Vasil v National Australia Bank Limited

(1999) 46 NSWLR 207; [1999] NSWCA 161

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Privilege against self-incrimination
4. › Disclosure order ancillary to Mareva injunction
5. › Whether order abrogated privilege
6. › Whether principles applicable to subpoenas and discovery apply to asset disclosure orders
7. › Evidence Act 1995 (NSW), s 128
1. Practice and Procedure
2. › Injunctions
3. › Mareva injunction
4. › Ancillary disclosure order
5. › Power to make disclosure order
6. › Whether disclosure order inconsistent with privilege against self-incrimination
7. › Supreme Court Act 1970 (NSW), s 23
1. Practice and Procedure
2. › Privilege against self-incrimination
3. › Ex parte orders
4. › Whether disclosure order should be made ex parte when material reveals compliance would require self-incrimination

Quick Take

A disclosure order ancillary to a Mareva injunction that requires a defendant to deliver an affidavit of assets directly to the plaintiff, without any mechanism for claiming the privilege against self-incrimination, is inconsistent with that privilege and must be discharged. The correct approach is to mould the order by reference to the nature and source of the power, the privilege, and the factual circumstances. The question whether the Equity Division practice of using s 128 of the Evidence Act fully satisfies the requirements of Reid v Howard was expressly left open.