelated to the simple money claim. Nevertheless, it is clear from the judgment of Vickery J that his Honour was approaching the question of the manner in which claims should be dealt with in light of and on the basis of the approach in Protean Holdings.[58] Indeed, it appears to be recognised in the defendant's oral submissions that what was ordered was a Protean Holdings "split" and not some splitting of the plaintiff's case on some other basis. Thus, Mr Karkar QC said:[59]

And that is what His Honour did. That wasn't the split case. That was simply saying the quantum of the claim will be determined separately and on the counterclaim, because the counterclaimants are the plaintiffs, they should start first and Your Honour will see this from His Honour's orders.

40 Reference has already been made to these cases in the course of discussing the plaintiff's submissions. In my view, they would not assist the defendant's position unless the plaintiff's case were not discrete and separable, contrary to the position which the plaintiff asserts. Moreover, the fact that the "split" ordered in French was not with respect to the evidence of the plaintiff in that case does not affect the generality of the principles to be applied with respect to a Protean Holdings "split".

41 The generality of these principles is made clear in both the passage from the ruling of J. Forrest J which is set out above[60] and also from the following passages in the same ruling:[61]

1. The defendants propose to call two witnesses, a Dr Trout and a Ms Lucca, to give evidence as to the presence of equine growth hormone, and as to the lack of the likelihood or prospect of cross contamination having occurred.
2. The plaintiff proposes to call three witnesses, a Dr Atchison, Professor Boettcher and a Dr Gerastamoulos, who contend there is a real prospect of crosscontamination in the circumstances of the finding of the materials and their analysis.
3. The plaintiff now seeks to split his case in relation to the calling of expert evidence. He contends that given that the burden of proof rests on the defendants on this issue, and that it will be up to the defendants to establish the factual matrix underlying the analysis, he should be permitted to call his three experts in reply to the defendants' case.
4. The defendants contend that this will inevitably distract the jury and the trial will lack coherence in presentation.

1. Applying the principles I have set out, I think the following can be said in favour of not splitting the plaintiff's case:

(a) this is a jury trial, and any lack of coherence in the presentation of the case should be avoided;

(b) unlike Protean, each side, by reason of the delivery of Order 44 reports, knows what the other experts contend;

(c) there is no realistic prospect of the plaintiff being able to put a no case submission as was entertained in Protean; and

(d) the plaintiff's defamatory imputations are not confined to that of drug-taking and the analysis which underpins the plea of justification.

1. However, against those matters I must consider the following matters:

(a) even allowing for the exchange of Order 44 reports, the plaintiff is required to prove a negative, that is, the prospect of cross contamination or unsatisfactory analysis by calling his witnesses first;

(b) the factual substratum upon which the experts rely to one extent or another comes at least in part from Dr Trout. The plaintiff's expert witnesses, if giving evidence first, will be giving evidence at least to some degree in a factual vacuum with the risks that the facts relied upon by these experts may or may not be the facts proved at trial. This, in my view, is highly undesirable;

(c) the orderly presentation of the trial will not be overly disrupted. The jury can be instructed as to why this process is being adopted, and only the expert witnesses on this issue will be called in reply;

(d) it is not sought to divide the evidence given by the plaintiff himself which has, at times in the past, been permitted where a plea of justification is raised. In this case, there is a body of expert evidence which goes to rebut a specific part of the defendants' plea of justification;

(e) there is a risk of injustice to the plaintiff if I do not permit this application. It is, as I have said, for the defendants to establish the substratum of fact upon which the expert opinions are based. This can then be challenged by the plaintiff either in cross-examination or by calling witnesses as he proposes to do;

(f) there will be no real lack of coherence in the presentation of the case before the jury as the witnesses will give evidence effectively in a group on one discrete issue.

Thus the critical factors and considerations with respect to a Protean Holdings "split" are not confined as the defendant contends and so the factors and considerations enunciated by J. Forrest J are applicable in the present proceedings with respect to the plaintiff's application.

42 The defendant contends that the plaintiff's submission that his case is a "process complaint" and "... is not a merits application and he does not seek merits review",[62] is not correct having regard to the way the plaintiff's case has been pleaded. Moreover, the defendant contends that the plaintiff's case is not "a relatively simple claim", as asserted by the plaintiff.[63] Rather, the defendant submits that the plaintiff's claim, as pleaded, gives rise to a magnitude of factual and legal propositions, and that the relevant allegations in the Defence do no more than meet that case in the manner required by r 13.07(1)(b) and 13.12(3).

43 In my opinion, the defendant's assessment of the nature and extent of the plaintiff's case is not correct. In my view, on the basis of the plaintiff's pleadings, both by way of claim and reply, and the way in which the plaintiff's case has been stated and constrained by its senior counsel, in submissions before the judge who will hear the trial, the plaintiff's case is constrained as he contends. In my view, this is clear from the preceding discussion of the ambit of the plaintiff's case in the context of consideration of the plaintiff's submissions. Moreover, were this not abundantly clear, it is, in my view, made clear by the statements of his senior counsel with respect to the nature and ambit of his case, statements and assurances to, in effect, the trial judge by way of opening; matters from which it would not be possible to resile except in unusual circumstances.

44 A further issue raised by the defendant is an evidentiary one, with particular reference to the Fagan Memorandum. In this respect, reference is made to the judgment of Muir JA in Robert Bax v Cavenham Pty Ltd,[64] in which reference was made to Jones v Sutherland Shire Council.[65] The particular aspect of the judgment of Muir JA which is relied upon is the reference to McCormick, Law of Evidence (1954) in the judgment of Samuels JA in Jones v Sutherland Shire Council.[66] The reference does, however, need to be viewed in the context of both the judgment of Samuels JA and that of Muir JA:[67]

[35] In Jones v Sutherland Shire Council,[68] a question arose as to the use which could be made of admissions contained in a letter sent from the appellant's predecessor in title to the respondent Council. The letters were admitted into evidence without objection and it was held that the fact that they were hearsay was relevant only to the question of the weight they were to be given.

[36] After referring to the above passage from the reasons of Gibbs J in Hughes, Samuels JA articulated the following principles in relation to the use which may be made of hearsay evidence admitted without objection:[69]

In my opinion, the general principle which emerges from the authorities (leaving aside the question of statements which are both admissions and self serving) is this. If evidence, admitted without objection, is legally admissible in proof of some issue in the case, its evidentiary use should be confined to that purpose. The testatrix's statements in Hughes' case provide an example. If, on the other hand, evidence, admitted without objection, is not legally admissible in proof of any issue, it may, once in, be used 'as proof to the extent of whatever rational persuasive power it may have'. Suppose a hearsay document is tendered. It is not legally admissible to prove the truth of the assertions it contains, which are, however, relevant to an issue in the case. It might none the less be legally admissible as original evidence of the making of those assertions. But suppose further that there is in fact no issue to which, as original evidence, the document is relevant. No objection is taken to the tender, and the document is admitted. It is then evidence in proof of the issue to which it is relevant, the want of objection having waived the complaint, which would have been fatal, that, being hearsay, it was legally inadmissible.

It is now necessary to go back and consider the purpose for which the letters in question might have been tendered. They would have been admissible as original evidence had there been any issue about what the late Mr Jones had said or believed at the relevant time. But there was not...

That being so, the two letters, each dated 5th February, 1960 - annexures 'B' and 'C' - were in evidence for what they could prove. There can be no doubt but that their probative value - and I bear in mind the tests proposed in Walker v Walker, and by Professor McCormick, quoted in McLennan v Taylor - was extremely high in relation to any matter concerning the late Mr Jones's conduct of his own business. It would be scarcely possible to envisage a more reliable source of information.

[37] Paragraph 54 of the Law of Evidence (1954), to which his Honour referred, stated:[70]

A failure to make a sufficient objection to evidence which is incompetent waives any ground of complaint of the admission of the evidence. But it has another effect, equally important. If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of whatever rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. Such incompetent evidence, unobjected to ... may support a verdict or finding ... If the evidence has no probative value, or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth and it will not support a finding. It is still irrelevant or insufficient.

45 Section 136 of the Evidence Act 2008 is, as is also clear from the defendant's submissions, of relevance in this context. Section 136 reposes a general discretion in the Court to limit the use of evidence which has been admitted (in contrast to section 135 of that Act which provides for refusal to admit evidence); in the following terms:

1. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

As the defendant observed in submissions, considerable care is required with respect to the invocation of s 136 - referring to the judgment of Sackville J in Seven Network Limited v News Limited (No 8):[71]

[21] In my opinion, considerable care should be exercised before s 136 of the Evidence Act is invoked to limit the use of evidence on the ground that its use might be unfairly prejudicial to a party in a procedural sense. I agree with Mr Sheahan that the policy apparently underlining provisions such as ss 60 and 77 of the Evidence Act should not be undercut by the making of orders under s 136 as a matter of course. This is particularly so where a judge, rather than a jury, is the trier of fact, since the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in cross-examination. Even so, the circumstances may be such that the power conferred by s 136 will not only be enlivened but it will be appropriate for the Court to make a direction limiting the use of otherwise admissible evidence.

46 With respect, I entirely agree with the statements of the judges in Jones v Sutherland Shire Council, Robert Bax v Cavenham Pty Ltd and Seven Network Limited v News Limited (No 8). In my view, these statements clarify the basis upon which evidence such as the Fagan Memorandum would, as the plaintiff would have it, be treated. Moreover, the statement by Sackville J in the latter case, that s 136 is to be invoked with caution, is entirely consistent with the invocation of those provisions in the present circumstances having regard to the position I have indicated in the preceding reasons in relation to the plaintiff's position if a Protean Holdings "split" were not ordered. Additionally, were s 136 (or possibly s 135) not invoked in such circumstances - or analogous circumstances such as in defamation proceedings with respect to the published material - a Protean Holdings "split" which might otherwise have been thought appropriate would, in effect, be precluded by the operation of the Evidence Act. There is no basis for thinking that the legislature intended to affect established law in this way. The better view is, rather, that provisions such as ss 135 and 136 were intended to preserve and facilitate the existing law in this respect.

47 It is then said against the plaintiff that if he were to proceed to trial in the manner contemplated by the plaintiff, he would be bound to lose and would probably be "no cased". The defendant says that evidence of the matters upon which the plaintiff would seek to confine his case will be insufficient to establish his alleged breach of the Partnership Agreement or his claimed loss and damage. In my view, this does not follow for the reasons advanced by the plaintiff, reasons which have been discussed already in some detail. If the plaintiff chooses to limit his case, by pleadings and opening, as indicated, then it is, in my opinion, quite a constrained and discrete case which does focus on process, the procedural fairness which he was or was not afforded by the defendant in the course of making the decision. It is, naturally, a matter for trial as to whether or not that allegation and the plaintiff's case is established.

48 It is also a matter for trial whether or not the plaintiff decides to give evidence in his own case. The defendant characterises the uncertain position in this respect as put by the plaintiff in his submissions as an instance of "not being forthcoming".[72] It is then said that if a witness enters the witness box then another party may cross-examine the witness on all relevant issues, subject to any direction of the court and the ordinary rules of cross-examination.[73] Further, it is said that the plaintiff's submissions confuse the right to lead evidence in rebuttal, on the one hand, with cross-examination of a witness once he or she enters the witness box, on the other hand.[74] Moreover, the defendant contends that it is one thing to assert that a plaintiff may be permitted to lead evidence in rebuttal, but quite another thing to say that a plaintiff, once in the witness box, cannot be cross-examined on all relevant issues. Concluding this submission, it is said that "the first contention does not necessarily lead to the second - particularly where the issues in the Statement of Claim and the Defence are intertwined".[75] For reasons already indicated in the course of discussion of the plaintiff's submissions, this submission begs the question because if a Protean Holdings "split" is ordered, then if the plaintiff did decide to give evidence in his own case then he could, of course, be cross-examined in the usual way on the issues relevant to that case, but he could not be cross-examined on issues upon which the defendant bears the onus of proof in its case. This is, of course, the whole point of the Protean Holdings "split".

49 Moreover, in these submissions, the defendant does touch upon the question of "intertwining" of cases. In my view, on the basis of the relatively constrained case put on the part of the plaintiff, a process case, questions of "intertwining" will not arise. Moreover, I think that the analogy with defamation litigation is a helpful one, as indicated in the preceding reasons, and particularly, the discussion of the whole question of a Protean Holdings "split" in the judgment of J. Forrest J in French, relevant parts of which are set out above.

50 At this point, having referred to the analogy with defamation cases in the preceding reasons, it is convenient to make reference to the judgment of Bleby J in S, DJ v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation,[76] a defamation proceeding. The plaintiff in that case sought directions with respect to the conduct of the trial with respect to the leading of evidence and cross-examination. As to the directions sought, Bleby J said:[77]

1. The effect of giving directions in terms of paragraphs 1, 2 and 3 would be that the plaintiff would open his case and lead evidence on all issues except justification and qualified privilege, but including damages. It is implicit from the orders that the plaintiff would also not be required to lead evidence of malice in respect of the two pleas of qualified privilege. The plaintiff could not be cross-examined on matters relating to justification and qualified privilege. Channel Seven would then present its case on all issues. The ABC would then do the same. Subject to any successful submission of no case to answer, the plaintiff would then present his case in response on justification and qualified privilege including, it would seem, on issues of malice relating to each defendant. Although it was not stated, it would follow that the defendants would then have to be afforded an opportunity to respond to the plaintiff's cases against them on malice, with the possibility of the plaintiff then seeking to lead evidence in reply on that issue.

51 Before turning to consider cases with respect to a Protean Holdings "split",[78] Bleby J said:[79]

1. An often quoted started point is the decision of Abbott LCJ in Browne v Murray[80] where, in action for libel, the defendant raised pleas of justification. The plaintiff, after proving the publication, called a witness to disprove certain facts alleged in the justification. The defendant then proceeded with evidence to support his pleas, at the close of which the plaintiff sought to call another witness to disprove other facts stated in the justification. The Lord Chief Justice said:

In actions of this nature, the plaintiff may, if he thinks fit, content himself with proof of the libel, and leave it to the defendant to make out his justification; and then the plaintiff may, in reply, rebut the evidence produced by the defendant. But if the plaintiff in the outset, thinks fit to call any evidence to repel the justification, then, I am of opinion, that he should go through all the evidence he proposes to give for that purpose, and that he shall not be permitted to give further evidence in reply. It is much more convenient for the due administration of justice that this course should be adopted, otherwise there will be no end to evidence on either side, as the defendant would be entitled again to call witnesses to answer those last produced by the plaintiff to rebut the justification.

1. In the English report of the case there is a footnote at the end of that passage which includes the following note:

In Rees v Smith, 2 Stark NPC 31, which was an action of trespass, for breaking and entering a dwelling-house, and seizing goods, with the general issue and pleas in justification, Lord Ellenborough states that the general rule was, that "when by pleading, or by means of notice, the defence was known, the counsel for the plaintiff was bound to open the whole case in chief, and could not proceed in parts, that when it is known what the question in issue is, it must be met at once."

