FEDERAL COURT OF AUSTRALIA

Ransley v Commissioner of Taxation [2016] FCA 778

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings be stayed pending the determination of the committal proceedings against Craig Ransley in respect of the charges against him under s 178BB of the Crimes Act 1900 (NSW).

2.    The parties list the proceeding for further directions within 14 days of the determination of the committal proceedings.

3.    The proceeding otherwise be listed for directions on 31 May 2017 on the basis the date may be vacated if the committal proceedings are not determined by that date.

4.    The parties be granted liberty to apply on 3 days’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1    Should this proceeding be stayed pending the conclusion of committal proceedings against Craig Ransley, the applicant’s former husband, in respect of charges against him under s 178BB of the Crimes Act 1900 (NSW) relating to Doyles Creek Mining Pty Ltd?

2    I consider the answer is “yes” for the following reasons.

3    This proceeding is an appeal against the respondent’s decision to disallow the applicant’s objections against assessments of income tax for the 2009/10 and 2010/11 financial years under s 14ZZ of the Taxation Administration Act 1953 (Cth). The respondent, the Commissioner, disallowed Nera Ransley’s objection to the treatment of gains she made on the sale of her shares in Doyles Creek Mining Pty Ltd and NuCoal Resources NL in 2009 and 2010 as ordinary income assessable as such and not as gains of a capital nature subject to the capital gains tax regime, and associated penalties incurred for shortfalls of tax paid in those years.

4    The Commissioner’s appeal statement asserts the following:

5.4 In the present case Mr Ransley was engaged in a profit making scheme for and on behalf of DCM [Doyles Creek Mining Pty Ltd] shareholders including the Applicant. He procured the shares in DCM to be acquired and disposed of such shares held by the Applicant with her authority. He had no intention, and the Applicant had no intention, of holding shares in DCM through its conduct of exploration activities on the Doyles Creek EL or until it constructed and commenced to operate a coal mine or until it paid dividends from operations of a coal mine. Instead he and the Applicant sought to resell the shares in DCM, as always intended, at the earliest opportunity once an increase in value of those shares had been obtained by the issue to DCM of the Doyles Creek EL.

5.5 For that reason the gains the Applicant made on the sale or exchange of shares in DCM were income according to ordinary concepts.

…

5.12 An alternative characterisation of the receipt of the abovementioned net profits by the Applicant is that she and her husband Mr Ransley were carrying on business and the net profits were derived during the course of that business thereby making them income according to ordinary concepts.

5.13 The Applicant, through the agency of her husband Mr Ransley, carried on a business of risking capital in a company (DCM) and undertaking steps to acquire valuable rights for the company for the purpose of profit making by resale of the shares in the company. Mr Ransley’s activities and intentions were adopted by or acquiesced in by the Applicant and should be imputed to the Applicant.

5.14 Mr Ransley carried on the business, on behalf of the Applicant, inter alia by procuring the acquisition of shares in DCM, whose assets could be enhanced in value by seeking a direct allocation of an exploration licence, and causing DCM to acquire land. His activities in that respect were repetitive and recurrent.

5    The appeal statement records that, as part of the relevant factual matrix:

4.26 On 18 March 2008 DCM lodged with the Department of Primary Industry a request for consent to apply for an exploration licence in respect of a defined tenement within the Doyles Creek Area (‘Doyles Creek EL’). At this time it was understood by all of the Directors of DCM that the establishment of any coal mine would take several years and substantial production from it would not occur before 2014.

…

4.37 On or about 1 October 2008 DCM lodged an application for the Doyles Creek EL with the Department of Primary Industry. At this time DCM had no arrangements in place for raising the funds (debt or equity) necessary to fund the exploration of the Doyles Creek EL or development of the mine.

6    On 26 August 2015, Mr Ransley swore an affidavit in this proceeding. Amongst other things, he said that Doyles Creek Mining Pty Ltd sent a letter to the NSW Department of Primary Industries seeking consent to apply for an exploration licence which enclosed a submission in support that was “largely prepared by John Maitland and experts” and that Mr Ransley had “reviewed drafts of the Submission before it was sent and provided comments on them”. Mr Ransley also says in the affidavit that on 29 September 2008 Doyles Creek Mining Pty Ltd lodged the application for the exploration licence which attached the same submission. Amongst other things, this submission said that an:

influential Strategic Alliance has been established with Memorandum of understanding (‘MOU’) signed between mining services and occupational health and safety groups (Resco Services Pty Ltd; Coal Services Pty Ltd), educational institutions (University of Newcastle, Hunter Valley Training Company) and rescue services (Hunter Region SLSA Helicopter Rescue Service Limited) to undertake this venture).

