Feb 11

Production of documents by sole director company not prevented by claims of self-incrimination

When disclosing documents or giving evidence in relation to Court proceedings, no person should be forced to incriminate themselves. Such documents and evidence may be “privileged”, or excluded from disclosure. This is the principle of privilege against self-incrimination.

Whilst this privilege will be available to an individual called to give evidence on their own behalf, the Directors of a Company giving evidence on behalf of the Company may not be entitled to claim privilege against self-incrimination of the Directors.

The recent case of Kala Capital Pty Ltd (No 2) [2012] NSWSC 1293 provides a timely reminder that a Company, even a Company with a sole Director, is a separate legal entity, with its Directors merely agents of the Company. In Kala, an application was brought by Alfred Lee and two companies of which he was the sole Director seeking to be excluded from producing certain documents in Court proceedings on the basis that Mr Lee may incriminate himself if the documents were produced.

It was decided that the sole Director of a Company will not be entitled to avoid producing documents that may incriminate the Director of the Company. These documents are produced by the Director as an agent of the Company, not on behalf of the Director. A Director may in that situation have the Company appoint another officer to disclose the documents on behalf of the Company.

If you have been requested to disclose documents, or give evidence in Court proceedings, please do not hesitate to contact McLaughlins, your Gold Coast law firm, for legal advice on your disclosure obligations.