1. In Beevis v Dawson,[81] an action for damages for libel, the defendants pleaded justification. The plaintiff did not give evidence himself but a number of other witnesses were called on his behalf. His counsel asserted that he would call the plaintiff to give evidence in rebuttal after the defendants' evidence of justification had been given. There were other irregularities in the conduct of the trial. Having referred to Browne v Murray and the footnote to which I have referred, Singleton LJ said:

I venture to doubt whether there is a hard and fast rule either way. The authorities seem to me to show that the practice is based on general convenience. It must depend, of course, upon the issues which are raised; obviously it must depend upon the pleadings in the case in which the issues are set out. ...

52 Concluding, and importantly in the present context, Bleby J said:[82]

1. I make some further brief observations about the pleadings and the nature of the case. Channel Seven's plea of justification has been carefully particularised, although the plaintiff still complains of some inadequacies in that regard. Nevertheless, the plaintiff is on notice as to Channel Seven's allegations and the scope of the plaintiff's cross-examination on this topic is clearly defined. The plaintiff's evidence will be crucial to the issue of justification. There will be little or no oral evidence required of the defendants to raise their respective defences of qualified privilege. The plaintiff's principal reply to those defences is based on allegations by the plaintiff of malice, which allegations have also been carefully particularised. In those circumstances there should be little difficulty in the plaintiff leading evidence of malice as part of his case. Likewise, issues of causation of the plaintiff's economic loss have been particularised by both the plaintiff and Channel Seven. That is an issue on which the plaintiff would normally lead evidence as part of his case.
2. It is these issues which, I apprehend, will comprise the bulk of the oral evidence in the case. In all the major issues requiring oral evidence, each party is therefore on notice of the allegations made against the other, and the ambit of cross-examination on those issues is clearly defined.
3. It must also be noted that in the plaintiff's primary submission, namely that orders be made in terms of paragraphs 1, 2 and 3 set forth above, he does not seek to have the defendants made dux litis in the proceedings generally but only in respect of particular issues, with the plaintiff remaining dux litis on those issues on which he bears the burden of proof. Being dux litis is no more than having the right (or obligation) to begin. In most cases it is a procedural consequence of the burden of proof. However, by seeking the orders that he does, the plaintiff is effectively seeking to split his case, which is not permitted in normal circumstances, but which may be permitted in some circumstances.
4. The issues on which the plaintiff must begin and on which he bears the onus of proof include the extent of likely public knowledge of the plaintiff and of his recognition by the public in the publications, his character and reputation, the effect of the publication on his character and reputation and on the plaintiff himself by way of injury to his feelings. In the case against Channel Seven it will include proof of the causative link between the publication and the plaintiff's loss of employment and proof of his consequent economic loss. Given the nature of the pleadings it would also normally include proof of malice on the part of both defendants in respect of their respective publications. There are therefore substantive issues on which the plaintiff will be required to lead evidence. Significantly, that includes evidence as to causation of his loss of employment and of injury to his feelings based on his beliefs as to the untruth of Channel Seven's publication. Cross-examination on those issues will inevitably involve questions as to the plaintiff's own conduct and in respect of issues relevant to Channel Seven's defence of justification. They cannot be realistically be separated.
5. In those circumstances I consider that it would be unreasonable to expect counsel for Channel Seven to cross-examine the plaintiff on damages and causation if at the same time he is prevented from cross-examining on issues relating to justification. The two are necessarily intertwined. In particular, it would be unfair to expect cross-examination on the issue of termination of employment and its surrounding circumstances, which inevitably will raise questions of the plaintiff's conduct, without permitting questions on maters going to justification. Furthermore, it is apparent that the plaintiff's credit will be in issue. It would be unreasonable to place restrictions on the defendant's right to cross-examine on credit by preventing him from asking questions which might go to Channel Seven's defence of justification. Cross-examination as to damages and credit will inevitably impinge on matters going to justification.

53 This case is, consequently, readily distinguishable from the present proceedings as is made clear in these reasons. As discussed, the plaintiff's case is here discrete and separate from the positive case being put against him by the defendant. There is no "intertwining" of the plaintiff's and the defendant's cases, and the analogy with defamation cases in general remains apposite.

54 The defendant also made reference to the decision of Rolfe J in the New South Wales Supreme Court in ABB Engineering Construction Pty Ltd v Freight Rail Corp[83] in support of the position that there should be no constraint on the cross-examination of all issues at trial.[84] Particular reference was made to the following passages in the judgment:[85]

[15] The first reason why, in my opinion, the application should be refused is that, as was conceded in argument, there is no guarantee that certain witnesses will not give evidence on the issues of liability and damages. Whilst the plaintiff stated it had filed all its evidence in chief, it did not rule out the possibility that evidence in reply may be filed from a witness going to both issues. In my view, it would require an exceptional case for the Court to order a separate hearing of liability and damages when any witness is likely to give evidence on both issues. The reasons are obvious. A case should be conducted on the basis that the witness is cross-examined on all issues at the same time and in the context of all issues, because his or her evidence on one issue may impact on the acceptability of his or her evidence on the other. If there is not adherence to this practice difficult questions arise for the Court as to the extent to which cross-examination on the matter not being litigated should be allowed, and for the cross-examiner as to how far matters not in issue can and/or should be pursued, and how that evidence should be treated in the overall assessment of the witness. In my opinion, the cross-examiner should not be precluded, particularly where credit is in issue, from cross-examining on the issue of damages merely because the only matter being litigated is liability. That not only causes difficulties for the cross-examiner, but also for the Court. The Court may be prevented from making a fully informed assessment of the credibility of the witness if the cross-examination is truncated, or if certain contradictory material cannot be led because the cross-examination goes only to credit and not to an issue.

[16] A further difficulty, in these circumstances, is that if a Judge hearing the issue of liability makes any finding as to the credit of a witness, who is subsequently to give evidence in the event of the question of damages being litigated, that Judge will, in all probability, be disqualified from hearing the matter and, accordingly, the store of knowledge he or she has obtained from the initial hearing is lost, as is the impact of the evidence upon him or her: Australian National Industries Ltd v Spedley Securities Ltd (In Liquidation) (1992) 26 NSWLR 411. The finding may not necessarily have to be an adverse one to have this result. This is but one consequence, which leads to an inefficient use of the Court's and the parties' time and resources.

One would, I say with respect, hardly cavil with these statements. They were, however, made with respect to an application to have liability issues heard separately and in advance of damages - a matter which raises different considerations from those primarily relevant to a Protean Holdings "split". In any event, to the extent that such issues may arise in the latter context, they are most unlikely in the circumstances of this case given the narrowness of the case the plaintiff has elected to pursue.

55 Finally, in terms of, what might be described as, "more substantive matters", the point is made in the defendant's submissions that if the plaintiff were to confine its case and run its case as proposed, it would be the subject of a "no case" submission because no loss and damage would be established.[86] In my view, the plaintiff's contentions make it clear that this is by no means the necessary result of its constrained case and a Protean Holdings "split". Put quite simply, the plaintiff's case is that he was denied procedural fairness; the decision of the Board was, consequently, a nullity; there was no basis to appeal to the full Partnership of the defendant firm from a decision which was a "nullity", even assuming that he then had the capacity to do so; and that it followed that when the defendant removed him from the partnership, that was done in breach of the provisions of the Partnership Agreement, there having been no valid decision which would justify such action, with the result that the defendant repudiated the Partnership Agreement; the plaintiff accepted the repudiation and is, consequently, now entitled to repudiation damages. That is the beginning and end of the plaintiff's case. It may be that the defendant is successful in proving its case and that, consequently, the plaintiff is denied relief in whole or in part. Nevertheless, all these matters are matters for trial and not speculation or unhelpful observations at this stage. Nevertheless, without in any way expressing a view or pre-empting the trial, I do, for these reasons, reject the defendant's contention that it would necessarily follow that the plaintiff's case would fail with respect to loss and damage and, therefore, inevitably there will be a "no case" submission.

56 The defendant also contends that the Court's modern procedures and processes will ensure that neither party is caught by surprise at trial and that the defendant's Defence clearly pleads the issues which the defendant will raise and the plaintiff will need to meet.[87] Reference is made to a statement by Martin CJ, that "The contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions", which "processes leave very little opportunity for surprise or ambush at trial".[88] With respect, I would unhesitatingly endorse these views, but again, they rather beg the question with respect to the plaintiff's application, for the reasons already indicated. They do, however, also support the plaintiff's position in emphasising that the course proposed by the plaintiff will take nobody by surprise, particularly as the plaintiff has informed the Court, quite clearly, of the nature and ambit of its case.

57 The defendant also makes submissions with respect to costs and related matters, and as to the plaintiff's true reasons behind the application. These submissions conclude with the contention that the attempt to bifurcate the trial is calculated to wreak delay, additional costs and waste of precious court resources; which is inimical to the modern overarching principles enshrined in the Civil Procedure Act 2010. For the preceding reasons, I do not accept this is the case at all. The plaintiff's application is acceded to. There is no "bifurcation" and likelihood of wasted time and duplicated evidence. In any event, the authorities to which reference has been made indicate that where a Protean Holdings "split" is appropriate, considerations of fairness are of very significant importance. For the preceding reasons, fairness requires that each party, the plaintiff and the defendant, be required to lead in chief the evidence which they seek to rely upon to prove their cases which are, in my opinion, relevantly separate.

58 In the context of the plaintiff's seeking to invoke the privileges against self-incrimination and civil penalty ("the privileges"), he seeks to be excused from compliance with the requirements of the Supreme Court (General Civil Procedure) Rules 2005, Rules 13.07 (Matter which must be Pleaded), 13.10 (Particulars of Pleading), 13.12 (Admissions and Denials) and 29 (Discovery and Inspection of Documents) to the extent that compliance with those Rules may have a tendency to expose the plaintiff directly or indirectly to a civil penalty or a criminal proceeding in respect of the subject matter of this proceeding.

59 The plaintiff's application is opposed by the defendant on four main grounds:

(1) The privilege against self-incrimination does not apply to a plaintiff who voluntarily brings proceedings: it protects a defendant (or a witness, not being the plaintiff) who is brought to court against his will;[89]

(2) The plaintiff waived the privilege long ago by voluntarily submitting to a two-day police interview;[90]

(3) The plaintiff waived the privilege by bringing these proceedings which, by their very nature, raise for determination the plaintiff's conduct said to incriminate him;

(4) Having regard to the passage of almost a decade since his interview with the police, there is no real or appreciable risk of the plaintiff being subject to criminal or civil penalty proceedings.[91] The plaintiff bears the onus to demonstrate such risk but has put forward no material evidence;[92]

(5) In view of the passage of time, the plaintiff's response to the Defence will not increase the jeopardy to which the plaintiff is already exposed or has exposed himself; and[93]

(6) The real question facing the plaintiff now is whether he wishes to continue to waive the privilege in order to establish his claim in the proceedings he brought.

60 The defendant submits that the privilege against self-incrimination is purely a defensive mechanism and does not apply to a plaintiff who voluntarily chooses to commence a civil action in respect to the subject matter of the claim for privilege. The privilege against self-incrimination, it is said, developed to protect individuals from being compelled to testify, on pain of ex-communication or physical punishment, to their own guilt. The defendant relies, in support of this proposition, on the decisions in Environment Protection Authority v Caltex Refining Co Pty Ltd[94] and also Accident Insurance Mutual Holdings Ltd v McFadden.[95] Moreover, the defendant submits that, as noted by Robson J, in Re Australian Property Custodian Holdings (In Liquidation) (Receivers and Managers Appointed) (Controllers Appointed) (No 2) ["Re APCH (No 2)"],[96] the privilege is based on "the deep seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself".

61 The defendant also relies upon the decision of Young J in the Equity Division of the Supreme Court of New South Wales in Rowell v Larter.[97] In that case, the plaintiff commenced a proceeding against two police officers and the National Crime Authority seeking an order for the delivery up of a document which the plaintiff alleged had been unlawfully obtained by the police officers. The document was proposed to be tendered against the interests of the plaintiff in criminal proceedings in which the plaintiff was then appearing as a defendant. The criminal proceedings had been instituted by information laid by the second defendant in the proceedings before Young J. It was alleged against the plaintiff in the criminal proceedings that he was guilty of a conspiracy to import prohibited imports, namely, cannabis. The plaintiff did not give evidence in the civil proceedings, and Young J refused to accept the plaintiff's submission that no adverse inference should be drawn from his failure to do so by reason of his invoking his right to silence. In this respect, Young J said:[98]

The plaintiff did not give evidence. One can well understand why he did not as he would not be at all anxious to expose himself to cross-examination by counsel for the prosecutor because that might prejudice him in the committal proceedings. Senior counsel for the plaintiff has urged on me that I should not draw any adverse inference to the plaintiff because he did not give evidence because the reason for his non-appearance was obvious. I do not accept this submission. There have been a series of cases in recent years dealing with the situation where a defendant to criminal proceedings is also the defendant in civil proceedings and seeks to stay the civil proceedings pending the outcome of the criminal proceedings: see McMahon v Gould (1982) 7 ACLR 202; 1 ACLC 98 and Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd [1984] FCA 406; (1984) 59 ALR 754 in which virtually all the modern cases are discussed and summarised. In McMahon's case (at 207; 103 and following), Wootten J examined the so-called right to silence and held that it involved various distinct rules all aimed at avoiding causing unjust prejudice to the accused at his trial but that it could not be said that they had their origin in some over-riding principle which gave a right to an accused person which right he could use "to preserve the tactical status quo in the criminal proceedings whether it be just or unjust". Those cases were in the context of the accused being the defendant in civil proceedings but they a fortiori apply in a case where the accused chooses to commence civil proceedings himself. If an accused person elects to commence civil proceedings, there does not seem to me to be any reason why merely because he is the defendant in criminal proceedings that he should be accorded such special privileges. His right to silence as it is called is purely a defensive matter and is a privilege he has in the criminal proceedings. True it is in rare cases that right can only be preserved if civil proceedings in which the accused is a defendant are stayed but it is difficult to contemplate circumstances where that would apply to civil proceedings which the accused commences himself or at least to proceedings commenced after the criminal proceedings have commenced.

The defendant submits that the reasoning and conclusion of Young J in this case is equally applicable in the present circumstances and precludes reliance by the plaintiff on the privileges.

62 The plaintiff, on the other hand, contends that Rowell is not authority for the proposition relied upon by the defendant, but stands, rather, for the proposition that a plaintiff who elects not to give evidence in a proceeding cannot point to the privileges as the basis for escaping the drawing of an adverse inference from his failure to give evidence. In particular, the plaintiff relied upon Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd[99] and Hudak v Adams[100] in support of this proposition.

