Reid v Howard

4. Stand over the question of costs in this Court and of the proceedings in the courts below to enable the respondents to file written submissions within fourteen days. The appellant shall have ten days within which to file submissions in reply.

6 December 1995 After receiving written submissions, the Court made the following further orders: - Set aside the orders as to costs insofar as they relate to the question of self-incrimination in Matter No 1885 of 1993 and Matter No 1923 of 1993 made by Powell J on 6 April 1993 and, in lieu thereof, order that each party pay their own costs of the proceedings in the Equity Division of the Supreme Court of New South Wales in so far as they relate to the question of self-incrimination. The respondents pay the costs of the appellant in the Court of Appeal. Remit the matter to the Court of Appeal to permit the respondents to apply for a certificate under the Suitors' Fund Act 1951 NSW. No order as to the costs of proceedings in this Court.

The detailed facts and the issues involved in this appeal are set out in the joint judgment of the other members of the Court. I agree with their Honours that the appeal should be allowed and that the further orders which they propose should be made. I base my conclusion to that effect upon the view that the orders of the Court of Appeal were vitiated by error of law rather than upon a view that the Court of Appeal lacked jurisdiction or power to make them. In that regard, I would not accede to any suggestion that, putting to one side questions of invalidity under the Constitution [14] , New South Wales prosecution or police authorities are free to act on the basis that orders of the New South Wales Court of Appeal can, while they stand, be properly disregarded on the ground that they are beyond power and void.

1. eg, under s 109 in the case of a subpoena or other order of a federal court.

I agree with the other members of the Court that, for the reasons which they give, both Powell J and the Court of Appeal were correct in refusing to deny the benefit of the privilege against self-incrimination to a trustee (or other fiduciary) who is involved in civil litigation with a beneficiary. "The privilege against self-incrimination is deeply ingrained in the common law" [1] . It reflects "a cardinal principle" [2] which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.

1. Sorby v The Commonwealth (1983) 152 CLR 281 at 309, per Mason, Wilson and Dawson JJ. 2. Sorby v The Commonwealth (1983) 152 CLR 281 at 294, per Gibbs CJ.

The fact that the privilege against self-incrimination cannot properly be disregarded or overridden by the courts does not mean that an order of a court which is otherwise within jurisdiction and power will be rendered ultra vires and void by a failure to adhere or give due effect to the privilege. If an order would otherwise be within the jurisdiction and power of a particular court, the fact that it is improperly or wrongly made for the reason that it fails to advert or give due effect to the privilege will not, in the ordinary case of a court which possesses jurisdiction to go wrong, mean that the order is somehow nullified as being beyond power. It will simply mean that the order is wrong and liable to be quashed on appeal or review. Thus, in the present case, the relevant question relating to jurisdiction or power is not whether the Supreme Court possessed some abstract jurisdiction to override the privilege against self-incrimination. The relevant question relating to those matters is whether, putting to one side the question of privilege, the Supreme Court possessed jurisdiction and power to make the order for disclosure which it made. If it did, the effect of a failure to advert or give due effect to the privilege is not something which goes to jurisdiction or power. It is something which gives rise to an erroneous exercise of jurisdiction and power.

The order of disclosure made by Powell J at first instance in the present case denied the appellant's claim to the benefit of the privilege on the ground that the appellant would not be placed in greater jeopardy if required to comply with the order of disclosure sought against him since he had already admitted to the police that he had misappropriated clients' moneys. The Court of Appeal rightly concluded that his Honour's finding that the appellant would not be exposed to greater jeopardy was mistaken. In circumstances where the appellant's admission of misappropriation had been general and unparticularised, disclosure in accordance with Powell J's order would have exposed him to jeopardy or greater jeopardy of being charged with and convicted of a number of specific offences.

The detailed regime which the Court of Appeal substituted for the order of Powell J reflects an attempt to avoid or diminish the danger that disclosure of the relevant matters by the appellant would expose him to criminal prosecution and conviction. Upon analysis, however, the ordered disclosure of those matters even under that regime represents a significant overriding of the appellant's privilege against self-incrimination regardless of whether the fact of involuntary disclosure and the matters disclosed would themselves be admissible against the appellant in any subsequent criminal proceedings. I turn to explain why that is so.

