Caratti -v- Boban Pty Ltd (Administrators Appointed)

Caratti v Boban Pty Ltd (Administrators Appointed) was a case heard by the Supreme Court of Western Australia, where the plaintiff sought discovery of documents in relation to an allegation of contempt against the defendant company and its director. The court was tasked with determining whether certain legal privileges, such as the privilege against self-incrimination and the privilege against exposure to penalties, could be overridden by general discovery provisions in the Supreme Court Rules. The primary legal issue was whether the general terms of Order 26 of the Supreme Court Rules 2005 (WA) and Section 167 of the Supreme Court Act 1935 (WA) allowed for the exclusion of these privileges without explicit legislative direction.

The court found that the general terms of Order 26 of the Rules and Section 167 of the Act did not indicate an intention to abrogate the privileges against self-incrimination or exposure to penalties. The historic context of these privileges, which originated in the rules of equity relating to discovery, was considered crucial. The court held that these well-established privileges could only be excluded expressly or by necessary implication in relevant legislation. The court noted that the Victorian Court of Appeal had taken a different view in CFMEU v Grocon Constructions (Victoria) Pty Ltd, suggesting that discovery could be ordered against a corporate respondent in certain circumstances. However, the Supreme Court of Western Australia distinguished the present case from Grocon, finding that the corporate respondent in this case could indeed claim privilege.

Ultimately, the court ruled that the privileges against self-incrimination and exposure to penalties were not abrogated by the general terms of the Supreme Court Rules and Act. The application for discovery was dismissed, as the court found no express or necessary implication in the relevant legislation to exclude these privileges. This decision aligns with the broader legal principle that fundamental common law rights, such as the privilege against self-incrimination, can only be overridden by clear legislative intent.