63 The passages from the judgment of Barrett J in Tim Barr concerned the effect of Mr Timothy Barr, the second plaintiff and sole director and shareholder of Tim Barr Pty Ltd, the first plaintiff, deciding not to give evidence. In this context, the relevant passages in the judgment are as follows:[101]

1. TBPL says that the situation is not really one in which Barr has decided not to give evidence. Rather, it is said, counsel for the plaintiffs (in substance, TBPL, since Barr is really a party in name only) has made a decision not to seek to adduce evidence from Barr and that is the reason for his absence. I accept that up to a point but it is, I think, of no real relevance. The question is as to inferences, if any, that should be drawn adversely to TBPL by reason of its not calling Barr as a witness, whether because so advised by counsel or because Barr refuses to expose himself to what he perceives, on advice, to be the danger of re-activation of the criminal charges.
2. There are aspects of the facts of this case that may well involve criminal conduct on the part of Barr. Absence of evidence voluntarily given by him on those matters may be explained by his fear that the apparently dormant prosecution may be revived. But that explanation is not sufficient to avoid the adverse inference that flows from that absence. As Young J observed in Rowell v Larter (1986) 6 NSWLR 21 at 24, the so-called right to silence is purely a defensive matter and is a privilege that an accused person has in criminal proceedings. Also, in Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ACSR 50, the Court of Appeal took the view that the pendency of a Royal Commission enquiring into events in which a person had been involved was not a sufficient explanation of the absence of evidence from the person in civil proceedings. Giles JA said at [667] with the concurrence of Mason P and Beazley JA:

Let it be assumed that the pendency of the Royal Commission could be judicially known. I do not think one could go further, and speculate upon its potential for Mr Adler and Mr Williams. A generalised assertion that Mr Adler and Mr Williams were justified in not entering the witness box in these proceedings, in which the most serious allegations were made against them, for fear that evidence they gave would in an unelucidated way rebound to their disadvantage in the investigations of the Royal Commission, in the report of the Royal Commission, and in whatever followed from the report, is not in my opinion an answer to the Jones v Dunkel reasoning.

1. That is, in essence, the position here. One cannot speculate upon the matter of reactivation of the criminal charges against Barr. There is nothing more than a fear that evidence Barr might give "would in an unelucidated way rebound to [his] disadvantage". That, as Giles JA said, is not an answer to Jones v Dunkel reasoning. The absence of evidence from Barr may therefore lead, in certain areas, to inferences adverse to TBPL's case in the way stated at para [49] above.

The reference to TBPL is a reference to the first plaintiff, Tim Barr Pty Ltd.

64 In my view, the passage set out from the judgment of Barrett J in Tim Barr does support the plaintiff's contention, as does the passage relied upon in the judgment of Rein J in Hudak, particularly in its context, which is the discussion of the Jones v Dunkel inference. The position of the parties in Hudak is different in that the passage from the judgment of Rein J which is set out below is directed to the failure of a party to give evidence in his own defence in the Jones v Dunkel inference context. Nevertheless, it is made clear in that passage that the same principles are applicable, equally, to both a plaintiff and a defendant, both with reference to Rowell and to general principle. Thus, Rein J said in this context:[102]

1. The failure of a party to give evidence in his own defence clearly gives rise to an inference that his evidence would not assist him in the case: see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 312 per Menzies J, 308 per Kitto J, 319-332 per Windeyer J discussed in Manly Council v Byrne [2004] NSWCA 123; see also Cullen (Executor of Lascelles) v Welsbach Light Co of Australasia Ltd [1907] HCA 3; (1907) 4 CLR 990 at (1002) per Griffith CJ and SS Pharmaceuticals Co Ltd v Qantas Airways Co Ltd [1991] 1 Lloyd's Rep 288 and Adler v ASIC; Williams v ASIC [2003] NSWCA 131, [651] per Giles JA with whom Mason p and Beazley concurred. Mr Lloyd pointed out that rule is subject to there not being an explanation for why the witness or, in this case, the party, has not given evidence and submitted that the fact that Mr Adams is under investigation in relation to this matter (see COPS Event Summary at Ex 1D1) is a valid explanation. Mr Lloyd cited Adler v ASIC; Williams v ASIC in which the Court of Appeal rejected an appeal from the trial judge's decision that concerns Mr Adler and Mr Williams claimed to have about the impending Royal Commission were not a sufficient or valid explanation to preclude an adverse inference being drawn in civil penalty proceedings. Mr Lloyd contended that the reasoning of the Court of Appeal from [648] of the judgment supported his contention because the court concluded that generalised assertion by Mr Adler and Mr Williams that the evidence would "in an unelucidated way redound to their disadvantage" was not sufficient rather than holding that a Jones v Dunkel inference would not be precluded in a civil case because of a concern about consequences in other proceedings.
2. Mr Bartos relied on a decision of Rowell v Larter (1986) 6 NSWLR 21 in which Young J (as his Honour was) held that the prospect of criminal proceedings was not a sufficient reason to preclude an inference being drawn against the person for failing to give evidence. In Rowell it was the plaintiff, who was the defendant in criminal proceedings, and who did not give evidence.
3. Although I accept that Adler does indirectly provide some support for Mr Lloyd's contention, it does not expressly hold that a Jones v Dunkel inference cannot be drawn in a civil case where a defendant chooses to give evidence because police have been notified of a complaint and have issued a COPS Event Summary. In my view it would be surprising for a defendant against whom a claim of fraud is brought to be able to rely on a concern that criminal charges will be laid as a reason why an adverse inference could not be drawn if he fails to give evidence. First, because if his evidence would, if accepted, support his case that what had been done had been effected with the complete concurrence of the plaintiff, he would have no concern that he would thereby incriminate himself on a charge of obtaining property from the plaintiff by fraud. Second, because it strikes me as inherently unfair that a party who wants to put the plaintiff to proof can decline to give evidence and do so without an adverse inference being drawn. If criminal proceedings are feared, a defendant may take the chance that the plaintiff will not be able to adduce sufficient evidence to establish his case, or may admit liability or not defend the proceedings. The third reason is that even in criminal cases there is, in exceptional and rare circumstances, room for a Jones v Dunkel inference: see Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 and Comptroller-General of Customs v Parker [2006] NSWSC 390, [89]-[94] in which Simpson J explains that where the accused who does not give evidence and has a personal involvement in the transaction in question, a Jones v Dunkel inference can be drawn.

It follows, in the preceding reasons, and those which follow with respect to further authorities and commentaries, that passages relied upon by the defendant in commentaries to the effect that a plaintiff could not claim the benefit of the privileges are not supported by the authorities.[103]

65 There are, additionally, many other authorities which, in my view, establish quite clearly that the privileges apply to a plaintiff with respect to issues arising in a proceeding. The authorities also make clear that the privileges apply not only to oral evidence but also to the discovery and production of documents. The general principle in this respect is very clearly stated in the judgment of Goddard LJ in Blunt v Park Lane Hotel Limited:[104]

The plaintiff objects to interrogatories sought to be administered in support of the second defendant's plea of justification on the ground that the object is to show that she has been guilty of adultery. Her objection is based on two grounds: First, it is said that the interrogatories are inadmissible because an affirmative answer would expose her to the risk of ecclesiastical penalties, and, secondly, that Redfern v Redfern (1) has decided that this objection applies to interrogatories of this description in all actions in all divisions of the court. Hallett J has allowed the interrogatories. In my opinion, he was clearly right, and, moreover, as will appear from this judgment, the plaintiff cannot object to answer them.

Dealing first with the general objection, which applies both to oral evidence and to interrogatories, the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for. This rule was laid down by the Queen's Bench in Reg v Boyes (2), and the words in which I have stated it are those of Stephen J in Lamb v Munster (3). A party can also claim privilege against discovery of documents on the like ground: see Hunnings v Williamson (4). Is there, then, except in a case of a clerk in holy orders, any reasonable likelihood that such interrogatories would expose a person to ecclesiastical penalties? It is purely fantastic to suppose anything of the sort. When Lord Hardwicke decided Finch v Finch (5) and Chetwynd v Lindon (6), there was, no doubt, a real risk of such proceedings. In those days the courts of the Church exercised a very active jurisdiction over the laity in criminal causes.

Although the plaintiff failed in her objection in this case, it was not because the general principle with respect to self-incrimination was found not to apply to a plaintiff but, rather, that the risk of ecclesiastical penalties was not, in 1942, a reality and, further, that Redfern was found to be merely a case that proceeded "on the particular provisions of the Divorce Act".[105] Although Redfern v Redfern[106] has been found to be thus confined in terms of its particular authority, the decision of the English Court of Appeal in that case did proceed from the general principle, conveniently stated by Bowen LJ at the commencement of his Lordship's judgment:[107]

It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure.

Moreover, it is clear from the judgment that Bowen LJ was referring to parties generally - plaintiffs and defendants.[108]

66 The classic text writers also support the general proposition that the privileges are available to any witness - with no distinction being drawn as between a plaintiff and a defendant. There is certainly no suggestion of any inability on the part of a plaintiff to take advantage of the privileges.

67 Thus, Powell states the position:[109]

Criminating Questions.

A witness is not compellable to answer any question tending to criminate himself.

I.e. on the principle nemo tenetur seipsum prodere, a witness, whether a party to a suit or not, cannot be compelled to answer any question, whether put viva voce or in the form of a written interrogatory, the answer to which may expose, or tend to expose, him to a criminal charge, penalty, or forfeiture of any kind. This rule is recognized and expressed by the Law of Evidence Amendment Act, 1851, which, after making the parties to civil actions and suits competent and compellable witnesses on behalf of either party, enacts that nothing in the act shall render any person compellable to answer any question tending to criminate himself or herself. On a similar ground, the production of a document may be refused.

[Footnote omitted]

Similarly, Phipson puts the position thus:[110]

1. No witness, whether party or stranger is, except in the cases hereinafter mentioned, compellable to answer any question or to produce any document the tendency of which is to expose the witness (or the wife or husband of the witness), to any criminal charge, penalty or forfeiture. Nemo tenetur prodere seipsum. As to interrogatories, see Blunt v Park Lane Hotel.[111]

68 Cross on Evidence indicates that the position is the same in Australia:[112]

[25075] The privilege is available to all natural persons[113] whether their capacity be that of party to a proceeding in a court or that of a mere witness.[114] The question may arise in the course of pre-trial procedures such as discovery or interrogatories,[115] the production of documents for inspection or the making of an Anton Piller order[116] or a Mareva injunction.[117] The privilege is available notwithstanding that the proceeding against the party invoking it is one to enforce property rights, to seek a remedy in respect of alleged fraud or to seek relief for breach of fiduciary relationship to the plaintiff.[118] There is no exception in conspiracy cases.[119] It may arise upon the return of a subpoena duces tecum,[120] or in connection with an Anton Piller order,[121] or it may, of course, arise at trial.

69 The general principle against self-incrimination as being available to all parties was discussed and affirmed in more recent times by the High Court in Pyneboard Pty Ltd v Trade Practices Commission.[122] In so doing, Mason ACJ and Wilson and Dawson JJ both examined the pedigree of the general principle, at law and in equity, and also its breadth, in terms of the discussion of its application with respect to the discovery and production of documents. Thus the majority said:[123]

It is well settled that "... a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure", to use the words of Bowen L.J. in Redfern v. Redfern.[124] See also Martin v. Treacher;[125] Earl of Mexborough v. Whitwood Urban District Council;[126] R v Associated Northern Collieries.[127] Indeed, in a civil action brought merely to establish a forfeiture or enforce a penalty the rule is that neither discovery nor interrogatories will be allowed (In re A Debtor;[128] Associated Northern Collieries[129]). See generally the discussion by Deane J. in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corp.[130] There his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings.[131] In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action. His Honour described this as "... a broad and unqualified rule whose origins are apparently to be found in a reluctance on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see [Mexborough] and Heimann v. Commonwealth[132]"[133]). To these authorities there should be added a reference to the statement of Lord James of Hereford in National Association of Operative Plasterers v. Smithies,[134] that courts of equity were averse to actions for penalties and forfeitures being brought and would not assist them. But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty.

Two points need to be made in connection with the proposition stated by Bowen L.J. in Redfern. The first is that, although the rule is expressed as one which relates to discovery, it is necessarily a reflection of the law of privilege. The second point is that Bowen L.J. was not saying that the privilege against exposure to conviction for a crime was the same as, or includes, the privilege against exposure to penalties or forfeiture or ecclesiastical censure. Quite obviously they are four different aspects or grounds of privilege. So much at least emerges from the judgment of Lord Esher M.R. in Mexborough.[135]

But we do not agree with the suggestion made by the respondent, based on the authorities to which we have referred, that the privilege against exposure to forfeiture and penalty is a special invention of the courts of equity devised for application in suits for discovery and in the administration of interrogatories, commencing at a time when the Chancery Court granted discovery in aid of a common law action. Certainly Lord Hardwicke L.C. in Smith v. Read,[136] asserted: "there is no rule more established in equity, than that a person shall not be obliged to discover what will subject him to a penalty, or any thing in the nature of a penalty." However, his Lordship was merely speaking of the rule in equity and did not direct his attention to the attitude of the common law. The better view is that equity looked to the existing model of the common law and applied the rule which it had established. In Pye v. Butterfield,[137] Crompton J., speaking of courts of equity, said: "I have no doubt that the exemption from a bill of discovery in cases where the discovery would lead to a forfeiture, was adopted in those courts from the courts of law." This statement was quoted, evidently with approval, by Lord Esher M.R. in Mexborough.[138] Chitty L.J.[139] was of the same opinion.

70 Similarly, in terms of the general proposition, Gibbs CJ said in Sorby v Commonwealth of Australia:[140]

It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so "may tend to bring him into the peril and possibility of being convicted as a criminal": Lamb v Munster [(1882) 10 QBD 110 at 111].

In Lamb v Munster, the defendant declined to answer interrogatories on the ground that the answer might tend to incriminate him. The statement of the general principle by Field and Stephen JJ in their separate judgments is, however, not party-specific - and neither is the statement of Gibbs CJ in Sorby. Environmental Protection Authority v Caltex Refining Co Pty Ltd also reaffirms that the general principle applies to the discovery and production of documents.[141]

71 The defendant submitted that no cases could be identified where the privileges were applied to plaintiffs. However, the material relied upon by the defendant included, as indicated previously, footnote 70 of Australian Corporation Law.[142] That footnote includes the following: "A civil plaintiff may claim the privilege without adverse inferences, insofar as the question relates to issues collateral to the matter for the decision: Pappas v New World Oil Developments [1993] FCA 375; (1993) 117 ALR 304". The judgment of Lee J in that case makes it clear that a plaintiff in a civil proceeding does not forego or waive the privileges:[143]

Counsel for BKF submitted that the failure of Pappas to answer the questions then put to him in cross-examination and claim of privilege against self-incrimination provided grounds from which an inference may be drawn adverse to the credit of Pappas.

