Construction, Forestry, Mining And Energy Union v
[2014] HCATrans 266
[2014] HCATrans 266
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M117 of 2014
B e t w e e n -
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
and
BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731)
First Respondent
ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999)
Second Respondent
BORAL BRICKS PTY LTD (ACN 082 448 342)
Third Respondent
BORAL MASONRY LTD (ACN 000 223 718)
Fourth Respondent
BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976)
Fifth Respondent
BORAL WINDOW SYSTEMS LTD (ACN 004 069 523)
Sixth Respondent
ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA
Seventh Respondent
Office of the Registry
Melbourne No M118 of 2014
B e t w e e n -
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
and
GROCON CONSTRUCTORS (VICTORIA) PTY LTD (ABN 98 148 006 624)
First Respondent
GROCON (FCAD) PTY LTD (ACN 143 621 514)
Second Respondent
GROCON CONSTRUCTORS (VIC) PTY LTD (ABN 88 127 996 436)
Third Respondent
ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA
Fourth Respondent
Application for stay and directions hearing
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON THURSDAY, 20 NOVEMBER 2014, AT 9.31 AM
Copyright in the High Court of Australia
____________________
MR P.J. MORRISSEY, SC: May it please the Court, I appear for the applicant in M117 with my learned friends, MR G.J. BOAS and MS J.D. WATSON. In matter M118 I appear with MS R.B. SHANN and MS J.D. WATSON. (instructed by Slater & Gordon)
MR J.L. SNADEN: May it please the Court, I appear for the Boral parties, your Honour, the first to sixth respondents. (instructed by Fisher Cartwright Berriman)
MR J.B. DAVIS: May it please the Court, I appear with MR B.W. JELLIS for the seventh respondent. (instructed by Victorian Government Solicitor)
MS R.M. NELSON: I appear on behalf of the first to third respondents, the Grocon parties. (instructed by Herbert Smith Freehills)
MR B.W. JELLIS: I appear for the fourth respondent in the Grocon matter. (instructed by Victorian Government Solicitor)
HIS HONOUR: Before we begin, I should draw the attention of the parties to something that is probably obvious to them anyway, but my wife was a member of the Full Court that determined the matter of Director, Fair Work Industry Inspectorate v CFMEU. It is not a matter that I see as presenting any difficulty at all, but it is something to which I draw the attention of the parties in case they thought there was any difficulty that emerged from that fact.
MR MORRISSEY: No, your Honour, we do not see any difficulty.
HIS HONOUR: Yes, Mr Morrissey.
MR MORRISSEY: Your Honour, may I just inquire, does your Honour have before you administratively an outline of argument ‑ ‑ ‑
HIS HONOUR: Yes, I have looked at the outlines of argument, I have looked at the papers. I have looked – I cannot say I have read word for word, I have looked at the judgment of the Court of Appeal.
MR MORRISSEY: Thank you, your Honour.
HIS HONOUR: I am therefore generally familiar with the issue.
MR MORRISSEY: Your Honour, could I just commence by adopting the outline of submissions and I will speak to it, welcoming any interruptions or questions that focus the presentation. So this is, your Honour, an application to stay the order of Justice Digby granting discovery to the Boral parties in the proceeding which we characterise as criminal in nature for contempt against the CFMEU.
HIS HONOUR: The application for stay is founded on the proposition that absent stay the application for leave is futile.
MR MORRISSEY: Correct.
HIS HONOUR: Yes.
MR MORRISSEY: Nothing more, nothing to add to that.
HIS HONOUR: The answer that is made against you is well, there are insufficient prospects to warrant granting the stay.
MR MORRISSEY: Yes, correct, your Honour, with respect. Your Honour, I will go straight to those issues if I may. There are two things put against the current application. In substance, one is that there are insufficient prospects – sorry, that there is no substantial prospect that special leave will be granted for two reasons: one, that the argument was doomed to fail and the other that in any event it was said that there was no substantial injustice and there was no error, therefore, in denying leave to appeal because an alternative path to the production of these documents existed pursuant to Order 42 of the Supreme Court Rules.
HIS HONOUR: What is that alternative path? Can you explain that to me?
