Song v Ying [2010] NSWCA 237

Song v Ying [2010] NSWCA 237

Section 128 of the Evidence Act 1995 does not entitle a party acting as a witness, giving evidence in chief in response to their own counsel, and who would only give such evidence if protected by a certificate, to object within s 128(1) as there is no compellability. The certificate is not available in these circumstances as the essential requirement of objection due to compellability is not met. The privilege is against compulsion to give evidence, not merely a subjective unwillingness to give evidence without protection.

Parties
Appellant: Lida Song; Respondent: Ming Ying
Jurisdiction
Australia
Judgment Date
15 September 2010
Procedural Posture
Civil Appeal / Hearing and Determination of Appeal From Equity Division of NSW Supreme Court
Outcome
Appeal dismissed.
Legal Topics
Privilege Against Self Incrimination, Compellability of Witnesses, Section 128 Certificates, Interpretation of Evidence Act 1995
Evidence Civil Procedure Privilege Against Self Incrimination Compellability of Witnesses Section 128 Certificates Interpretation of Evidence Act 1995

Case Brief

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Parties

Lida Song

Appellant

Ming Ying

Respondent

Procedural Posture

Civil Appeal / Hearing and Determination of Appeal From Equity Division of NSW Supreme Court

Legal Issues

  1. 1 Whether a certificate under s 128 of the Evidence Act 1995 is available only in respect of evidence given under cross-examination.
  2. 2 Whether a party who is also a witness, and who wishes to give evidence in chief but only under protection of a s 128 certificate, ‘objects’ to giving that evidence within the meaning of s 128(1).

Ratio Decidendi

Section 128 of the Evidence Act 1995 does not entitle a party acting as a witness, giving evidence in chief in response to their own counsel, and who would only give such evidence if protected by a certificate, to object within s 128(1) as there is no compellability. The certificate is not available in these circumstances as the essential requirement of objection due to compellability is not met. The privilege is against compulsion to give evidence, not merely a subjective unwillingness to give evidence without protection.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • Appellant to pay respondent's costs of the application for leave and the appeal.