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Boral Resources (Vic) Pty Ltd v CFMEU

Boral Resources (Vic) Pty Ltd v CFMEU

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Case Copied 25 March 2014 40 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 120
Decision Date: 25 March 2014

CaseChat Overview and Summary

Boral Resources (Vic) Pty Ltd was the plaintiff and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) was the defendant in a dispute heard by the County Court of Victoria. The case revolved around the availability of discovery in a proceeding for civil contempt, specifically whether such discovery could be used in a criminal or quasi-criminal proceeding to penalise for contempt of court. The issue of the applicability of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and rule 29.07 was central, along with the broader question of whether the defendant was entitled to the same privileges as an individual, particularly the privilege against self-incrimination under section 187 of the Evidence Act 2008 (Vic).

The court had to determine whether the rules governing discovery in civil proceedings also applied to proceedings for civil contempt, particularly those of a criminal or quasi-criminal nature. This was complicated by the fact that the alleged contemnor was a corporation, rather than an individual. The court also had to consider whether the corporation was entitled to the same privileges as an individual, specifically the privilege against self-incrimination. The central issue was whether the provisions of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and rule 29.07 were applicable to a proceeding under rule 75.06, which is a civil contempt proceeding with criminal or quasi-criminal elements.

The court found that Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and rule 29.07 were not applicable to a proceeding under rule 75.06. The reasoning was that such proceedings have a criminal or quasi-criminal nature, and the application of discovery in these proceedings would not be appropriate. Furthermore, the court held that a corporation, unlike an individual, was not entitled to the same privileges as an individual, including the privilege against self-incrimination under section 187 of the Evidence Act 2008 (Vic). The court determined that the nature of the proceeding and the status of the alleged contemnor as a corporation meant that the usual rules of discovery and privilege did not apply.

As a result of the court's decision, Boral Resources (Vic) Pty Ltd was not entitled to discovery in the civil contempt proceeding, and the CFMEU was not entitled to claim the privilege against self-incrimination. The court's decision underscores the nuanced application of procedural rules in proceedings of a criminal or quasi-criminal nature, particularly when involving corporate entities.

Orders