Boral Resources (Vic) Pty Ltd v CFMEU
[2014] VSC 120
•25 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2013 00928
| BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731) & ORS | Appellants |
| V | |
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ANOR | Respondents |
JUDGE: | DIGBY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2014 | |
DATE OF JUDGMENT: | 25 March 2014 | |
CASE MAY BE CITED AS: | Boral Resources (Vic) Pty Ltd & Ors v CFMEU & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 120 | Revised 28 March 2014 |
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DISCOVERY – Applicability of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and r 29.07 – Proceeding under r 75.06 – Civil contempt – Whether discovery available in proceeding of a criminal and/or quasi-criminal nature to penalise for contempt of Court – Significance of alleged contemnor being a corporation rather than an individual – Privilege against self-incrimination – s 187 Evidence Act 2008 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr J Snaden | FCB Workplace Law |
| For the First Respondent | Mr P Morrissey SC with Mr G Boas | Slater & Gordon |
| For the Second Named Respondent | Mr J Davis with Ms R Sweet | Victorian Government Solicitor’s Office |
HIS HONOUR:
By summons dated 22 August 2013 (“the Contempt Summons”), issued pursuant to Rule 75.06 of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Rules”) the Appellants seek orders that the First Respondent be punished for contempt constituted by alleged disobedience in relation to orders of this Court made on 5 April 2013 (“the Contempt Proceeding”).
The Contempt Summons alleges that in breach of orders made by Hollingworth J on 5 April 2013, the First Respondent, by its employee or official, one Joseph Myles, on 16 May 2013, established, maintained and participated in a blockade of a construction site in Footscray, Victoria known as the Regional Rail Link Project.
By summons dated 2 October 2013 (“the Discovery Summons”) the Appellants sought orders pursuant to r 29.07 of the Rules requiring the First Respondent to make discovery of documents as specified in paragraph 1(a)-(o) of the Discovery Summons, for the purposes of the Contempt Proceeding.
The Discovery Summons was dismissed by Daly AsJ on 23 October 2013 (“the Decision”).
By orders made on 28 October 2013, the Second Respondent, the Attorney-General for the State of Victoria, was joined as a party to the Contempt Proceeding.
On 1 November 2013 the Appellants issued a Notice of Appeal against the orders made by the learned Associate Judge on 23 October 2013.
It is submitted by the First Respondent, and uncontradicted by the Appellants or the Second Respondent, that there is no precedent in this Court for an order compelling discovery, pursuant to r 29.07(2) or otherwise, by a party responding to contempt charges.
Factual background
I set out the summary of relevant background facts and assertions presented in the Appellants’ Outline of Submissions on Appeal, dated 4 November 2013. The below summary identifies the essence of the Appellants’ case in this proceeding, as follows:
2.2 The Contempt Summons is filed pursuant to r 75.06 of the Rules. By it, the Appellants allege (as now does the Second Respondent), amongst other things, that the First Respondent, acting via its official, Mr Joseph Myles, contravened an injunction issued by Hollingworth J on 5 April 2013. It is alleged that Mr Myles established and maintained a blockade (comprised of vehicles and men) of a construction site at Joseph Road, Footscray, on 16 May 2013, thereby preventing the supply of concrete to that site by the first plaintiff. That construction site was for a project known as the Regional Rail Link project.
2.3 Mr Myles is an official of the CFMEU.[1] He is also a “specialist” “organiser” apparently assigned by the First Respondent to work in connection with the Regional Rail Link project.[2]
2.4 In order to succeed on the charges, the Appellants will need to establish either that the First Respondent authorised Mr Myles to engage in the conduct in which it is alleged that he engaged, or that it failed to take appropriate steps to prevent it—see: Evenco Pty Ltd v. Australian Building Construction Employees and Builders Labourers Federation (Qld Branch);[3] and Grocon Constructors (Vic) Pty Ltd v. CFMEU.[4]
2.5 The Appellants seek discovery of specific categories of documents that go to the question of Mr Myles’s authority to do as he did, on behalf of the First Respondent, on 16 May 2013. To understand how the documents are relevant, it is necessary to consider the affidavit material that the Appellants have filed in support of the contempt summons, particularly the affidavits of Acting Inspector Damien Jones[5] and Sergeant Mark Anderson.[6]
2.6 Acting Inspector Jones and Sergeant Anderson are police officers who attended at the Joseph Road site on 16 May 2013. They both spoke to Mr Myles about the blockade that was in place when they arrived. Sergeant Anderson, having been introduced to Mr Myles, asked whether he (Mr Myles) was “the main man” in charge of the blockade, to which Mr Myles is said to have responded, “…I am just doing what I am told and following directions…I will be here until I am told otherwise. When we are told we can go home, we go home”.[7]
2.7 Acting Inspector Jones and Sergeant Anderson depose that Acting Inspector Jones asked Mr Myles to permit worshippers from a nearby temple (who bore no apparent connection with the blockade or the reason for it) to pass through the blockade. Both depose that Mr Myles then walked away and spoke to somebody on his mobile telephone. He then returned and said that he would permit the worshippers to pass. Both Acting Inspector Jones and Sergeant Anderson then observed the blockading vehicles moving aside to permit the worshippers’ vehicles to pass.[8]
2.8 The Appellants, then, seek orders requiring that the First Respondent discover contact details for members of the executive of the Victoria/Tasmania branch of its Construction and General division (the executive is, for all intents and purposes, the management body that runs that divisional branch). Documents so discovered will then be used, in conjunction with call record subpoenas to telecommunication carriers, to identify the person from whom Mr Myles apparently sought and obtained directions to permit worshippers to pass through the blockade.
2.9 The Appellants also seek orders requiring the First Respondent to discover documents containing the terms of Mr Myles's employment. Those documents are also relevant to the scope of Mr Myles's authority.
2.10 Both categories of documents are peculiarly within the knowledge of the First Respondent.
[1]AB 163 (tab 13, sixth affidavit of Rodney William Marshall, exhibit RWM-14).
[2]AB 246 (tab 14, seventh affidavit of Rodney William Marshall, exhibit RWM-19).
[3](2001) 2 Qd R 118 (at 130 [27], per Pincus JA.
[4][2013] VSC 275 (at [60]).
[5]AB tab 15.
[6]AB tab 16.
