Zuce Tech Pty Ltd v Ebert

The applicant claimed that the respondent, a former manager of the applicant, had removed its property (including confidential information) and attempted to start a rival business with that property. The applicant sought an interlocutory injunction for the return of its property and restraint of the respondent in using any confidential information of the applicant within his control. The respondent resisted that interlocutory injunction; a key argument raised by the respondent was that such an injunction would offend his privilege against self-incrimination. Considering the leading statements of principle, the rationale for the privilege and analogous cases, his Honour concluded that the privilege against self-incrimination did not operate to prevent a court from ordering the return of property which exists independently of the person asserting the privilege.

Freeburn J

29 November 2024

The applicant claimed that the respondent, a former manager of the applicant, had removed its property (including confidential information) and attempted to start a rival business with that property. [1]–[11]. Upon commencing proceedings, the applicant sought an interlocutory injunction which would result in the return of its property and a restraint on the respondent’s use of certain information. [12]. The respondent was initially successful in seeking a stay of the proceedings because of the existence of parallel criminal proceedings, however the Court of Appeal overturned that decision. [14]–[15].

A question which arose before the Court of Appeal, which that Court held was better resolved by the Supreme Court of Queensland’s trial division, was whether the interlocutory injunction sought by the applicant would infringe the respondent’s privilege against self-incrimination. [16]–[17].

In considering the question of whether to grant the injunction, the greater part of his Honour’s reasons was dedicated to the scope of the privilege against self-incrimination, it being a “weighty factor, if not a decisive factor, in assessing the balance of convenience”. [27].

In assessing how far the privilege against self-incrimination extends, his Honour identified three exercises necessary for the Court to undertake:

(1)a review of the authoritative statements of principle;

(2)looking at the purposes or rationales of the privilege; and

(3)examining any analogous cases. [30].

Authoritative Statements of Principle

His Honour considered the statement of Gibbs CJ in Sorby v Commonwealth (1983) 152 CLR 281, 288, considerable emphasis having been placed by the respondent on the following quote:

“It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal’” (emphasis added by Freeburn J). [31].

Undertaking a detailed review of Australian and United Kingdom statements of principle, his Honour concluded that the authorities provided limited guidance on where the boundaries of the privilege should be drawn. [32]–[58]. In particular, his Honour concluded that the authorities have not directly considered “the breadth of what is contemplated by the expression ‘document or thing’”. [57].

The Rationale for the Privilege

Summarising Australian, United States of America and United Kingdom treatment of the topic, his Honour quoted several rationales for the privilege which had been identified by various sources. [59]–[65]. Summarising the objective of the privilege relevant to this matter as being to ensure that “citizens are not compelled to convict themselves out of their own mouth”, his Honour held that that objective was achieved by “permitting the citizen to refuse to answer questions and to refuse to provide information”.

Analogous Cases

His Honour cited Charara v Commissioner of Police (2008) 182 A Crim R 64, where the taking of an accused’s hair without the accused’s consent was held not to have offended the privilege against self-incrimination. In that case the Court cited a passage from Cross on Evidence (13th ed, LexisNexis Australia, 2021) [25,095]. [67]–[68]. His Honour considered a number of Australian and United Kingdom decisions, before devoting detailed consideration to the Court of Appeal of England and Wales’ decision of C Plc v P [2007] EWCA Civ 493. [67]–[79]. The majority decision held that the privilege against self-incrimination cannot be asserted to refuse disclosure of documents that exist independently of any disclosure order or other compulsory process. [80].

Disposition

His Honour concluded that the privilege against self-Incrimination does not extend to refusing to deliver up stock and equipment or pre-existing documents. [81]. Therefore, the application for an injunction fell to be considered in accordance with the usual principles. In this case, the prejudice to the applicant was that it was without equipment, stock, records and information needed in order operate its business. [123]. The applicant had offered valuable undertakings as to damages. In the circumstances, the balance of convenience favoured an order granting the interlocutory injunction. [126].

B Wilson of Counsel