The protection which the privilege against self-incrimination confers extends not only to the risk of incrimination by direct evidence (ie evidence of the fact of disclosure and of the material disclosed) but also to incrimination by indirect or "derivative" evidence (ie "evidence obtained by using" the disclosed material "as a basis of investigation" [3] ). As Lord Wilberforce pointed out in Rank Film Distributors Ltd v Video Information Centre [4] :

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. That point was also made by Gibbs CJ in Sorby v The Commonwealth [5] in words with which I agree: If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt It is true that in some cases the legislature may consider that it can only achieve the intended purpose of the statute by limiting or abrogating the privilege against self-incrimination, but, as I have said, if the legislature intends to render the privilege unavailable it must manifest clearly its intention to do so. And by Mason, Wilson and Dawson JJ in the same case [6] : the privilege protects the witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character. 1. Sorby v The Commonwealth (1983) 152 CLR 281 at 312, per Murphy J. 2. [1982] AC 380 at 443. 3. (1983) 152 CLR 281 at 294-295. 4. Sorby (1983) 152 CLR 281 at 310. And see also Lord Eldon LC in Paxton v Douglas (1812) 19 Ves Jun 225 at 228 [34 ER 502 at 503].

Compliance by the appellant with the order of disclosure under the Court of Appeal's regime would involve disclosure of potentially incriminating material to an officer of the State (ie the Registrar in Equity) and to solicitors representing clients who are involved in litigation against the appellant in which they claim to have been defrauded by him. In turn, the solicitors would be free to make the disclosed material available to those clients and their counsel. The disclosed material could be used as a basis of investigation by the clients and their legal representatives. Indirect or derivative evidence discovered through those investigations could constitute the basis of public findings in the civil proceedings to the effect that the appellant was guilty of specific acts of misappropriation of trust moneys. Such indirect or derivative evidence could be made available to prosecution authorities and could be used either in the prosecution of the appellant for such specific offences or as a basis for further investigation. In that regard, the prosecution authorities would be neither obliged to desist, nor justified in desisting, from the duties of their office in order to import to the orders made by the court an effectiveness which they do not of themselves possess. If the disclosed material itself innocently came within the possession of the prosecution authorities (eg by being received in the mail from an unidentified source), those authorities would be entitled to proceed to investigate any specific offences which that material disclosed and to seek admissible evidence of their commission since the Court of Appeal's orders should not, in my view, be construed as containing an unexpressed injunction or order restraining prosecution authorities from making such subsequent use of the material.

The position is even clearer if one takes account of the fact that all the restrictions upon use of the disclosed material under the Court of Appeal's regime are liable to be rendered nugatory by the leave of a judge of the Equity Division of the Supreme Court. With such leave, the disclosed material could be made directly available to prosecution authorities. Again, even accepting that, putting to one side questions of invalidity under the Constitution, the orders of the Court of Appeal would, while they stand, be effective to prevent as a matter of law or excuse as a matter of comity disclosure pursuant to a search warrant or a subpoena without the leave of a judge of the Equity Division of the Supreme Court, the disclosed material would be completely vulnerable to such disclosure if such leave were obtained. One can only speculate about whether such a judge would see herself or himself as justified in withholding evidence of guilt of criminal offences from the Supreme Court constituted by another judge (with or without a jury) or from another court which sought production of that evidence for the purposes of criminal proceedings brought in relation to those criminal offences. In any event, to adjust a comment of Lord Fraser of Tullybelton in Rank Film Distributors Ltd v Video Information Centre [7] to fit the present case, "it is obvious that a person who has to rely on" a refusal to exercise a judicial discretion "is in a less secure position than one who, by relying on the privilege, can avoid providing the information in the first place".

If the privilege against self-incrimination were susceptible of being overridden by the courts in the interests of justice in the circumstances of a particular case, it would be arguable that the orders made by the Court of Appeal were justified, notwithstanding the deficiencies of the regime which they established. As has been seen, however, the privilege is not subject to judge-made exceptions or qualifications and, in the absence of statutory authority, cannot properly be disregarded or overridden by the courts either to meet the exigencies of hard cases or at all. There has been no suggestion of any applicable statutory provision overriding or qualifying the appellant's privilege against self-incrimination in the present case. Accordingly, the orders of the Court of Appeal cannot be sustained.

I agree with the orders proposed by Toohey, Gaudron, McHugh and Gummow JJ.