In Dolan v Australian Overseas Telecommunications Corp [1993] FCA 202; (1993) 114 ALR 231, Spender J had occasion to consider a similar submission and to review the relevant law in Queensland. From his Honour's reasons it was apparent that the law relating to privilege against self-incrimination, like the law in New South Wales, remains undisturbed by legislative provisions such as those to be found in the Evidence Act 1906 (WA) s 11, Evidence Act 1910 (Tas) s 87, Evidence Act 1971 (ACT) s 57.

Spender J reviewed the uncertain state of the authorities and concluded that no adverse inference may be drawn from the refusal of a witness to answer a question on the ground that the answer may, or would, tend to incriminate the witness. With respect, I agree that his Honour's reasons also correctly state the law that may be applied in New South Wales in so far as the questions relate to issues collateral to the issues for decision. Of course, the failure to adduce evidence on central issues on which the witness may be expected to give evidence will permit a court to be satisfied that inferences adverse to the case of that party may be properly drawn notwithstanding that the ground for refusal to provide the evidence may be rooted in the privilege against self incrimination: see "Taking the Fifth" (1991) 65 ALJ 412 at 415.

In this case, Mr Pappas was a plaintiff and the court concluded he could take the privilege, although an inference might arise on "central issues" if he had.

72 Dolan v Australian Overseas Telecommunications Corp[144] is also a case where the plaintiff took, and was permitted to take, advantage of the privileges. In that case, Mrs Dolan was the applicant below (and the appellant) and it was held that no adverse inference is to be drawn against a person by reason that the person has asserted a claim of privilege against self-incrimination. The fact finding process of the tribunal had been tainted by a legal error. It was not possible to say that the conclusion that Mrs Dolan was an unreliable witness would have been reached absent the impermissible adverse inference based on the claimed privilege against self-incrimination. In those circumstances, the decision had to be set aside.

73 Dolan was applied by the Court of Appeal in R v Roberts,[145] though the second aspect of the decision in Pappas would not have been applied in Victoria. Thus, Batt JA (with whom Buchanan and Chernov JJA agreed) said:[146]

Thirdly, it is not permissible to draw any inference adverse to a witness from the reliance of the witness on a claim of privilege against self-incrimination. The credit of the witness is not impugned by the claiming of the privilege nor may any inference be drawn adverse to the case of the party calling the witness. These propositions are supported by Dolan v Australian and Overseas Telecommunications Corp,[147] where the earlier cases were most helpfully reviewed by Spender J, who pointed out that, if the position were otherwise, the protection given by the privilege would be destroyed and that the privilege is intended to protect the innocent and the guilty alike,[148] as shown also by Reid v Howard.[149] Subsequent decisions, with one exception, are to like effect: Pappas v New World Oil Developments Pty Ltd;[150] C v T;[151] R v Hood;[152] and Australian Securities and Investments Commission v ABC Fund Managers,[153] a Victorian case where the fundamental substantive nature of the privilege was stressed by reference to Reid v Howard;[154] see also Mr Justice P W Young, "Taking the Fifth";[155] and Cross on Evidence.[156] (The exception is Thompson v Bella-Lewis,[157] where in the Queensland Court of Appeal Davies JA was of the view[158] that, whilst the refusal to answer could not be turned into an admission, the jury was entitled to draw whatever inference was reasonably open. McPherson JA, however, considered[159] that no inference could be drawn. Fitzgerald, P found it unnecessary to choose between the two views, though he seems to have tended to favour that of Davies JA.)

74 In concluding the discussion of the authorities on the issue of the availability of the privileges, reference should be made to the list of authorities handed up by the defendant in tabular form said to support the proposition that the privileges are not available to a plaintiff.[160] For these reasons, with respect to the plaintiff's application - particularly the detailed discussion of and reference to authorities and commentaries - this tabulation does not establish the defendant's proposition. It may not be surprising that the cases may tend to show a preponderance of defendants seeking to rely on the privileges, but that does not negate the application of the general proposition to all parties and non-party witnesses. One may speculate that a person concerned about self-incrimination may not wish to risk his or her position as a plaintiff - but that is not to the point.

75 The defendant submits that it is not open to doubt that the privileges can be waived, making reference in this respect to the judgment of the Court of Appeal in Gemmell v Conlon.[161] In the present circumstances, the defendant contends that the plaintiff waived the privileges on two bases. They are: first, waiver by the bringing of these proceedings which, by their very nature, it is said, raise for determination the plaintiff's conduct said to incriminate him; and, secondly, by, long ago, voluntarily submitting to a two day police interview. Nonetheless, short of waiver, the privileges are available and may be invoked and the right to do so may not be abridged by a court, whether on the basis of some undertaking, assurance or otherwise unless accepted by the person entitled to the privileges.[162]

76 At the outset, it is helpful to turn first to the Court of Appeal decision in Gemmell. In the context of s 597(12) and (12A) of the Corporations Act 2001, and having found, first, that sub-s 597(12) abrogates the privileges with respect to questions asked and answers given at the examination conducted under these provisions,[163] and that the appellants had not waived their right to claim the privileges by not making use of indemnity claims under sub-s 597(12A),[164] Ashley JA (with whom Neave JA and Almond AJA relevantly agreed) said:[165]

1. My conclusion - expressed at [44] above - that the appellants' failure to make sub-s (12A) claims does not constitute waiver of the privileges in this proceeding turns on statutory construction and principle. As such provisions have been construed, see below, a claim made thereunder is not equivalent to a claim of privilege. In those circumstances, the principle discussed at [50] suggests that failure to claim the protection of the subsection should not be treated as waiving the privileges in a proceeding such as this - particularly the privilege against self-incrimination. No authority cited by counsel requires or suggests a different answer.
2. In my opinion, it is confusing and incorrect to treat sub-s (12A) as if a claim made thereunder is equivalent to a waiver of the privileges. Privilege, where claimed, protects the claimant against direct and indirect use of an answer. Subsection (12A) gives protection only against direct use. The deleterious consequences for a person who is able to claim a direct use immunity but not rely upon a privilege were recognised by Crennan J in Lee.[166] The fact, as I earlier noted, that there is a practice of persons wishing to make a s 597(12A) claim doing so by uttering the word 'privilege' should not distract attention from the fact that such a claim is not equivalent in its consequences to a claim for privilege.[167]
3. [Registrar, Court of Appeal v] Craven [(1994) 77 A Crim R 410] does not require a conclusion that the appellants are disabled from claiming the privileges in this proceeding. It is unnecessary to set out all the factual complexities of that matter. It suffices to say that the proceeding was one for declarations with respect to nine charges of contempt. The witness had refused to answer many questions on the trial of another man. Six of the declarations were refused because it was in substance conceded that answering questions to which they related would have exposed the witness to risk of prosecution. Three of the declarations were granted. In two instances, giving answers could not possibly have exposed the witness to any such risk. In one of those instances, and another, it was held that the witness had waived privilege by answering substantially identical questions in civil proceeding on a previous occasion.
4. The differences between that case and the present matter are stark. In the two instances of waiver, evidence had been given on oath, but voluntarily. Moreover, privilege - not use immunity - had been available, but had not been claimed. Moreover, in that case there was nothing akin to the statutory regime, for particular purposes, set up by the Act.
5. McFadden [Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA)] and Reid [Reid v Howard [1961] HCA 22; (1995) 104 CLR 1] stand for the proposition that the making of an out of court statement does not constitute a waiver of the privilege against self-incrimination in the event that the maker is later called to give evidence. It may be argued that, if the voluntary making of a statement will not constitute waiver, how could it be worse for a person whose answers are compelled on oath, who can only claim a direct use indemnity, and whose answers may be used against him for some purposes regardless whether he claims such an indemnity. This is a persuasive argument. But it was submitted, to the contrary, that here (unlike in those cases) the answers - though compelled - were given on oath; and that this provides a critical distinguishing feature.
6. In all, I do not rest my conclusion on McFadden or Reid. But, to reiterate what I have already said, this does not mean that Craven provides the answer.
7. Counsel for the respondents relied upon the ruling of Giles J in BTR Engineering (Australia) v Patterson ('BTR').[168] He did so mainly, as I understand it, on the issue of want of utility. But Giles J did hold that, where a witness had made a statutory declaration and a statement in a civil proceeding, the witness had waived his privilege against self-incrimination, and so could not refuse to adopt the documents.
8. Whether that conclusion could stand in the face of McFadden and Reid is doubtful. BTR was referred to, but not approved, in McFadden. In any event, it was concerned with steps taken in the very proceeding which was before the court. That is not this case. Further, the steps were taken voluntarily, which is not this case.
9. Counsel for the respondents relied upon Ewin v Vergara (No 2)[169] ["Ewin"] to support his submission that the appellants' conduct at the examination was inconsistent with a maintenance of the privileges. In my opinion, the ruling in that case does not assist the submission. There, the judge held, following McFadden, that an out of court statement made by a party to police did not constitute a waiver of the privilege against self-incrimination; but that it was otherwise insofar as the party had already given evidence in chief and had already been cross-examined for 'many hours' 'on subject matters in respect of which objections [were] later sought to be taken.[170] The witness's conduct in giving evidence in chief and being cross-examined, all without objection, was 'inconsistent with the maintenance of the privilege.'[171] What was involved, then, was evidence given voluntarily in the very proceeding in which a claim to privilege was later asserted. In a number of respects, that is not this case.

Continuing, and rejecting the application of "issue" waiver in this context, Ashley JA said in Gemmell:[172]

1. Finally, even if I had concluded that failure to make sub-s (12A) claims constituted some waiver of the privileges in this proceeding, I would reject the submission for the respondents that the privileges were waived, as it were, by 'issues' identifiable from the gist of the examinee's examination. So to conclude would be contrary to a long-established body of authority bearing upon the nature of, particularly, the privilege against self-incrimination.

This rejection of the application of "issue" waiver draws an important distinction with respect to the principles applicable to waiver in relation to legal professional privilege;[173] though questions of the kind considered with respect to waiver of legal professional privilege may be relevant in particular circumstances.[174]

77 In the course of his judgment in Gemmell, Ashley JA considered in some detail the authorities relied upon by the trial judge, Ferguson J (as her Honour then was), an analysis that was not doubted in spite of the actual outcome of the appeal. Thus, Ashley JA said:[175]

1. Her Honour accepted the following propositions, stated by Robson J in Re Australian Property Custodian Holdings (in liq) (recs and mgrs apptd) (controllers apptd) (No 2) ('Re APCH (No 2)'):[176]

(a) In the case of self-incrimination privilege, the defendant must establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked.

...

(c) In civil actions, where no claim for penalty is made, the defendant must show that providing the information requested would tend to subject him to a penalty in separate proceedings before he can rely on the privilege.

(d) The privilege against exposure to penalty is a common law privilege that may be availed as of right and is enforced and protected by the Court.

(e) The privilege against the exposure to penalty may be relied on by a defendant to a civil [proceeding] in which a penalty is not sought ("the non penalty civil proceeding").

(f) The privilege against the exposure to penalty extends to the obligation upon a defendant to plead, give discovery and answer interrogatories in the non penalty civil proceeding.

(i) ... in exceptional circumstances, a defendant may be entitled to orders in limine that he may deliver a defence that departs from the Rules of Court only insofar as to protect his privilege against exposure to penalty.

(j) Exceptional circumstances may exist where the defendant to the civil proceeding is also the subject of separate civil penalty proceedings alleging the same or similar conduct.

(k) Where a defendant seeks to take the privilege against exposure to a penalty in a defence, the proper course is to plead accordingly and - if challenged - the defendant will be required to justify that the privilege is taken in good faith and on reasonable grounds for the privilege to stand.[177]

I would add that the privileges can only be overridden by statutory authority, or waived and may not be abrogated by the purported exercise of a judicial discretion.[178]

1. Her Honour then considered whether there was 'a real and appreciable risk of criminal prosecution or tendency to subject [the appellants] to a penalty'.[179] She held that there was such a risk.[180]

1. The respondents do not seek to challenge that conclusion. But, as will be seen, there was what has been said to be an aspect of 'real and appreciable risk' which the judge did not consider at that point in her reasons.

1. Her Honour noted that counsel for the appellants had -

relied on the decision in Accident Insurance Mutual Holdings Ltd v McFadden ('McFadden').[181] In that case, an insurer had denied indemnity under a car insurance policy in respect of a claim for theft of a car. The insured sued. Part of the defence to the claim was that the car had not been stolen because one of the insured had told a third party (Mr Leathem) to 'get rid of' the car. Mr Leathem had provided statements to the insurer's investigator about this. At trial, Mr Leathem was called as a witness but refused to answer questions put to him and invoked the privilege against self-incrimination. The New South Wales Court of Appeal held that the trial judge had been correct in upholding Mr Leathem's claim for privilege and determined that he had not waived the privilege in making the statements to the investigator. Kirby P stated:

The witness may have been fixed with the written statements which he had already signed. But he was not obliged to go beyond those statements, to provide elaborated oral testimony which could be used in later criminal proceedings or could afford the prosecuting authorities evidentiary leads with which to enlarge the prospects of obtaining his conviction out of his own mouth.

The giving of a written statement (whether to police or to an insurance investigator) on the general subject matter of certain criminal activities does not forever waive the privilege against self-incrimination in respect of other crimes which may arise from the oral elaboration of the written document. Of course, what is involved raises a question of degree. Each question put must be judged by reference to the matters already admitted and the waiver already expressed. But because of the prosecution for a wide range of offences which this witness potentially faced and the great latitude normally allowed to a witness to be protected from self-incrimination, I consider that the course adopted by P R Bell DCJ was proper.[182] [183]

1. Her Honour also referred to Reid v Howard ('Reid').[184] There, an accountant misappropriated client's funds. He made a general statement to the police as to the use of some of the funds. Charges were not laid. Clients brought a civil suit against him, and sought an interlocutory order for disclosure of his assets and the source of funds for their acquisition. The accountant resisted the order sought, claiming privilege against self-incrimination. The High Court upheld his claim. Her Honour cited the following passage from the joint judgment of Toohey, Gaudron, McHugh and Gummow JJ:

... the appellant's statement to the police has not resulted in the laying of criminal charges. Almost certainly, that is because it lacks detailed particulars of his misappropriations. There can be no doubt that disclosure of the assets upon which the appellant 'applied ... moneys or property entrusted to him' by the respondents and, in respect of each of those assets, 'the amount of any moneys and the identity of any property' applied in its acquisition, as required by the various orders which have been made against him, would place him in greater 'peril ... of being convicted as a criminal' than the perfectly general admission of fraudulent misappropriation contained in his statement to police.[185]

1. Her Honour contrasted the circumstances of the present case with those that arose in Reid. There, the accountant's general statements did not constitute a waiver of the privilege with respect to the more detailed information which was sought in the civil proceeding. But here, by contrast, 'the detailed information has been provided through the answers given at the public examinations and has been used to draw the more general statement of claim'.[186]

78 On the basis of the Court of Appeal decision in Gemmell and the authorities to which reference has been made, particularly in the judgment of Ashley JA in that appeal, I am of the opinion that the following statement contained in the plaintiff's submissions correctly states the position on the basis of these authorities:[187]

1. The Court of Appeal has recently handed down its decision in Gemmell & Anor v Le Roi Homestyle Cookies Pty Ltd & Ors [2014] VSCA 182 (22 August 2014) ("Gemmell").
2. This decision is determinative of this application on the privileges against self-incrimination and civil penalty (the "privileges").
3. The following is specifically relevant:

(a) Gemmell confirms that as far as the privileges are concerned, there is no such thing as "issue" waiver: paragraph [84]. This means that waiver of privilege in respect of a document or a question does not operate to otherwise waive the privileges;

(b) Gemmell applies the decisions of the NSW Court of Appeal in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 and the High Court in Reid v Howard (1995) 184 CLR, which stand for the proposition "that the making of an out of court statement does not constitute a waiver of the privilege against self-incrimination in the event that the maker is later called to give evidence": paragraph [78]. This applies even where earlier statements were voluntarily made in a police interview, which was the position in Reid v Howard, and even where the person has earlier admitted the crime in a signed police statement: see McFadden at 424B, E, 433D;

(c) relevantly, subparagraphs (a) and (b) taken together mean that a person cannot by court processes be required to further incriminate himself merely because on a previous occasion he has voluntarily produced an incriminating document or made an incriminating statement. The document and the previous statement may or may not be admissible as admissions, but they are not otherwise to be taken as a waiver of the privileges so that the person may be required to further incriminate himself;

(d) Gemmell confirms the correctness of the survey of law undertaken by Robson J in Re Australian Property Custodian Holdings (in liq) (recs and mgrs apptd) (controllers apptd) (No 2) [2012] VSC 576; (2012) 93 ACSR 130;

(e) Gemmell otherwise focuses attention on s 131A of the Evidence Act in respect of preliminary proceedings of courts, which provision the plaintiff also relies upon in this application.