[7]AB 277 [9] (tab 16, affidavit of Mark Anderson, paragraph [9]).
[8]See: AB 264-265 [10]-[12] (tab 15, affidavit of Damien Jones); and AB 278 [13]-[14] (tab 16, affidavit of Mark Anderson).
Grounds of the Appeal
The Appellants’ Notice of Appeal proceeds on three grounds. Each is said to identify relevant error on the part of the Associate Judge on 23 October 2013, namely:
1. Her Honour erred in finding that the Supreme Court (General Civil Procedure) Rules 2005 (the “Civil Rules”) do not apply to the proceeding.
2. Her Honour erred in finding that discovery under r 29.07 of the Civil Rules is not available in a contempt proceeding involving a corporate defendant.
3. In considering whether to exercise her discretion to grant discovery under r 29.07 of the Civil Rules, her Honour erred by proceeding on the basis of a wrong principle, being that discovery is not appropriate in a contempt proceeding involving a corporate defendant.
The appeal is brought pursuant to r 77.06 of the Rules. The nature of such an appeal is by way of re-hearing in which an Appellant must establish error as identified in its Notice of Appeal. Accordingly, such appeals are no longer by way of re-hearing de novo.
On this appeal I accept the Appellants’ submission that if the alleged errors are established it is for this Court to correct those errors and, in doing so, consider the proper exercise of discretion under r 29.07(2).
Further, the learned Associate Judge’s exercise of discretion under r 29.07 is appellable only to the extent that it is affected by error of the kind referred to in House v R.[9] This means if the Associate Judge undertook the exercise of discretion under order 29.07, such exercise of discretion is not able to be set aside simply because the Court, undertaking the relevant review, would have exercised the discretion differently. It must be established that some error has been made in exercising the discretion. Such error may be that the judge, exercising that discretion, acted on an incorrect principle by allowing extraneous or irrelevant matters to guide or affect his or her decisions, and/or he or she has mistaken the facts, and/or he or she did not take into account some material consideration. In the event that any of these errors are established, the Court undertaking the review has jurisdiction to exercise its own discretion in substitution for the earlier erroneous exercise of the same discretion.
[9](1936) 55 CLR 499 at 405-406.
The First Respondent, the CFMEU, submits that because this appeal calls upon this Court to exercise appellate jurisdiction to review a decision that involves the exercise of a discretion and relates to matters of practice and procedure, I should proceed with ’particular caution’.[10] I accept this submission and proceed accordingly.
[10]See Oswal v Carson [2013] VSC 355, [11]; and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.
Materials relied upon
In this appeal the parties rely upon:
(i)materials filed in the Appeal Book, (including all the parties’ written submissions therein);
(ii)Appellants’ Folder of Selected Authorities;
(iii)First Respondent’s Submissions (before the Associate Judge) dated 17 October 2013 (FRS: 17/10/13);
(iv)Appellants’ Supplementary Submissions (before the Associate Judge) dated 21 October 2013 (AS: 21/10/13)
(v)Appellants’ Outline of Submissions dated 4 November 2013 (AS: 4/11/13);
(vi)Second Respondent’s Outline Submissions dated 17 January 2014 (SRS: 17/1/14);
(vii)First Respondent’s Outline Submissions dated 23 January 2014 (FRS: 23/1/14);
(viii)Second Respondent’s Reply Submissions dated 29 January 2014 (SRS: 29/1/14);
(ix)additional authorities provided during the course of oral submissions on 29 January 2014;
(x)Second Respondent’s Outline Submissions dated 31 January 2014 (SRS: 31/1/14);
(xi)Appellants’ Supplementary Submissions dated 31 January 2014 (AS: 31/1/14); and
(xii)First Respondent’s Reply Submissions dated 3 February 2014 (FRS: 3/2/14)).
The Decision of the Associate Judge: 23 October 2013
In summary the key elements of the learned Associate Judge’s decision dated 23 October 2013 were as follows:
(a)Her Honour identified the scope of the orders for discovery sought by the firstnamed Appellant, Boral, pursuant to r 29.07, as follows:
(i)documents recording the telephone numbers of certain CFMEU executives; and
(ii)documents evincing the terms and conditions of employment of Mr Myles, an official of the CFMEU (Decision [1]);
(b)The documents sought are relevant to a fact in issue (Decision [3]);
(c)Boral’s discovery application is not in the nature of a “fishing” exercise (Decision [4]);
(d)That “special circumstances” existed which would warrant an order for discovery under r 29.07 and that the usual considerations which would cause the Court to refuse to exercise its discretion under r 29.07 do not apply (Decision [5]). In particular her Honour noted that she was mindful that the documents concerned go to an issue which is peculiarly within the knowledge of the CFMEU;
(e)Production of the documents sought by the Appellants would not be oppressive to the First Respondent. Her Honour also noted at [5] that it was apparent that the relevant proceeding had been commenced by way of summons, and not by way of writ. The Contempt Proceeding was initiated under Order 75 of the Rules, which states that proceedings are by way of summons or originating motion. (Decision [5]);
(f)An order under r 29.07 is not available, or even if available, the Court’s discretion under r 29.07 should not be exercised in favour of Boral because, as analysed in Australian Securities and Investment Commission v Sigalla (No 4) (‘Sigalla’),[11] the Contempt Proceeding is properly characterised as a “criminal contempt”, and as such, the rules of procedure and evidence governing criminal proceedings apply (Decision [6]);
[11][2011] 80 NSWLR 113.
(g)Contempt proceedings which relate to a breach of orders of the Court which are not coercive or remedial, but punitive, are generally characterised as proceedings for criminal contempt (Decision [10] and [11]);
(h)Her Honour observed that Sigalla was not concerned with questions of discovery. Her Honour noted that Sigalla was concerned with whether the consequences of Mr Sigalla making a “no case” submission were governed by the regime applicable to civil proceedings, or by the provisions of the Evidence Act 1995 (NSW) applicable to criminal proceedings (Decision [8]). The charges in Sigalla related to contempts for breaches of orders which were not capable of remedy and were therefore, if proved, criminal offences for procedural and evidentiary purposes (Decision [11]);
(i)Her Honour also found that “In the current case, the rules of criminal procedure would apply, not the rules governing procedure in civil proceedings” (Decision [12]);
(j)Her Honour noted that given the statements of the High Court in Witham v Holloway (‘Witham’),[12] a proceeding concerning allegations of contempt whether civil or criminal, would almost certainly be considered to be a “quasi criminal proceeding”. As such, the disclosure provisions under s 26 of the Civil Procedure Act 2010 (Vic) would not apply in the current case (Decision [14]);
[12](1995) 183 CLR 525.
