Ying v Song

Civil Procedure Act 2005 LEGISLATION CITED : Evidence Act 1995 (NSW) Evidence Amendment Act 2007 (NSW) Privy Council (Appeals from the High Court) Act 1975

Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Beveridge v Whitton [2001] NSWCA 6 Brebner v Perry [1961] SASR 177 Brunner v Greenslade [1971] Ch 993 BT Australasia Pty Ltd v State of New South Wales & Telstra Corporation Ltd (Judgment No 7) (1998) 153 ALR 722 BTR Engineering (Australia) (Formerly Borg-Warner Australia Limited) v Patterson (1990) 20 NSWLR 724 CAL No 14 Pty Limited v Motor Accidents Insurance Board [2009] HCA 47 Chao v Chao [2008] NSWSC 584 Cornwell v R (2007) 231 CLR 260 Cornwell v The Queen [2006] HCATrans 543 Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89 Ferrall v Blyton; Attorney-General of the Commonwealth (Intervener) (2000) 27 Fam LR 178 Foregeard v Shanahan (1994) 35 NSWLR 206 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Grey v Harrison [1997] 2 VR 359 Hall v Poolman [2007] NSWSC 1330 Johnson v R (1976) 136 CLR 619 Kelly v Sweeney [1975] 2 NSWLR 720 Lake v Quinton [1973] 1 NSWLR 111 Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 Microsoft Corporation v CX Computer Pty Limited (2002) 116 FCR 372 Net Parts International Pty Limited v Kenoss Pty Limited [2008] NSWCA 324 CASES CITED : O'Brien v Warringah Shire Council [1974] 1 NSWLR 505 Ollis v Melissari [2005] NSWSC 1016 Pape v Commissioner of Taxation (2009) 257 ALR 1 Pullen v Gutteridge Haskins and Davey Pty Limited [1993] 1 VR 27 R v Clyne (1985) 2 NSWLR 740 R v Garbett (1847) 1 Den 236;169 ER 227 R v Holmes (1988) 93 FLR 405 R v Keenan (2009) 236 CLR 397 R v McDonald (1983) 50 ALR 471 Rajski v Bainton [1991] NSWCA 231 Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited (2004) 200 ALR 267 Romano v Foggo [1974] 2 NSWLR 336 Rundle v State Rail Authority of New South Wales [2002] NSWCA 354 Sharah v Healey [1982] 2 NSWLR 223 Sheikholeslami v Tolcher [2009] NSWSC 920 The Dirigo, The Hallingdal [1919] 1 P 204 Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690 Victoria v The Commonwealth (1957) 99 CLR 575 Viro v R (1978) 141 CLR 88 Waller v Waller [2009] WASCA 6 Whyked Pty Limited v Yahoo 7 Pty Limited [2008] NSWSC 477 Wragg v NSW (1953) 88 CLR 353 Wright v Cedzich (1930) 43 CLR 493 23 Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323

J D Heydon, "Limits to the Powers of Ultimate Appellate Courts" (2006) 122 LQR 399 TEXTS CITED : K Mason, "President Mason's farewell speech" (2008) 82 ALJ 768 Meagher, Gummow & Lehane Equity Doctrines and Remedies, 4th ed

Ming Ying (Plaintiff) PARTIES : Lida Song (First Defendant) Budget Scaffold Supplies Limited (Second Defendant)

COUNSEL : Ms R Winfield (Plaintiff) M Lawson (Defendants)

SOLICITORS : William Chan & Co (Plaintiff) Watkins Tapsell (Defendants)

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3701/06 MING YING V LIDA SONG & ANOR JUDGMENT 1 An application has been made in this matter on behalf of the defendants for a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of the giving of particular evidence by Mr Lida Song, the first defendant, and by Mr Huamin Yang (who is not a party to the proceedings but is proposed to be called as a witness by the defendants), regarding the circumstances in which certain loans were recorded on the books and records of companies associated with Mr Song and the circumstances in which the plaintiff, Mr Ming Ying, was made a director of companies with which Mr Song was associated. 2 The claim by Mr Ying is a claim variously put as a claim against Mr Song arising out of an alleged agreement for the sale of shares by Mr Song and as a claim against the second defendant company for a debt arising out of an alleged loan agreement. Broadly, as I understand it, a s 128 certificate is sought on the basis that evidence to be given by each of Mr Song and Mr Yang (if such a certificate issued) would be to the effect that the loans/directorships were to create the false impression that Mr Ying had greater assets and business interests in Australia than he in fact did, in order favourably to influence the consideration by the Department of Immigration of Mr Ying's then application for permanent residency, and would tend to incriminate Mr Song, who had signed a statutory declaration in relation to those matters. 3 In the course of pre-trial directions, various directions were made for the filing and service of affidavits by the parties, pursuant to which directions the defendants have filed and served various affidavits affirmed by Mr Song and one affidavit affirmed by Mr Yang. None of the defendants' affidavits has yet been read in the proceedings. Without limiting the generality of the evidence with respect to which the certificates are sought, Counsel for the defendants (Mr Lawson) at the request of Counsel for Mr Ying (Ms Winfield) has specified the paragraphs in which that evidence is contained as follows: · Paragraphs 11, 13, 14, 15, 20, 30 and 31 of Mr Song's affidavit affirmed 11 September 2006; · Paragraphs 4, 5, 9, 26, 27 and 31 of Mr Song's affidavit affirmed 19 October 2006; · Paragraphs 15, 21, 22 and 26 of Mr Song's affidavit affirmed 7 October 2008; · Paragraphs 7, 32, 35.2 and 35.4 of Mr Song's affidavit affirmed 28 September 2009; · Paragraphs 5, 7 and 9 of Mr Yang's affidavit affirmed 11 September 2006.

(I note, for completeness, that although I have indicated some preliminary rulings on the defendants' affidavits in response to objections served by Ms Winfield in respect of some of those paragraphs, I have made no formal rulings in that regard as at this stage and the defendants' case has not yet been opened.)

