This was a successful appeal in which the Full Court held that the privilege against self-incrimination and privilege against self-exposure to a civil penalty can be invoked to resist the production of documents under a civil search order (i.e. an Anton Piller order).
The Court held that, in contrast to a search warrant, a civil search order compels the recipient to give permission for the search to occur and it is that compulsion to give permission that attracts the common law privileges.
The Court also held that a sole director of a corporation cannot be compelled, by an order directed to the corporation, to produce documents that will tend to incriminate the sole director. In those circumstances, it is necessary to consider mechanisms by which the corporation can produce the documents, other than by the sole director producing them on its behalf. That might require the appointment of a receiver.
The case arose out of a civil search order that was executed in October 2017. Documents were obtained from Mr Meneses’s family home, which was also the registered office of OE Solutions Pty Ltd (of which he was the sole director, shareholder and employee).
The primary judge held that the documents in question did not “belong” to Mr Meneses but instead belonged to his former employer (the respondent in the appeal), OE Solutions Pty Ltd or others (such as his new employer). The primary judge held that, given the documents were not Mr Meneses’s documents, the privileges “did not attach” to those documents because a corporation cannot invoke the privilege against self-incrimination.
The Full Court allowed the appeal. The Court differentiated between the nature of the enquiry involved in determining a claim to client legal privilege (on the one hand) and the privilege against self-incrimination and privilege against self-exposure to a civil penalty (on the other). In determining claims to the latter privileges, the focus is on the act of production and the incriminatory nature of the documents required to be produced (as opposed to the circumstances in which the documents were brought into existence).