(k)Her Honour referred to Clarkson v DPP (‘Clarkson’)[13], a case in which Murphy J found that despite the subject judicial review proceedings being brought pursuant to Order 56 of the Rules to quash a conviction in the County Court, the proceedings were criminal in nature and the rules of discovery were therefore not applicable (Decision [16]). Clarkson was a case involving an individual as defendant (Decision [17]);
[13][1990] VR 745.
(l)Her Honour pointed out that in Witham the Court was concerned with an individual, not a corporate defendant (Decision, [18]);
(m)The learned Associate Judge expressed the view that there is real doubt as to whether the High Court’s decision in EPA v Caltex Refinery Co Pty Ltd (‘Caltex’)[14] is binding authority for the proposition that the compulsory disclosure processes of the Court can be utilised to compel a person, whether a corporation or a natural person, to disclose documents which would expose that person to a criminal penalty (Decision [19]);
[14](1993) 178 CLR 477.
(n)The learned Associate Judge noted that in Caltex, Deane J concluded that a corporation could not avail itself of the privilege against self-incrimination. However, his Honour said that a corporation could avoid giving discovery under a notice to produce by claiming the privilege against exposure to penalty, whether criminal or civil. This is unless a statute or rule of Court otherwise provides expressly or by necessary intendment (Decision, [22]);
(o)Her Honour also noted that Deane, Dawson and Gaudron JJ agreed that the notice to produce in Caltex should be set aside, and stated in that context:
If, as it seems to us, the desire to deny the privilege against self-incrimination, whether to natural persons or corporations or both, tends to be dictated by pragmatism rather than principle, then the extent of any denial is more appropriately a matter for the legislature than the courts. We can find no sufficient reason in principle for saying that the doctrine, as it has been developed in our law, has no application to corporations[15]
[15]Ibid, 534-535.
(Decision [22-23]);
(p)Her Honour cited Trade Practices Commission v Abbco Iceworks Pty Ltd (‘Abbco’),[16] and noted that the reasoning of the Full Court in Abbco supports the proposition that discovery ought to be available to Boral in this application, given the immunity from self-exposure to civil penalty is not available to corporations (Decision [25]);
[16](1994) 52 FCR 96.
(q)Her Honour also noted that here Boral does not have access to other compulsory processes available to the police and the relevant regulators (Decision [25]);
(r)Her Honour stated in relation to Abbco that in her view it was arguable that Abbco was authority for the more limited proposition that corporations are only precluded from relying on the privilege against exposure to a penalty in actions for civil penalties, not criminal proceedings (Decision [25]);
Her Honour also said at [25]:
In the current case, adopting the analysis of White J in Sigalla, the position is that this application is properly characterised as a criminal proceeding, and as such, the rules of civil procedure do not apply. Indeed, the framework of order 75 tends to support this view, in that rule 75.14 expressly empowers the court to make an order for costs
(Decision [25]).
(s)In summary, her Honour concluded that discovery ought not be ordered because:
(a) proceedings for punishment for contempt are criminal in nature, and the appropriate safeguards should apply;
(b) discovery is not available or appropriate in criminal proceedings;
(c) if there is any debate about whether a particular action for contempt is civil or criminal in nature, for the purposes of determining which evidentiary and/or procedural regimes apply, the current case is an action for criminal contempt, as the purpose of bringing the application is to punish the CFMEU for breaching the Orders, not to coerce CFMEU to obey the Orders, and there is no breach capable of remedy; and
(d) while EPA v Caltex is authority for the proposition that a corporation is not entitled to rely upon the privilege against self-incrimination in circumstances where compulsory disclosure of documents is authorised by a statutory provision, it is arguably not authority for the proposition that the court’s own rules and procedures can be utilised for the purpose of compelling a party, whether a corporation or otherwise, to disclose evidence which would expose that person to a penalty. Further, to the extent that Abbco Iceworks has determined that the privilege against self-exposure to a penalty does not extend to corporations, this decision is arguably limited to cases concerning civil actions for civil penalties
(Decision [26]).
Ground 1 of the Appeal: Application of the Rules
Appellants’ Submission (Ground 1)
The Appellants submit that the learned Associate Judge did not identify any authority for the proposition that applications such as the Contempt Summons are criminal proceedings to which the Rules do not apply. The Appellants also submit that the First Respondent did, at all events, not contend that the Rules did not apply.[17]
[17]AS: 4/11/13, [5.1].
The Associate Judge’s findings impugned by the Appellants are as summarised in Ground 1 of the Notice of Appeal, and also in the overlapping Ground 2, namely that:
1. Her Honour erred in finding that the Supreme Court (General Civil Procedure) Rules 2005 (the “Civil Rules”) do not apply to the proceeding.
2. Her Honour erred in finding that discovery under r 29.07 of the Civil Rules is not available in a contempt proceeding involving a corporate defendant.
The Appellants say that the findings relevant to Ground 1 are in paragraphs [6], [12] and [25] of the Decision.
The Appellants take issue with the Decision on the basis that her Honour’s findings were influenced heavily, if not solely, by the case of Sigalla. The Appellants submit that in Sigalla, White J dealt with proceedings for criminal contempt which were being pursued within a framework of certain specific legislation, none of which contained language equivalent to that used in the Rules.
The Appellants submit that there is clear authority for the proposition that, notwithstanding that a contempt may be described as a criminal offence, proceedings in relation to the contempt do not attract the criminal jurisdiction of the Court. They submit that such proceedings attract the civil jurisdiction of the Court and the rules that ordinarily apply to that jurisdiction.[18]
[18]See Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378 (‘Boral Resources’), [10]; and Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 (‘Hinch’), 89.
Further, the Appellants and Second Respondent cite the following passage of the judgment of Beach JA in Boral Resources:
While the operation of any rule of court that cuts across protections or privileges given to an accused facing criminal charges might need to be mediated so as to ensure a fair trial of those charges without the loss of relevant privileges and protections, rule 9.06 is not a rule that comes within that potential class of rules.[19]
[19][2013] VSCA 378, [11].