4 The question on which submissions were made by both parties on this application is as to whether a certificate can issue on behalf of Mr Song for evidence proffered by Mr Song or Mr Yang by way of affidavits to be read in chief in the defendants' case. 5 Section 128 provides: 128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) If the court determines that there are reasonable grounds for the objection, the court is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue, or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. 6 At the outset, I note that Mr Lawson does not now press for a certificate to be given to Mr Song in relation to evidence proposed to be given by Mr Yang. (It does not seem to me that s 128 in its terms permits the giving of a certificate to a party in respect of another witness' evidence whether in cross-examination or otherwise. I also note that the privilege against self-incrimination is a personal one - Microsoft Corporation v CX Computer Pty Limited (2002) 116 FCR 372 at 379 [32].) 7 The question before me, therefore, is limited to whether s 128 applies in circumstances where a witness wishes to give particular evidence in chief but only if he or she is protected from the consequences of the giving of that evidence. In those circumstances, can the witness be said to "object" to giving particular evidence or evidence on a particular matter so as to enliven the operation of s 128? Relevant Authorities 8 This issue arose for consideration by a Full Family Court in Ferrall v Blyton; Attorney-General of the Commonwealth (Intervener) (2000) 27 Fam LR 178. The Full Court there held that the trial judge had been correct in holding that it was within his discretion to grant a certificate in circumstances where the witness had indicated he would not file an affidavit in chief unless a certificate was given. The Full Court said (at 200-201):

[83] Mr Jackson QC for the applicants submitted that the question of whether a certificate should be granted arises only when the witness "objects" to giving evidence and in this regard they refer to the opening words of s 128(1) and the reference in s 128(4) to "overruling the objection". They said that in this case, the husband sought to give evidence and was not objecting to doing so and that as a consequence the terms of the section were not satisfied. … [85] In reply, Mr Brereton SC for the respondents said that there was nothing to suggest that s 128 was intended to operate only in relation to cross-examination and he said that it clearly extended to evidence-in-chief in respect of evidence which a witness would otherwise wish to give except that it would be self-incriminatory. He said that all that was intended by the reference to "objects" in subs (1) and "objection" in subs (4) was to cover the situation of witnesses giving evidence both in chief and in cross-examination. In this regard he relied upon the decision of the Full Court in In the Marriage of Atkinson (1997) 21 Fam LR 279; (1997) FLC 92-728. He pointed out that the offer of a certificate does not compel the witness to give the evidence but if the witness does so, the court must give a certificate. He said this was inconsistent with the section being concerned only with a witness who objects to giving the evidence at all and wholly consistent with its being directed to a witness who, subject to the offer of a certificate, wishes to give evidence…

[89] We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. First, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine.

[90] In the particular circumstances of the Family Court of Australia, evidence-in-chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s 128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence-in-chief, and had objected to doing so without the issue of such a certificate.

9 Ferrall has been applied in this Court in Chao v Chao [2008] NSWSC 584 at [3], where Brereton J said: On the voir dire, the plaintiff was asked to explain the circumstances in which a tape recording of the relevant telephone conversations, subsequently transcribed, was made. As it seemed to me that this might involve the plaintiff in incriminating herself in respect of an offence under the Commonwealth Act or the State Act, in accordance with the Court's obligation under the (NSW) Evidence Act 1995, ss 128 and 132, I informed the plaintiff of her right to make an objection under s 128 of that Act to giving evidence on the ground that the evidence may tend to prove that she had committed an offence against an Australian law. In due course, the plaintiff took that objection, and, for the purposes of s 128(2), I found that there were reasonable grounds for the objection and informed the plaintiff that she was not required to give the evidence, and that she need not give it, but that if she gave the evidence the Court would give a certificate under s 128, which would preclude the use of such evidence against her in a prosecution, except in relation to the falsity of the evidence. The availability of such a certificate in connection with evidence that a party wishes to adduce in chief is established [ Ferrall v Blyton [2000] FamCA 1442; (2000) FLC 93-054, [85]-[90]]. Having been so informed, the plaintiff gave the evidence, and in due course I granted a certificate under s 128 in respect of it. 10 In Ollis v Melissari [2005] NSWSC 1016, Campbell J (as his Honour then was) considered whether there was power to grant such a certificate in relation to questions put to a witness in re-examination. His Honour was of the view that there was such power: [5] It will be seen that the first step in the application of s 128 is the witness objecting to giving particular evidence, on one of the grounds set out in s 128(1). In my view, the expression "if a witness objects to giving particular evidence" is not to be construed in a narrow way, by reference only to someone saying "I object" in response to a particular question, in the course of taking evidence in court, in the way barristers traditionally do. Rather, the expression is to be construed more broadly, so that it also relates to the witness expressing an unwillingness to give the evidence. Further, it seems to me that the "particular evidence" which is referred to is not confined to particular questions, as they are asked one by one. Rather, it is capable of extending to a witness expressing an unwillingness to giving evidence on particular topics. (My emphasis)

[6] In the present case, objection has already been taken by the witness to evidence being given on those topics. The re-examination, assuming for the moment that it is proper re-examination, will be confined to those topics which have been opened up by the evidence which has been given by the witness under cover of the s 128 certificate. It seems to me that the objection of the witness to giving evidence on the topic extends also to the giving of evidence on the topic, even in re-examination in response to questions from his own counsel. It is not necessary to go through the artificial procedure of counsel asking the questions, and the witness objecting to the question asked by his own counsel.

[7] I am strongly influenced in reaching this conclusion by the evident policy behind s 128. Part of that policy is that a way should be provided in which the claiming of a privilege against self-incrimination does not prevent a court hearing a civil case from obtaining relevant evidence, while at the same time to the extent the New South Wales Parliament has power to do so, not prejudicing in a subsequent criminal trial, the person who gives such evidence. That policy would be carried through only imperfectly if a s 128 certificate were not available concerning evidence given in re-examination. Further it would be a fundamental unfairness if a witness were encouraged by the giving of a s 128 certificate, to give evidence in relation to which he had a right to remain silent, and for the topic so opened up not to be able to be clarified by legitimate re-examination, if the cross-examination on that topic left a misleading or incomplete impression. I decline to believe that it was the intention of parliament to bring about a situation which caused that sort of fundamental procedural unfairness. (My emphasis)