7    Subsequently, Mr Ransley was charged with two offences under s 178BB of the Crimes Act 1900 (NSW). Section 178BB(1) of the Crimes Act provided that:

Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.

8    The two charges are in the same terms but for different dates which relate to the two occasions on which the submission was lodged with the NSW Department of Primary Industries. The charge is that, on each date, Mr Ransley, with an intent to gain a financial advantage for himself and Doyles Creek Mining Pty Ltd concurred in publishing a statement to the NSW Department of Primary Industries to the effect that Doyles Creek Mining Pty Ltd held a signed memorandum of understanding, which remained in force, with Resco Services Pty Ltd, Coal Services Pty Ltd and Hunter Region SLSA Helicopter Rescue Service Limited, which he knew to be false in a material particular. The accompanying statement of facts identifies the occasions of the alleged offences as the lodgement of the submission with the Department on 18 March 2008 as part of the request for consent to apply for an exploration licence and the subsequent lodgement of the same document in support of the application for the exploration licence which was delivered to the Department on 1 October 2008.

9    On 2 March 2016, the solicitors for the applicant in this proceeding asked the Commissioner’s solicitors whether, in light of the criminal charges against Mr Ransley, they would confirm that “it is no part of the Commissioner’s case that Mr Ransley made or concurred in the making of the alleged false statements” and would provide an assurance that “the Commissioner will not cross-examine Mr Ransley about those matters when he gives evidence in these proceedings”, failing which a stay application was foreshadowed. On 8 March 2016, the Commissioner’s solicitors responded to the effect that the matters in respect of which the assurance had been sought “bear upon issues to be resolved in these proceedings and may be traversed in cross examination of Mr Ransley”, so that the assurances sought could not be given.

10    The solicitor for Mr Ransley, Mr O’Brien, has given evidence by way of affidavit that Mr Ransley has informed him that, given the criminal charges pending against him, he will not submit to cross examination in this proceeding due to the impact on his right to silence in the criminal prosecution, and without his evidence the case of the applicant will be severely prejudiced because there is no other evidence of the material facts to which Mr Ransley has deposed. Further, it was submitted that issues common to this proceeding and the criminal charges include findings of credit with respect to Mr Ransley’s intentions about the establishment of an operating coal mine with a training mine, the management of the training mine, long term investment in Doyles Creek Mining Pty Ltd, and the sale of shares in that company.

11    For my part, I do not consider that the common issues necessarily will be limited to Mr Ransley’s credit. The common issues would seem to include the fact of Mr Ransley’s intentions. I accept the submissions for the applicant that the case which the applicant is required to meet in this proceeding is the Commissioner’s contention that the applicant was engaged in a profit making scheme which was effected through the conduct of Mr Ransley taken on the applicant’s behalf or that Mr Ransley took this conduct in his capacity as the applicant’s agent (so that, I infer, his intentions must be attributed to the applicant). Either way, Mr Ransley’s intentions are relevant. In the former case, his intentions could rationally bear on the evaluation of the intentions of the applicant. In the latter case, his intentions are to be attributed to the applicant.

12    I also accept the submission for the applicant that underlying both alternatives is the contention that the submission to the Department, insofar as it proposed the establishment of a training mine, was not genuine. In the reasons for the decision rejecting the objections dated 19 March 2015, the Commissioner said that the objective circumstances disclosed that neither the applicant nor Mr Ransley “intended to operate and develop a coal mine” but, rather, intended to introduce a third party to undertake the development so that the applicant could realise the (increased) value of the shares by disposing of them. Further, the Commissioner’s reasons asserted that Mr Ransley “did not intend to operate a coal mine on the land, nor did he wish for you to hold shares in DCM or NuCoal once he had utilised his personal efforts to successfully increase the value of these companies”. In this context, the applicant’s apprehension that it is part of the Commissioner’s case that the training mine was not genuine and Mr Ransley is not a credible witness is well-founded.

13    Contrary to the Commissioner’s submissions, I consider that the discretion to grant a stay of this proceeding pending the determination of the committal proceedings against Mr Ransley (at which time the position can be reviewed) is engaged and ought to be exercised in the circumstances of this case.

