AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
third party may become liable for a part, or the entirety, of the judgment debt. Charging Orders A charging order may be obtained to extend a charge over property, including land, shares in a company or money held in a financial institution (Civil Procedure Act 2005 (NSW) Section 126(1)). The judgment creditor may apply for a charging order pursuant to Section 106(1)(c) of the Civil Procedure Act 2005 (NSW). A charging order operates to charge the property in favour of the judgment creditor to the extent that is necessary in order to satisfy the judgment. The debtor is restrained from selling, transferring or otherwise dealing with the property (Civil Pro - cedure Act 2005 (NSW) Section 126(2)). However, this type of order is narrow in scope and should therefore only be relied upon in cas - es where the debt faced is substantial and the debtor holds substantial assets. 5.2 Enforcement of Foreign Judgments No response has been provided in this jurisdic - tion. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination A party may refuse to provide information or produce documents that it may otherwise be required to disclose, if certain privileges apply, specifically the privilege against self-incrimina - tion and the right to silence. Self-Incrimination The privilege against self-incrimination is the right of an individual to refuse to answer any
questions or produce any materials, if doing so “may tend to bring him into the peril and possi - bility of being convicted as a criminal” (Sorby v Commonwealth (1983) 152 CLR 281; (1983) 46 ALR 237, 241). This common law right is avail - able to: • individuals suspected of a crime; • individuals questioned in civil proceedings; and • people within non-curial context. Section 128 of the Evidence Act 1995 (Cth) establishes the privilege against self-incrimi - nation. Under this section, a witness is able to object to giving evidence if that evidence proves the witness (a) has committed an offence against or arising under an Australian law or a law of a foreign country or (b) is liable to a civil penalty. Right to Silence Differing from the privilege against self-incrimi - nation is the right to silence. The right to silence protects a defendant from being obligated to tes - tify against oneself, regardless of whether or not that testimony has the potential to be incriminat - ing. Established by Section 17 of the Evidence Act 1995 (Cth), this statutory right provides that “defendant is not competent to give evidence as a witness for the prosecution” . It solely applies to criminal proceedings and ensures that a defend - ant cannot give evidence at their own trial unless they elect to during their own defence. 6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure A party may withhold documents that are sub - ject to legal professional privilege. This privilege arises in relation to:
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