The appellant, Hugh Nairn Reid, is a chartered accountant. The respondents were his clients. They entrusted funds to him for investment and, in some cases, provided him with access to funds to be used on their behalf. It now appears that the appellant has, for some time, been using clients' money for his own purposes. He has made a statement to police admitting that some was used "to pay the running costs of [his] practice and to cover living expenses" and some to make investments which "proved not to be successful".

The extent of the appellant's misappropriations is not clear. In particular, it is not known exactly what money was taken from which client or the use to which it was put. As the appellant said in his statement to police, "[t]he transfers of moneys from my clients' accounts to myself, my practice and the various other places was not well documented". And the appellant has not provided anyone with the details of those transfers. It seems that, because there are no details, the police have not been able to formulate criminal charges against him.

The respondents, on learning of the appellant's misappropriations, brought proceedings in the Equity Division of the Supreme Court of New South Wales [8] seeking, amongst other remedies, an order for account, an order in the nature of a Mareva injunction and an interlocutory order requiring disclosure of his assets and the source of the funds with which they were acquired. The appellant consented to summary judgment but resisted the making of interlocutory orders for disclosure claiming privilege against self-incrimination.

1. There were two separate proceedings which were heard together. Stanley Joseph Howard and Caroline Jane Howard as executors of the estate of the late Jocelyn Jean Ritchie, Caroline Jane Howard, Cranwell Pty Ltd and JW Investments Pty Ltd were plaintiffs in Matter No 1885 of 1993. Sue Turnbull and Jessie Eileen Turnbull were plaintiffs in Matter No 1923 of 1993.

It was held at first instance by Powell J that the appellant was not entitled to the privilege against self-incrimination because, having made a statement to the police, he would not be placed in greater jeopardy if required to comply with the disclosure orders sought by the respondents. Accordingly, orders were made requiring the appellant to make and swear affidavits setting out his assets and any asset or assets "in, or upon, which, he applied any moneys, or property, entrusted to him" by any of the respondents and "in relation to each such asset, the amount of any moneys, and the identity of any property, entrusted to him by the said persons and companies respectively so applied by him, and the location of any certificate of title, or other evidence of title, relating to the same".

The Court of Appeal granted the appellant leave to appeal from the disclosure orders made by Powell J, but only on terms that he swear affidavits disclosing the matters required by those orders and that he lodge the original and two copies of each affidavit in sealed envelopes with the Registrar of the Court of Appeal (the Registrar). Consequential orders were made with the effect that, if he should succeed in his appeal or in a further appeal to this Court, the envelopes would be destroyed, but otherwise the original affidavits would be handed to the Principal Registrar of the Equity Division and copies would be delivered to nominated solicitors in the firms acting for the respondents. There were further consequential orders designed to limit disclosure of the information contained in the affidavits save with the leave of a Judge of the Equity Division. In due course, the affidavits were sworn and lodged with the Registrar.

The Court of Appeal (Handley JA, Meagher and Sheller JJA agreeing) held that the disclosure orders made by Powell J did expose the appellant to greater jeopardy than would otherwise be the case. It rejected an argument raised in a notice of contention filed on behalf of the first to fourth respondents [9] that a trustee or other fiduciary cannot claim privilege against self-incrimination in civil proceedings brought by a beneficiary and, thus, concluded that the appellant was entitled to make and maintain his claim of privilege. However, the Court of Appeal considered that it had power to make orders "so as to effectively enforce the respondents' civil rights against the appellant while protecting him against the risk of self-incrimination" [10] . In the result, orders of the kind imposed as a term of the grant of leave to appeal were substituted for those made by Powell J.

1. The fifth respondents, in their notice of contention, relied on the grounds detailed in the notice of contention filed on behalf of the first to fourth respondents. 2. Reid v Howard (1993) 31 NSWLR 298 at 305.

It is not necessary for the substitute orders of the Court of Appeal to be set out in full. It is sufficient to note that they require the appellant to swear two further affidavits disclosing what was done with the proceeds of certain specified cheques and that they operate by reference to those and the affidavits sworn in consequence of the term imposed as a condition of the grant of leave to appeal. They require that the further affidavits be placed in separate sealed envelopes and lodged with the Registrar and that these and the other sealed envelopes remain with the Registrar pending the result of proceedings in this Court. The orders then establish the following regime directed to limiting disclosure and use of the material contained in the affidavits [11] :

5. if the result of any proceedings in the High Court is that [the orders requiring the appellant to swear affidavits] remain in force, the Registrar shall appoint a time for the solicitors for the parties to attend before him when the envelopes shall be opened by the Registrar in the presence of such solicitors and the originals and copies of the affidavits shall then be dealt with in accordance with order 6 herein.