[8] Thus, the policy of the section seems to me to strongly favour the giving of the wide interpretation to the expression "if a witness objects to giving particular evidence" which I have earlier outlined. That wider meaning is one which is open as a matter of the ordinary meaning of the words, and when policy favours the adoption of the wider meaning rather than a narrower meaning, that is the reading which should be adopted. Thus, I shall give a certificate in relation to the questions in re-examination. 11 More recently, in Cornwell v R (2007) 231 CLR 260, a majority in the High Court (Gleeson CJ, Gummow, Heydon and Crennan JJ) expressed doubt as to whether s 128 would apply in circumstances where an accused had "objected" to a question asked in chief by his counsel on the grounds that the answer might incriminate him, which procedure had been foreshadowed by the accused's counsel. While the issue as to whether in those circumstances s 128 permitted a certificate to be granted was not the subject of the appeal, the majority doubted that the accused could be said to have "objected" so as to enliven s 128: [106] Finally, one other aspect of s 128 may be referred to. The opening words of s 128(1) provide that s 128 only applies if "a witness objects to giving particular evidence". A fair characterisation of the exchanges between counsel for the accused and Howie J set out earlier is that while in one sense the accused "objected" to the 35th question he was asked in-chief when he claimed privilege, in another sense he did not object at all. He evidently wanted to give some evidence about the Diez-Lawrence conversations. He could only be sure of giving it in the way he would have liked if he gave it in-chief; if he took the risk of leaving its reception to the chance of particular questions in cross-examination, he ran the risk of not being able to give it, or not in the way perceived to be most favourable to his interests. Hence his claim of privilege was arguably not a means by which he "objected", but was an attempt to ensure that s 128 protected him from some potentially adverse consequences of evidence which he did not "object" to giving, but strongly wanted to give.

[107] The accuracy of that characterisation is supported by the following factors.

[108] First, counsel for the accused carefully spent time in the days preceding 5 May 2003 seeking to prepare the ground for a favourable ruling on the evidence. He had hopes of a favourable ruling before the accused's case opened. While Howie J was resistant to blandishments seeking a favourable ruling, the course being charted for the accused was plainly driven by the desire of the accused to give evidence-in-chief about the Diez-Lawrence conversations.

[109] Secondly, the 34th question was leading and the 35th question explicitly triggered the claim to privilege which the accused made: what was happening was no surprise to the accused.

[110] Thirdly, if the accused had objected to counsel's question in the sense of not wanting to answer it, or not wanting it to be asked, the issue probably would have been sorted out before the accused entered the witness box, or the accused could have reacted in such a way as to cause counsel to withdraw the question. The fact that the 35th question, and all the later questions in-chief about the Diez-Lawrence conversations, were asked supports the conclusion that the accused wanted to give evidence about them and instructed counsel to structure events so that he could do so with a measure of impunity. [111] This characterisation raises a question whether s 128(1), and hence s 128 as a whole, applies where a witness sets out to adduce in chief evidence revealing the commission of criminal offences other than the one charged. A criminal defendant might wish to present an alibi, the full details of which would reveal the commission of another crime. A civil defendant might wish to prove the extent of past earnings, being earnings derived from criminal conduct. This raises a question whether witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross-examination about some crime connected with the facts about which evidence is given in chief. (My emphasis) [112] The view that the accused's claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word "objects" in s 128(1). It also strains the word "require" in s 128(5) - for how can it be said that a defendant-witness is being "required" to give some evidence when his counsel has laid the ground for manoeuvres to ensure that the defendant-witness's desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be "asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged" (Emphasis added by their Honours). The actual word "cross-examination" was used in five of the nine relevant statutes, two others are to be construed similarly, and the same construction is implicit in the remaining two: note [51] above), which implies that the protection of the accused's position in chief or in re-examination was a matter between the witness's counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only (Australian Law Reform Commission, Evidence, Interim Report No 26 (1985), vol 2, App C, paras [181], [209]; Australian Law Reform Commission, Evidence, Report No 38 (1987), para [217(a)]). [113] The present point was not raised by the DPP either in the courts below or in this Court. It was raised by this Court in the course of oral argument, but was not embraced by counsel for the DPP. "Sometimes this Court will decide a question which has not been referred to or discussed by an intermediate court of appeal but that is not the course which should ordinarily be followed" ( Jones v The Queen (1989) 166 CLR 409 at 414 per Mason CJ, Brennan, Dawson and Toohey JJ). The present question could be of considerable importance in the day-to-day conduct of trials, since counsel for the accused submitted that in practice s 128 was often employed by prosecutors to elicit evidence in chief. It is not necessary finally to decide this issue, since the appeal is to be allowed on other grounds. And it is not desirable to do so in view of the absence of dispute between the parties on the question and the importance of the question. 12 Similar reasoning was applied by Einstein J in Meiko Australia Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354: [188] Accordingly, it appears that a certificate should extend only to questions to which objection might be taken, that is, to questions put in cross-examination. Although no objection to any questions was in fact made on behalf of the first defendant, that an objection in reliance of the privilege against self-incrimination would be made to the entirety of the cross-examination is implied from the making of the application.

[189] However, in relation to the first defendant's own affidavit material, there would not have been any such similar objection, not least of all but including because that material was freely sworn and filed and (save in respect of the affidavit read on 23 April 2009) read by the first defendant at earlier hearings.

[190] All of the affidavits were read in the course of evidence in chief of the first defendant and so cannot be said to have in any way been the subject of an objection, implied or otherwise . (My emphasis)

[191] In Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436 at [104] the purpose of s 128 was identified as being to protect against self-incriminatory disclosures by compulsion. In the present proceedings, the first defendant was not compelled to read the affidavits. For this further reason, no certificate should be granted in respect of the first defendant's affidavit evidence.

13 This issue came before Rein J recently in Sheikholeslami v Tolcher [2009] NSWSC 920. There, the grant of the s 128 certificate was not opposed. His Honour noted that the observations made by the majority in Cornwell strongly suggested that the reasoning of the Full Family Court in Ferrall was unsound and expressed his own doubts as to whether s 128 was intended to protect parties "who positively wish to assert facts in their oral evidence in chief, or a fortiori in affidavits" which would incriminate them. His Honour noted that the observations by the majority in Cornwell, though not binding, pointed strongly to the reasoning adopted in Ferrall being unsound. His Honour, nevertheless, noted the deference to which judgments of intermediate appellate courts are to be afforded and indicated that he would, had he not been able in the case before him to place reliance on s 87 of the Civil Procedure Act 2005 (which is not an avenue available in the present case), have followed Ferrall as he was not convinced it was plainly wrong. Weight to be accorded to the authorities 14 The situation which faces me on this application is that there are two apparently contradictory positions which have been articulated in relation to the applicability of s 128 in circumstances such as the present (those set out in the ratio in Ferrall and in dicta in Cornwell), both made in circumstances in which (but for the existence of the other judicial statement) a trial judge should accord them due deference.

