AMP General Insurance Ltd v Prasad [1999] NSWSC 252

AMP General Insurance Ltd v Prasad [1999] NSWSC 252

The orders should not be revoked because the defendants did not discharge the burden of showing sufficient reason for revocation: despite the pending criminal prosecution and the importance of the privilege against self-incrimination, the risk of improper or undetectable prosecutorial use of affidavit material protected under s 128 was very remote, while there was a strong prima facie case of misappropriation and the plaintiff had a legitimate need to trace the funds promptly. The order was varied only to remove wording that was too wide and uncertain.

Jurisdiction
Australia
Judgment Date
23 March 1999
Procedural Posture
Equity Proceedings Seeking Mareva Injunction Relief / Defendants' Notice of Motion for Revocation of Orders Requiring Affidavits to Be Brought to Court for Consideration Under S 128 of the Evidence Act 1995
Outcome
Revocation of Hodgson CJ in Eq's order refused; order varied by consent to remove wide and uncertain words; defendants ordered to pay the plaintiff's costs of the motion.
Legal Topics
['mareva Injunctions' 'self Incrimination Privilege' 'evidence Act 1995 S 128 Certificates' 'discovery of Assets' 'revocation or Variation of Interlocutory Orders']
['equity' 'evidence' 'civil Procedure'] ['mareva Injunctions' 'self Incrimination Privilege' 'evidence Act 1995 S 128 Certificates' 'discovery of Assets' 'revocation or Variation of Interlocutory Orders']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Mareva Injunction Relief / Defendants' Notice of Motion for Revocation of Orders Requiring Affidavits to Be Brought to Court for Consideration Under S 128 of the Evidence Act 1995

Legal Issues

  1. 1 ['Whether orders requiring the defendants to provide affidavits about cheque proceeds and property derived from them should be revoked because a criminal prosecution was pending against the first defendant.' 'Whether evidence required for Mareva relief may be compelled under cover of a certificate under s 128 of the Evidence Act 1995 despite objection based on self-incrimination.' 'Whether the existing order should be varied because its wording was too wide and uncertain.']

Ratio Decidendi

The orders should not be revoked because the defendants did not discharge the burden of showing sufficient reason for revocation: despite the pending criminal prosecution and the importance of the privilege against self-incrimination, the risk of improper or undetectable prosecutorial use of affidavit material protected under s 128 was very remote, while there was a strong prima facie case of misappropriation and the plaintiff had a legitimate need to trace the funds promptly. The order was varied only to remove wording that was too wide and uncertain.

Court Disposition

Revocation of Hodgson CJ in Eq's order refused; order varied by consent to remove wide and uncertain words; defendants ordered to pay the plaintiff's costs of the motion.

Orders

  • ["The defendants' motion to revoke the orders made by Hodgson CJ in Eq was refused." 'A time was to be fixed for the relevant affidavits to be brought into Court so that they could be dealt with under s 128 of the Evidence Act 1995.' 'A direction was to be added that the prosecuting authority be informed so that, if...