1 MEAGHER JA: I have had the honour of reading in draft the judgment of Fitzgerald JA. However, I find myself unable to agree with it.
2 The respondent's submission was that all relevant authorities made it clear that, in the case of a subpoena ducas tecum and in the case of a subpoena ad testificandum, in the case of an order to give discovery or an order granting leave to interrogate, the objection that the answers or the documents might incriminate the person required to answer questions or produce documents should be taken at the time when the information was required to be taken or the documents produced, not earlier.
3 The authorities on this point are quite clear, and are in the respondent's favour. They are mentioned in Fitzgerald JA's judgment. Moreover those authorities have been applied to the case of a Mareva injunction, as has been held in the further authorities referred to by his Honour.
4 Against this tide of authority, Fitzgerald JA relies on the High Court decision in Reid v Howard (1995) 184 CLR 1. That case has nothing to do with the present case. It is authority for the proposition that:
"The privilege against self incrimination may be abridged by statute or waived but, that aside, it has generally accepted that it is without "real exception"".
5 That is what the joint judgment of Toohey, Gaudron, McHugh and Gummow said (at 12). But this principle arises when the privilege is claimed, not earlier. In that case there was no doubt the recipient of the relevant order wished to claim the privilege. In the present case one does not know to what Mr Vasil wishes to object.
6 I would dismiss the appeal with costs.
7 STEIN JA: At first blush I was seduced by the respondent's argument that the disclosure order made by Dowd J did not abrogate or modify the privilege against self incrimination, but left it intact. According to the respondent, the privilege is still available to the appellant to claim in an affidavit.
8 I accept, as Meagher JA makes plain in his judgment, that in the case of a subpoena, discovery or interrogatories, if the person concerned wishes to claim the privilege, he or she does so at the time when the documents are produced or the interrogatories are required to be answered. In this way the privilege is preserved.
9 But attention must be drawn to the terms of this ex parte disclosure order under challenge. It requires the appellant to deliver to the respondent bank, in care of its solicitors, an affidavit setting out all of the material referred to in paragraphs 2(a) to (d) inclusive of the order. When will the opportunity arise for the appellant to claim the privilege? It is not as if he can swear an affidavit disclosing the details required, place it in a sealed envelope, deliver it to the Judge and then claim the privilege. The terms of the disclosure order do not permit this. Nor do the terms of the order permit the appellant to answer it by delivering to the bank an affidavit stating no more than the privilege is claimed from providing the information set out in the order. That could very well be in breach of the order.
10 In my opinion the real effect of the discloser order is to abrogate the privilege against self incrimination. Accordingly, I agree with the reasons of Fitzgerald JA and his proposed orders.
11 FITZGERALD JA: On 27 May 1998, the respondent bank commenced an action against the appellant claiming damages for deceit in the Common Law Division. On the same day, it obtained ex parte (i) an interlocutory injunction restraining the appellant "… from removing… from the state of New South Wales, or selling, charging, mortgaging or otherwise dealing with or disposing of … all or any property, other than to meet his ordinary day to day living expenses and legal expenses not including $5000 …", and (ii) the following order (the "disclosure order"):
"2. The [appellant] within 3 days of the giving to him of notice of these orders deliver or cause to be delivered to the [bank] … an affidavit sworn by him setting out, as at the date of service of these orders:
(a) The name and address of any bank, building society or other financial institution at which there is an account in his name or the names Samuel Tsitsos, Stephen Dinnas, Tom Kallas, Stephen Kokalas, Nicholas Costas, Jason Christos, Anthony Feros, Michael Savvas or George Panis or any other name used by him or in which he has an interest or under his control together with the name and number of such account and the balance therein;
(b) The name and address of any person or persons indebted to the [appellant] and the amount of debt or debts owed by such person or persons; and
(c) An itemised inventory of all property owned by the [appellant] or in which he has an interest or which is under his control …; and
(d) In respect of any property referred to above, whether it has been given as security for any debt and, if so, the nature of that security and the debt so secured."
