ASIC v MICHALIK [2004] NSWSC 909

ASIC v MICHALIK [2004] NSWSC 909

The blanket claim that all required disclosures attract the self-incrimination privilege is unsupported; disclosure orders (subject to individualised privilege claims) are not wholly inconsistent with the privilege, but the operation of both the primary disclosure order and the associated order for affidavits identifying grounds for privilege should be stayed to permit proper applications for variation or s.128 Evidence Act certificates.

Jurisdiction
Australia
Judgment Date
05 October 2004
Procedural Posture
Corporations Act Proceedings / Interlocutory Application for Variation/stay of Disclosure Orders
Outcome
Stay granted on disclosure orders; directions issued for applications for variation or s.128 certificate.
Legal Topics
['asset Preservation Orders' 'privilege Against Self Incrimination' 'disclosure Orders' 'section 128 Certificate (evidence Act)']
['corporations Law' 'evidence'] ['asset Preservation Orders' 'privilege Against Self Incrimination' 'disclosure Orders' 'section 128 Certificate (evidence Act)']

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Procedural Posture

Corporations Act Proceedings / Interlocutory Application for Variation/stay of Disclosure Orders

Legal Issues

  1. 1 ['Whether asset disclosure orders, subject to self-incrimination privilege, are consistent with the maintenance of that privilege' 'Whether making and filing of affidavits claiming such privilege itself imperils the privilege' 'Whether s.128 of the Evidence Act 1995 applies to these affidavits']

Ratio Decidendi

The blanket claim that all required disclosures attract the self-incrimination privilege is unsupported; disclosure orders (subject to individualised privilege claims) are not wholly inconsistent with the privilege, but the operation of both the primary disclosure order and the associated order for affidavits identifying grounds for privilege should be stayed to permit proper applications for variation or s.128 Evidence Act certificates.

Court Disposition

Stay granted on disclosure orders; directions issued for applications for variation or s.128 certificate.

Orders

  • ['Operation of orders 9 and 10 made on 16 August 2004 stayed to 25 October 2004.' 'Any application by defendants to vary orders 9 and 10 or for a s.128 Evidence Act certificate, with affidavit evidence, to be filed and served by 15 October 2004, returnable 25 October 2004.' 'Any affidavit in reply by ASIC to be...