MR MORRISSEY: Yes. Your Honour, it was put by the Boral respondents to the appeal and it was adopted, in effect, by the court that regardless of the availability or appropriateness of discovery there was an alternative path to obtaining the materials that were sought and that was to issue a subpoena under Order 42 of Chapter 1 of the Supreme Court Rules.
HIS HONOUR: What, subpoena the person accused of contempt by its proper officer?
MR MORRISSEY: Yes. We would seek to identify what we say is an error with that. At a high level of principle we would say there is no difference between subpoenaing the accused and exposing him to any other coercive process, but what occurred in this proceeding was that it was advanced by Boral that a subpoena could have been issued upon the proper officer - in effect, the third party, thus evading the operation if it otherwise applied.
HIS HONOUR: Sorry, a third party in what sense? The subpoena is directed – at least generally if you subpoena a corporation you subpoena the proper officer of the corporation. You subpoena the proper officer because that proper officer has the control of the documents but in the capacity of officer. Is that the way in which it ‑ ‑ ‑
MR MORRISSEY: That is the way in which we would have resisted it and it is the way in which we now resist it. What was said, your Honour, there is that whether or not the corporation, that being the CFMEU, was able to enjoy the protections of the accusatorial system, a third party might not. So it was conjecture. It was put that perhaps a subpoena could have been served upon a third party being the proper officer in personam, I think was the way it was put. Now, what we would submit is that a subpoena is served upon the corporation. They are the accused, effectively the accused, the defendant in this matter and ‑ ‑ ‑
HIS HONOUR: One assumes that the documents that are sought are documents of the Union.
MR MORRISSEY: Yes.
HIS HONOUR: Documents of a third party may be of great interest, but it is not at least instantly apparent how they would be relevant.
MR MORRISSEY: No, your Honour, and perhaps if I could – could we just hand up a copy of a decision of R v Ronen and Ors [2004] NSWCCA ‑ ‑ ‑
HIS HONOUR: What is that going to tell me?
MR MORRISSEY: It is going to tell you what I have just said. It is going to tell you that the subpoenas are served – about paragraph [40] in the judgment of Chief Justice Spigelman at page 718, your Honour:
The subpoena is addressed to the corporation and the corporation must comply.
President Mason also made the comment at [95]:
A subpoena addressed to a corporation requiring it to cause its “proper officer” to produce its records is, from start to finish, an obligation laid upon the corporation.
In other words, the subpoena applies to the corporation. The ability of any proper officer – and we are assuming here a proper officer that does not want to take the privilege and has no basis to in their individual capacity. They can respond simply because they are authorised to do so by the corporation. What we are submitting therefore is that it was not a sound basis to – perhaps I could take your Honour to the judgment and how the judgment of the Court of Appeal is at issue here.
HIS HONOUR: Well, it may be that the point is at least sufficiently identified for the moment and ultimately we will hear what the other sides have to say about it, but what about the notion of no substantial injustice?
MR MORRISSEY: That really depended upon the alternative path.
HIS HONOUR: I see.
MR MORRISSEY: That was a preliminary basis to dismiss - your Honour, I can take you to that very briefly. So in the Court of Appeal’s judgment the court at 478 said:
However, it does not follow that permitting the order for specific discovery to stand will give rise to ‘substantial injustice’ to the Union. The question is not whether these documents may damage its case, but whether it would be unjust to allow Boral to gain access to them. It is at that point, at the very least, that the Union’s case falls away.
HIS HONOUR: It is that paragraph that I did not understand. Are you able to amplify the way in which the “no injustice” argument was put against you in the Court of Appeal?
MR MORRISSEY: Your Honour, it was put in argument as summarised by the court in 479, so:
The documents in question could have been obtained by the simple device of issuing one or more subpoenas for production.
You will see at the end of that paragraph the conclusion is –
In truth, it will suffer no real injustice whatever.
So that is the basis for it.
HIS HONOUR: I see.
MR MORRISSEY: It seems that simple, your Honour.
HIS HONOUR: Yes.
