Auscity Enterprises Pty Ltd v Kismet Ventures Pty Ltd [2015] NSWSC 100

Auscity Enterprises Pty Ltd v Kismet Ventures Pty Ltd [2015] NSWSC 100

Because the cross-claim alleged that Mr Feng made false claims for financial reward with intent to defraud, including as part of a series of similar events, there was a real and appreciable risk of criminal prosecution. Compelling him to serve evidence or give discovery would compromise his common law privilege against self-incrimination, and it was unrealistic to require him to separate non-incriminating from incriminating material. Section 128 of the Evidence Act 1995 did not answer the privilege issue because it would not protect evidence he chose to lead without objection.

Jurisdiction
Australia
Judgment Date
24 February 2015
Procedural Posture
Procedural Motion in Cross Claim Seeking Orders for Service of Evidence and Discovery / Pre Trial Notice of Motion
Outcome
Prayers 2(b) and 2(c) of the cross-claimant's further amended notice of motion were dismissed, with costs of the motion to be Mr Feng's costs in the proceedings.
Legal Topics
['privilege Against Self Incrimination' 'privilege Against Exposure to Penalty' 'discovery' 'service of Witness and Expert Evidence' 'real and Appreciable Risk of Prosecution' 'evidence Act 1995 S 128 Certificate']
['civil Procedure' 'evidence' 'privilege'] ['privilege Against Self Incrimination' 'privilege Against Exposure to Penalty' 'discovery' 'service of Witness and Expert Evidence' 'real and Appreciable Risk of Prosecution' 'evidence Act 1995 S 128 Certificate']

Case Brief

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Procedural Posture

Procedural Motion in Cross Claim Seeking Orders for Service of Evidence and Discovery / Pre Trial Notice of Motion

Legal Issues

  1. 1 ['Whether Mr Feng should be ordered to file and serve lay witness affidavits, expert evidence and documentary evidence on which he intended to rely at trial.' 'Whether Mr Feng should be ordered to give discovery under UCPR 21.2 despite claiming privilege against self-incrimination and privilege against exposure to penalty.' 'Whether the allegations in the cross-claim gave rise to a real and appreciable risk of criminal prosecution.']

Ratio Decidendi

Because the cross-claim alleged that Mr Feng made false claims for financial reward with intent to defraud, including as part of a series of similar events, there was a real and appreciable risk of criminal prosecution. Compelling him to serve evidence or give discovery would compromise his common law privilege against self-incrimination, and it was unrealistic to require him to separate non-incriminating from incriminating material. Section 128 of the Evidence Act 1995 did not answer the privilege issue because it would not protect evidence he chose to lead without objection.

Court Disposition

Prayers 2(b) and 2(c) of the cross-claimant's further amended notice of motion were dismissed, with costs of the motion to be Mr Feng's costs in the proceedings.

Orders

  • ["Order that prayers 2(b) and 2(c) of the cross-claimant's further amended notice of motion be dismissed." "Order that the costs of the motion be Mr Feng's costs in the proceedings."]