Griffin v Sogelease Australia Ltd & Ors

(2003) 57 NSWLR 257; [2003] NSWCA 158

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Privilege against self-incrimination
4. › Blanket objection to discovery
5. › Whether court may accept blanket claim of privilege without requiring verified list of documents
6. › Supreme Court Rules Pt 23 r 3
1. Practice and Procedure
2. › Discovery
3. › Privilege against self-incrimination
4. › Order to produce documents to third party to enable third party's discovery compliance
5. › Whether order constitutes compulsory process infringing privilege
6. › Supreme Court Act 1970 (NSW), s 76A
1. Evidence
2. › Privilege against self-incrimination
3. › Scope and nature of privilege
4. › Whether privilege available regardless of whether criminal charges have been laid
5. › Whether privilege subject to temporal limitation
1. Evidence
2. › Privilege against self-incrimination
3. › Section 128 Evidence Act 1995 (NSW)
4. › Whether s 128 applies at pre-trial stage
5. › Whether s 128 governs interlocutory applications for discovery or production of documents

Quick Take

A court order requiring a person to produce documents to a third party to enable that third party to comply with discovery obligations constitutes compulsory process that infringes the privilege against self-incrimination, even though the documents are not produced directly to the opposing party. A blanket objection to discovery on self-incrimination grounds may be accepted without requiring a verified list where the court can readily see from the nature of the proceedings that all disclosures are likely to be incriminatory. The privilege is available regardless of whether criminal charges have been laid and is not subject to any temporal limitation. Whether s 128 of the Evidence Act 1995 (NSW) applies at the pre-trial stage remains an open question.