6. On or before the time fixed for such appointment the solicitors for the [respondents] shall file with the Registrar and serve on the appellant's solicitors:

(i) a notice signed by the solicitor on the record nominating the partner and the employed solicitor in the firm who will take and retain possession of the copy affidavits and be responsible for ensuring that the undertakings to the Court hereinafter referred to are properly complied with.

(ii) a written undertaking to the Court signed by the solicitor on the record on behalf of such solicitors undertaking that they, by themselves their servants and agents will not disclose those copy affidavits or any further copy thereof or the information therein to any person other than the nominated partner and employed solicitor, their counsel and their clients, or the nominated partner and employed solicitor for the [other respondents] or their counsel and that they will not part with possession of such copy affidavits or any further copy thereof, whether pursuant to a subpoena, search warrant or otherwise, except to their counsel, without the leave of a judge of the Equity Division.

(iii) a written undertaking to the Court signed by each [respondent] who is a natural person, and executed under the common seal of each corporate [respondent], that he, she or it, by himself, herself, itself and their respective servants and agents will not disclose any information contained in those copy affidavits or any further copy thereof to any person other than the nominated partner and employed solicitor, their counsel, or the nominated partner and employed solicitor for the other [respondents] or their counsel without the leave of a judge of the Equity Division.

(i) the Registrar shall mark the original affidavits confidential and deliver them to the Principal Registrar of the Equity Division who shall retain them in safe custody. Such affidavits shall not be disclosed to any person or produced in answer to any subpoena without the leave of a judge of that Division.

(ii) The Registrar shall deliver copies of the affidavits to the nominated partner or employed solicitor for the [respondents] in [each] proceeding who is present at the appointment.

The appellant now appeals to this Court, supported by the Attorney-General for the State of New South Wales who was granted leave to intervene. There was no appearance for the respondents. 1. Reid v Howard (1993) 31 NSWLR 298 at 312.

As there was no appearance for the respondents, it is appropriate to state that the Court of Appeal was correct in its conclusion that the appellant is entitled to make and maintain his claim of privilege and to indicate why that is so. The privilege, which has been described as a "fundamental bulwark of liberty" [12] , is not simply a rule of evidence, but a basic and substantive common law right. It developed after the abolition of the Star Chamber by the Long Parliament in 1641 [13] , and, by 1737, it was said that "there [was] no rule more established in equity" [14] . More recently, the privilege has been described as "deeply ingrained in the common law" [15] . It operates so that a person cannot be compelled "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" " [16] .

1. Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 340. 2. Holdsworth, A History of English Law, 7th ed (1956), vol I, pp 514-515. 3. Smith v Read (1737) 1 Atk 526 at 527 [26 ER 332 at 332], per Lord Hardwicke LC. And see the discussion of the recognition of the privilege in Chancery in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 528. 4. Sorby v The Commonwealth (1983) 152 CLR 281 at 309. See also Hammond v The Commonwealth (1982) 152 CLR 188 at 200; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341, 347; In re O (Restraint Order) [1991] 2 QB 520 at 529; Istel Ltd v Tully [1993] AC 45 at 57, per Lord Griffiths; at 67, per Lord Lowry; cf Cross on Evidence, 7th ed (1990), p 427. 5. See Sorby v The Commonwealth (1983) 152 CLR 281 at 288, per Gibbs CJ, quoting Lamb v Munster (1882) 10 QBD 110 at 111.

As already indicated, 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. Thus, he is entitled to claim the privilege unless he falls within an exception of the kind contended for by the respondents in the Court of Appeal.

The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without "real exception" [17] . The argument advanced for the respondents in the Court of Appeal in support of an exception in civil proceedings brought by a beneficiary against a trustee appears to have its origins in a handful of old English and Irish cases [18] .