15 The High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 stated that: [U]niformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court -- and all the more so a single judge -- should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

16 In Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76, the Court of Appeal considered (at [274]-[293]) the meaning of the phrase "plainly wrong", in the context of the question as to when an intermediate appellate court ought to depart from its own decisions in relation to a matter of common law, and concluded (at [294] - [295]): The phrases " plainly wrong " or " clearly wrong " can be understood to focus on at least one or more of the following attributes of a ruling:

(a) the fact of error is immediately (in the sense mentioned in [283] above) apparent from reading the relevant judgment; (b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (cf Chamberlain and Clutha ), and (c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis. In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority. 17 The position stated in Marlborough was reiterated in Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89. There, however, the High Court also emphasised the need for regard to be had to "long-established authority and seriously considered dicta of a majority of this Court". The congruence of both long established authority and seriously considered dicta in this formulation was a matter observed by Campbell JA in Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323, when, in considering the effect of Farah v Say-Dee (2007) 230 CLR 89, his Honour said: I have some doubt about the proper way of reading Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 150-1 [134], 159 [158] and 164 [178]. One reading is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from "seriously considered dicta" of a majority of the High Court (simpliciter). Another is to treat it as saying that it is wrong for an intermediate Court of Appeal to depart from seriously considered dicta of a majority of the High Court concerning a topic on which there is a long-established line of authority. Another is that the clear finding that this Court had been wrong to depart from views about the first limb of Barnes v Addy (1874) LR 9 Ch App 244 that had been expressed in Consul Development Pty Ltd v DPC Estates Pty ltd (1975) 132 CLR 373 is based on particular facts of the case