14    First, the fact that it is the applicant’s appeal against the Commissioner’s decision, so that the applicant is seeking a stay of her own case, is not a bar to the grant of a stay. It is an inevitable result of the statutory scheme (Hurley v Federal Commissioner of Taxation (1992) 37 FCR 11 at 14 (Hurley) and Chambers v Federal Commissioner of Taxation [1999] FCA 163; (1999) 41 ATR 233 at 235). It is also a result of the same statutory scheme that the prejudice to the Commissioner and the administration of justice generally from the grant of a stay will be the delay in resolution of the appeal. The Commissioner is entitled to recover the amounts owed under the amended assessments irrespective of the pending appeal (Hurley at 14).

15    Second, although Mr Ransley is not the applicant, there is no real doubt that his evidence is important, indeed critical, to the applicant’s case. The applicant bears the onus of proof. Without Mr Ransley giving evidence in his capacity as the person who undertook the relevant conduct, it seems inevitable that the applicant’s case will fail. As in Hurley at 14 the prejudice to the applicant’s case if Mr Ransley does not give evidence is patent; without his evidence I cannot see how the onus could be discharged, with the consequence that the appeal would have to be dismissed.

16    Third, and again as in Hurley at 14, for Mr Ransley to give evidence in this proceeding is likely to involve him in being required to answer questions about his intentions with respect to the training mine and the genuineness or otherwise of the submission lodged with the NSW Department of Primary Industries to the extent it represented that Doyles Creek Mining Pty Ltd intended to establish and operate a training mine. The statements in the submission, the subject of the criminal charges, will be directly relevant and perhaps substantially probative of, Mr Ransley’s credit. In turn, his credit will be relevant to, perhaps even determinative of, the applicant’s case against the Commissioner.

17    Fourth, there is no doubt that, in the present case, Mr Ransley would be able to object to answering questions on the ground that his answers might tend to incriminate him, with the consequence that the discretion to issue a certificate under s 128 of the Evidence Act 2005 (Cth) will be available. This is not a case where, as in Song v Ying [2010] NSWCA 237; (2010) 79 NSWLR 442, s 128 was not engaged because the witness was giving evidence in chief in response to questions from the witnesses own legal representative, so that it could not be said that the witness objected to giving the evidence, as required by s 128(1).

18    There is also no doubt that the power to make a non-publication or suppression order under Div 2 of Pt VAA of the Federal Court of Australia Act 1976 (Cth) is available. Protecting Mr Ransley’s right to silence in a criminal prosecution is an important aspect of the administration of justice such that orders could be made ensuring his evidence about any matter relating to the criminal charges could not be published and, thereby, become available to the prosecution.

19    By these methods, I accept, s 128(7) of the Evidence Act could ensure Mr Ransley’s evidence is not able to be used directly or indirectly in the prosecution and the Court will have done all it can to ensure his evidence is not disclosed to the prosecution.

20    However, I do not consider the existence of these powers to outweigh the potential prejudice to which the applicant will be exposed if forced to trial in the appeal without Mr Ransley’s evidence or to which Mr Ransley will be exposed if he is compelled by the applicant to give evidence in the appeal, even subject to orders made pursuant to the sections discussed above.

21    In particular, I consider that recent authority indicates a different approach to the right to silence in a criminal prosecution from that apparent in, for example, Cameron’s Unit Services Pty Ltd v Kevin R Whelpton & Associates Pty Ltd (1984) 4 FCR 428 (Cameron’s Unit Services) and Golden City Car & Truck Centre Pty Ltd v Deputy Commissioner of Taxation [1999] FCA 922; (1999) 42 ATR 379 (Golden City Car). In the latter case, Cooper J observed as follows:

[20] The only possible prejudice Mr Wall points to is that he would expose himself to cross-examination on issues which will arise in the criminal proceedings and, unless he claims privilege against self-incrimination, his answers may be used against him in the criminal trial. There is no evidence of any prejudice of the type referred to by Wilcox J in Cameron's Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd (1984) 4 FCR 428. Examples of real prejudice given by his Honour were:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;

(ii) the proximity of the criminal hearing;

(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently ;

(v) whether the defendant has already disclosed his defence to the allegations.

[21] As to the “right of silence”, Wilcox J said (at 434):

“... The 'right of silence' is a right which a person has in relation to present or anticipated criminal proceedings. As a matter of everyday experience, suspects or accused persons waive the right by giving an explanation of their conduct during the course of interrogation by police or other investigating authorities or in evidence at their trial. No doubt the right is often waived incautiously or through ignorance, but it is also deliberately waived by informed persons who take the view that waiver will best serve their interests overall. The conflicts of interest which give rise to waiver already exist; the law does not step in to prevent those conflicts or to deny the ability to waive the right. The existence of a civil action which an accused person may wish to defend provides simply another example of a conflict of interest between maintaining silence and disclosing the substance of the defence in the criminal proceedings. I see no basis for the view that the court should intervene to relieve against this particular conflict, when it does not relieve against others. The fact that the existence of the civil action may result in a decision by the accused person to waive his right of silence is not, in itself, a sufficient reason to stay that action. The real question must be the likelihood of causing injustice in the criminal proceedings. ...”

