AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Before the commencement of proceedings, evi - dence may also be obtained through the applica - tion for pre-action discovery from relevant third parties. Specifically, a claimant is able to apply for a Norwich Pharmacal order (derived from the case of Norwich Pharmacal Co v Commis - sioners of Customs and Excise [1974] AC 133) if the court has determined that “the interests of justice are relevant to the exercise of the judi - cial discretion and in considering the interests of justice the judge must consider whether the applicant is left without an effective remedy, if the order sought is not made” (Re Pyne [1007] 1 Qd R 326, 331). Upon the successful grant of a Nor - wich Pharmacal order, which will occur follow - ing satisfaction of the three threshold conditions (see A Nelson & Co Limited v Martin & Pleasance Pty Ltd [2021] FCA 228, [76] citing Popplewell J in Orb ARL v Fiddler [2016] EWHC 361 at [82]- [88]), the third party who is involved in a trans - action must provide information to the claimant that would be relevant to a claim. This includes the identity of the wrongdoer. For example, by requiring the disclosure of relevant information, this order can be used to trace the disposition of money that has been obtained fraudulently. Where an order permits that material evidence can be obtained from a third party, the material is only to be used with regard to the particular proceedings for which the order was made, and should not be used for other purposes without the permission of the court. Subsequently, where a proceeding has already begun, a party to the proceedings can issue a subpoena to relevant third parties in order to produce documents to the court and/or attend court to give evidence. For the subpoena to be valid it must be issued for a legitimate forensic
purpose and documents that are to be sought must be identified with a reasonable level of par - ticularity. Where an order is made for a person to appear or disclose documents, a restriction on such material may arise by way of the privilege against self-incrimination (refer to 6.1 Invoking the Privilege Against Self-Incrimination ). 2.4 Procedural Orders An interlocutory application to obtain a freez - ing order or asset preservation order is typically sought on an ex parte basis, that is, without pro - viding notice to the respondent, in order to avoid the frustration of a prospective court judgment, as a result of the dissipation of assets by the respondent (UCPR r 25.13). In making an ex parte application, an applicant must demonstrate (in addition to the other fac - tors required for the interlocutory order) that there is a risk that the respondent will either flee the jurisdiction, or dispose of or diminish the val - ue of the assets, so that an eventual judgment is wholly or partly unsatisfied (UCPR r 25.14(4)). 2.5 Criminal Redress The interplay between civil proceedings and a criminal prosecution is important because a fraud victim needs to take urgent steps to recov - er and prevent stolen assets being shifted, laun - dered or sent overseas, whilst pressing criminal charges against the perpetrator(s) of the crime. In Australia, recovery of assets via the com - mencement of civil proceedings does not pre - vent the pressing of criminal charges. With the exception of urgent applications for relief, it is usual for civil recovery actions to be stayed pending the conclusion of criminal pro - ceedings against a party charged with criminal offences arising out of the same or overlapping factual matters.
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