MR MORRISSEY: Otherwise, your Honour, the matter turns, as we have sought to set out in the proposed questions in paragraph 19 under the heading “Questions of public importance” that as a matter of substance these are matters of great significance, in our submission, and can I take your Honour simply to the arguments put at 21 through 26 of our outline. It seems to be the fact, as far as anyone’s researches can establish, that there has never been an order for discovery made against an accused person in a contempt. I am using the term “accused” without seeking to leap what constitutes an offence but at this stage, in any event ‑ ‑ ‑
HIS HONOUR: In a purely neutral way, are you? Yes, I see. Go on.
MR MORRISSEY: I am not seeking to bind your Honour – well, that is correct because there is some potential controversy about each of the terms.
HIS HONOUR: Yes, there is.
MR MORRISSEY: Not one of them is a safe place to stand.
HIS HONOUR: The respondent to the application, yes.
MR MORRISSEY: Yes. Your Honour, what we have sought to set out to assist on the stay here is that there is a complexity that has developed since Witham v Holloway and, if you like, that is the foundation where whatever the position had been previously it was held that all contempts must realistically be seen as criminal in nature. Now, it is ‑ ‑ ‑
HIS HONOUR: In the initiating process brought by the Boral parties, is there any indication of the nature of the orders which were sought by the Boral parties on account of the alleged contempt?
MR MORRISSEY: There is no pleading of contumacy. The breach was of an order that was properly endorsed with the criminal threats.
HIS HONOUR: I understand that, but what did the Boral parties say in their application, if anything, about what consequence should follow from what they alleged to have been the contempt or contempts?
MR MORRISSEY: Nothing beyond the application that the respondent Union be punished.
HIS HONOUR: I see. So, no overt – no expressed application for conviction?
MR MORRISSEY: That is correct, your Honour. That is that issue in the Grocon matter but not directly here.
HIS HONOUR: I understand that, yes.
MR MORRISSEY: Your Honour is correct, it was pleaded in that way and that is not inconsistent with previous Victorian practice.
HIS HONOUR: Yes.
MR MORRISSEY: Nevertheless, I believe it to be at paragraph 111 of Justice Digby’s interlocutory judgment which gave rise to the appeal before your Honour – paragraph 111(iii) which is to be found – it is attached to the affidavit of Bradley Annson that should be before the Court. In any event, your Honour, it is clear that Justice Digby is treating the matter as criminal in nature, imposing the appropriate standard of proof to it and recognising the need for protections appropriate, as he characterises them.
Really at issue there is – what we are bringing to this Court is that there is the accusatorial nature of criminal proceedings however defined ought to attach to contempt proceedings. We would go so far, if we need to, to say all contempt proceedings but, in any event, contempt proceedings like this which are plainly criminal in nature and attracting the correct burden and standard of proof. Viewed through the Evidence Act lens that would place them under section 141; that lens does not necessarily define how contempts are to be treated but in this case we would submit it is an indication.
So it is at least reasonably arguable – we would say it is likely to be more than that – that contempts are to be viewed realistically as criminal in nature and therefore that the accusatorial process is mandatory with respect to such contempts. Now, that may be delivered State by State in different ways. In New South Wales the contempt power is to be found in section 55 of the Supreme Court – Article 55 of the Supreme Court Rules which do not distinguish between civil and criminal; in Victoria, contempts, using the convenient summary procedure under Order 75 and that, for historical reasons, finds its place within Chapter 1, Supreme Court (General Civil Procedure) Rules.
HIS HONOUR: But the root of the powers of the State Supreme Courts to punish for contempt I suspect – I do not know – may more likely be found in the statutes creating those courts and in those provisions of the statutes which (a) create them as superior courts of record; and (b) commonly, I think, confer on them all the powers of at least some of the courts at Westminster. Now, I think that you will find that the root of the contempt power lies there, not in the immediate provision of rule, but there we are. That is a matter that might or might not be appropriate at some later point of the debate.
MR MORRISSEY: Your Honour, that is our precise position, that the contempt power is an attribute of judicial power. The source of that power is not the local rules. It is simply that a contempt is intrinsic to judicial power and it will be a part of each superior court’s ‑ ‑ ‑
HIS HONOUR: Maybe a larger proposition than that which I was putting, but there we are. Look, I think I understand the way in which you put the application, Mr Morrissey. It might be useful if I hear from the respondents. Mr Snaden.