[22] Sheppard J referred to this passage with approval in Baker: Re Flatwash Pty Ltd v Federal Commissioner of Taxation (1987) 19 ATR 11 at 14; 87 ATC 4626 at 4629 (Baker: Re Flatwash).

22    No doubt it remains necessary that real prejudice be shown to exist in order to justify the grant of a stay. The mere existence of criminal proceedings is insufficient. For example, in Ruzehaji v Commissioner of the Australian Federal Police [2015] SASCFC 182; (2015) 124 SASR 355, a stay was not granted because the applicant had not demonstrated any specific prejudice (see at [92] – [94]; see also A J Bush & Sons (Manufactures) Pty Ltd v Bhanotar [2016] NSWSC 422 at [9] – [13]). Consistently with this approach, if an undertaking is given not to traverse in cross-examination in the civil proceedings matters relevant to the pending or possible criminal proceedings, it is difficult to see how real prejudice could be established. In the present case, however, the Commissioner has refused to give such an undertaking on the basis that issues relating to the criminal charges are relevant to the appeal.

23    Accordingly, it is plain that more exists in the present case than the existence of criminal proceedings. The committal hearing is not only proximate (it is currently anticipated to occur in February to March 2017), issues of fact relevant to the committal hearing are also relevant, even directly relevant, to the applicant’s capacity to discharge the onus of proof in this appeal.

24    It is the importance attributed to the role of the right to silence in a criminal prosecution which, in my view, has changed since Cameron’s Unit Services, Golden City Car, and Baker: Re Flatwash. Given recent authority, discussed below, it cannot be said that the relevant issue is merely the conflict of interest of an accused person in deciding whether to advance a civil cause of action at the expense of the right to silence in a criminal prosecution or that the law will not act to relieve that conflict unless some prejudice apart from intrusion into the right to silence itself can be demonstrated.

25    In X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 (X7), Hayne and Bell JJ, with whom Kiefel J agreed, said that permitting questions to be asked about the subject of a pending charge, whether or not answers could be used in criminal proceedings, “fundamentally alters the process of criminal justice” (at [85]) in which (as explained in Reid v Howard (1995) 184 CLR 1 at 11) the “accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing” (at [104]). Further, at [105], the right to silence:

encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial.

26    If it were otherwise (in the context of being required to answer questions at an examination), as explained in X7 at [124], per Hayne and Bell JJ:

No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.

27    In Lee v The Queen [2014] HCA 20; (2014) 253 CLR 458 it was reiterated that:

[44] The prosecution has a specific role in our system of criminal justice, one which entails particular responsibilities…

[45] It must be acknowledged that the matters in question occurred, and the decision of the Court of Criminal Appeal was given, before judgment in X7 was handed down. Attention was therefore not directed to the principle of the common law respecting proof by the prosecution, unaided by the accused, which was in that case confirmed as fundamental to our system of criminal justice.

[46] In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act [New South Wales Crime Commission Act 1985 (NSW)] sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution.

28    In Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 the trial judge refused to grant a stay in part on the basis that a certificate under s 128 of the Evidence Act would be available (see Zhao v Commissioner of the Australian Federal Police [2014] VSCA 137; (2014) 43 VCR 187 at [10]). Further, reliance was placed on the capacity to make a non-publication order with respect to the evidence, but this was seen as insufficient given the right against self-incrimination had not been abrogated (at [61] – [63] of the Court of Appeal’s reasons). The High Court affirmed the decision of the Victorian Court of Appeal. The subject matter of the criminal charges in Zhao was substantially identical to the forfeiture proceedings (which, I accept, is not the case in the present matter, where there are common issues between the criminal and civil proceedings). The evidence was that Mr Zhao would have to make a decision in the civil proceedings whether to waive his right to silence in the criminal proceedings. The High Court noted the trial judge’s reliance on s 128 of the Evidence Act as an effective means to relieve the prejudice to Mr Zhao (at [13]). They continued:

[35] … Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.

…

[42] The risk of prejudice to the second respondent if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical.

