In Victoria v Villan  VSCA 106, the Court of Appeal gave guidance to practitioners in relation to the treatment of non-party witnesses in civil cases where the criminal prosecution of the witness is on the cards, after self-incrimination issues derailed a jury trial in a historical sexual abuse case, occasioning its stay.
Given that the statutory provision in question — s 128 of the Evidence Act 2008 — extends beyond the privilege against self-incrimination to the privilege against penalties, the guidance must also apply where a proposed witness in civil proceedings who is a professional might expose themselves to a penalty in the form of disciplinary sanction by giving evidence in civil proceedings. An employee solicitor or the director of a defendant law practice in a negligence suit, should be advised by the defendant’s (insurer’s) lawyers of the possibility of disciplinary sanction, and of the possibility that evidence called by the defendant might affect any subsequent disciplinary investigation and prosecution, since the Victorian Legal Services Commissioner and VCAT alike have power to issue fines for proven misconduct, an archetypal penalty.
Indeed, in Oldham v Law Institute of Victoria  VCAT 571 (a disciplinary prosecution despite the counter-intuitive title of the proceeding), Judge Bowman recorded that Terry Forrest J had in earlier related civil proceedings ‘completely understandably and very fairly’ refused to allow the cross-examination of the practitioner who was personally a respondent to a non-party costs order, on the basis that he should not prejudice himself in relation to any future disciplinary investigation into the same conduct. (Such an investigation might readily have been appreciated to have been on the cards, because his Honour was the person who initiated it by referring the practitioner to the Victorian Legal Services Commissioner.)