12 The respondent's summons on which those orders were made was returnable at 2pm on 29 May 1998. The appellant filed a motion, returnable at the same time, applying for the discharge of the disclosure order on the basis that it infringed his privilege against self-incrimination.
13 The present appeal is brought, by leave granted by a differently constituted Court, from an order made in the Common Law Division on 12 June 1998 dismissing the appellant's motion, with costs. Although there is no formal appeal against the disclosure order, at its widest the appeal to this Court raises the issue whether the disclosure order was properly made. The appellant has not yet sworn the affidavit referred to in the disclosure order, which has been stayed pending the decision of this appeal.
14 The disclosure order was made on the basis of affidavits sworn on behalf of the bank, which expressly alleged that the appellant had committed and been charged with criminal offences.
15 Shortly stated, the bank's allegations against the appellant were that he obtained fraudulent loans from the bank using false names and documentation. Broadly speaking, the appellant's scheme, according to the bank, was to purchase property from himself, using different names, and "pay" himself with money lent by the bank in connection with the "purchases".
16 The bank's evidence included information from Detective Sergeant Wayne Gilbert of the Commercial Crime Unit of the NSW Police Service that when the appellant was arrested he was in possession of a number of documents in false names, and additional documents were obtained when the appellant's vehicle, office and home were searched. Further, Detective Sergeant Gilbert had informed the bank that the appellant was separated from his wife and that their jointly owned home was for sale, that the appellant had "… transferred $90,000 offshore to Greece through the Commonwealth Bank of Australia" on 5 and 6 May 1998, and that he had funds in accounts with the Commonwealth Bank and Westpac.
17 Affidavits sworn by the appellant's solicitors in support of his motion to discharge the disclosure order deposed to the actual charges against the appellant. The judge of the Common Law Division (who made the disclosure order and dismissed the appellant's motion to discharge that order), noted that the charges against the appellant were "… proceeding before the local court in the normal way", and that "[investigations were] continuing by officers of the [bank] and other banks against the [appellant], and that "[it] may well be that further charges will be laid.".
18 In this Court, the bank's primary argument sought to weave together two strands of authority. One proposition was that the source of a court's power to grant a Mareva injunction against a defendant also empowers an order requiring the disclosure by a defendant of his assets. Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 622 per Deane J, with whom Mason J, Wilson, Brennan and Dawson JJ agreed on this point. See also Ballabil Holdings Pty Ltd v Hospital Products Ltd (1985) NSWLR 155. The other set of propositions, based on a line of decisions which need not be discussed, were that (i) the privilege against self-incrimination may be waived; (ii) a subpoena to attend and give evidence or produce documents may be issued and an order for discovery or granting leave to interrogate may be made although the evidence, documents or answers to interrogatories might incriminate the person to whom the subpoena or order is directed; and (iii) objection on the basis of the privilege against self-incrimination must be taken at the time when the information or the documents are required to be produced. The integration of these principles led to the submission that an order requiring disclosure of assets may be made ancillary to a Mareva injunction notwithstanding that compliance with the order would incriminate the defendant to whom it is directed and that defendant can only avoid compliance with the order by sworn evidence which properly grounds a claim to the privilege against self-incrimination. Particular reliance was placed by the bank on statements two members of the English Court of Appeal in A J Bekhor & Co Ltd v Bilton. [1981] QB 923; 945-946 per Ackner LJ (obiter); 949 per Griffiths LJ. See also CBS United Kingdom Ltd v Lambert [1983] 1 Ch 37, 42G-43D, in which, however, the English Court of Appeal relied on a statutory provision (s31 of the Theft Act 1968) which excluded the privilege against self-incrimination in the circumstances of that case.
19 One other feature of that decision which should be noted is that, by majority (Ackner LJ and Stephenson LJ), the court set aside an order for disclosure. Ackner LJ considered that it was beyond jurisdiction because it was unnecessary to make such an order "in aid of" the Mareva injunction; his Lordship said: [1981] QB 923, 945.
"… it would … be quite wrong to seek to create new machinery which could have far-reaching and undesirable consequences and which are quite unnecessary for the proposed operation of the Mareva jurisdiction."