Sader v Elgammal [2024] NSWCA 20

Sader v Elgammal [2024] NSWCA 20

The privilege against self-exposure to penalty does not preclude an order for access to property for inspection under r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) because such an order does not require oral or documentary disclosure or assistance to identify incriminating material. The primary judge erred in applying that privilege to refuse access. Moreover, the question of burden of proof for contempt was not relevant to whether access should be ordered, and this misapplication of relevant and irrelevant considerations justified setting aside the refusal order and granting access.

Jurisdiction
Australia
Judgment Date
08 February 2024
Procedural Posture
Appeal / Judgment on Appeal From Land and Environment Court, Application for Leave to Appeal and Orders on Appeal
Outcome
Leave to appeal granted; appeal allowed; access order made; costs awarded to applicants for the appeal.
Legal Topics
['access to Property for Inspection' 'privilege Against Self Exposure to Penalty' 'civil Contempt' 'burden of Proof in Contempt Proceedings']
['environment and Planning' 'civil Procedure'] ['access to Property for Inspection' 'privilege Against Self Exposure to Penalty' 'civil Contempt' 'burden of Proof in Contempt Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Judgment on Appeal From Land and Environment Court, Application for Leave to Appeal and Orders on Appeal

Legal Issues

  1. 1 ['Whether the privilege against self-exposure to penalty applied to the order for access to the property under r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW)' "Whether privilege, if applicable, was waived by service of the first respondent's affidavit" 'Whether the primary judge erred by treating as irrelevant the assistance of the access order for fact finding or by misunderstanding the relevance of the burden of proof in contempt proceedings']

Ratio Decidendi

The privilege against self-exposure to penalty does not preclude an order for access to property for inspection under r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) because such an order does not require oral or documentary disclosure or assistance to identify incriminating material. The primary judge erred in applying that privilege to refuse access. Moreover, the question of burden of proof for contempt was not relevant to whether access should be ordered, and this misapplication of relevant and irrelevant considerations justified setting aside the refusal order and granting access.

Court Disposition

Leave to appeal granted; appeal allowed; access order made; costs awarded to applicants for the appeal.

Orders

  • ['Leave to appeal be granted pursuant to s 58(3)(a) of the Land and Environment Court Act 1979 (NSW).' 'The appeal be allowed with costs.' "Set aside the order made by Pain J dismissing the applicants' notice of motion seeking access to the first respondent's property." 'Pursuant to r 23.8 of the Uniform Civil...