Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd (As Trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23 (27 February 2020) (Wigney, Markovic and O’Callaghan JJ)


Catchwords:


PRACTICE AND PROCEDURE – discovery – privilege against self-incrimination – privilege against exposure to penalties – where accounting firm objected to production of its audit files, review files and working papers in relation to the relevant engagements – where the statement of claim alleged contraventions of statutory provisions that were offence provisions and/or pecuniary penalty provisions – whether production of the documents would give rise to a real and appreciable risk of prosecution and/or institution of proceedings for a pecuniary penalty – whether primary judge erred in finding no real or appreciable risk of criminal or civil penalty proceedings being commenced against partners of the accounting firm who were not directly involved in the relevant engagements

PRACTICE AND PROCEDURE – discovery – control – where primary judge made production order requiring uninvolved partners to produce the relevant documents – whether primary judge erred in finding that the uninvolved partners had control of the relevant documents at the time of making the production order

PRACTICE AND PROCEDURE – discovery – application to be excused from complying with production order or that the production order be discharged – where a partner who was not required to produce the relevant documents (on the basis of a successful claim of privilege against self-incrimination) obtained the documents and refused to make them available to the other partners – whether in the circumstances the partners who were subject to the production order should be excused from complying with the production order – whether the production order should be discharged – where primary judge did not excuse the relevant partners from complying with the production order, nor discharge the production order, on the basis of the events that occurred after making the production order – whether primary judge erred in finding that the relevant partners had failed to discharge the onus of establishing a proper basis for excusing the partners from complying with the production order or discharging the order