though, there, his Honour did not need to determine which of the three ways of reading Farah was the proper one. In his dissent in Pape v Commissioner of Taxation (2009) 257 ALR 1 at 123 [473], Heydon J indicated that the reference in Farah to the weight to be attributed to "seriously considered dicta" needs to be seen alongside the reference of the Court to "long-established authority": The only additional observation which is necessary relates to the defendants' reliance on statements in various well-known cases in support of their submission. Most of those cases are discussed in XYZ v Commonwealth (2006) 227 CLR 532 at 607-608 [217] n 344. The statements on which the defendants relied were not part of the ratio decidendi of any of the decisions in which they were made. They were seriously considered dicta, but they could not be described as conforming with long-established authority (See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134]). (My emphasis) 18 It has been suggested that, following the judgment in Farah, the doctrine of precedent may have been modified (R v Keenan (2009) 236 CLR 397 at 409 [35] per Kirby J; Waller v Waller [2009] WASCA 61 at [41] per Pullin JA; Justice Keith Mason AC, "President Mason's farewell speech" (2008) 82 ALJ 768 at 769) such that judges of lower courts are obliged to apply the seriously considered dicta of the High Court (see Hall v Poolman [2007] NSWSC 1330 at [372] per Palmer J; Whyked Pty Limited v Yahoo 7 Pty Limited [2008] NSWSC 477 at [136] per McDougall J; Net Parts International Pty Limited v Kenoss Pty Limited [2008] NSWCA 324 at [28] per Macfarlan JA, with whom Bell JA and Handley AJA; Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 at [32] per Spigelman CJ, with whom McColl JA agreed). 19 As noted by Campbell JA in Zotti, it is not necessarily clear that the High Court went so far in Farah. This is not an issue necessary for the determination of the present application. That said, I note that the High Court in CAL No 14 Pty Limited v Motor Accidents Insurance Board [2009] HCA 47 at [50] rejected a statement to the effect that Farah had altered the doctrine of precedent (in a different regard) by expanding the principle in Marlborough Gold Mines to the common law generally (the application of the relevant principle to the common law being well-established). I also note that it has long been the case that the weight accorded to obiter dicta will vary depending on the circumstances in which those dicta fell and that considered dicta of appellate courts, though not strictly binding on courts in a lower or equal position within the judicial hierarchy, must be afforded great weight and should be departed from only with the greatest of caution. 20 (For examples of the historical approach to considered dicta, see Markham v Paget [1908] 1 Ch 697 at 707 per Swinfen Eady J noting that the considered dicta of the Court of Appeal "are entitled to very great weight"; The Dirigo, The Hallingdal [1919] 1 P 204 at 218 per Lord Sterndale considering that he is probably bound by a considered dictum of the Privy Council; Wright v Cedzich (1930) 43 CLR 493 at 531 per Rich J; Wragg v NSW (1953) 88 CLR 353 at 390 referred to in Victoria v The Commonwealth (1957) 99 CLR 575 at 645 per Webb J considering that the obiter views of the Privy Council should be applied unless incontestably erroneous; Lake v Quinton [1973] 1 NSWLR 111 at 118 per Jacobs P considering that it was best left to the High Court to correct or affirm considered dicta of a majority of its judges; O'Brien v Warringah Shire Council [1974] 1 NSWLR 505 at 509 per Hutley JA; Romano v Foggo [1974] 2 NSWLR 336 at 339 per Reynolds JA considering that considered dicta of the High Court on a constitutional question should be accepted as a statement of law, and, at 340 per Hutley JA, that it should be followed; Kelly v Sweeney [1975] 2 NSWLR 720 at 724 per Hutley JA; Johnson v R (1976) 136 CLR 619 at 658-659 per Gibbs J considering the High Court would not be bound by, but "should of course give the greatest weight to", considered dicta of the Privy Council (which judgment was handed down before Viro v R (1978) 141 CLR 88); R v Holmes (1988) 93 FLR 405 at 407-408 per King CJ, with whom White and Bollen JJ agreed, noting that considered dicta of three High Court judges were "of such persuasive authority as to constitute a formidable obstacle to the success of the appellant's argument"; Pullen v Gutteridge Haskins and Davey Pty Limited [1993] 1 VR 27 at 66 where Brooking, Tadgell and Hayne JJ considered they had a duty to give effect to the considered dicta of three members of the High Court; Foregeard v Shanahan (1994) 35 NSWLR 206 at 226 per Meagher JA stating that an intermediate appellate court should not "lightly decline to follow the considered dicta of a very distinguished High Court"; Grey v Harrison [1997] 2 VR 359 at 365 per Callaway JA considering the Court's duty to be "to give careful consideration to a recent and considered dictum by three members of the High Court", but not adopting that dictum; BT Australasia Pty Ltd v State of New South Wales & Telstra Corporation Ltd (Judgment No 7) (1998) 153 ALR 722 at 736 per Sackville J considering it appropriate for a trial judge to apply the considered dicta of the Full Federal Court, which dicta should only be modified by another Full Court; Rundle v State Rail Authority of New South Wales [2002] NSWCA 354 at [52] per Heydon JA, with whom Young CJ in Eq and Foster AJA agreed, noting that "considered dicta of High Court judges, while not strictly binding on this Court, are 'entitled to the greatest of respect' and are 'of the greatest persuasive authority'"; Rickard Constructions Pty Limited v Rickard Hails Amoretti Pty Limited (2004) 200 ALR 267 at 281 [43] per McDougall J recognising what was said in R P Meagher, J D Heydon and M L Leeming, Meagher, Gummow & Lehane's Equity Doctrines and Remedies, 4th ed, LexisNexis Butterworths, Sydney, 2002, p 281 [6-480] namely that "It is not easy for courts below the High Court legitimately to depart from the considered dicta of three High Court justices".) 21 In Brunner v Greenslade [1971] Ch 993 at 1002-1003, Megarry J said (quoted in a footnote in Justice Heydon's article "Limits to the Powers of Ultimate Appellate Courts" (2006) 122 LQR 399 at 415 n 114): A mere passing remark or a statement or assumption on some matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio (after which Justice Heydon adds the comment: A statement of this kind has judicial weight nearer to that of a ratio decidendi than an obiter dictum .) 22 The factors which may affect the weight to be attributed by an ultimate appellate court to its own dicta were outlined by Justice Heydon in the article referred to above, as follows: The attention to be paid to a statement on a point of law by an unquestionably great judge will vary with the circumstances in which it was made - whether it was made in the course of argument in open court while dealing with an example far removed from the case in hand; or made during an application for leave or special leave to appeal; or made in argument to counsel during an application for ex parte relief; or made in an interlocutory unreserved judgment; or made in a judgment in a case in which the loser was not represented, or argued by a litigant in person, or argued by very incompetent counsel; or made in an obiter dictum very far removed from either the core of the case or the arguments of the parties; or made in a case in which no party argued that the proposition was wrong. (Footnotes omitted) 23 Of the factors in determining the weight to be accorded to such dicta is whether the point was argued before the court in which such dicta was uttered. Here, the majority in Cornwell noted the absence of dispute between the parties on the question. It is submitted by Mr Lawson that there was therefore no reasoned argument on the question. Nevertheless, the transcript of proceedings before the Court shows that there was some debate on this issue in oral argument and that their Honours had had regard in some detail to the background to the section. Therefore, while it may be that there is a question whether this should be treated as "seriously considered" dicta of the majority, it certainly appears to go beyond what might be described as "passing dicta", to use the terminology considered by Heydon JA (as his Honour then was) when sitting in the Court of Appeal, in Union Shipping New Zealand Limited v Morgan (2002) 54 NSWLR 690 at 734: When dealing with cases apparently adverse to it, the defendant tended to read the scope of possible rationes decidendi in cases down remorselessly and distinguish the cases ruthlessly. When dealing with cases containing favourable statements, the defendant tended to gloss over the fact that those statements reflected common ground or a want of contrary argument. Arguably Cook v Cook must be understood as not glossing over the differences between passing dicta, considered dicta, and rationes decidendi; nor the difference between statements proceeding from highly experienced lawyers of good reputation in ultimate appellate courts and statements proceeding from other persons. 24 In Beveridge v Whitton [2001] NSWCA 6, Heydon JA, with whom Mason P and Powell JA agreed, stated: The liquidator did not explain the basis for his submission that the Victorian Court of Appeal in V R Dye & Co v Peninsula Hotels Pty Ltd (In Liq) [1993] 3 VR 201 at 214 was wrong. … In any event, the court ought not to refuse to follow the decision of the Victorian Court of Appeal in V R Dye & Co v Peninsula Hotels Pty Ltd (In Liq) without being convinced that it is plainly wrong: Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 547. The same is true in my opinion of well-considered dicta even if, which is questionable, the statements of the Victorian Court of Appeal can be regarded as obiter dicta. I am far from being convinced that either the decision or the dicta, if that is what they are, were wrong. 25 If a judge ought not to depart from the well-considered dicta of an intermediate appellate court unless convinced that it is plainly wrong, then, a fortiori, that must be true of the well-considered dicta of an ultimate appellate court. Hence, the dilemma posed for a trial judge when considering the weight to be accorded to Ferrall in light of the subsequent dicta in Cornwell.