1. Triplex Safety Glass Co v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403. See also Istel Ltd v Tully [1993] AC 45 at 67; Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 at 18-19; Johnstone v United Norwest Co-operatives Ltd (unreported, Court of Appeal (Eng); 11 February 1994) at 10, per Dillon LJ; Hamilton v Oades (1989) 166 CLR 486 at 495, per Mason CJ. 2. The cases are Mayor & Commonalty & Citizens of London v Levy (1803) 8 Ves Jun 398 at 403-404 [32 ER 408 at 410-411]; Green v Weaver (1827) 1 Sim 404 at 426-433 [57 ER 630 at 638-641]; Robinson v Kitchin (1856) 8 De GM & G 88 at 90-92 [44 ER 322 at 323-324]; Attorney-General (Ire) v Daly (1833) Hayes & Jones' Exch Rep (Ire) 379 at 383; Attorney-General (Ire) v Conroy (1838) 2 Jones' Exch Rep (Ire) 791 at 797; Rice v Gordon (1843) 13 Sim 580 at 580 [60 ER 225 at 225]; Chadwick v Chadwick (1852) 22 LJ Ch (NS) 329 at 330-331; Bunn v Bunn (1864) 4 De GJ & S 316 at 317 [46 ER 941 at 941].

Some of those authorities [19] may indicate that there is a special exception to the privilege against self-incrimination where the incrimination relates to the offence of conspiracy. The judgments suggest that this is because of the complex factual matrix in such cases but, in Rank Film Distributors Ltd v Video Information Centre [20] , Lord Fraser of Tullybelton, rightly in our view, said that these cases provide no clear principle on which any exception to the general rule could be based. Rice v Gordon [21] was an unusual case. An indictment was pending against the defendant for perjury committed in the very cause in which the plaintiff now sought production of documents the defendant had admitted to be in his custody. Shadwell V-C said that, if he were to refuse the motion for discovery, this would provide an inducement to a defendant to commit perjury at an early stage in the cause so as to prevent the court from administering justice in the suit. Finally, the decisions in Green v Weaver [22] and Robinson v Kitchin [23] are to be supported as having been decided upon the principle [24] that a court of equity would not allow a party to contradict that which, by actions or express words, the party had asserted, namely, that the party was licensed to act as a broker.

1. Mayor & Commonalty & Citizens of London v Levy (1803) 8 Ves Jun 398 [32 ER 408]; Attorney-General (Ire) v Daly (1833) Hayes & Jones' Exch Rep (Ire) 379; Attorney-General (Ire) v Conroy (1838) 2 Jones' Exch Rep (Ire) 791; and perhaps Chadwick v Chadwick (1852) 22 LJ Ch (NS) 329; 20 LT (OS) 272; 16 The Jurist 1060. The latter reports of Chadwick v Chadwick are fuller than that in the Law Journal. 2. [1982] AC 380 at 448. 3. (1843) 13 Sim 580 [60 ER 225]. 4. (1827) 1 Sim 404 [57 ER 630]. 5. (1856) 21 Beav 365 [52 ER 900]; affd (1856) 8 De GM & G 88 [44 ER 322]. 6. Expressed by Romilly MR at first instance in Robinson v Kitchin (1856) 21 Beav 365 at 371-372 [52 ER 900 at 902-903] and later in Daniell's Chancery Practice, 7th ed (1901), vol 2, p 1580.

It should also be noted that, in Bray on Discovery [25] , the general rule was stated as being that a defendant liable to account in equity, "even as a trustee", might rely upon the privilege so that the plaintiff had to prove liability by other means. When fraudulent disposition by a trustee of trust property was made a misdemeanour by s 80 of the Larceny Act 1861 UK, express provision was made by s 85 thereof that nothing in s 80 was to be taken as entitling the trustee to refuse to give discovery or to answer any interrogatory in any civil proceeding or upon the hearing of any matter in bankruptcy or insolvency.

In Chadwick v Chadwick [26] , the defendant objected to an interrogatory in a bill alleging that the defendant had fraudulently concocted evidence on which he had earlier procured an order in Chancery vesting certain property in him. The plaintiff sought to reverse what had happened by obtaining a declaration that the defendant was trustee of the land for him and an order for conveyance of the legal title. The suit was thus one to impeach the earlier decree, a special branch of equitable jurisdiction [27] . Turner V-C appears [28] to have treated the privilege against self-incrimination as an exception to discovery where the sole gist and object of the suit was to exact a penalty (equity not giving relief in actions to enforce penalties), but to have allowed discovery on the further footing that the gist and object of the present case was not the exaction of a penalty. Certainly Chadwick v Chadwick is not authority for any general proposition that the privilege may not be relied upon by a trustee in a suit brought by a beneficiary.