First Respondent’s Submission (Ground 1)
The First Respondent’s submission is that her Honour made no finding in the terms stated by the Appellants in their Notice of Appeal and arguments.
The First Respondent says that the Appellants have overstated the effect of her Honour’s statements and by doing so have inaccurately elevated those statements to the effect that the rules of criminal procedure apply to this contempt proceeding, rather than the Rules governing procedure in civil proceedings. The First Respondent submits in essence that her Honour’s statements did not amount to a finding that Chapter I of the Rules did not apply.
The First Respondent submits that the fundamental point as to the proper characterisation of the Contempt Proceeding is that it is “criminal in nature”, whether it is tried in the civil jurisdiction or the criminal jurisdiction.[20] In this regard the First Respondent also refers to and relies on Hinch, where the High Court said:
It should no longer be accepted in this country where, regardless of whether it be imposed in proceedings brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order, imprisonment or fine as a consequence of a finding of contempt of court cannot be justified otherwise than as a punishment for past or continuing breach of law. Proceedings seeking the imposition of such punishment upon an alleged contemnor (or an order for sequestration in the case of a company) must realistically be seen as essentially criminal in nature.[21]
[20]FRS: 23/1/14, [3.12].
[21]Hinch (1987) 164 CLR 15, [49].
The First Respondent notes that even if the learned Associate Judge’s formulation as to the character of the proceeding was erroneous, that error is of no significance because the Court, in any event, considered whether discovery under r 29(7) ought to be granted.[22]
[22]FRS: 23/1/14, [3.15].
If the above submission by the First Respondent is to the effect that the learned Associate Judge considered whether in the exercise of discretion under r 29.07 discovery should be ordered in all the relevant circumstances, I reject this submission for the reasons I explained in paragraphs [46]-[50] below.
Mr Morrissey SC for the CFMEU argued in relation to Ground 1 of the Notice of Appeal that the learned Associate Judge did not ultimately apply any criminal procedural rules to any aspect of this matter nor did the Associate Judge refer to the Criminal Procedure Act 2008 (Vic) as being applicable.
The First Respondent’s submission is that her Honour’s statements that “the rules of procedure and evidence governing criminal proceedings apply”, and that “the rules of criminal procedure would apply, not the rules governing procedure in civil proceedings”, should be read in the overall context of her Honour’s Ruling and reasons (which her Honour said were necessarily brief). The First Respondent submits that if read in context, it is seen that those statements were referring to a proceeding which is criminal in nature and to the appropriate procedures to be adopted in a criminal contempt proceeding.[23]
[23]FRS: 23/1/14, [3.1]-[3.2].
The First Respondent submits that the contempt power of the Supreme Court is a sui generis specific power, and although Order 75 of the Rules is within Chapter I, contempts of the type dealt with pursuant to Order 75 are “criminal in nature” and the processes followed by the Court are shaped by that characterisation.
The First Respondent also submits that because of the special characteristics of the Court’s contempt power in relation to a contempt which is “criminal in nature”, the rules of Chapter I do not automatically apply to Order 75 proceedings. The First Respondent says this was recognised by analogy in Clarkson[24]. The First Respondent submits that the procedure applicable to the Contempt Proceeding is a matter to be determined by the Trial Judge consistent with the purpose of the contempt power, especially where the proceeding is for a criminal contempt and is quasi-criminal in nature. In such cases the First Respondent submits, neither the Rules nor the Criminal Procedure Act 2008 (Vic) impose a binding or comprehensive process. The First Respondent highlights that this enables the Court to be flexible in relation to the regulation of such proceedings.[25]
[24][1990] VR 745, 759.
[25]FRS: 23/1/14, [3.3]-[3.7].
Further, the First Respondent submits that it is open to the Court to make orders under Chapter I of the Rules, for example directions concerning subpoenas under Order 42. However, it submits that the Rules do not automatically apply, as illustrated by the approach taken by Cavanough J in Grocon Constructors (Victoria) Pty Ltd v CFMEU (‘Grocon’).[26]
[26][2013] VSC 275. See FRS: 23/1/14, [3.6]-[3.7].
During oral submissions Mr Morrissey SC clarified that the First Respondent’s contention was that although rule 1.05 is to the effect that all the Rules apply to every civil proceeding commenced in the Court (subject to the exceptions in Rule 1.05(2) which are not presently relevant), not all of the Rules are of appropriate application to criminal contempt proceedings instigated pursuant to Order 75. Rules which are not appropriate include the Rules which establish coercive mechanisms such as Orders 29, 30 and 31.[27]
[27]T62:6-31, T63:1-4, T66:12-26, and T67:1-23.
Senior Counsel for the First Respondent also advanced alternative arguments. First, that at its highest Order 29 was not available in respect of an Order 75 criminal or quasi-criminal contempt proceeding. Second, that in the circumstances, and in the exercise of the Court’s discretion, Order 29 should not be invoked in relation to a contempt proceeding such as this.[28]
[28]T66:27-31, and T67:1-23.
Second Respondent’s submissions (Ground 1)
The Second Respondent submitted, in essence, that it is uncontroversial that the Contempt Proceeding has been initiated in and continues to be pursued in the civil jurisdiction of this Court. This is confirmed, it submitted, by Boral Resources where Beach JA said:[29]
It may be accepted for present purposes that not all of the rules of civil procedure apply to a proceeding seeking to have a party adjudged guilty of contempt of court. A prime example of a rule which may not apply is a rule requiring an individual party to incriminate himself or herself by giving discovery. However, the mere fact that some rules of civil procedure may not apply in proceedings for contempt does not mean that none of the rules governing civil proceedings apply in such cases. Prima facie, the rules in Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 apply to proceedings brought under Order 75 in relation to alleged contempts of court. There is nothing in those rules that make them inapplicable to such proceedings. In this respect, the position under Order 75 may be contrasted with the position in New South Wales where different statutory provisions and rules apply. Further, what was said by the High Court in Hinch v Attorney-General for the State of Victoria is apposite:
Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.
[29][2013] VSCA 378, [10]. (Citations omitted.)