26 Moreover, notwithstanding the focus in the above passages upon the extent to which dicta are "considered", it is not sufficient for a judge simply to make such an enquiry. Lord Dunedin makes this point in his speech (Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 at 864): In my view I respectfully think that the Master of the Rolls and Warrington L.J. ought not to have confined themselves to the question of whether the dicta in Dreyfus were carefully considered - their conclusion is one with which I cordially agree - but ought to have considered whether their own opinions or the dicta in Dreyfus were right, and if they thought that their view was right, to have said so and let a higher Court, if it was so minded, go back to Dreyfus . 27 In Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208, McLelland J dealt with conflicting non-binding statements in the High Court and the House of Lords and said the following (at 218) of the approach he should follow: I am not bound by obiter dicta of the High Court although such dicta are entitled to great weight and respect. Nor am I bound by a decision of the High Court constituted by a single justice (cf Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651, at 654, 664), or by a decision of the House of Lords, although in either case such a decision is also entitled to great weight and respect. My duty in these circumstances, as I conceive it, is to decide for myself, invidious task as that may be, what the relevant principles are or should be, obtaining such assistance as I can from the persuasive authorities to which I have referred . In this connection I refer to what I said in Sharah v Healey [1982] 2 NSWLR 223, at 227, 228, and to the passage from the speech of Lord Dunedin in Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, there quoted. (My emphasis) 28 In Sharah v Healey [1982] 2 NSWLR 223 at 227, McLelland J had earlier said: This Court is not bound by a decision of the English Court of Appeal. As Murphy J said in Day & Dent Constructions Pty Ltd (In Liq) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) (1982) 56 ALJR 347, at p 358: "The only judicial authorities binding on courts in Australia are Australian courts" (leaving aside the special position of the Privy Council). A decision of the English Court of Appeal is however of persuasive authority in this Court (cf Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, at p 341, per Barwick CJ and at p 349, per Gibbs J), although the weight of the authority will vary directly with its tendency to persuade. It is the duty of this Court to apply the law as (rightly or wrongly) it finds it to be, not as another court states it to be in a manner by which this Court is not bound. 29 In light of the above, it seems to me that my duty is to consider the proper construction of s 128 in the circumstances, obtaining such assistance as I can from those persuasive authorities to which I have referred. It seems to me that both the ratio in Ferrall and the dicta in Cornwell are to be treated as persuasive authorities and entitled to significant weight. However, insofar as they conflict with each other, the weight each bears must be moderated having regard to its tendency to persuade and the particular circumstances of this case. While I consider it relevant that the High Court declined to express a concluded view on the issue (it not having been fully argued before it and recognising the importance of such a question to the day to day conduct of trials), I must also have regard to the force of the observations which fell from their Honours in that case in circumstances where there is no binding authority on the point. Reasons 30 The privilege against self-incrimination is a privilege against being compelled to answer questions. At common law, the giving of evidence voluntarily would be treated as inconsistent with the maintenance of the privilege. It was only when a witness had invoked the privilege but had been wrongly compelled to give evidence by the presiding judicial officer that the witness would be protected from the use of the evidence given in subsequent proceedings (see R v Clyne (1985) 2 NSWLR 740 at 746-747 per Street CJ, Glass and Samuels JJA agreeing). That the invocation of the privilege is intrinsically linked to, and determinative of, whether the witness is compelled to answer is apparent from R v Garbett (1847) 1 Den 236 at 257-258; 169 ER 227 at 235-236, where it was held that: If a witness clams the protection of the Court, on the ground that the answer would tend to criminate himself, and there appears reasonable ground to believe that it would do so, he is not compellable to answer; and if obliged to answer, notwithstanding, what he says must be considered to have been obtained by compulsion and cannot be given in evidence against him. They did not decide, as the case did not call for it, whether the mere declaration of the witness on oath, that he believed that the answer would tend to criminate him, would or would not be sufficient to protect him from answering, where sufficient other circumstances did not appear in the case to induce the Judge to believe that it would not. The above nine Judges also thought that it made no difference in the right of the witness to protection, that he had chosen to answer in part; being of the opinion that he was entitled to it at whatever stage of the inquiry he chose to claim it, and that no answer forced from him by the presiding Judge (after such a claim), could be given in evidence against him, and they did not consider themselves bound by the ruling of Best CJ, in Dixon v Vale , 1 C & P278, and of Lord Tenterden, in East v Chapman, 2 C & P 573. 31 In the present case, there is no compulsion upon Mr Song to give the evidence which he seeks to give. As Mr Lawson noted in oral argument it would be open to Mr Song to make a "no case" submission at the close of the plaintiff's case. Equally, it would be open to Mr Song to go into evidence, but not to adduce the evidence in respect of which a certificate is sought. The question before me on the present application is whether Mr Song can be said to have objected to giving evidence for the purposes of s 128 when he is under no legal compulsion to give that evidence. 32 It is submitted for Mr Song that any witness, if properly advised, would be unwilling to give evidence even in his or her own cause if that evidence could expose the witness to criminal sanction or civil penalty. If a certificate could not issue in these circumstances, then it is submitted that this would produce the result that a party to a fraudulent transaction could rely upon contrived documents with impunity on the basis of a confidence that the other party would probably not run the risk of putting the true position before the court. 33 Mr Song apparently wishes to divulge a course of conduct (in which Mr Ying presumably will be said to have participated or of which he had knowledge) amounting to an attempt to provide false information to the Department of Immigration. But for the need for him to defend the claims now made against him, which relate to the very transactions the subject matter of the evidence for which the certificate is sought, Mr Song would presumably not proffer such evidence. In this sense, it is submitted, in effect, that there is a practical compulsion for Mr Song to give such evidence. 34 This is redolent of the debate which took place in Cornwell, during which Gleeson CJ observed that "An objection does not mean I do not want to do something, it is not a sort of emotional state… It is a formal stance taken in the course of adversarial proceedings." (Cornwell v The Queen [2006] HCATrans 543 at line 2037. In having regard to the transcript of the debate before the High Court, I am mindful of the aversion expressed by Kirby P, as his Honour then was, in Rajski v Bainton [1991] NSWCA 231 (at p 3, line 7), to attempting to "divine" the intention of the High Court from the transcript of a special leave application, his Honour noting that "judges frequently put propositions in order to test them, without necessarily expressing any concluded opinion".) Here, of course, the statements made in the course of argument found expression in the court's published reasons. 