1. (1852) 22 LJ Ch (NS) 329; 20 LT (OS) 272; 16 The Jurist 1060. 2. McDonald v McDonald (1965) 113 CLR 529; Owens Bank Ltd v Bracco [1992] 2 AC 443; Monroe Schneider v No 1 Raberem [No 2] (1992) 37 FCR 234; Gordon, "Fraud or New Evidence as Grounds for Actions to Set Aside Judgments", Law Quarterly Review, vol 77 (1961) 358 (Pt 1); 533 (Pt 2). 3. See Chadwick (1852) 16 The Jurist 1060 at 1061.

In a series of recent English decisions [29] unsuccessful submissions have been made by reference to the nineteenth century decisions in support of exceptions, ranging from a broad discretionary exception to one in civil proceedings brought to recover money or property entrusted to a fiduciary. It follows from what we have said above that, in our view, those submissions were rightly rejected.

1. Rank Film Distributors Ltd v Video Information Centre [1982] AC 380; Tate Access Floors Inc v Boswell [1991] Ch 512; Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 (which was referred to with approval in Istel Ltd v Tully [1993] AC 45 at 66-67, per Lord Lowry).

There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application - a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission [30] , protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against "the peril and possibility of being convicted as a criminal" [31] . For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings.

1. (1983) 152 CLR 328 at 346. 2. Lamb v Munster (1882) 10 QBD 110 at 111.

The privilege has been seen as a source of difficulty in the making of Anton Piller and similar orders, particularly in copyright matters [32] . And notwithstanding its importance as a fundamental right, there has been criticism in the United Kingdom of the availability of the privilege against self-incrimination in civil proceedings, particularly when availed of to defeat a plaintiff's rights [33] . Thus, in Istel Ltd v Tully [34] , Lord Templeman described the privilege exercisable in civil proceedings as "an archaic and unjustifiable survival from the past" and concluded that "[t]here is no reason why the privilege should be blatantly exploited to deprive plaintiffs of their civil rights and remedies if the privilege is not necessary to protect [the defendant]". It seems that similar considerations led the Court of Appeal in this case to substitute the more limited protection of its orders for that afforded by the privilege. In so doing, the Court of Appeal followed a course similar to that adopted in New Zealand [35] , but more wide ranging than that taken in the United Kingdom in Istel Ltd v Tully [36] . In the latter case, disclosure of incriminating information was ordered, but only after the prosecution authority had agreed not to make use of the information in any subsequent prosecution.

1. See, eg, Rank Film Distributors Ltd v Video Information Centre [1982] AC 380; Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478 at 489; BPA Industries Ltd v Black (1987) 11 NSWLR 609 at 613; Re New World AllianceSycotex v Baseler ;(1993) 47 FCR 90 at 100-101. 2. See, eg, Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 423, per Templeman LJ; at 439, per Lord Wilberforce; Sociedade Nacional de Combustives de Angola UEE v Lundqvist [1991] 2 QB 310 at 338, per Browne-Wilkinson V-C; Istel Ltd v Tully [1993] AC 45 at 62-63, per Lord Ackner. See also, Bentham, Introductory View of the Rationale of Evidence (1827) in Bowring, Works of Jeremy Bentham (1843), vol 6, pp 106-109. 3. [1993] AC 45 at 53, 55. 4. Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461. 5. See also In re O (Restraint Order) [1991] 2 QB 520; Boden v Inca Gemstones (unreported; Court of Appeal (Eng); 20 January 1994); cf Johnstone v United Norwest Co-operatives Ltd (unreported; Court of Appeal (Eng); 11 February 1994).

As already indicated, the protection intended by the orders of the Court of Appeal is more limited than that afforded by the privilege. In particular, the orders do not operate, of their own force, to prevent the material disclosed in the affidavits from being used as the basis for investigations which might, in turn, provide evidence to support criminal charges - a possibility against which the privilege protects [37] . However, it is clear that the Court of Appeal intended to provide protection against evidentiary use of the material in subsequent criminal proceedings. And it thought that this could be achieved by requiring undertakings from the respondents' solicitors and by tying the hands of prosecution authorities.