Moreover, for the preceding reasons, and with respect, I do not accept the defendant's submission that the summary of the effect of the authorities set out in paragraph [78] of the judgment of Ashley JA in Gemmell was "per incuriam" or in some way inaccurate.[188]

79 Against this background, I turn now to the contentions of the defendants, which emphasise the voluntary aspect of a plaintiff, in Mr Dale's position, commencing proceedings and also the voluntary aspect of his police interview. In relation to the latter, the defendant contends:[189]

1. As to the third reason, the plaintiff has already (on 12 and 15 August 2005) submitted to a voluntary and lengthy (some 15 hours) examination by the Victorian Police, and has not been charged with any criminal offence. A copy of the transcript of this interview has been obtained by the defendant on subpoena, and is exhibited to the Carfoot Affidavit.[190] In this interview the plaintiff was questioned by the Victorian Police and gave detailed answers with respect to the Schmidt/Milte matters identified in paragraphs 51 to 89 of the Defence. Attached to these submissions is a table which extracts the relevant parts of the transcript where the defendant gave an answer in respect of those matters.
2. The defendant submits that, by reason of his conduct in respect of the Police interview referred to in the preceding paragraph, the plaintiff has waived any privilege against self-incrimination or exposure to a penalty in respect of the matters discussed during that interview, including the matters in paragraphs 51 to 89 of the Defence. During the interview, the plaintiff was cautioned on a number of occasions by the police to the effect that he was not obliged to say anything,[191] but nonetheless determined to give detailed responses to the questions asked. This case is clearly distinguishable from Gemmell which turned on the construction of sub-sections 597(12), (12A) and 14 of the Corporations Act 2001 (Cth) and on the fact that the statements were made in a compulsory examination.[192] It is also distinguishable from Accident Insurance Mutual Holdings Ltd v McFadden[193] in which the relevant statements were seemingly brief. As Kirby P noted in that case, whether waiver has occurred is a "question of degree".[194] Indeed, the plaintiff's conduct in this case in respect of the police interview most closely resembles the facts in Ewin v Vergara (No 2)[195] in which Bromberg J held that the witness' conduct in giving evidence in chief and being cross-examined without objection was clearly inconsistent with the maintenance of the privilege.

80 In my view, it is to place a gloss on the decision in Gemmell and the other authorities to which reference has been made to limit the principles expounded in those decisions to circumstances where the person answering questions during an interview was compelled by law to do so. In particular, in relation to the decision in Gemmell, I am of the view that this is not consistent with the statements of general principle and also fails to have regard to the possibility of an indemnity being sought under sub-s 597(12A) of the Corporations Act.[196] I do, however, accept that waiver is a "question of degree" and, respectfully, adopt the position as stated by Kirby P in McFadden. I certainly do not accept the proposition that the plaintiff's conduct in respect of the police interview most closely resembles the facts in Ewin, particularly having regard to the fact that answers given in court on oath in relation to specific matters are not matters upon which there is any possibility that the witness might resile.[197] Moreover, it is, in my view, clear from the authorities to which reference has been made, particularly the statements of Kirby P in McFadden, that any question of waiver must be considered item by item, so to speak, question by question and, as Ashley JA said in Gemmell, there is no such thing as general issue waiver in relation to the privilege against self-incrimination.[198]

81 I turn now to the question whether a person who commences proceedings as a plaintiff might be said to have voluntarily waived the privilege against self-incrimination.

82 The defendant, in support of the contention that the position of a plaintiff is different from that of a defendant with respect to the privileges against self-incrimination, referred to a number of decision of the United States courts where a plaintiff sought to exercise the privilege against self-incrimination; a privilege constitutionally entrenched in the United States in the Fifth Amendment to the United States Constitution.[199] The three cases referred to in this respect are Kisting v Westchester Fire Insurance Company,[200] a decision of the United States District Court - W D Wisconsin; Shepherd v Superior Court of Alameda County,[201] a decision of the Supreme Court of California, In Bank; and Wehling v Columbia Broadcasting System,[202] a decision of the United States Court of Appeals, Fifth Circuit.

83 Kisting v Westchester Fire Insurance Company is digested as standing for the proposition:

A plaintiff in a civil action who exercises his privilege against self-incrimination to refuse to answer questions pertinent to issues involved will have his complaint dismissed upon timely motion.

Similarly, Shepherd v Superior Court of Alameda County is digested for the proposition that:

A party seeking civil relief in the courts may not refuse, on the grounds of his privilege against self-incrimination, to testify on matters relevant to his recovery.

84 The decision in the United States Court of Appeals in Wehling v Columbia Broadcasting System does have digested the proposition that:

Plaintiff who retreats under cloak of Fifth Amendment cannot hope to gain unequal advantage against party he has chosen to sue.

Whilst this proposition might, at first sight, appear to favour the defendant's position, the judgment of the Court which was delivered by Circuit Judge Lewis R. Morgan would suggest otherwise. As the Court said:[203]

[1] Under the federal discovery rules, any party to a civil action is entitled to all information relevant to the subject matter of the action before the court unless such information is privileged. Fed.R.Civ.P. 26(b)(1). Even if the rules did not contain specific language exempting privileged information, it is clear that the Fifth Amendment would serve as a shield to any party who feared that complying with discovery would expose him to a risk of self-incrimination. The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection. Lefkowitz v. Cunningham, [1977] USSC 102; 431 U.S. 801, 805[1977] USSC 102; , 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); McCarthy v. Arndstein, [1924] USSC 161; 266 U.S. 34, 40[1924] USSC 161; , 45 S.Ct. 16, 69 L.Ed. 158 (1924). Thus, under both the Federal Rules of Civil Procedure and the Constitution, Wehling was under no obligation to disclose to CBS information that he reasonably believed might be used against him as an accused in a criminal prosecution. Maness v. Meyers, [1975] USSC 6; 419 U.S. 449, 461[1975] USSC 6; , 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Hoffman v. United States, [1951] USSC 64; 341 U.S. 479, 486[1951] USSC 64; , 71 S.Ct. 814, 95 L.Ed. 1118 (1951).[204]

...

[4, 5] We hold that the district court erred in concluding that plaintiff's assertion of his self-incrimination privilege during pretrial discovery automatically required the dismissal of his libel action. First, we find no provision in the federal discovery rules which authorizes a court to impose sanctions on a party who resists discovery by asserting a valid claim of privilege. See 8 C. Wright & A. Miller, Federal Practice and Procedure s 2018 (1970). Rule 26 limits the scope of discovery to matter that is "not privileged". Because CBS had no right to information protected by the privilege against self-incrimination, Wehling did not violate the discovery rules when he declined to answer the questions posed at his deposition. In short, the district court had no authority to order Wehling to disclose privileged information and, consequently, should not have imposed sanctions when Wehling declined to answer.[205]

[6] Second, we believe that dismissing a plaintiff's action with prejudice solely because he exercises his privilege against self-incrimination is constitutionally impermissible. Wehling had, in addition to his Fifth Amendment right to silence, a due process right to a judicial determination of his civil action. ...

...

[9] We find that the balance in this case tips in favor of Wehling and against CBS. Wehling filed his suit against CBS on August 17, 1976, the last day before limitations ran on any libel action arising out of the August 18, 1975 broadcast. Wehling had disposed of his last interest in the trade schools in August of 1975 and, under the applicable statute of limitations,[206] was threatened with potential criminal prosecution until approximately September 1, 1980. Thus, when Wehling filed his Motion for Protective Order in July 1977, he in effect was asking the court to stay further discovery for approximately three years. Although a three-year hiatus in the lawsuit is undesirable from the standpoint of both the court and the defendant, permitting such inconvenience seems preferable at this point to requiring plaintiff to choose between his silence and his lawsuit. Dienstag v. Bronsen, 49 F.R.D. 327, 329 (S.D.N.Y.1970); Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil Co., 14 F.R.D. 333 (E.D.Pa.1953); National Discount Corp. v. Holzbaugh, 13 F.R.D. 236 (E.D.Mich.1952).[207] Because staying discovery would not impose undue hardship on defendant and, therefore, would protect the party exercising a constitutional privilege from unnecessary adverse consequences, we believe the court abused its discretion in denying Wehling's Motion for a Protective Order and dismissing the lawsuit.

85 Moreover, the plaintiff submits that the defendant has ignored the effect of s 131A of the Evidence Act 2008, provisions which may be engaged by any "person", terminology which clearly includes the plaintiff. Additionally, s 128 of the Evidence Act, which makes provision for privilege in respect of self-incrimination in other proceedings, applies, according to its terms, to any "witness". Again, terminology applicable to witnesses generally and witnesses whether they be a plaintiff or a defendant. In this respect, I accept the observation by the plaintiff that certificates under these provisions are regularly given to both plaintiffs and defendants in this Court and other courts in Australia where similar legislation is in force. Indeed, in Dale v Clayton-Utz (a firm),[208] Hollingworth J accepted that s 128 would apply to Mr Dale.[209] In my view, it is clear that no principle of statutory interpretation would provide any basis upon which a court could interpret these statutory terms and provisions as somehow excluding the plaintiff. Privilege against self-incrimination is "a cardinal principle of our system of justice",[210] a "bulwark of liberty"[211] and rights "fundamental to a civilised legal system".[212] The authorities indicating that it is a substantive right[213] entitling a person to refuse to answer any question, or produce any document, if the answer or the production would tend to incriminate that person. Clearly, such a fundament change in the law would need to be addressed clearly and unequivocally in legislation. Thus, Gibbs CJ in Sorby[214] states the proposition succinctly thus: "A statute will not be construed as excluding so valuable a privilege unless an intention to do so clearly appears."

86 The authorities are clear that the common law privileges against self-incrimination afford protection against a party having to produce or identify incriminating documents or to reveal their whereabouts or explain their contents in an incriminating fashion.[215]

87 As the authorities to which reference has been made also indicate, and for the preceding reasons, the privileges against self-incrimination, whether in terms of oral or written testimony or the production or identification of documents, extend to parties whether plaintiffs or defendants. In terms of testimony, they also extend to witnesses, whether those individuals are also plaintiffs or defendants. It might be said that there is some ambiguity at times in the statement of principles in this respect, but, it must be remembered, that these statements are made in the context of particular facts and circumstances. For example, in the case law surveyed by Robson J in Re APCH (No 2),[216] his Honour refers to parties, not only defendants, although in some references in parts of the judgment, references which might be described as shorthand references, there are references to defendants. However, in the context of his Honour's analysis of the authorities, it is clear, in my view, that this is not to be taken as excluding other parties to a proceeding, namely plaintiffs. This is clear, for example, in the reference to Refrigerated Express Lines (A'asia) Pty Ltd v Australian Meat and Livestock Corporation.[217]

88 Finally, in this respect, the problems with the defendant's submissions are highlighted by considering what follows from their ignoring the fact that in many cases it will be the defendant, not the plaintiff, who raises the issues engaging the privileges against self-incrimination. As the defendant would have it, a plaintiff suing on an insurance policy would have no privilege against self-incrimination, even where the defendant insurance company admitted all the plaintiff's pleaded allegations, but pleaded arson as a defence. Of course, McFadden was such a case.

89 For these reasons, I am of the opinion that privileges against self-incrimination, both with respect to testimony and the production and identification of documents, apply to a plaintiff with equal force and in the same way as the privileges apply to a defendant. It follows that it is not the position that a person who commences proceedings as a plaintiff has thereby waived the privilege against self-incrimination.

Reasonable likelihood of criminal or civil penalty proceedings

90 In this respect, the defendant points to both the voluntary and lengthy examination of the plaintiff by Victoria Police and also the investigation by the Legal Services Commissioner, together with the passage of time, as indicating that there is not now any reasonable likelihood of criminal or civil penalty proceedings. More specifically, and in addition to the defendant's submissions with respect to the Victoria Police examination to which reference has already been made, the defendant submits:[218]

1. ... Further, the Legal Services Commissioner has already conducted an investigation of the plaintiff with respect to the Schmidt trust account matters identified in paragraphs 55 to 89 of the Defence,[219] and found that there was a reasonable likelihood of the Tribunal finding that the plaintiff was guilty of unsatisfactory conduct and gave him a reprimand under section 4.4.13(3)(b) of the Legal Profession Act 2004 (Vic). The plaintiff consented to this course. A copy of the letter from the Legal Services Commissioner to the plaintiff has also been obtained by the defendant by notice to produce, and is exhibited to the Carfoot Affidavit.[220] The letter also records the responses given by the plaintiff to the Commissioner as to the relevant matters. Thus, there would appear to be no increased risk of jeopardy as a consequence of the plaintiff responding to those same matters in this proceeding.[221]
2. More generally, in view of the significant passage of time together with the events referred to above, the defendant submits that there is no real or appreciable risk of the plaintiff being the subject of a criminal or civil penalty proceedings in respect of the matters the subject of this action, and the plaintiff has not demonstrated that providing responses to the relevant matters in the Defence would tend to subject him to any such proceedings.[222]

91 The plaintiff, on the other hand, contends that there is no requirement to put on evidence how self-incrimination might lead to appreciable risk. In this respect, the plaintiff makes reference to the statement of Ferguson J at first instance in Gemmell,[223] a statement which was not doubted by the Court of Appeal:[224]

1. In my opinion, if the Liquidators establish their claim against the Defendants, it is almost inevitable that the facts necessary for the imposition of a civil penalty will also be established. It would also be likely to establish at least some of the elements that would need to be proved in a criminal prosecution. ASIC has not given any indication as to whether penalty proceedings would be instituted, nor has the Director of Public Prosecutions ruled out criminal proceedings. In this regard, there is no time limit on when a criminal prosecution may be brought. As set out above, the Associate Judge observed that the Defendants had not established that pleading defences would tend to subject them to a penalty in separate proceedings and that their apparent misgivings about filing defences were more apparent than real. Whilst as a matter of practical reality the likelihood of penalty proceedings (or for that matter, criminal proceedings) being brought may be low, I do not think that it can be discounted sufficiently to render it 'so improbable as to be virtually without substance'. In my opinion, in the absence of a positive indication from ASIC that penalty proceedings will not be brought, it is not possible to say that the risk of penalty proceedings is so low as to be of no consequence. Similarly, in respect of criminal proceedings, in the absence of a prior conviction for the offence or an immunity from prosecution having been given or other similar circumstances, the risk is not sufficiently low to warrant ignoring it. It should not be forgotten that it is not for the Liquidators, nor for the Court, to determine whether penalty proceedings or a criminal prosecution ought be brought - those are matters for ASIC and the relevant prosecuting authority.