35 An expressed refusal or unwillingness to give evidence on the ground that it might incriminate the witness meets the description of a formal stance taken in the course of adversarial proceedings. However, an expressed unwillingness to do so at a time when the witness is not under any legal compulsion is another matter. At common law, the giving of voluntary testimony is treated as a waiver of the privilege against self-incrimination and inconsistent with there being an objection of that kind. 36 Mr Lawson submits that the same considerations should apply to the giving of evidence in chief by the defendants in this case as were applied by Campbell J in Ollis in relation to the giving of evidence in re-examination. (In that regard, I note that there would not appear to be, in the former situation, the procedural unfairness identified by his Honour in Ollis, where the topic had been opened up in cross-examination (under the protection of a certificate but, absent a similar certificate in re-examination, the witness would have been deprived of the opportunity to clarify any misleading or incomplete impression left at the conclusion of cross-examination). 37 I accept the force of Campbell J's observation in Ollis that the language of s 128 should not be construed as confined to the situation where an objection is formally taken in response to a particular question. However, I do not understand his Honour to be saying that, for the purposes of the application of s 128, there need not be a basis for the invocation of privilege in support of a refusal or expressed unwillingness to give evidence. I do not read Campbell J's reasons as suggesting that the word "objects" extends to a witness expressing an unwillingness to give evidence, which the witness is under no compulsion to give, on particular topics unless afforded the benefit of a certificate. His Honour, rather, seemed to be referring to an expression of unwillingness in contradistinction to a necessity that there be a formal objection by the words "I object". 38 The crux of Campbell J's reasoning in Ollis was that once a witness had objected in cross-examination to giving evidence on a particular topic, that objection ought to be taken to cover the giving of evidence both in cross-examination and in re-examination, the phrase "particular evidence" being properly construed as meaning not answers to particular questions, but evidence on particular topics. I do not disagree with that conclusion and I note that the introduction into s 128 of the words "or evidence on a particular matter" by the Evidence Amendment Act 2007, strengthens the reasoning that s 128 extends to evidence given in re-examination on a particular topic where objection had been taken to giving evidence on that particular topic in cross-examination. 39 What is meant by the words "objects" and "objection" in the Evidence Act, it seems to me, must be an expressed unwillingness (whether phrased in the language of refusal or objection or declinature or otherwise) to give evidence where otherwise required to do so, on the ground that that evidence would tend to incriminate. It is, in that sense, a formal stance taken in the course of adversarial litigation though it need not necessarily be expressed in formal terms. That this is how "objection" has historically been used is clear from cases such as R v McDonald (1983) 50 ALR 471 at 483, in which Davies J described an objection in the following way: Even if one assumes that a witness before a Commission may take an objection to answering a question on the ground that it may incriminate the witness, nevertheless, if a question be put, with the authority of the Commission, it must be answered unless the objection is taken: see Phipson on Evidence , 12th ed, para 615. The witness remains bound to answer the question unless he takes the objection on that ground and swears or affirms that the answer will or may tend to incriminate him. In the absence of an objection taken on that ground, a Commission may insist that the question be answered. In the absence of an objection, a Commission is not bound to disallow a question even if to the Commission's knowledge the answer may tend to incriminate the witness: see Cross on Evidence , 2nd Aust ed, para 11.17. It is for the witness to take the objection in his answer. The taking of the objection thus serves as an answer to the question. Even if one assumes that a witness before a Commission may take an objection to answering a question on the ground that it may incriminate the witness, nevertheless, if a question be put, with the authority of the Commission, it must be answered unless the objection is taken: see Phipson on Evidence , 12th ed, para 615. The witness remains bound to answer the question unless he takes the objection on that ground and swears or affirms that the answer will or may tend to incriminate him. In the absence of an objection taken on that ground, a Commission may insist that the question be answered. In the absence of an objection, a Commission is not bound to disallow a question even if to the Commission's knowledge the answer may tend to incriminate the witness: see Cross on Evidence , 2nd Aust ed, para 11.17. It is for the witness to take the objection in his answer. The taking of the objection thus serves as an answer to the question. 40 I should note that Ms Winfield submitted that I should distinguish Ferrall in that there the evidence sought to be adduced was an admission of wrongdoing which benefited the other party but that here the evidence sought to be covered by the certificate was evidence which benefited the defendants. In other words, she submits that the evidence is self-serving and that by the tendering of such evidence the witnesses are seeking to benefit from their own wrongdoing. I do not understand how it is said (if that is what this submission is suggesting) that conduct which (if the evidence which the defendants are yet to give is to be believed) was engaged in with a view to assisting the plaintiff to obtain a permanent residency visa was conduct amounting to a wrongdoing for Mr Song's benefit (unless indirectly if, from a family point of view, it was in his interest for his then brother-in-law to remain in Australia as a permanent resident). The initial wrongdoing, if any, can only logically have been for Mr Ying's benefit. (I say this noting that there may well be an issue as to whether this kind of conduct could have been of benefit to Mr Ying, who did not admit in the witness box that it would have been of any assistance to his permanent residency application - nevertheless, that is the argument for which Mr Song wishes to contend.) If so, then I assume that what Ms Winfield is submitting is simply that here it is the admission of wrongdoing which is self-serving. I accept that this may be the case, but I do not see it as a reason to distinguish Ferrall. 41 Ms Winfield submits that "These witnesses want it both ways" - namely, that they want to give the evidence because it benefits them but they want a certificate as well (ie so as not to suffer the consequences of their admission of wrongdoing). That submission seems to one which says, in effect, that if the witnesses (or, more precisely, Mr Song) wish to establish a defence to the claim on the basis of a wrongdoing in which (if they are accepted) Mr Ying must have been complicit, then they must do so at the price of exposing themselves to liability for criminal sanctions or a civil penalty. That seems to me to beg the question. 42 Under the common law, a person who, without objection, gave self-incriminating evidence was not protected from the use of that evidence in subsequent proceedings, whereas a person who, after objection, was wrongly compelled to give self-incriminating evidence was protected from the use of that evidence in subsequent proceedings. As noted by Gleeson CJ and Heydon J during argument in Cornwell, the construction for which the defendants contend in this case would effect a radical alteration of the common law in circumstances where such a change has been contemplated in none of the relevant law reform reports leading to the enactment and amendment of the uniform evidence laws: GLEESON CJ: You may be right about that, but if you are right it means, does it not, that this legislation had a very far-reaching purpose and made a very far-reaching change to the law. It conferred upon people a right to give evidence to their own advantage of criminal conduct in which they had engaged and immunised them against the consequences of that.