1. Sorby v The Commonwealth (1983) 152 CLR 281 esp at 291-292.

Contrary to the view taken in the United Kingdom in Istel Ltd v Tully [38] , the Court of Appeal considered that its orders would preclude prosecution authorities, who were not parties to the proceedings, from using the material in subsequent criminal proceedings even if they did not acquiesce in that course. That was so, in the view of the court, because injunctions may, in certain circumstances, "become indirectly enforceable against third parties" [39] and prosecution authorities are not "immune from proceedings for contempt of court if they knowingly act to thwart or frustrate orders of a civil court" [40] . Reference was made to Attorney-General v Times Newspapers Ltd [41] as support for this view. Although the appellant and the Attorney-General both argued in this Court that prosecution authorities cannot be bound in this way, it is not necessary to deal with this issue as, in our view, the Court of Appeal had no power to make the orders it did.

1. [1993] AC 45 at 56, 69. See also In re O (Restraint Order) [1991] 2 QB 520 at 530; Re New World AllianceSycotex v Baseler ;(1993) 47 FCR 90 at 108-109; Grofam Pty Ltd v Macauley [No 2] (1994) 48 FCR 573 at 583. 2. Reid v Howard (1993) 31 NSWLR 298 at 308. 3. Reid v Howard (1993) 31 NSWLR 298 at 309. 4. [1992] 1 AC 191.

The Court of Appeal proceeded on the basis either that it had inherent power to make the orders in question or that they could be made in the exercise of the jurisdiction conferred by s 23 of the Supreme Court Act 1970 NSW. That section provides:

The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.

Although it has been said that the inherent power of a superior court cannot be restricted to defined and closed categories [42] , the power is not at large. Nor is the jurisdiction conferred by s 23 of the Supreme Court Act. Neither the inherent power nor the completely general terms of s 23 can authorise the making of orders excusing compliance with obligations or preventing the exercise of authority deriving from statute. Thus, neither can be exercised to authorise non-compliance with a search warrant issued in the exercise of statutory power as, apparently, was intended in the present case. Nor, of course, can either be exercised to excuse compliance with a subpoena issued by the Federal Court which might occur if, for example, bankruptcy proceedings were brought against the appellant. There are other difficulties with the orders. What considerations are to be taken into account by a judge of the Equity Division in deciding, pursuant to orders 6 and 7, whether or not to grant leave to the respondents' solicitors to disclose the information contained in the affidavits? If there is to be no disclosure, are proceedings to be conducted behind closed doors even though such a course is allowed only in exceptional cases when that is necessary in the interests of justice? [43] These considerations lead to the conclusion not merely that the privilege is not to be modified or abrogated in favour of some different protection by judicial decision, but that its modification or the substitution of some different protection can effectively be achieved only by legislation.

1. Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344. See also Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639; Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v District Court (NSW) (1989) 168 CLR 23 at 25-26, 74; Dietrich v The Queen (1992) 177 CLR 292 at 364. 2. Scott v Scott [1913] AC 417 at 439, cited with approval in Russell v Russell (1976) 134 CLR 495 at 520. See also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, per Kirby P, for a discussion of the history and principles relating to the open administration of justice in courts.

Moreover and of more importance, the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice. Quite apart from the difficulties which the orders of the Supreme Court present for the administration of justice, to which reference has already been made, it is inimical to the administration of justice for a civil court to compel self-incriminatory disclosures, while fashioning orders to prevent the use of the information thus obtained in a court vested with criminal jurisdiction with respect to the matters disclosed. Nor is justice served by the ad hoc modification or abrogation of a right of general application, particularly not one as fundamental and as important as the privilege against self-incrimination.

The appeal should be allowed. The orders of the Court of Appeal should be set aside and, in lieu thereof, the appeal to that Court should be allowed, order 3 in Matter No 1885 of 1993 and order 3 in Matter No 1923 of 1993 made by Powell J on 6 April 1993 set aside, and, in so far as they concern orders for disclosure, the respondents' applications to the Equity Division of the Supreme Court of New South Wales should be dismissed. The envelopes containing the affidavits and copy affidavits required as a condition of the grant of leave to appeal to the Court of Appeal should be returned to the appellant or his solicitors for their destruction.

In accordance with the request implicit in the respondents' notification of non-appearance, the question of costs in this Court and of the proceedings in the Courts below should be stood over to enable the respondents to file written submissions. The submissions should be filed within fourteen days. The appellant should have ten days within which to file submissions in reply.