Reid v Howard [1995] HCA 40

Reid v Howard [1995] HCA 40

At common law, the privilege against self-incrimination is a fundamental right, not subject to exceptions for particular classes of persons or for civil litigation, including suits by beneficiaries against trustees. Neither the inherent power of a superior court nor the general jurisdiction conferred by s 23 of the Supreme Court Act 1970 (NSW) authorises courts to create exceptions or judicially restrict the privilege. Any modification or abrogation of the privilege can only be effected by legislation. The orders of the Court of Appeal, which imposed a regime of restricted disclosure in place of the privilege, were therefore beyond power and must be set aside.

Jurisdiction
Australia
Procedural Posture
Appeal / High Court Appeal From Orders of the NSW Court of Appeal
Outcome
Appeal allowed; previous orders set aside; disclosure applications dismissed; specific orders regarding handling and destruction of affidavits; further orders on costs post-submissions.
Legal Topics
['privilege Against Self Incrimination' 'fiduciary Duty' 'judicial Power' 'disclosure Orders' 'trusts']
['equity' 'civil Procedure' 'criminal Law'] ['privilege Against Self Incrimination' 'fiduciary Duty' 'judicial Power' 'disclosure Orders' 'trusts']

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 / High Court Appeal From Orders of the NSW Court of Appeal

Legal Issues

  1. 1 ['Whether a trustee or fiduciary can claim the privilege against self-incrimination in civil litigation brought by a beneficiary.' 'Whether the courts can judicially modify or abrogate the privilege against self-incrimination absent statutory authority.' 'Whether the Court of Appeal had power to impose disclosure orders designed to limit the risk of self-incrimination.']

Ratio Decidendi

At common law, the privilege against self-incrimination is a fundamental right, not subject to exceptions for particular classes of persons or for civil litigation, including suits by beneficiaries against trustees. Neither the inherent power of a superior court nor the general jurisdiction conferred by s 23 of the Supreme Court Act 1970 (NSW) authorises courts to create exceptions or judicially restrict the privilege. Any modification or abrogation of the privilege can only be effected by legislation. The orders of the Court of Appeal, which imposed a regime of restricted disclosure in place of the privilege, were therefore beyond power and must be set aside.

Court Disposition

Appeal allowed; previous orders set aside; disclosure applications dismissed; specific orders regarding handling and destruction of affidavits; further orders on costs post-submissions.

Orders

  • ['Appeal allowed.' 'Orders of the New South Wales Court of Appeal set aside; in lieu, appeal to that Court allowed.' "Order 3 in Matter No 1885 of 1993 and Order 3 in Matter No 1923 of 1993 of Powell J on 6 April 1993 set aside and, insofar as they concern orders for disclosure, the respondents' applications to the...