Collins v Trimatic Contract Services Pty Ltd and Ors (No.3)

[2014] FCCA 1609

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLINS v TRIMATIC CONTRACT SERVICES PTY LTD & ORS (No.3) [2014] FCCA 1609

Catchwords:

PRACTICE AND PROCEDURE – Claim for penalty privilege – whether privilege waived by delivery of evidence of others – where privilege waived – where respondents permitted to give further evidence.

ASIC v Mining Projects Group Limited [2007] FCA 1620

Applicant: TIMOTHY JOHN COLLINS

First Respondent: TRIMATIC CONTRACT SERVICES PTY LTD

Second Respondent: PETER WILLIAM JONES

Third Respondent: TIMOTHY MARK UNGAR

File Number: PEG 276 of 2013

Judgment of: Judge Jarrett

Hearing date: 12 June 2014

Date of Last Submission: 12 June 2014

Delivered at: Perth

Delivered on: 12 June 2014

REPRESENTATION

Counsel for the Applicant: Mr D. Howlett

Solicitors for the Applicant: Lark Lawyers

Counsel for the Respondent: Mr J.B. Blackburn

Solicitors for the Respondent: Norton Rose Fulbright

ORDERS

1. The second and third respondents forthwith and, in any event, no later than one hour from the pronouncement of these orders, deliver to the applicant by his solicitors copies of any affidavits upon which the second or third respondents respectively intend to rely as their evidence-in-chief in these proceedings;

2. Otherwise adjourn the application to 9.00 am on 13 June, 2014.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 276 of 2013

TIMOTHY JOHN COLLINS

Applicant

And

TRIMATIC CONTRACT SERVICES PTY LTD

First Respondent

PETER WILLIAM JONES

Second Respondent

TIMOTHY MARK UNGAR

Third Respondent

REASONS FOR JUDGMENT

ex tempore

1. Before me are two applications, one which I apprehend is in the alternative to the other.  The first application is that the second respondent, Peter William Jones, and the third respondent, Timothy Mark Ungar, be permitted to now give evidence either in written form, by way of affidavit, or, perhaps, orally in these proceedings.  The application is made against the following background.

2. Some time ago now there were orders made, by me, that were intended to ready this matter, first of all, for mediation, and thereafter a trial.  The orders of which I speak are dated 26 November, 2013.

3. Order number 2 thereof was that the respondents file and serve affidavits of any witnesses upon which they intend to rely at the trial of the matter by 4 pm on 3 February, 2014.  On 3 February 2014 the respondents, by their solicitors, delivered some affidavits to the applicant’s solicitor. The letter accompanying those affidavits of 3 February, 2014 says this:

   We refer to the above matter and to the orders made by Jarrett J on 26 November 2013 (the “orders”).  We refer to order 2 of the orders, which provides that the respondents are to file and serve any witness affidavits by 3 February 2014 and enclose, by way of service, (a) affidavit of Luke Patrick Kennedy sworn 3 February 2014, and (b) affidavit of Jason Anthony Webster sworn 3 February 2014.  We are also writing to advise that the second and third respondents will be electing not to provide witness affidavits at this stage of the proceedings.  Both the second and third respondents rely on the privilege against self-exposure to a penalty.

4. Then, there’s a nice heading, which says “Privilege Against Self-Exposure to a Penalty”.  Then appears a lecture to the other side on the law in paragraphs numbered 1, 2, 3, 4, 5 and 6. 

5. The submission now is that, having claimed the privilege in the letter, the respondents are now entitled to elect to give evidence in the proceedings.  This is not the first time that the issue about whether the second and third respondents can give evidence at the close of the applicant’s case has been raised.

6. The matter was before the court for an application on 5 May, this year.  And on that occasion the issue about the claim for privilege by the second and third respondents was aired.  It came about in this way.  After making submissions in support of an application for certain amendments, counsel for the respondents said this:

   In addition to the applicant’s witnesses, the respondents have today filed affidavits of two witnesses in the proceedings, Mr Luke Kennedy and Jason Webster.  There is also to come affidavits of the second and third respondents to be filed after the close of the applicant’s case.

   To which I replied:

   I don’t understand that.  Why would that be so?

7. I pause here to observe one thing.  The statement made by counsel for the respondents was not that the respondents were claiming the relevant privilege, and might make a decision about whether they would give evidence at some point in the case after the applicant had closed its case, but rather this:

   There is also to come –

   that’s a positive statement –

   affidavits of the second and third respondents to be filed after the close of the applicant’s case.

8. So, there was no question, it seems, at that stage, that the respondents intended to lead evidence at the close of the applicant’s case, that is, despite it not having been raised with the court prior to that time, and despite the fact that there was an order in place for the delivery of affidavits of evidence-in-chief.  The exchange goes on.  I will not repeat it all, save to say that what was put to me in submissions in the course of this application this afternoon, as having occurred on 5 or 6 May, in respect of this issue did not occur according to the transcript.  I am happy to make the transcript available for inspection by anybody who wishes to view it.