Conclusion – Ground 1
The Rules apply to an Order 75 proceeding, subject to appropriate exercise of discretion
In my view on the proper construction of the Rules, in particular given the terms of r 1.05 of the Rules and the location of Order 75 within the body of the Rules, a contempt proceeding initiated under Order 75 of the Rules is a proceeding in the civil jurisdiction of the Supreme Court and is governed by Chapter I of the Rules. Chapter I governs civil proceedings. This position is, however, subject to the exercise of the Court’s discretion in relation to the application of those rules in the particular circumstances of a proceeding. This interpretation of the Rules and this characterisation of the nature of the subject proceeding are supported by the High Court’s statements in Hinch[30] and the Court of Appeal’s observations in Boral Resources.[31]
[30](1987) 164 CLR 15, [89].
[31][2013] VSCA 378, [10]-[11].
A party charged with criminal contempt may be granted dispensation from some parts of the Rules to ensure there is no loss of relevant privileges and protections. Examples of such parts of the rules include rr 29.07(2), 30.02(3) and 31.12 (Order 31 is in any event also conditioned by the requirement for consent), which deal with discovery, interrogatories and oral examination, respectively. The application of each of these rules is subject to the Court’s discretionary power and the Court may decide not to apply such rules in an Order 75 contempt proceeding. For example, as observed by the Court of Appeal in Boral Resources, the Court’s powers to coerce discovery pursuant to Order 29 may not apply in a way which requires an individual to incriminate himself or herself in a contempt proceeding where the contempt alleged is of a criminal character.
In this matter, however, it is not an individual who is being proceeded against but an organisation in the nature of a body corporate, registered under the Fair Work (Registered Organisations) Act 2009 (Cth).[32] In passing I note that the First Respondent did not submit otherwise in response to the Appellants’ submissions that the First Respondent is a “corporation” and therefore did not enjoy the common law privilege against self-incrimination and self-exposure to a penalty.[33]
[32]Sixth Affidavit of Rodney William Marshall, sworn 22 August 2013, [3]-[6].
[33]FRS: 23/1/14; and FRS: 3/2/14.
In any proceeding seeking to have a party adjudged guilty of a contempt of Court the parts of the Rules which are to be specifically applied will be determined on a rule by rule basis depending on all the relevant circumstances.
The First Respondent argued that r 75.14 of the Rules suggests that the other rules of Chapter I do not automatically apply to proceedings brought under Order 75. The Associate Judge took a similar view.
Rule 75.14 comes at the conclusion of Part 4 of Order 75. In Part 4, rr 75.10 and 75.11 deal with the situation where the Court finds the respondent guilty of contempt. Part 4, r 75.11 authorises the Court to punish for contempt by committal to prison or fine or both, and where the respondent is a corporation, the Court may punish for contempt by sequestration or fine or both.
Order 75 Part 4 is additional to and separate from the rules dealing with applications by the moving party under r 75.06 or r 75.07, and provides powers to the Court in rr 75.10 and 75.11 the exercise of which, it could be contended, does not reflect the success of a litigant in the usual way. Rule 75.11 empowers the Court to punish the contemnor and provides for certain types of punishment. Orders made under r 75.11 which are not analogous to the type of order usually made in a civil proceeding. In civil proceedings, orders typically respond to a party’s prayer for relief and established entitlement, and in that way, reflect the success of the litigant. Because of these special features I consider that r 75.14 is intended to clarify the Court’s discretion as to costs in relation to proceedings and orders of a different character to the type of proceeding and orders usually addressed by Order 63 of the Rules.
Insofar as r 75.14 expressly provides for a discretion in relation to costs, whether or not an order for committal is made, that rule does not, in my view, indicate that Order 75 stands separately from the remainder of the Rules nor that the other rules in Chapter I conferring a discretion in relation to costs are inapplicable. The existence and terms of Order 75.14 therefore do not in my view suggest that the Rules do not apply to Order 75 proceedings.
Rather, r 75.14 reflects an intention to clarify, lest there be any doubt, that the Court has a discretion as to costs “whether an order for committal is made or not”. It might otherwise be argued that s 24 of the Supreme Court Act 1986 (Vic) and Order 63 of the Rules are not apposite to confer a cost discretion in relation to a proceeding pursuant to Order 75 of the Rules.
Ground 1 Errors in the Decision
In my view on a fair reading of the Decision, and in particular her Honour’s findings at [6], [12], [25] and [26](b), her Honour found that relief under r 29.07 of the Rules was not available to Boral. This was principally because, as a result of the nature of the Contempt Summons, namely a proceeding properly characterised as a “criminal contempt”, the rules of procedure and evidence governing criminal proceedings applied. Further, her Honour found that the Rules do not apply to the Contempt Summons and accordingly, discovery is not available or appropriate in the context of the Contempt Proceeding.
The key basis for denying the Appellants’ discovery application was her Honour’s finding that the rules of criminal procedure apply and that the rules governing civil procedure in civil proceedings do not apply. In so denying the discovery application, her Honour therefore erred. Her Honour’s approach to the possible exercise of discretion as to the application of r 29.07, and her Honour’s decision not to enter into that exercise of discretion under r 29.07, was based on an extraneous and therefore erroneous consideration concerning the non-application of the Rules.
Further, given the unequivocal finding by her Honour that the Rules, including r 29.07 were not applicable or available to Boral in this proceeding, it is clear that her Honour’s reasoning was that the inapplicability of r 29.07 also resulted in the threshold decision that it was inappropriate or unnecessary to enter into an exercise of discretion under r 29.07.
Her Honour ultimately did not enter into the exercise of discretion permitted under r 29.07(2)
I accept the Appellants’ submission that her Honour “did not purport to undertake any weighing of competing factors”. It is clear that her Honour identified some matters relevant to the exercise of discretion. Her Honour considered the relevance and potential significance of the documents the subject of the Appellants’ application and the “special circumstances” which might ordinarily satisfy r 29.07. Her Honour also considered the nature of the Appellants and their inability to avail themselves of certain other compulsory processes, the scope of discovery being sought, whether or not it was potentially oppressive, and that appropriate safeguards should apply in relation to contempt proceedings of a criminal character.
I find, however, that the learned Associate Judge did not ultimately engage in exercising the Court’s discretion under r 29.07. This is clear from her Honour’s statements in the Decision at [6]. Her Honour there stated firstly that no relief was available to Boral under r 29.07. It appears this finding was founded on her Honour’s conclusion that the civil procedural rules, including r 29.07, did not apply and that the privilege against self-incrimination and/or the privilege against exposure to penalty was available to the CFMEU.