MR GAME: Yes, it did that because it put all parties in the same positions as witnesses and the only stopgap was section 128(8). Yes, that is the effect of this legislation - - -

HEYDON J: There is not a word to that effect in the two Law Reform Commission reports. 43 The question is whether, properly construed (with regard, as appropriate, to underlying policy), s 128 permits a certificate to be issued in the present circumstances.

44 The construction apparently favoured by the majority in Cornwell is supported by the presence of the word "require" in s 128(4), as their Honours note at [112]. If s 128 bears the meaning for which Mr Lawson contends, and a defendant in Mr Song's position may object to giving evidence in chief so as to fulfil s 128(1), then it must follow that, once the objection has been made, under s 128(4), the court may require the defendant to give evidence in chief. This would seem to mark a serious erosion of the right of the defendant in adversarial proceedings not to go into evidence or, at least, to determine the evidence which it wishes to adduce in chief. It seems unlikely that the legislature could have intended such a result. A construction of "objects" as referring to a circumstance where a witness protests against giving evidence in circumstances where, but for the privilege, they would be compelled to do so is also supported by the legislative progenitor of the present section, the relevant history being referred to by the majority at [62]: The Commission also considered that although the privilege against self-incrimination served useful purposes, it was capable of injuring the interests of the State in that it was capable of restricting unduly the body of evidence available to the trier of fact (Australian Law Reform Commission, Evidence, Interim Report No 26 (1985), vol 1, paras [853]-[854]). It found an alternative solution in what it called "a modified version of the ACT certification approach" (Australian Law Reform Commission, Evidence, Interim Report No 26 (1985), vol 1, para [861]). That was a reference to s 57 of the Evidence Ordinance 1971 ACT, now repealed, which provided in part: (2) Where, in a proceeding, a person called as a witness or required to answer an interrogatory declines to answer a question or interrogatory under the last preceding sub-section, the court may, if it is satisfied that, in the interests of justice, the person should be compelled to answer the question or interrogatory, inform the person. 45 The critical factor seems to me to be that in order to invoke the privilege at common law the objector must, absent the privilege, be under some requirement to give the particular evidence to which objection can be raised. I note, in this regard, that in R v Bikic [2001] NSWCCA 537 at [14]-[15], Giles JA, with whom Sully and Levin JJ agreed, in determining whether there were reasonable grounds for an objection for the purposes s 128(2), had reference to the test arising from the common law cases, namely whether "there are reasonable grounds to apprehend danger to the witness from his being compelled to answer", and expressed the view that "the same concept underlies the words in s 128(2)".

46 The most analogous use of "object" and "objection" in the Evidence Act is in s 18, which deals with the compellability of spouses and others in criminal proceedings. It relevantly provides: (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence, or

(b) to give evidence of a communication between the person and the defendant,

(3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: …

47 The other uses of "objection" within the Evidence Act are all instances of formal stances of opposition to particular action or to the adducing of evidence which is inadmissible or in a manner which is inadmissible or which is protected by a particular privilege (eg ss 37, 41, 118, 119, 120). In each instance the objection is taken to action of or evidence sought to be adduced by another party. In those circumstances, I do not believe the reasoning which underlies the conclusion that all that is required is an unwillingness, without a certificate, to give evidence (in circumstances where there is no compulsion that the evidence be given) is correct. 48 It is clear, from the legislative history of the Evidence Amendment Act 2007, that regard was had by the Commissions and the Parliament to the effect of the decision in Cornwell. Sub-sections (8) and (9) of s 128 were introduced expressly in response to that decision. Though the relevant ancillary materials do not refer to the majority's discussion of s 128(1), I have considered whether there may be an argument that, insofar as the words have been judicially commented upon (if not finally decided) by the High Court, and at least an indication being given of the possibility that s 128 would not be accorded the construction now contended for, that Parliament, by repeating the relevant form of words in the amended s 128, should to be taken to have intended those words to bear the meaning which their Honours in Cornwell were predisposed to accord them (see Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106-107). (It is not apparent from any of the ancillary materials that regard was had to the decision in Ferrall, and hence it is not clear whether any such conclusion could equally apply to the reasoning in that case, though Report 102 does refer to a Family Court submission to the following effect: Finally, the Family Court questions the application of the process under s 128(1) to affidavits. Under the Family Law Rules 2004, evidence in chief at a hearing or trial is required to be given by affidavit unless the witness refuses to swear one. No specific provision is made in the Rules for a witness to take objection on the grounds that the witness may incriminate himself or herself.) 49 That said, in circumstances where there was a clear statement in Cornwell that the court was not expressing a concluded view on the point, I cannot place any significance in the fact that the section was not amended in order to address that issue. 50 There might be an argument that, even if a certificate were given to protect Mr Song from the consequences of giving evidence by reading his affidavits in the present case, that certificate would not protect him from the consequences of having prepared and disseminated those documents in the first place (see generally, Brebner v Perry [1961] SASR 177 per Mayo J and BTR Engineering (Australia) (Formerly Borg-Warner Australia Limited) v Patterson (1990) 20 NSWLR 724 at 729 per Giles J). There might also be an argument that, having prepared and sworn documents (ie the affidavits), which have been filed and served, containing admissions which could be tendered against him in any criminal proceedings, Mr Song has waived, for the purposes of these proceedings, any privilege in relation to matters attested to in those affidavits or would be placed in no greater jeopardy of prosecution by reading those affidavits in the present proceedings and swearing (for a second time) to their accuracy (BTR Engineering at 730 per Giles J; Microsoft Corp at 381 [41] per Lindgren J; R v Bikic at [15] per Giles JA). However, as these arguments were not raised in argument before me and as I am otherwise satisfied that a certificate cannot be given in the present circumstance, it is not necessary for me to decide them. Conclusion 51 I accept that if the whole of what the defendants contend is the relevant evidence in relation to the transaction(s) upon which the plaintiff sues is not placed before the court then the interests of justice may not be served in this case. However, I am unable to conclude that, on its proper construction, s 128 is enlivened in the present circumstances. Someone who chooses to adduce incriminating evidence (albeit because he or she feels forced to make such a disclosure to defend a claim made against him or her) is not in any real sense "unwilling" or averse to doing so. At common law such a person would not have been able to invoke the privilege against self-incrimination unless under a legal compulsion to give such evidence and I do not read s 128(1) as introducing a right to claim privilege which otherwise would not have existed. 52 In those circumstances, while I am conscious of the deference to be shown to the approach in Ferrall, I am of the view that the reasoning which led to the grant of the certificate in that case is not correct and, with respect, I adopt the reasoning towards which the majority in Cornwell appear to have been disposed. 53 I therefore refuse the defendants' application for the s 128 certificate.

07/12/2009 - typographical errors - Paragraph(s) paragraph 18 - change citation to Waller v Waller [2009] WASCA 61paragraph 44 - delete second "would" in fifth line

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