Tan v King [2023] NSWSC 1035

Tan v King [2023] NSWSC 1035

Because Mr King's answers to the interrogatories may tend to prove that he committed an offence or is liable to a civil penalty under Australian law, but the information was vital to the plaintiffs' claims and disclosure was in the interests of justice, he was required to give evidence to the effect of the answers so that the Court could give him the protection of a certificate under s 128 of the Evidence Act 1995 (NSW), rather than proceeding under s 128A which would not protect him in Federal Court proceedings.

Jurisdiction
Australia
Judgment Date
24 August 2023
Procedural Posture
Equity Commercial List Procedural Ruling Concerning Privilege, Interrogatories in Aid of a Freezing Order, and Suppression/non Publication / Ex Tempore Judgment on the Procedure for Requiring Answers to Interrogatories and Issuing a Certificate Under S 128 of the Evidence Act 1995 (nsw)
Outcome
First defendant required to give evidence to the effect of his answers to interrogatories on the basis of the Court giving a certificate under s 128 of the Evidence Act 1995 (NSW); temporary suppression/non-publication order made.
Legal Topics
['self Incrimination Privilege' 'certificates Under Evidence Act 1995 (nsw) Ss 128 and 128 A' 'interrogatories in Aid of Freezing Orders' 'freezing Orders' 'suppression and Non Publication Orders']
['evidence' 'civil Procedure' 'equity' 'commercial Law'] ['self Incrimination Privilege' 'certificates Under Evidence Act 1995 (nsw) Ss 128 and 128 A' 'interrogatories in Aid of Freezing Orders' 'freezing Orders' 'suppression and Non Publication Orders']

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Procedural Posture

Equity Commercial List Procedural Ruling Concerning Privilege, Interrogatories in Aid of a Freezing Order, and Suppression/non Publication / Ex Tempore Judgment on the Procedure for Requiring Answers to Interrogatories and Issuing a Certificate Under S 128 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether Mr King should be required to disclose answers to interrogatories in aid of a freezing order despite objections based on self-incrimination and civil penalty privilege.' 'Whether protection should be given by a certificate under s 128 or s 128A of the Evidence Act 1995 (NSW), given the absence of protection for a s 128A NSW certificate in Federal Court proceedings.' 'Whether the interests of justice required disclosure of the information to the plaintiffs.' 'Whether a suppression or non-publication order should be made in relation to the evidence given by Mr King.']

Ratio Decidendi

Because Mr King's answers to the interrogatories may tend to prove that he committed an offence or is liable to a civil penalty under Australian law, but the information was vital to the plaintiffs' claims and disclosure was in the interests of justice, he was required to give evidence to the effect of the answers so that the Court could give him the protection of a certificate under s 128 of the Evidence Act 1995 (NSW), rather than proceeding under s 128A which would not protect him in Federal Court proceedings.

Court Disposition

First defendant required to give evidence to the effect of his answers to interrogatories on the basis of the Court giving a certificate under s 128 of the Evidence Act 1995 (NSW); temporary suppression/non-publication order made.

Orders

  • ['Mr King was to give evidence to the effect of the material contained in the answers to the interrogatories so that, if the Court was satisfied of the relevant matters, he could be given a certificate under s 128(4) of the Evidence Act 1995 (NSW).' 'Order pursuant to s 7 of the Court Suppression and Non-publication...