Her Honour stated in the Decision at [6] that if discovery under r 29.07 were available to Boral, her Honour would not exercise her discretion in favour of the Appellants for the “same reasons” that supported the decision that discovery under r 29.07 was not available. By alluding to the possible exercise of the Court’s discretion in that way her Honour made it clear why, if hypothetically she had entered upon the exercise of discretion under r 29.07(2), an order for discovery would have been refused. The matters discussed at [2]-[5] of the Decision, which may well have favourably influenced the possible exercise of discretion, were clearly not part of the “same reasons” referred to in [6] of the Decision. Furthermore, her Honour’s summary reasoning and conclusions at [26] of the Decision confirm that her Honour did not embark upon an evaluation of relevant factors in the exercise of her discretion under r 29.07 of the Rules.
Accordingly, her Honour also erred in failing to enter into the exercise of the discretion which was in fact available to her Honour under r 29.07 of the Rules. Additionally, for reasons I explain below, I also consider that her Honour erred in not ultimately exercising the Court’s discretion in favour of granting the Appellants’ application for discovery.
For the above reasons I do not accept the First Respondent’s submission that the Appellants’ descriptions of the effect of her Honour’s statements relating to the non-application of the Rules overstate what is said in the Decision. I do not accept the First Respondent’s submission that, properly understood, her Honour did no more than recognise the correct procedural position. I have addressed what I consider to be the “correct procedural position” as part of my conclusion above.
Ground 2 of the Appeal: Availability of discovery in contempt proceedings
Appellants’ Submissions (Ground 2)
The Appellants submit in essence, in ground 2 of their Notice of Appeal that her Honour erred in finding that discovery under r 29.07 of the Rules is not available or appropriate in a criminal contempt proceeding involving a corporate defendant.[34]
[34]AS: 4/11/13, [6.1].
The Appellants also submit that a corporate respondent cannot, in criminal cases, successfully claim privilege against self-incrimination and cannot, in civil penalty actions, successfully claim privilege against self-exposure to a penalty.[35]
[35]Abbco (1994) 52 FCR 96; s 187 of the Evidence Act 2008 (Vic). See AS: 4/11/13, [6.9].
The Appellants submit that there is no blanket rule to the effect that discovery is unavailable or inappropriate in criminal proceedings, let alone in prosecutions for contempt. They submit that corporate defendants may be compelled to produce documents for use against them in criminal and quasi-criminal proceedings.[36]
[36]AS: 4/11/13, [6.17].
The Appellants submit that the making of an order for discovery, if appropriate in the circumstances, serves important forensic objectives and the interests of justice. These factors, it was said, outweigh a contingency like the prospect of a “flood” of many such applications being made in other contempt proceedings in the future including for discovery and interrogation.
The Appellants respond to the First Respondent’s submission that the summary nature of the Order 75 proceeding and the expedition and flexibility that order was intended to produce would be detrimentally impacted by the imposition of the discovery process by submitting that, on balance, the justice of the case should not be “sacrificed on the altar of efficiency”. The Appellants however, concede that efficiency is of some importance. Counsel for the Appellants also submitted however that the impact of discovery on the length of the proceeding is likely to be minimal in this case.[37]
[37]T22.
First Respondent’s Submissions (Ground 2)
The First Respondent seeks to uphold the conclusion in [26(b)] of the Decision that discovery is not available or appropriate in criminal proceedings.[38]
[38]FRS: 23/1/14, [4.1].
However, the First Respondent expressly placed no reliance upon [4.2]-[4.3] of its submissions of 23 January 2014 that the CFMEU can avail itself of the penalty privilege referred to in Abbco.
The First Respondent submits that discovery is unsuitable in any criminal contempt proceedings because of the criminal nature of such proceedings and also because of the summary nature of the Order 75 process.[39]
[39]FRS: 23/1/14, [4.4]-[4.9].
The First Respondent says that in proceedings of a criminal nature:
(i)The accused enjoys protection including the imposition of a higher standard of proof, stricter evidentiary standards, enhanced prospect of making a no case submission and the privilege against self-incrimination;
(ii)The onus and standard of proof dictate that the “mutuality” of the discovery process in civil cases is inapplicable;
(iii)In a case of a criminal nature the procedure is one encompassing proper disclosure of the case and the evidence of the plaintiff, before the defendant determines what course to take (for example seeking to stay the proceedings as hopeless, making a no case submission, or electing to go into evidence);
(iv)The Court’s approach and procedures in this regard are founded not on the right to silence enjoyed by individual defendants in criminal cases, but more broadly on the criminal nature of the proceeding, and the onus and standard of proof, which cannot accommodate the “mutuality” inherent in the requirement for discovery under Order 29;
(v)The summary nature and inflexibility of the power under Order 75 means that cumbersome civil trials should be avoided. Allowing a process of discovery and interrogation is in conflict with speed and efficiency;
(vi)It is submitted that the consequences of permitting discovery would be dire and may cause a “flood” of applications by parties seeking discovery, and pursuing discovery, if not granted, through the appeal processes.
(vii)The First Respondent also submits that there may well be inconsistent disclosure required where in a single proceeding there was both a corporate and a non-corporate defendant jointly charged; and
(vii)It would create inconvenience and uncertainty, as well as trial management difficulties, if the discovery process were permitted, particularly if discovery was permitted against one defendant and not the other, merely based on the corporate status of one party.[40]
[40]FRS: 23/1/14, [4.4]-[4.9].
The First Respondent also points out that there is no precedent offered by the Appellant in relation to orders made in similar, or the same, circumstances to those presently being sought by the applicant. The First Respondent also points out that the Courts have held against the appropriateness of orders to compel discovery in criminal trials, R v Naramatsu Hamiguchi[41] and Clarkson.
[41][1908] St R Qd 224.
The First Respondent emphasises that criminal proceedings are different, not only because of the privilege against self-incrimination, but because the Crown (the prosecution) owes a particular duty of fairness including in relation to disclosure. The Appellant says that these principles and requirements stand separately from and are unaffected by what has been said by the High Court in Caltex and the Full Court of the Federal Court in Abbco.[42]
[42]FRS: 23/1/14, [4.12].
