Privileges Against Self-Incrimination And Penalties To Impact Australian Class Action Strategy

In Short

The Background: In a shareholder class action, the plaintiff sought discovery of documents from the defendant partnership in relation to alleged statutory contraventions associated with its role as auditor of a company that had gone into liquidation.

The Issue: The defendant sought to resist production of the documents on the basis of the privileges against self-incrimination and self-exposure to penalties.

The Outcome: The partners who were directly involved in the relevant audits could rely on the privileges to resist production, on the basis that production of the documents would give rise to a real risk of prosecution. Other partners in the audit firm could not rely on the privileges.