MACDONALD v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [2007] NSWCA 304

MACDONALD v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [2007] NSWCA 304

The privilege against self-exposure to penalty entitles a defendant in civil penalty proceedings to dispensation from rules requiring the pleading of facts and particulars to the extent those requirements would compel disclosure of information that may directly or indirectly assist in establishing liability to a penalty. However, the privilege does not extend so far as to excuse the defendant from indicating, in a defence, which allegations are admitted, denied, or not admitted. Dispensation from the rules should go no further than necessary to serve the privilege and should be limited to matters arising under statutory exculpatory provisions relied upon by the defendant. The appellant is...

Jurisdiction
Australia
Judgment Date
26 October 2007
Procedural Posture
Appeal / Judgment on Interlocutory Appeal From Case Management Directions in Civil Penalty Proceedings
Outcome
Appeal allowed in part.
Legal Topics
['privilege Against Self Incrimination' 'privilege Against Self Exposure to Penalty' 'pleadings' 'civil Penalty Proceedings' 'case Management']
['civil Procedure' 'corporations Law'] ['privilege Against Self Incrimination' 'privilege Against Self Exposure to Penalty' 'pleadings' 'civil Penalty Proceedings' 'case Management']

Case Brief

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Procedural Posture

Appeal / Judgment on Interlocutory Appeal From Case Management Directions in Civil Penalty Proceedings

Legal Issues

  1. 1 ['Whether the privilege against self-exposure to a penalty excuses a defendant from the requirement to plead and provide particulars under Uniform Civil Procedure Rules 2005 rr14.14 and 15.1 in civil penalty proceedings.' 'To what extent, if any, should the pleading requirements be dispensed with to protect the privilege in such proceedings when statutory and/or positive defences are raised.']

Ratio Decidendi

The privilege against self-exposure to penalty entitles a defendant in civil penalty proceedings to dispensation from rules requiring the pleading of facts and particulars to the extent those requirements would compel disclosure of information that may directly or indirectly assist in establishing liability to a penalty. However, the privilege does not extend so far as to excuse the defendant from indicating, in a defence, which allegations are admitted, denied, or not admitted. Dispensation from the rules should go no further than necessary to serve the privilege and should be limited to matters arising under statutory exculpatory provisions relied upon by the defendant. The appellant is...

Court Disposition

Appeal allowed in part.

Orders

  • ['1. Appeal allowed in part.' '2. The requirements of Uniform Civil Procedure Rules 2005 rr14.14 and 15.1 are dispensed with for the first Defendant in respect of matters arising pursuant to the statutory provisions specified (s180(2), s189, s1317S, s1318, s206C, s206E of the Corporations Act 2001 (Cth)).' '3....