The First Respondent referred to Ragg v Magistrates’ Court of Victoria (‘Ragg’),[43] where Bell J discussed the functions and responsibilities of a criminal prosecutor. Senior counsel for the First Respondent pointed out that, as discussed in Ragg, that in a criminal prosecution there are a number of components to the prosecutorial duty to act fairly towards an accused, including a duty to disclose material documents to the defence. The First Respondent says that such requirements should apply to both Boral and the Attorney-General in this matter.
[43][2008] VSC 1.
The First Respondent submitted that if discovery were available there could be “a scandal of competing disclosure regimes”, because where a contempt proceeding is against an individual, or individuals, and also against a body corporate, the Court might, in the same proceeding, order discovery against the corporate party but not the individual, or individuals.
Second Respondent’s Submissions (Grounds 2 and 3)
The Second Respondent, the Attorney-General for the State of Victoria, deals with Grounds 2 and 3 together.[44]
[44]SRS: 17/1/14, [4].
The Second Respondent submits that Abbco is compelling appellate authority for the proposition that the penalty privilege is unavailable to the CFMEU as a basis for it to resist providing the discovery sought. The Second Respondent further submits that Caltex is binding authority for the proposition that the privilege against self-incrimination is likewise unavailable.
The Second Respondent submits that the:
(a)majority of the High Court in Caltex held that the privilege against self-incrimination does not apply to corporations;[45]
(b)Associate Judge incorrectly held that Abbco was arguably not authority for the proposition that the CFMEU could not rely on the penalty privilege to avoid giving discovery;[46]
(c)Associate Judge’s conclusions in relation to Abbco were based on her Honour’s findings that the Contempt Proceeding is a criminal proceeding, unlike the proceeding in Abbco; and
(d)Associate Judge was wrong in her characterisation of the Contempt Proceeding as criminal and the Second Respondent further submits that there was no proper basis for distinguishing the current case from the Abbco case.[47]
[45]SRS: 17/1/14, [4(a)].
[46]SRS: 17/1/14, [4(c)].
[47]SRS: 17/1/14, [4(c)].
Conclusion – Ground 2
There are two questions I must answer in order to deal with Ground 2. The first is whether r 29.07 of the Rules applies in contempt proceedings involving a corporate defendant. The second is whether discovery is otherwise unavailable by reason of the privilege against self-incrimination and/or the privilege against exposure to penalty.
As a matter of construction, does r 29.07 apply to the Contempt Proceeding
In my view the Appellants and the Second Respondent are correct in their submissions that the learned Associate Judge characterised the Contempt Proceeding as a “criminal” proceeding.[48] Her Honour’s conclusion in this regard is to be found at [25] of the Decision, where her Honour stated “…adopting the analysis of White J in Sigalla, the position is that this application is properly characterised as a criminal proceeding, and as such, the rules of civil procedure do not apply“.
[48]AS: 4/11/13, [3.6(b)]; and SRS: 17/1/14, [1(a)], [4(c)].
In determining the proper characterisation of a proceeding, it is critical to consider the nature of the relevant offence being prosecuted and the jurisdiction of the Court in which the proceeding is being prosecuted. It is also critical to identify the procedural rules of the relevant jurisdiction which regulate those proceedings, namely the rules of the Court in which the proceeding is being prosecuted.
In Hinch the High Court distinguished between the nature of the offence, which in relation to a contempt is described as criminal, and the jurisdiction of the Court in which the offence is prosecuted.[49]
[49](1987) 164 CLR 15, 89.
In Boral Resources the Court of Appeal found that this proceeding is a proceeding under Order 75 of the Rules and that prima facie Chapter I of the Rules applied to this proceeding.
The Court of Appeal also made it clear that because of the criminal nature of the Contempt Proceeding, it may be accepted that not all of Chapter I of the Rules will apply because some of those rules may cut across protections or privileges afforded to an accused facing criminal charges. Accordingly, in the exercise of the Court’s discretion, the application of the Rules might need to be moderated to ensure fair and appropriate interlocutory and trial procedures are adopted in the case of a person prosecuted for contempt of Court.
Further, similar findings have been made by Cavanough J in Grocon[50] and by me in Boral Resources (Vic) Pty Ltd v CFMEU,[51] to the effect that the rules in Chapter I of the Rules apply to a contempt proceeding brought under Order 75, however some rules of civil procedure may not apply.[52]
[50][2013] VSC 275, [13].
[51][2013] VSC 572, [31].
[52][2013] VSCA 378, [10] (Beach JA).
Although the learned Associate Judge was correct in characterising this proceeding as a “criminal contempt”, her Honour was not correct in her characterisation of this proceeding as “a criminal proceeding”. This error then led her Honour to wrongly conclude that the rules of procedure (and evidence) governing criminal proceedings apply and that the rules of civil procedure do not apply to this proceeding, save by clear implication for Order 75 which expressly founded the summons initiating the Contempt Proceeding.[53]
[53]The Decision, [6], [11], [12], and [25].
As I have addressed above under Ground 1, the learned Associate Judge erred in finding that the Rules, including r 29.07(2), did not apply to this proceeding. The learned Associate Judge should have held that the applicable procedural rules are those of the Court’s civil jurisdiction, including Order 29, subject to the Court’s discretion, where available, not to apply inappropriate procedures. In the circumstances of this proceeding, Order 29 is not an inappropriate procedure for the reasons referred to below.
The privileges against self-incrimination and exposure to penalty
Her Honour drew upon the cases of Clarkson, Caltex and Abbco and the usual safeguards in criminal proceedings to support the conclusion that discovery under r 29.07 of the Rules is not available in a contempt proceeding involving a corporate defendant. I have summarised her Honour’s references to those cases above at [15(m)]-[15(s)].
In terms of the usual safeguards in criminal proceedings, her Honour asked the question “…whether such safeguards do or should extend to immunity from discovery or other compulsory disclosure obligation” in the Contempt Proceeding. The safeguards referred to were those associated with the applicable onus of proof, stricter evidentiary standards, the privilege against self -incrimination, where available, and similar safeguards
It is clear that the Associate Judge considered that in this case the relevant safeguards extended to, in effect, afford the CFMEU immunity from discovery and other compulsory disclosure obligations.[54]
[54]The Decision, [17], [19], [25], and [26(d)].
