Ross v Internet Wines Pty Ltd & Ors

(2004) 60 NSWLR 436; [2004] NSWCA 195

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Privilege against self-incrimination
4. › Disclosure orders ancillary to Mareva relief
5. › Whether procedure requiring preparation and delivery of disclosure affidavit before determination of privilege claim infringed privilege
6. › Whether court may fashion ad hoc protections as substitute for fundamental common law right
7. › Evidence Act 1995 (NSW), s 128
1. Practice and Procedure
2. › Interlocutory orders
3. › Mareva relief
4. › Disclosure orders ancillary to Mareva orders
5. › Court-appointed manager
6. › Whether sufficient basis in proceedings and evidence for making disclosure and accounting orders
7. › Jurisdiction of court over court-appointed officer
1. Practice and Procedure
2. › Duty Judge
3. › Ex parte orders
4. › Whether ex parte mandatory relief and relief until further order should be granted
5. › Obligation to give reasons after contested hearing

Quick Take

The Bax Global procedure for disclosure affidavits ancillary to Mareva relief — requiring a person to prepare and deliver a sealed affidavit to the judge before determination of a privilege claim — is impermissible because it infringes the fundamental common law privilege against self-incrimination by compelling creation of an incriminatory document before entitlement to privilege has been determined. Courts cannot substitute court-devised protections for the common law right. The question whether s 128 of the Evidence Act 1995 applies at the pre-trial or interlocutory stage was left open.