[43] The Commissioner contends, as the primary judge had held, that it was necessary that the second respondent state the specific matters of prejudice before a stay could be contemplated. However, to require the second respondent to do so would be to make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid. Similarly, the Commissioner’s contention that the court should defer making an order for a stay until the parties have exchanged their evidence is beside the point.

[44] The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres, now finds expression in s 28 of the Open Courts Act 2013 (Vic). The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent’s evidence does not qualify as a proper reason for departing from the principle.

…

[47] The prospect that civil proceedings may prejudice a criminal trial and that such prejudice may require a stay of the civil proceedings is hardly novel. In some jurisdictions, procedures are provided for making an application for a stay in such circumstances. The risk of prejudice in a case such as this is real. The second respondent can point to a risk of prejudice; the Commissioner cannot.

29    In accordance with this approach, in Commissioner of the Australian Federal Police v W [2016] NSWSC 683, Adamson J was not satisfied that orders to close the court during the hearing and the making of a non-publication order, even if appropriate, would ameliorate the prejudice including by way of “disclosure of what occurs in the civil proceedings, through misunderstanding, inadvertence or mishap, to those involved in the prosecution” (at [59]).

30    No doubt if in any case the privilege against self-incrimination arises unexpectedly during a hearing, the Court may decide that in all of the circumstances the hearing should proceed on the basis that it is appropriate to give a certificate under s 128 and to make some form of non-publication order. This is what occurred in Hua Wang Bank Berhad v Commissioner of Taxation (No 9) [2013] FCA 1022; (2013) 96 ATR 583, Hua Wang Bank Berhad v Commissioner of Taxation (No 15) [2013] FCA 1124; (2013) 217 FCR 26 (Hua Bank No 15), and Hua Wang Bank Berhad v Commissioner of Taxation (No 16) [2014] FCA 1407. But that does not mean that, in the present case, where the proceeding has not been fixed for hearing, it is appropriate to take this course. To make orders closing the Court and preventing the publication of Mr Ransley’s evidence in whole or part (as well, perhaps, of the reasons for judgment in whole or part), so that this appeal might be heard without delay in circumstances where the Commissioner is entitled to recover the money said to be owing in any event, does not seem to me to facilitate the administration of justice. To the contrary, it would be inimical to the principle of open justice (enshrined in s 17(1) of the Federal Court of Australia Act 1979 (Cth)) for no better reason than avoiding delay. While unnecessary delay should be avoided, the value of timeliness in the hearing and disposal of matters in court, in the present case, is not equivalent to the weight required to be given to the value of protecting Mr Ransley’s right to silence in the pending criminal case and of ensuring open justice.

31    Fifth, and finally, I do not accept the Commissioner’s decision that the “horse has bolted” in respect of Mr Ransley’s right to silence by reason of the affidavit which he has provided in the appeal. Mr Ransley’s affidavit says nothing about important elements of the criminal charges against him, in particular his state of knowledge and his intentions at the time the submission was lodged.

32    It is true that, as I have accepted, s 128 is available to Mr Ransley in giving evidence and that Mr Ransley chose to provide an affidavit in circumstances where s 128 would not be available in respect of any evidence given in the affidavit. As explained in Seller v Commissioner of Taxation [2013] FCA 1373; (2013) 308 ALR 376 (Seller) at [36] – [37] and [57], referring to Hua Bank No 15, s 128 does not apply to evidence filed before a hearing; but this is not determinative or even of substantial weight given the matters not dealt with in Mr Ransley’s affidavit which would be relevant to the criminal proceedings. I also adopt the observation of Robertson J in Seller at [57] with respect to suppression and non-publication orders under s 37AF of the Federal Court of Australia Act and the issue of a certificate under s 128 of the Evidence Act, namely that:

neither of these provisions has any great bearing on the question of prejudice on which the applicants rely. As the plurality said in Reid v Howard (1995) 184 CLR 1 at 17:

Moreover and of more importance, the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act [Supreme Court Act 1970 (NSW)] are to be exercised only as necessary for the administration of justice. Quite apart from the difficulties which the orders of the Supreme Court present for the administration of justice, to which reference has already been made, it is inimical to the administration of justice for a civil court to compel self-incriminatory disclosures, while fashioning orders to prevent the use of the information thus obtained in a court vested with criminal jurisdiction with respect to the matters disclosed. Nor is justice served by the ad hoc modification or abrogation of a right of general application, particularly not one as fundamental and as important as the privilege against self-incrimination.

33    For these reasons, I am satisfied the proceedings should be stayed pending determination of the committal proceedings against Mr Ransley.

Associate:

Dated:    5 July 2016