As I have explained above, contempt proceedings are criminal in nature but are nevertheless proceedings in the Court’s civil jurisdiction. However, on my view of Caltex and Abbco, which I explain below, the safeguards which apply to a proceeding, in which a charge of contempt is prosecuted, do not preclude orders for discovery under r 29.07 in respect of corporations in contempt proceedings.
Before considering the authorities on privilege against self-incrimination and exposure to penalty, it is relevant to consider s 187 of the Evidence Act 2008 (Vic) (“the Act”), which states:
No privilege against self-incrimination for bodies corporate
(1)This section applies if, under a law of the State or in a proceeding, a body corporate is required to—
(a)answer a question or give information; or
(b)produce a document or any other thing; or
(c)do any other act whatever.
(2)The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty.
The language employed by the Act, namely, ‘or in a proceeding’, makes it clear that s 187 will apply where a corporation is required under r 29.07 to give discovery. It is thus clear. On this statutory basis alone, that a corporation will not be able to avail itself of the Rules of the privileges against self-incrimination or against exposure to penalty.
Section 187 of the Evidence Act 1995 (Cth) contains similar provisions. Section 1316A of the Corporations Act 2001 (Cth) also abrogates the privileges in issue.
As to the case law, in Clarkson, the Appellant claimed he had been denied natural justice because the prosecution had not released certain material to him that was potentially exculpatory. He also sought two orders for discovery. One application for discovery was held to be a criminal proceeding. The other was civil. Both applications for discovery were dismissed. In relation to the criminal proceeding application, Murphy J, with whom Crockett and Nathan JJ agreed, said:
…the proceedings are, in my view, criminal in nature.
It is clear on authority that in a civil action for a penalty, saving special statutory provisions, the plaintiff is not entitled to discovery of documents: see R v Associated Northern Collieries (1910) 11 CLR 738. In Queensland, Chubb J. held in R v Hamiguchi [1908] QSR 224 that the rules for discovery do not apply to criminal trials. In criminal trials we have a practice and procedure which stems from the application of considerations which do not apply to civil actions. The fairness which is expected to be shown by the Crown prosecutor to an accused is not part of the adversarial ethic in civil suits. So, whilst it would, generally speaking, be quite unfair for a prosecutor not voluntarily to produce to the accused material relevant to the trial and going to exculpate him, there is no rule which enables the accused to seek at the outset indiscriminately to see the relevant papers within the possession or control or power of the prosecution.
The public interest immunity which operates to excuse the Crown from naming sources, for example, along with the committal process during which witnesses may be called upon to produce documents assists no doubt to provide some rationale for the lack of discovery in criminal cases; but, likewise the rule" that no man shall be required to give or provide evidence to incriminate himself" provides a counterweight from the accused's viewpoint. However, if an accused elects to give evidence, he may be compelled to produce relevant documents in his possession or control: R v Adams [1965] VR 563.
Discovery and the right to it pre-trial has an essential element of mutuality about it which it would be difficult to apply in criminal cases. It is the privilege against self-incrimination which appears to lie at the basis of the Court's refusal to order discovery against a defendant in actions to enforce penalties: see Egg and Egg Pulp Marketing Board v Korp Tocumwal Trading Co Pty. Ltd. [1963] VR 378, at p. 379; see also the discussion of the matter in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, at pp. 333-6; 45 ALR 609, per Mason ACJ., Wilson and Dawson JJ.[55]
[55][1990] VR 745, 758-759.
Clarkson, however, did not concern a corporate defendant. Further, Clarkson was decided well before the High Court’s decision in Caltex and the Full Federal Court’s decision in Abbco.
In Caltex, the State Pollution Control Commission had charged a corporation in the Land and Environment Court. Before the charges were to be heard, the Commission served the corporation with two notices to produce identical documents. One notice was served under the Clean Waters Act 1970 (NSW); the Second Notice under the rules of the Land and Environment Court. The notices’ purpose was to obtain evidence and information to use against the corporation in the prosecutions.
A bare majority of the High Court, Mason CJ, Brennan, Toohey and McHugh JJ, held that the privilege against self-incrimination does not apply to corporations. Deane, Dawson and Gaudron JJ held that the privilege against self-incrimination applied to corporations. Brennan J held that the privilege against exposure to penalty applied to corporations.
The result in Caltex was that the notice served under the Clean Waters Act was valid and the corporation was required to comply with it. The corporation could, however, avoid complying with the second notice. Deane, Dawson and Gaudron JJ said this was because the corporation could rely on the privilege against self-incrimination. However, Brennan J based the finding in the privilege against exposure to penalty.
Accordingly, the only authoritative principle emerging from Caltex is that the privilege against self-incrimination is not available to corporations.
In Abbco, the Trade Practices Commission instituted civil proceedings against Abbco for the recovery of pecuniary penalties. It served notices to produce on Abbco, seeking production of various documents from Abbco. Abbco applied to have the notices set aside on the ground that compliance might expose it to civil penalty.
Burchett J, with whom Black CJ and Davies J agreed, first summarised the various judgments in Caltex, and then set out the history of the privileges against self-incrimination and exposure to penalty. His Honour held that the privileges against self-incrimination and exposure to penalty were part of the same general rule, and therefore, as the High Court had held that the former privilege did not apply to corporations, the latter privilege also did not apply:
My conclusion from the survey made in these reasons of texts and authorities since the eighteenth century is that the privilege against self-incrimination, and that against self-exposure to a penalty, are both reflections of the one fundamental principle. It has been stated in various ways, and with differing emphases. But, with respect, it cannot be better expressed than by the words which Deane, Dawson and Gaudron JJ used in Caltex (at CLR 532 ; ALR 431) with reference to self-incrimination:
In the end, [the privilege] is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself.
Substituting “the incurring of a penalty” for “the commission of a crime” and “the defendant” for “the accused”, I think this statement applies to the privilege against self-exposure to a penalty. So applied, the principle may evoke less feeling, but it remains the same principle. It is therefore wrong to regard the two grounds or aspects of privilege as depending on unrelated or different considerations. They should not be seen as separate props in the structure of justice, but rather as interlocking parts of a single column. The foundation of this column is that “great justice and tenderness in the law of England”, that “humane policy of the law”, which Lord Hardwicke and Alexander CB expounded, and the High Court has so recently examined. In the Supreme Court of the United States, it has been said to be a matter of “protecting individual civil liberties”: United States v White (1944) 322 US 694 at 700.
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