92 In this context, it should not be overlooked that the privileges against self-incrimination afford protection against the risk of incrimination by both direct and indirect, or derivative, evidence. The consideration that the provision of direct evidence may set in train a process which exposes the person giving evidence to the possibility of liability as a result of what flows indirectly from his or her evidence is identified and explained by Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre:[225]

... whatever 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. ....The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences.

This approach has also been applied in the Australian authorities.[226]

93 The defendant's solicitors asserted in their letter of 3 June 2014 denying the plaintiff's request for the orders sought in this application, that:

We also do not consider there to be any reasonable basis to suggest that the protection available to the defendants in Re Australian Property Holdings Limited (in liq) (Receivers and Managers Appointed) (No 2) [2012] VSC 576 should be available to Mr Dale. Unlike in that case, there is no other proceeding on foot against Mr Dale.

Nor to our knowledge is there any open investigation or contemplation of any charges. If you believe there is, please let us know so we can reconsider the issue.

I do, however, accept the plaintiff's submissions that this assertion by the defendant's solicitors is misconceived because it does not matter whether there is a current proceeding, whether criminal or civil, on foot or whether there is currently an open investigation or contemplation of charges. The Court of Appeal decision in Gemmell makes this position clear. In that case, there was no current proceeding on foot, whether criminal or for a civil penalty, and no evidence of an open investigation or contemplation of charges. It was an insolvent trading case and not a case alleging the type of serious conduct which is made against the plaintiff in these proceedings and sought to be proved by the defendant. In this regard, I am of the opinion that the statement of Ferguson J which is set out above is particularly apposite.[227] In my view, it is quite correct to say, as the plaintiff submits, that the whole point of the privileges against self-incrimination is that there might well be such proceedings commenced, if not already commenced, if orders giving effect to the privileges are not made.

94 Moreover, in this context, it should be observed that the authorities are clear that disciplinary penalties are civil penalties for the purposes of the privileges now under consideration. Thus, Gibbs CJ in Police Services Board v Morris said:[228]

There is an obvious distinction between criminal offences and breaches of discipline and it is necessary to insist upon that distinction for some purposes: see, eg R v White; Ex parte Byrnes.[229] Nevertheless, although the penalties provided by s 88 are disciplinary penalties, they are nonetheless penalties, and it is old law, confirmed by modern authority, that a person cannot be compelled to answer a question whenever the answer would tend to expose him to "any kind of punishment" - "anything in the nature of a penalty": see Phillipps and Arnold, A Treatise on the Law of Evidence, 10th ed (1852), vol 2, p 487; Greenleaf on Evidence, 11th ed (1863), vol 1, p 621; Bray on Discovery (1885), p 313; In re Westinghouse Uranium Contract[230] (a statement not challenged on appeal[231]) and Pyneboard Pty Ltd v Trade Practices Commission.[232] Moreover, it is now accepted that the privilege is capable of application in non-judicial proceedings: Pyneboard Pty Ltd v Trade Practices Commission;[233] Sorby v The Commonwealth.[234]

95 This then raises for consideration the question, how does a court determine whether a claim of privilege against self-incrimination should be upheld? As the authorities indicate, the test is whether compelling answers in the face of claimed privilege of this nature would place the person claiming the privilege in "real and appreciable danger of conviction".[235] Clearly, the mere statement by a witness that he believes that an answer would tend to incriminate him may not be enough to persuade a court that the basis for the claim of this privilege is established, but to require the witness to give a full explanation as to how it would have a tendency may, in itself, defeat the purpose of the privilege.[236] Naturally, the question must be approached in the context of the circumstances of the particular case and the circumstances in which the privilege is claimed. It follows that it may not always be necessary to call evidence on the point, as the tendency to self-incrimination may be obvious or sufficiently discernible.[237] Thus, in McFadden,[238] Clark JA cited Taylor, Treatise on the Law of Evidence:[239]

... In all cases of this kind the court must see, from the surrounding circumstances, and the nature of the evidence which the witness is called to give, that reasonable grounds exist for apprehending danger to the witness from his being compelled to answer. When, however, the fact of such danger is once made to appear, considerable latitude should be allowed to the witness in judging for himself of the effect of any particular question; for it is obvious that a question, though at first sight apparently innocent, may, by affording a link in a chain of evidence, become the means of bringing home an offence to the party answering ...

96 As Robson J observed in Re APCH (No 2),[240] in a statement of law approved by the Court of Appeal in Gemmell,[241] there need only be a real and appreciable risk of criminal prosecution or a tendency to subject the person to a penalty for the privileges to be invoked in separate civil proceedings.[242] In this respect, in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation,[243] Shaw LJ said:

... before a claim for privilege is upheld the court must be satisfied that there is a real and genuine basis for the assertion by the witness that he will tend to be exposed to proceedings or penalties. The precise measure or degree of the risk to the witness is something which the court is not called upon to assess so long as there is a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance. The question is, whether there is a recognisable risk? The principle which protects a witness from obligatory self-incrimination is not to be qualified by or weighed against any opposing principle or expedient consideration so long as the risk of self-incrimination is real in the sense that what is a potential danger may reasonably be regarded as one which may become actual if the witness is required to answer the questions or to produce the documents for which privilege is claimed.[244]

97 The South Australian case of Brebner v Perry[245] also emphasised that the relevant apprehension of risk and prejudice is to the person claiming the benefit of the privileges for his or her own protection. Other aspects of this case were considered in the context of considering the substance of the test itself by the English Court of Appeal in Den Norske Bank ASA v Antonatos.[246]

98 The Court of Appeal in Den Norske Bank, having adopted the summary of the principles relating to the privilege against self-incrimination as summarised by Kirby P in McFadden,[247] turned to consider the authorities on the test in relation to whether an answer will incriminate. Waller LJ (with whom Chadwick and Millett LJJ agreed) said:[248]

One of the main points taken by DnB in this case was that DA was not entitled to claim privilege because there was no greater risk of him incriminating himself by the answers that he might give, as compared with the risk that there already was. Reliance was placed on Brebner v Perry [1961] SASR 177. To consider that submission it is necessary to define the test in relation to whether an answer will incriminate. In many cases one sees the court using the test of "increase the risk of prosecution", the phrase used by the judge in this case. In my view, the authorities demonstrate that "risk of prosecution" is to put the test too narrowly. In Sociedade Nacional v Lundqvist [1991] 2 QB 310 at 324-325, Staughton LJ deals with this aspect:

"The substance of the test is thus that there must be grounds to apprehend danger to the witness, and those grounds must be reasonable, rather than fanciful. Other points that emerge from the cases are these: (i) the affidavit claiming privilege is not conclusive: see Reg. v Boyes, [1861] EngR 626; 1 B. & S. 311, Ex parte Reynolds, 20 Ch.D. 294 and Khan v Khan [1982] 1 W.L.R. 513; (ii) the deponent is not bound to go into detail, if to do so would itself deprive him of protection: see Short v Mercier (1851) 20 L.J. Ch. 289, 292, and the Westinghouse case [1978] A.C. 547; (iii) 'if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question:' see Reg. v Boyes, [1861] EngR 626; 1 B. & S. 311, 330; the Westinghouse case [1978] A.C. 547 and Khan v Khan [1982] 1 W.L.R. 513; (iv) the privilege is not available where the witness is already at risk, and the risk would not be increased if he were required to answer: see Brebner v Perry [1961] S.A.S.R. 117 and the Westinghouse case; (v) 'if it is one step having a tendency to criminate him, he is not to be compelled to answer' (see Paxton v Douglas (1809 Ves. Jun. 239 242) and 'as it is one link in the chain of proof:' Paxton v Douglas [1812] EngR 432; (1812) 19 Ves. Jun. 225, 227. That last point recurs in other cases (e.g. the Westinghouse case), and may be important. I am inclined to think that it refers to any fact which a prosecutor would wish to prove in order to establish the guilt of the witness on a criminal charge. In the Rank Film Distributors case [1982] A.C. 380, 443, Lord Wilberforce said that 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.' That may be thought to go rather further, and to protect a man from having to disclose the names of those who could give evidence against him - assuming that there was otherwise power to require that information: see also Short v Mercier, 20 L.J. Ch. 289, 292 - 'how evidence can be got.' I am not presently convinced that the privilege, by virtue of the doctrine of links in a chain, extends as far as that. But the point need not be decided in this case."

In Tate Access v Boswell [1991] Ch 512 at 529, Sir Nicholas Browne-Wilkinson V-C talks about a prosecutor finding documents "equally useful". In IBM United Kingdom Ltd v Prima Data International Ltd [1994] 1 WLR 719, 731 Sir Mervyn Davies applies a test of "some important facts that bear on establishing whether or not he has acted criminally." In Saunders v United Kingdom [1996] ECHR 65; [1997] 23 EHRR 313, 338-399 the European Court of Human Rights uses the test of testimony:

"which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility."

Cockburn CJ in R v Boyes [1861] EngR 626; (1861) 1 B & S 311 at 330, as quoted by Staughton LJ in the Sociedade Nacional case [1991] 2 QB 310, 324, perhaps put the matter most neatly when he said:

"the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer."

Thus, it is not simply the risk of prosecution. A witness is entitled to claim the privilege in relation to any piece of information or evidence on which the prosecution might wish to rely in establishing guilt. And, as it seems to me, it also applies to any piece of information or evidence on which the prosecution would wish to rely in making its decision whether to prosecute or not.

In Brebner v Perry [1961] SASR 177 the witness had provided a statement making admissions to the police and then when called to give evidence claimed the privilege. The ruling was not only that there was no increased danger to the witness in answering the questions but was also a ruling that the witness was taking the privilege against self-incrimination in bad faith. Clarke JA in Accidental Mutual Holdings Ltd v McFadden 31 NSWLR 412, 433 thought that the correctness of the Brebner case would need to be considered at some time, and said:

"Finally it is submitted that, as Leathem had already provided a statement, he would not have exposed himself to further jeopardy by giving sworn testimony. As a matter of fact I do not think that is correct. Any witness who gives sworn evidence admitting to his guilt of a crime is exposing himself to jeopardy unless he has already been dealt with for that crime, he has been pardoned or there are other similar circumstances. The fact that he might have earlier admitted the crime in a signed statement, which he may or may not wish to disavow, cannot mean, in my view, that there is no additional prejudice in giving sworn testimony to like effect ..."

I respectfully agree with Clarke JA. It is one thing for someone to make a statement to the police or anyone else which he might afterwards try to retract. It is quite another for him sometime later to be made to repeat any admission on oath in court in the presence of a judge and his own lawyers. It makes the potentially retractable impossible to retract. If there is a risk of self-incrimination and if there is no bad faith a "no increase in risk" must be almost impossible to establish. It is of interest that it failed in the Tate Access case [1994] 1 WLR 719, 732.

See also the reference to Brebner in Sorby v The Commonwealth.[249]

99 In any event, in Australian Securities and Investments Commission v Mining Projects Group Ltd,[250] Finkelstein J observed that it will not be difficult to show that the provision of information or the production of documents in a civil case leads to a real and appreciable risk of a criminal prosecution when the proceeding is aimed at proving that the directors engaged in conduct which would establish, or go a long way toward establishing, that they had also committed criminal acts. Again, in this respect I refer to and repeat the observations of Ferguson J in Gemmell at first instance, which are set out above.[251]

100 In this case, the defendant directly alleges serious professional misconduct which could lead to obvious civil penalties and also serious criminal conduct which could lead to criminal charges. There is clearly, nothing tenuous or illusory or without substance in the nature of the allegations which are raised against the plaintiff. I say this, of course, on the basis that I have no view one way or the other as to whether there is any veracity in these allegations or whether they might ultimately be proved. That is, however, not the point in the context of an application of this kind and there is no suggestion in the authorities that the basis or bases of the privileges against self-incrimination, when claimed, are to be assessed in terms of their substance. It is a matter of assessing degree of risk, as indicated in the authorities.

101 In this application, the defendant seeks to tender police interviews which, in my view, simply serve to emphasise the serious nature of the allegations made by the defendant against the plaintiff and the ramifications for the plaintiff if he is required to comply with the rules of Court dealing with disclosure requirements.[252] It is obviously the case that effluxion of time since the critical events or allegations may be a circumstance relevant to the assessment of risk. In this case, however, I accept that effluxion of time is not a relevant factor having regard to the seriousness of the allegations made against the plaintiff as an officer of this Court, particularly having regard to the inherent jurisdiction of the Court to discipline solicitors, including by removing them from the Roll.[253] Moreover, the defendant's submissions with respect to effluxion of time do overlook the fact that the defence raises serious issues which have not thus far been investigated and which, in my view, clearly raise relevant risks as far as the plaintiff is concerned in terms of the assessment of the justification for the claimed privileges. In terms of risk, the defendant also sought to place reliance on the evidence of a senior police officer involved in the investigation. Even if evidence of this kind were regarded as relevant and carrying weight in relation to the assessment of risk, there is no information as to why there was no prosecution or what might be the position with respect to prosecution if further incriminating evidence arose. In other words, this evidence is of no assistance in terms of risk assessment.

102 In this case, the plaintiff has not sought orders in limine and the privileges are available, even though this is a non-penalty proceeding, provided only that Mr Dale can establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked or that providing the information requested would tend to subject him to a civil penalty in separate proceedings.

103 In conclusion, I echo the statement made by Ashley JA in the Court of Appeal in Gemmell:[254]

1. The privilege against a witness being compelled to answer a question or questions which may tend to incriminate the witness has been described as 'a fundamental ... bulwark of liberty', and as 'not simply a rule of evidence, but a basic and substantive common law right.'
2. The privilege extends to pleadings and other interlocutory process, as Reid demonstrates, and as Robson J explained by reference to authority in APCH (No 2).

