application to set aside or vary orders made ex parte on the basis of material non-disclosure
where application depends on disputed matters which should more appropriately be resolved at final hearing
where materiality not established
Quick Take
1An application to set aside ex parte orders for material non-disclosure will fail where the alleged non-disclosures depend on disputed facts more appropriately resolved at final hearing, materiality is not established, and there is significant unexplained delay.
2An order requiring a natural person to deliver up personal devices for forensic imaging falls within the category of orders requiring production of documents or things that assist in identifying possibly incriminating material, thereby engaging the privilege against self-incrimination or self-exposure to penalty — distinguished from orders merely requiring a person to allow access to premises or consent to a search (applying Baldwin v State of New South Wales [2020] NSWCA 112).
3Limited affidavit evidence given on discrete topics is not inconsistent with maintaining the privilege against self-incrimination over materials not yet disclosed, and does not constitute waiver of that privilege.