MR DAVIS: May it please the Court. Subject to the Court’s convenience may I precede Mr Snaden and alter the order of address?
HIS HONOUR: Yes, Mr Davis.
MR DAVIS: Your Honour, I begin by saying that we do not take captious resistance to the stay. As your Honour will have seen from the material there is a trial date in this matter on 8 December this year. If the stay is granted, it is inevitable that the trial date will be lost and this is a proceeding that has already been protracted by two unsuccessful interlocutory appeals to the Court of Appeal brought by the applicant for a stay and, in our submission, it is undesirable that there be further fragmentation of the proceeding which brings the prospects point into sharp focus.
HIS HONOUR: Let me just understand that better.
MR DAVIS: Yes, your Honour.
HIS HONOUR: If trial proceeds, the discovery order stands, presumably the discovery order is obeyed. The trial proceeds then on evidence which the Union would presently have it ought not to be available.
MR DAVIS: Yes, your Honour. That is the position.
HIS HONOUR: That is not a position that would be remediable, would it, on appeal against – let it be assumed the Union is convicted of the – is adjudged guilty of contempt.
MR DAVIS: Yes, your Honour.
HIS HONOUR: Let it be further assumed, can it, that there is an available appeal against that adjudging of contempt?
MR DAVIS: I am not sure that the second assumption is correct, your Honour.
HIS HONOUR: Is that not the difficulty?
MR DAVIS: Well, in my respectful submission, this is an issue that arises on every occasion when this Court is confronted with the argument that an appeal will be rendered nugatory if a stay is not granted and, in my respectful submission, your Honour, your Honour will be well familiar with the authorities that deal with this. The Court traditionally takes the view that even if there is not – even if the matter cannot be remedied by subsequent appeal then the mere fact that the appellate rights would be rendered nugatory is not a sufficient basis to grant a stay and that the applicant for a stay must go further and establish prospects.
HIS HONOUR: Let that be assumed.
MR DAVIS: May it please the Court.
HIS HONOUR: But ordinarily the Court is very reluctant to intervene in matters interlocutory, most especially is it reluctant to intervene in matters which, if the Union is right, have at least a criminal aspect to them.
MR DAVIS: Yes, your Honour.
HIS HONOUR: The notion of fragmenting trial by interlocutory process is one which the Court will ordinarily resist. Commonly, not invariably, a consideration will be that if the trial goes ahead, the evidence is wrongly admitted, you fix that on appeal against conviction whereas if the accused person stands trial and is acquitted the question goes away.
MR DAVIS: Yes.
HIS HONOUR: Now, is that an available means of looking at the issues which arise in this case, that is, if the Union is right that it should not be compelled to discover these documents, let it be assumed that it is compelled to do so, it produces the documents, they are admitted at the trial, let it be further assumed that it is adjudged guilty of contempt – is it then too late to remedy the difficulty presented by the admission of the evidence?
MR DAVIS: Your Honour, I understand the question but we would have drunk from the poisoned chalice and that would have infected the conviction. My submission in response to your Honour’s question is as follows: one, it would not be too late. The conviction in the circumstances may be quashed and a new trial ordered but in any event, your Honour, the Court, in my respectful submission – if the Court makes an evaluation that the application for leave does not have sufficient prospects or, worse still, is devoid of prospects, then even if that risk endures my submission, brave as it might be to your Honour, is that the stay should not be granted because I come back, at the risk of undue repetition, to the point that this is an issue which perennially confronts this Court when a stay application is made with the consequence that if a fear of – forgive me, your Honour, if an anticipation or apprehension of a subsequent court determining that there were prospects where, in the course of the stay application, it was found there were none, were a reason not to proceed then it would follow from that that the fact that an appeal would be rendered nugatory would be a sufficient basis to grant a stay.
If your Honour would allow me to, what I wish to do is to address your Honour on prospects because, in my submission, the prospects here are so remote, if there are any, that your Honour could be confident of refusing the stay on the basis that there would not be a subsequent contrary decision. I am in your hands, your Honour, if ‑ ‑ ‑
HIS HONOUR: No, you go on and you make such submission as you wish to about prospects. I understand that is the real area for debate in the application.