104 A further matter which strengthens the conclusions I have reached with respect to the privileges is that, for the reasons indicated in relation to the Protean Holdings "split" issue, the plaintiff is with respect to the defendant's case - in substance - a defendant. He is not a "volunteer" to this case as a plaintiff might be seen with respect to his, her or its own case. Consequently, even if I were of the opinion that the privileges could only be invoked by a defendant, it would truly be a triumph of form over "a fundamental ... bulwark of liberty" if a plaintiff in the position of Mr Dale could not invoke the privileges in response to the defendant's case against him. Moreover, having regard to the manner in which the plaintiff's case is put and the defendants' pleading of a discrete and positive case against him, no unfairness or injustice arises for the defendant in the conduct of the firm's case as a result of the plaintiff invoking the privileges.[255]

105 A variety of objections were made by the plaintiff to evidence which the defendant sought to lead through the evidence of Mr Gregory John Carfoot, being exhibits to his affidavit made on 5 September 2014.[256]

106 Having regard to the preceding reasons and the position I have reached with respect to the other relief sought in the plaintiff's application, it may be that these objections are to a greater or lesser extent no longer live issues, at least for the purposes of the present application. Accordingly, I propose to reserve the question whether the plaintiff's objections to the tender of this evidence by the defendant are made out and will hear the parties further on both whether the objections remain live issues and, if so, whether the objections are established. I will also hear from the parties as to what, if anything, flows from any objections being established and also from the admission of any of this evidence.

107 For the preceding reasons, I am of the opinion that the plaintiff's application should be acceded to, in all its elements, save for the objections made by the plaintiff to the tender of evidence by the defendant through the affidavit of Mr Gregory John Carfoot, made 5 September 2014. The question whether these objections, or any of them, are established and what flows from any finding in this respect are reserved.

109 The parties are to bring in orders to give effect to these reasons.

Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412

Reid v Howard (No 2) [1995] HCA 40; (1995) 184 CLR 1

Re Australian Property Custodian Holdings (In Liquidation) (Receivers and Managers Appointed) (Controllers Appointed) (No 2) [2012] VSC 576; (2012) 93 ACSR 130

[1974] AC 547

Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32

Rowell v Larter (1986) 6 NSWLR 21

Ewin v Vergara (No 2) [2012] FCA 1518; (2012) 209 FCR 288

Registrar, Court of Appeal v Craven (No 1) (1994) 126 ALR 668

Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211; (2007) 209 FLR 197

Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477

Brebner v Perry [1961] SASR 177

BTR Engineering v Patterson (1990) 20 NSWLR 724

Sorby & Anor v The Commonwealth of Australia & Ors [1983] HCA 10; (1983) 152 CLR 281

Witness (Applicant sought to resist compulsion to answer questions by Royal Commission)

MacDonald v Australian Securities and Investments Commission (ASIC) [2007] NSWCA 304; (2007) 73 NSWLR 612

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29

Hudak and Anor v Adams and Anor [2013] NSWSC 1464

Wehling v Columbia Broadcasting System, [1980] USCA5 295; 608 F.2d 1084 (5th Cir. 1979)

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328

Witness (Appellants sought to resist production of documents under s 155 of the TPA)

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385

Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204

Rank Film Distributors Ltd v Video Information Centre [1982] AC 380

Le Roi Homestyle Cookies Pty Ltd (in liquidation) v Gemmell [2013] VSC 452

Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461

Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436

Defendant (Appellant sought to resist Mareva injunction)

Redfern v Redfern [1891] P 139

Pappas v New World Oil Developments [1993] FCA 375; (1993) 117 ALR 304

Dolan v Australian Overseas Telecommunications Corp [1993] FCA 202; (1993) 114 ALR 231

R v Roberts [2004] VSCA 1; (2004) 9 VR 295

Westpac Banking Corporation v Hilliard [2006] VSC 470

[1] Statement of Claim (2 September 2011), [33].

[2] Statement of Claim, [2]; Defendant's Amended Defence (3 October 2013), [2].

[3] Statement of Claim, [38] to [44] and [48].

[4] [1985] VR 157.

[5] Statement of Claim at [3(m)]; see also Defence, [3A].

[6] Statement of Claim, [9] to [13] and [20]; Defence, [9] to [13] and [20]. The Fagan Memorandum is exhibit GJC-1 to the Carfoot Affidavit.

[7] Statement of Claim, [38] and [42] to [46].

[10] Statement of Claim, [14], [15] and [43].

[14] Statement of Claim, particulars to [46], [A] to [C] and [K].

[15] See Defendant's Submissions (19 September 2014), [9]; cf ASIC v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32 at 39, [20] (Finkelstein J).

[16] Making reference to Statement of Claim, [14], [15], [38], [42], [43], [44], [45] and [46].

[17] As submitted by the plaintiff, it should be noted that the defendant's plea to paragraph 16 of the Statement of Claim is a non-admission. The defendant does not deny that "[a]t all times between 26 August 2005 and 4 September 2005 the plaintiff was confined in the Albert Clinic, a psychiatric hospital, for psychiatric care and was unable to provide proper instructions to his legal advisors."

[19] Transcript, pp 149-160 (Mr S. Wilson QC), (extracts, with further [bracketed] references).

[21] Quoting from Variety Video v Jones [2001] NSWSC 5, [163] (Austin J).

[24] Further, as to the analogy with defamation cases, see the discussion below at paragraphs 50 to 54 with respect to S, DJ v Channel Seven Adelaide Pty Ltd (2009) 260 LSJS 287.

[25] This is a reference by Mr Wilson QC, Counsel for the plaintiff, to Mr Karkar QC's, Counsel for the defendant, oral submission at Transcript page 73 line 6.

[28] [1983] 1 Qd R 130 (FC).

[30] Defence, [14], [15], [38], [42] to [46] and [48].

[32] By paragraphs 102 to 119 the defendant purports to rely upon matters that it was not aware of prior to the expulsion decision but learned about before the expulsion decision took effect on 8 October 2005 and by paragraphs 121 to 144 it purports to rely upon matters it became aware of after 8 October 2005.

[33] Plaintiff's Submissions (12 September 2014), [20] to [22].

[34] Paragraph 3B of the Defence pleads breaches of the Legal Practice Act 1996 (Vic), Legal Profession Act 2004 (Vic), Legal Practitioners Act 1970 (ACT), Legal Profession Act (2004) (NSW), Legal Profession Act 1987 (NSW), Professional Conduct and Practice Rules 2005 (Vic), Revised Professional Conduct and Practice Rules 1995 (NSW), Guide to Professional Conduct and Etiquette 1984 (ACT).

[35] Defendant's Submissions (19 September 2014), [9].

[36] Defendant's Submissions (19 September 2014), [10] to [11].

[37] Plaintiff's application, [3(a)(i)].

[39] [1931] HCA 21; (1931) 45 CLR 359; and see Carter, Contract Law in Australia (6th ed, LexisNexis, 2013), [31-03]; and Carter, Breach of Contract (LexisNexis, 2011), [10-07].

[40] Plaintiff's Reply (23 October 2012), [1].

[41] [1985] VicRp 18; [1985] VR 187 (FC).

[42] [1985] VicRp 18; [1985] VR 187 at 189 to 191.

[43] [1987] VR 187 at 191-2.

[44] [2000] VSCA 53.

[45] [2000] VSCA 53, [14] to [24].

[46] Cf the unusual circumstances of S, DJ v Channel Seven Adelaide Pty Ltd (2009) LSJS 287; discussed below, paragraph 50 to 54.

[47] [1985] VR 157.

[48] [2000] VSCA 53.

[49] [2011] VSC 63 ("Hodgson v Amcor Ltd").

[50] [2011] VSC 63, [113], [114].

[51] Plaintiff's Submissions (12 September 2014), [32].

[52] Exhibit CAT-3 to the Affidavit of Ms Carole Agnes Timmins (made 9 July 2014).

[53] [2008] VSC 548, [8].

[54] Defendant's Submissions (19 September 2014), [12].

[55] [2008] VSC 548.

[56] [2011] VSC 63.

[57] Defendant's Submissions (19 September 2014), [12].

[58] See [2011] VSC 63, [113], [114] (set out above, paragraph 34).

[61] [2008] VSC 548, [3] to [6] and [12], [13]; further background to this case is provided by the previous ruling of J. Forrest J in French v Triple M Melbourne Pty Limited Ruling (No 1) [2008] VSC 547.

[62] Plaintiff's Submissions (12 September 2014), [6].

[63] Plaintiff's Submissions (12 September 2014), [32(a)].

[64] [2012] QCA 177; [2013] 1 Qd R 476 (with whom Holmes JA and Martin J agreed).

[65] [1979] 2 NSWLR 206 (CA).

[66] [1979] 2 NSWLR 206 at 216-217.

[67] [2012] QCA 177; [2013] 1 Qd R 476 at 484-5, [35]- [37].

[68] [1979] 2 NSWLR 206.

[69] Ibid, 219 - 220 (citations omitted).

[71] [2005] FCA 1348; (2005) 224 ALR 317 at 322, [21].

[72] Defendant's Submissions, (19 September 2014), [14].

[73] Defendant's Submissions, (19 September 2014), [14]: Referring to Evidence Act 2008, s 28.

[74] Defendant's Submissions, (19 September 2014), [15]: Referring to Plaintiff's Submissions (12 September 2014), [26], [30], [35] and [36].

[75] Referring, by way of example, to S, DJ v Channel Seven Adelaide Pty Ltd (2009) 260 LSJS 287, [31].

[76] (2009) 260 LSJS 287.

[77] (2009) 260 LSJS 287 at 289, [15].

[78] Including French v Triple M Melbourne Pty Ltd Ruling (No 2) [2008] VSC 548; and Protean Holdings itself.

[79] (2009) 260 LSJS 287 at 290-291, [18]-[20]; and see the discussion of these cases in Downs Irrigation Co-operative Association Limited v The National Bank of Australasia Limited [1971] Qd R 130 (FC); and by Marks J in Protean Holdings at [1985] VR 189-291 (set out above, paragraph 30).

[80] (1825) Ry & Mood 254; 171 ER 1012.

[81] [1957] 1 QB 195.

[82] (2009) 260 LSJS 287 at 293, [27]-[31].

[83] [1999] NSWSC 1037.

[84] See Transcript, page 99, line 13 to page 100, line 19.

[85] [1999] NSWSC 1037, [15]-[16]; applied in similar circumstances in Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66, [13] (Harrison J).

[86] Defendant's Submissions, (19 September 2014), [14].

[87] Defendant's Submissions, (19 September 2014), [17].

[88] Barclay Mowlen Construction Ltd v Dampier Port Authority [2006] WASC 281, [5] and [6] (Martin CJ); referred to with approval in Oswal v Apache Corporation (No 3) [2014] FCA 835, [8] (Gilmour J).

[89] Rowell v Larter (1986) 6 NSWLR 21 at 24; Re Australian Property Custodian Holdings (In Liquidation) (Receivers and Managers Appointed) (Controllers Appointed) (No 2) [2012] VSC 576; (2012) 93 ACSR 130 at [115] ("Re APCH (No 2)"), quoted with approval by Ashley JA, speaking for the Court of Appeal in Gemmell v Conlon [2014] VSCA 182 at [20] ("Gemmell").

[90] Erwin v Vergara (No 2) [2012] FCA 1518; (2012) 209 FCR 288 at [25]; Registrar, Court of Appeal (NSW) v Craven (1994) 126 ALR 668; ASIC v Mining Projects Group Pty Ltd [2007] FCA 1620; (2007) 164 FCR 32; cf Gemmell at [77]-[84].

[91] Re ACPH (No 2) at [115(a)]; Gemmell at [85]-[87].

[92] Re ACPH (No 2) at [119]; Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211; (2007) 209 FLR 197 at [36].

[94] [1993] HCA 74; (1993) 178 CLR 477 at 498.

[95] (1993) 31 NSWLR 412 at 420 (Kirby P).

[96] [2012] VSC 576; (2012) 93 ACSR 130, [80].

[97] (1986) 6 NSWLR 21.

[98] (1986) 6 NSWLR 21 at 24.

[99] [2010] NSWSC 29, [60]-[61].

[100] [2013] NSWSC 1464, [40].

[101] Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29, [59]-[61] (Barrett J).

[102] Hudak v Adams [2013] NSWSC 1464, [39]-[41].

[103] See Australian Corporation Law - Principles and Practice (LexisNexis, Loose-leaf (Service 182)), pp 152, 342-152, 345 [15.2.0085], and footnote 70; and Bailey and Evans, Discovery and Interrogatories Australia (LexisNexis, Loos-leaf (Service 27)), pp 40, 529-40, 530 [29,435], and footnote 17.

[104] [1942] 2 KB 253 at 257 (Goddard LJ) (CA).

[105] See at [1942] 2 KB 253 at 255 (Lord Clauson) and at 259 (Goddard LJ); and see Spokes v The Grosvenor and West End Railway Terminus Hotel Company Limited [1897] 2 QB 124 (CA).

[106] [1891] P 139 (CA).

[107] [1891] P 139 at 147.

[108] See [1891] P 139 at 147-8.

[109] Cutler and Griffin, Powell's Principles and Practice of the Law of Evidence (5th ed, Butterworths, London, 1885), 116. The provisions of the English Evidence Amendment Act 1851 to which reference is made are as follows:

2. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action, or other proceeding may be brought or defended, shall, except as herein-after excepted, be competent and compellable to give evidence, either vivâ voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action, or other proceeding.

3. But nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. [Plaintiff's emphasis]

[110] Argyle, Phipson on Evidence (10th ed, Sweet and Maxwell, London, 1963), 264 [611].

[111] [1942] 2 KB 253.

[112] Heydon, Cross on Evidence (8th Austn ed, LexisNexis Butterworths, 2010), [25075]; and see Heydon, Cross on Evidence (Loose-leaf ed, Butterworths, 1996), pp 25,042 (Service 168) and 25,043 (Service 159), [25065] and [25070].

[113] As to the non-availability of the privilege to corporations see [25080].

[114] In Re Westinghouse Uranium Contract (No 2) [1978] AC 547 at 573; [1977] 3 All ER 717 at 721 Lord Denning MR in the Court of Appeal drew a distinction between a claim for this privilege by a party and by a mere witness. Claims by the former are scrutinised more carefully.

[115] Smith v Read (1737) 1 Atj 526; Evans v Staunton [1958] Qd R 96 (FC). In the case of discovery and interrogatories, their equitable origins also mean that the procedures are not available at all in proceedings to enforce a penalty: R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, or in analogous proceedings: R v DCT; Ex parte Briggs (1987) 13 FCR 389. It is not possible to object on this ground to the administration of the interrogatories, only to decline to answer them: Bartlett v Lewis [1862] EngR 683; (1862) 12 CB (NS) 249.