RECORDED:  NOT TRANSCRIBED

1. The issue was raised with me and I made, at that stage, my view that there really ought to have been some order of the court dealing with the issue known. 

2. However, whether the procedural niceties have been complied with or not is rather neither here nor there, because, ultimately the second and third respondents are entitled to claim the privilege.  They are entitled to keep their powder dry, as it were, until such time as the applicant has closed his case.  And they are entitled to elect to go into evidence or not.  That is a privilege which they have.  But the applicant argues that they have waived the privilege.

3. As the authority to which I was taken by both counsel, ASIC v Mining Projects Group Limited [2007] FCA 1620, makes clear at page 39, paragraphs 18, 19 and 20, it is important to draw a distinction between the possible categories of privilege that might be claimed. The first is what is referred to by Finkelstein J as “penalty privilege”. His Honour refers to the discussion of that privilege in Bray on Discovery and Phipson on Evidence, which I have had recourse to since I have stood down.

4. In paragraphs 19 and 20 his Honour deals with the privilege against self-incrimination.  They are two different privileges.  The privilege here, as confirmed in submissions, that is claimed by the second and third respondents, is the penalty privilege, not the privilege as against self-incrimination.  As Finkelstein J, with the greatest of respect to his Honour, accurately summarises, both of the works that he refers to in paragraph 18 of the judgment are indeed authority, to the extent that texts can be authority, for the proposition that the penalty privilege may be waived expressly by contract or impliedly by conduct.

5. The question here then is whether the respondents – the second and third respondents – have waived their claim to penalty privilege.  On the one hand, they claim it in the letter of 3 February.  But, on the other hand, they waive it by the delivery of evidence on their behalf in these proceedings.  The affidavits that they did deliver on 3 February, - the affidavits of Webster and Kenny – were delivered on behalf of all of the respondents.  Both witnesses deposed to having been authorised to swear the affidavit on behalf of all of the respondents.

6. One either goes into evidence or one doesn’t.  The delivery of evidence on behalf of all of the respondents, in my view, sees the second and third respondents going into evidence.  They thereby, in my view, waive their claim to penalty privilege.  Insofar as it might be suggested that they now are entitled to elect to place evidence before the court, my view is – for better or for worse – they have waived that right.

7. That brings me then to the second aspect of the application this afternoon, which I have termed earlier in these reasons the alternative application.  The second and third respondents ask to be permitted to give evidence in any event.  There can be no doubt that the second and third respondents have adopted the course which they have adopted on the basis of advice.  So much appears from the letter of 3 February, 2014.  Whether the advice was worth the paper it was written on or not is another thing.  But they acted, it seems – and I am prepared to infer – on advice.

8. Moreover, it is not as if the applicant did not know that some claim was being advanced by the second and third respondents about penalty privilege.  These issues were all aired and yet, in some form of Mexican standoff, nobody did anything about it.  The respondents did nothing to bring it to the attention of the court, so as to get a clear direction about what might happen at the trial.  And the applicant did nothing either.  Certainly, a ruling could have been sought well before the trial about whether the second and third respondents had waived their privilege and whether they might be permitted to give further evidence.

9. In that light then it seems to me that it would be not in the interests of justice to deny the second and third respondents of opportunity to place evidence before the court.  It may be that the evidence will be helpful or unhelpful; one doesn’t know.  But the second and third respondents as entitled as a matter of fairness, it seems to me, notwithstanding the facts that I have recited in these reasons, to be in a position where they have the ability to place some evidence before the court.  I intend, therefore, to order that they be permitted to give evidence.

10. There are, as I apprehend the submissions that have been made to me, affidavits by each of the second and third respondents.  The applicant says that the second and third respondents ought to give their evidence orally.  Attractive as the notion is that there should be some oral evidence-in-chief in this case, I am against that proposition for two reasons.  The first is that the applicant ought to be in a position where he and his advisers can consider the evidence to be given by the second and third respondents, and to take whatever objections he is advised to take to that evidence, if any be available.  Secondly, to allow the applicant and his advisers to determine whether, in light of the late delivery of the evidence from the second and third respondents, some other course in these proceedings, rather than a continuation of the trial tomorrow morning, will be appropriate.

11. So, for all of those reasons, the second and third respondents shall forthwith and, in any event, no later than one hour from now, deliver to the applicant by his solicitors copies of any affidavits upon which the second or third respondents respectively intend to rely as their evidence-in-chief in these proceedings.  The matter will come back to me at 9 o’clock tomorrow morning.

RECORDED:  NOT TRANSCRIBED

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 12 June 2014

Associate: 

Date:  23 July 2014