[116] Rank Film Distributors Ltd v Video Information Centre [1982] AC 380; Thorn EMI Video Programmes Ltd v Kitching & Busby [1984] FSR 342 (NZHC). See too Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 at 473-4; (1984) 2 IPR 304 at 318; disapproved in BPA Industries Ltde v Black (1987) 11 NSWLR 609. The English practice is that an Anton Piller order exposing a defendant to a real risk of criminal prosecution can only properly be made and served on the defendant if it contains a proviso which clearly safeguards the defendant's right to claim the privilege against self-incrimination and is not to be executed until the defendant has been told of that right and declined to claim it: IBM United Kingdom Ltd v Prima Data International Ltd [1994] 4 All ER 748. The privilege is not lost by disclosure to the court or its officers of incriminating material while the court decides on the claim for privilege: C plc v P (Secretary of State for the Home Department Intervening ) [2006] Ch 549.

[117] Istel (AT & T) Ltd v Tully [1993] AC 45; Sociedade Nacional de Conbustiveis de Angola UEE v Lundqvist [1991] 2 QB 310 (CA); Tate Access Floors Inc v Boswell [1991] Ch 512; Den Norske Bank ASA v Antonatos [1998] EWCA Civ 649; [1999] QB 271 (CA). An order for disclosure in aid of the Mareva injunction which is inconsistent with the privilege should not be made: Vasil v National Australia Bank [1999] NSWCA 161; (1999) 46 NSWLR 207.

[118] Reid v Howard (1993) 31 NSWLR 298; Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 5 and 13-14; Smith v Director of Serious Fraud Office [1993] AC 1; Istel (AT & T) Ltd v Tully [1993] AC 45. There are old cases holding that a person who chose to act as a fiduciary impliedly contracted with the principal that the principal would not invoke the privilege: Green v Weaver [1827] EngR 699; (1827) 1 Sim 404; Chadwick v Chadwick (1852) 22 LJ Ch 329; Robinson v Kitchin [1856] EngR 269; (1856) 8 De GM & G 88 (LJJ). But see Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, where the point was defeated by a majority in the Court of Appeal, and not even argued in the House of Lords; Tate Access Floors Inc v Boswell [1991] Ch 512; Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 (CA). In the latter two cases the proposition was held to be inconsistent with the reasoning in the earlier case of Parkhurst v Lowsen [1819] EngR 598; (1818) 2 Swans 194 and Paxton v Douglas [1809] EngR 431; (1809) 16 Ves 239, and with the result in the later one of Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991] 2 QB 310 (CA).

[119] Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 13.

[120] The privilege cannot be relied upon as a ground to set aside the subpoena. When the subpoena is called upon the documents are produced to the court. At this stage no question of incrimination may arise. If it arises upon application by the parties for access, the judge may be able to devise a procedure which will protect the interests of the witness: Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478 at 490; Reid v Howard (1993) 31 NSWLR 298 (CA); Reid v Howard [1995] HCA 40; (1995) 184 CLR 1.

[121] Putting material into the hands of a solicitor supervising the search is a delivery up to the court, and does not lead to loss of privilege: C plc v P (Secretary of State for the Home Department Intervening) [2006] Ch 549 at [18].

[122] [1983] HCA 9; (1983) 152 CLR 328.

[124] [1891] P 139 at p. 147.

[125] (1886) 16 Q.B.D. 507.

[126] [1897] 2 Q.B. 111.

[127] [1910] HCA 61; (1910) 11 C.L.R. 738.

[128] [1910] 2 K.B. 59 at p. 66.

[130] (1979) 42 F.L.R. 204.

[132] [1935] HCA 73; (1935) 54 C.L.R. 126, at p 130.

[134] [1906] A.C. 434, at pp. 437-438.

[136] [1736] EngR 59; (1736) 1 Atk 526 at p. 527 [1736] EngR 59; [26 E.R. 332, at p. 332].

[137] (1864) 5 B & S 829, at p. 838 [1864] EngR 803; [122 E.R. 1038, at p. 1042].

[140] [1983] HCA 10; (1983) 152 CLR 281 at 288.

[141] [1993] HCA 74; (1993) 178 CLR 477 at 502-3 (Mason CJ, Toohey J) and 547 (McHugh J).

[143] [1993] FCA 375; (1993) 117 ALR 304 at 310.

[144] [1993] FCA 202; (1993) 114 ALR 231.

[145] [2004] VSCA 1; (2004) 9 VR 295.

[146] (2004) 9 VR at 328-9, [83]; and see Westpac Banking Corporation v Hilliard [2006] VSC 470 at [100] (Hansen J).

[147] [1993] FCA 202; (1993) 42 FCR 206 at 212-16.

[148] The further reason given by Spender J, based on the words "might tend to incriminate" as opposed to "would incriminate", may not be applicable under s 29 of the Evidence Act as it requires the court to be of opinion that the answer "will tend" to subject to punishment the witness relying on the ground that the answer "may ... criminate". But it is to be noted that the court is only required to be satisfied of a tendency and also that, as already noted, s 29 may not apply to collateral matters. As already indicated, no argument based on s 29 was advanced for either applicant.

[149] [1995] HCA 40; (1995) 184 CLR 1 at 14.

[150] [1993] FCA 375; (1993) 43 FCR 594 at 595.

[151] (1995) 58 FCR 1 at 16-17.

[152] (1997) 91 A Crim R 526 at 528.

[153] [2001] VSC 383; (2001) 39 ACSR 443 at 467-8, [109]- [112].

[155] (1991) 65 ALJ 412.

[157] [1996] QCA 27; [1997] 1 Qd R 429.

[160] This table - "List of Authorities re Privilege" - is contained in the Appendix to these reasons.

[161] [2014] VSCA 182.

[162] See Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, particularly at 1, 5 and 8 (Deane J) and 12, 14 and 17 (Toohey, Gaudron, McHugh and Gummow JJ); and see Gemmell at [22] (Ashley JA).

[163] See [2014] VSCA 182, [63].

[164] See [2014] VSCA 182, [44].

[165] [2014] VSCA 182, [74]-[82].

[166] [2013] HCA 39; (2013) 302 ALR 363, 408 [137]. See also X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, 122-123 [53] (French CJ and Crennan J). Their Honours were in dissent, but not on this point.

[167] As Mason CJ said in Hamilton (at 496), a claim gives 'specific protection in relation to the principal matter covered by the privilege but not otherwise'.

[168] (1990) 20 NSWLR 724.

[169] [2012] FCA 1518; (2012) 209 FCR 288.

[172] [2014] VSCA 182, [84].

[173] As to the principles with respect to legal professional privilege, see Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; and Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 at 250, [45]- [50] (Hodgson JA; with whom Campbell JA and Handley AJA relevantly agreed); and see Corkhill and Selwyn, "Evolution of the common law principle of 'issue waiver'" (2008) 82 ALJ 338.

[174] Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715 at 728, [45]- [47] (Hodgson J; with whom Allsop P and Tobias JA relevantly agreed).

[175] [2014] VSCA 182, [20]-[23] and [28]-[30].

[176] [2012] VSC 576; (2012) 93 ACSR 130, 154 [115] (citations omitted).

[178] Reasons [10], citing Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 5, 8 (Deane J), 12, 14, 17 (Toohey, Gaudron, McHugh and Gummow JJ).

[180] And Ashley JA then set out a passage from the judgment of Ferguson J at first instance: [2013] VSC 452, [17] (a paragraph which is set out below, at paragraph 73).

[181] (1993) 31 NSWLR 412.

[184] [1995] HCA 40; (1995) 184 CLR 1.

[187] Plaintiff's Submissions (12 September 2014), [43]-[45].

[188] And see further, below, paragraph 80.

[189] Defendant's Submissions (19 September 2014), [25]-[26].

[190] Exhibit GJC-5 to the affidavit of Mr Gregory John Carfoot (made 5 September 2014).

[191] Exhibit GJC-5 to the affidavit of Mr Gregory John Carfoot (made 5 September 2014): Day 1 (start): T1 3; (tape change 1): T1 28; (tape change 2): T1 50; (tape change 3): T1 73; (tape change 4): T1 97; (tape change 5): T1 123; (tape change 6): T1 148; (tape change 7): T1 174; (tape change 8): T1 207; Day 2 (start): T2 2; (tape change 1): T2 33; (tape change 2): T2 63; (tape change 3): T2 94; (tape change 4): T2 122; (tape change 6): T2 173; (tape change 7): T2 198; (tape change 8): T2 226; (tape change 9): T2 255; (tape change 10): T2 278; (tape change 12): T2 293.

[193] (1993) NSWLR 412 at p 419.

[195] [2012] FCA 1518; (2012) 209 FCR 288 at [25].

[196] See the extract from the judgment of Ashley JA in Gemmell which is set out above; and, particularly, [84].

[197] And see Gemmell [2014] VSCA 182, [78].

[198] See Gemmell [2014] VSCA 182, [84].

[199] The Fifth Amendment to the United States Constitution provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when an actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation".

[200] 290 F.Supp. 141 (1968).

[201] 550 P.2d 161 (1976).

[202] [1980] USCA5 295; 608 F.2d 1084 (1979).

[203] [1980] USCA5 295; 608 F.2d 1084 (1979) at 1086-1088

1. [204] If a party reasonably apprehends a risk of self-incrimination, he may claim the privilege though no criminal charges are pending against him, Savannah Sur. Associates, Inc. v. Master, 240 Ga. 438, 439, 241 S.E.2d 192, 193 (1978), and even if the risk of prosecution is remote. In re Master Key Litigation[1974] USCA9 546; , 507 F.2d 292, 293 (9th Cir. 1974).
2. [205] While dismissal is unavailable as a Sanction, the district court is not precluded from using dismissal as a Remedy to prevent unfairness to the defendant. As we indicate below, however, dismissal may only be used as a remedy of last resort where the plaintiff's refusal to submit to discovery is based on his exercise of a constitutional right.
3. [206] Counsel informs the court that under 18 U.S.C.A. s 3282 Wehling was subject to a five year statute of limitations for any criminal activity related to his operation of the schools. Although the Motion for Protective Order did not refer to the date on which the limitations period would expire, the court never suggested that that information would be important in its consideration of plaintiff's motion.

[207] We recognize that in each of these cases the self-incrimination privilege was claimed by a civil Defendant. CBS suggests that such cases are inapplicable where it is a plaintiff who invokes his constitutional right of silence. Although the plaintiff-defendant distinction has its advocates, See, e. g. Jones v. B. C. Christopher & Co., 466 F.Supp. 213 (D.Kan.1979); Minor v. Minor, 240 So.2d 301 (Fla.1970), we are unwilling to join their ranks. It is true that, as a voluntary litigant, the civil plaintiff has created the situation which requires him to choose between his silence and his lawsuit. In most cases, however, a party "voluntarily" becomes a plaintiff only because there is no other means of protecting legal rights. As one commentator has observed, although the plaintiff-defendant "distinction is superficially appealing, . . . civil plaintiffs seldom voluntarily seek situations requiring litigation". Comment, supra note 8 at 545.

[208] [2012] VSC 577.

[209] See [2012] VSC 577, [89]-[90].

[210] Sorby v The Commonwealth of Australia & ors [1983] HCA 10; (1983) 152 CLR 281 at 294 (Gibbs CJ).

[211] Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 340 (Mason ACJ, Wilson and Dawson JJ).

[212] Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 420 (Kirby P).

[213] Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 508 (Mason CJ and Toohey J).

[215] See Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 at 393 (Gibbs CJ, Mason and Dawson JJ).

[216] [2012] VSC 576; (2012) 93 ACSR 130.

[217] (1979) 42 FLR 204 at 210-211, [87].

[218] Defendant's Submissions (19 September 2014), [27]-[28].

[219] Exhibit GJC-3 and exhibit GJC-4 to the Affidavit of Mr Gregory John Carfoot (5 September 2014).

[220] Exhibit GJC-3 to the Affidavit of Mr Gregory John Carfoot (5 September 2014).

[221] Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) [2014] VSCA 182, [107]; see also Brebner v Perry [1961] SASR 177 (BRT Engineering Aust Ltd v Patterson (1990) 20 NSWLR 724; Sorby v The Commonwealth [1970] HCA 4; (1983) 122 CLR 493; Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] 1 All ER 434.)

[222] See, e.g., Re APCH (No 2), [115(a)] and [115(c)].

[223] Le Roi Homestyle Cookies Pty Ltd (in liq) v Gemmell [2013] VSC 452, [17] and see also [11].

[224] And was, rather, referred to with apparent approval: see [2014] VSCA 182, [22] (Ashley JA); in the passage set out above.

[225] [1982] AC 380 at 443.

[226] Sorby & anor v The Commonwealth of Australia & ors [1983] HCA 10; (1983) 152 CLR 281 at 294 (Gibbs CJ) and at 310 (Mason, Wilson and Dawson JJ); Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 6-7 (Deane J)

[228] [1985] HCA 9; (1985) 156 CLR 397 at 403.

[229] [1963] HCA 58; (1963) 109 CLR 665, at p 670.

[230] [1978] AC 547, at pp 563-564.

[231] [1978] AC, at pp 612, 627, 632, 647.

[232] [1983] HCA 9; (1983) 152 CLR 328.

[235] Sorby & anor v The Commonwealth of Australia & ors [1983] HCA 10; (1983) 152 CLR 281 at 289 and 294 particularly (Gibbs CJ); Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 at 469 (Cooke J).

[236] Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 574 (Lord Denning) MR.

[237] Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436 at 447.

[238] (1993) 31 NSWLR 412 at 430.

[240] [2012] VSC 576; (2012) 93 ACSR 130 at 154.

[241] [2014] VSCA 182, [20] (with whom Neave JA and Almond AJA agreed).

[242] See Re APCH (No 2) (2012) 03 ACSR 130 at 154.

[243] [1978] AC 547 at 581.

[245] [1961] SASR 177.

[246] [1998] EWCA Civ 649; [1999] QB 271.

[247] (1993) 31 NSWLR 412 at 420-424; the passages set out at [1999] QB 285-287.

[249] [1983] HCA 10; (1983) 152 CLR 281 at 290 (Gibbs CJ).

[250] [2007] FCA 1620; (2007) 164 FCR 32.

[252] And in this respect, see s 131A of the Evidence Act 2008.

[253] Re a Solicitor [1952] VicLawRp 51; [1952] VLR 385 at 388 (Lowe, Martin and Dean JJ); Weaver v Law Society (NSW) [1979] HCA 35; (1979) 142 CLR 201 at 207 (Mason J, Barwick CJ, Gibbs, Stephen and Aickin JJ agreeing).

[254] [2014] VSCA 182, [47]-[48].

[255] See Television New Zealand Ltd v Prebble (CA 161 of 1992, 14 May 1993, unreported); Breunis v Penthouse Publications Ltd (NSWSC, 15619 of 1992, 20 August 1993, unreported); and Allason v Haines (QBD, Times Law Reports, 25 July 1995).

[256] See Plaintiff's Submissions (12 September 2014), [60]-[95].