MR DAVIS: May it please the Court. Thank you, your Honour. Now, the Court of Appeal refused the CFMEU’s application below for leave to appeal the discovery order on the basis that it was not attended with doubt and on the basis that there was no substantial injustice. It is only the latter point on which I wish to focus my submissions. The basis for finding that there was no substantial injustice was this. As your Honour will have seen from the material, the documents sought were of a very confined nature. The discovery was targeted or specific. It was not in any sense general discovery.
The discovery all went to two topics. The first topic was the employment of Mr Myles and the second topic was simply who had what telephone number at a given time. The topics were readily amenable to a subpoena duces tecum to compel production of the documents, and probably ‑ ‑ ‑
HIS HONOUR: Why?
MR DAVIS: Because, your Honour, Caltex ‑ ‑ ‑
HIS HONOUR: Subpoena directed to the Union?
MR DAVIS: To the Union, yes.
HIS HONOUR: Why? Is that not the very point that now arises?
MR DAVIS: With respect, your Honour, to cut to the endpoint, Caltex has decided that a corporate accused in a strictly called criminal proceeding can be compelled by subpoena to produce documents against itself for use by the prosecution in that very prosecution, and the authority to which the Union ceases to place its store is Lee v The Queen. Your Honour, if it assists the Court, I can take your Honour to the passages in Caltex, but that is what the Court of Appeal found. Indeed, your Honour, perhaps if we can revert for a minute to the decision of – I am sorry, your Honour.
HIS HONOUR: No, go on.
MR DAVIS: Your Honour, if I may ‑ ‑ ‑
HIS HONOUR: I am not using this to play Angry Birds, Mr Davis; go on.
MR DAVIS: As long as I am not the target of the game, your Honour, I do not mind. Your Honour, may I invite your attention to our – may I just distract from the Caltex argument momentarily and invite your Honour’s attention to page 6 of our outline? Your Honour will see on that page is extracted from the judgment of the Court of Appeal four paragraphs which express the Court of Appeal’s reasons on this point, and then I wish to take your Honour to why they are well grounded. So your Honour will see paragraph 476 at the top through to 479.
HIS HONOUR: Yes, I have read those.
MR DAVIS: Thank you, your Honour. Your Honour will see that the language used by the Court of Appeal was very strong. It was said that there was no answer to the proposition that a subpoena would lie.
HIS HONOUR: I understand that is what they said.
MR DAVIS: Now, your Honour, in Caltex there was an issue before the Court as to the validity of two subpoenas, as your Honour would know.
HIS HONOUR: No, there was a question before the Court about the proper construction of a particular provision of the Clean Waters Act which empowered an officer to require production of certain documents, is it not?
MR DAVIS: With respect, your Honour, there were two notices. May I invite your Honour to Caltex? Would your Honour excuse me while I just gather Caltex? Your Honour will see that as to the questions asked of the Court that they are extracted at 487 and question 4 was the question that your Honour has just posed, which was the construction of the Clean Waters Act.
HIS HONOUR: Yes.
MR DAVIS: In my respectful submission, your Honour, question 5 was not. It went further and it was the question that is before this Court now, and that is whether a rules‑based notice to produce would survive, and that rules‑based notice to produce was deployed by the prosecution in a strictly‑called criminal proceeding against the accused to compel production by the accused to the prosecution of documents for use by the prosecution in the case. So that was question 5. Your Honour, at page at page 508 of the judgment, Chief Justice Brennan and Justice Toohey answered that question in the negative. They said that the rules‑based notice to produce should not be set aside. They did so on the basis that a corporation did not enjoy any relevant privilege and plainly, as your Honour would understand, meaning the self‑incrimination or the penalty privilege.
Justice McHugh at page 559 likewise answered the question no for the same reasons, that is, his Honour decided that there was no relevant privilege that would afford a basis for setting the rules‑based notice aside. I should say, your Honour, that some of their Honours explored the accusatorial nature of the criminal justice system in arriving at that conclusion and they also explored the relationship between discovery and subpoena duces tecum.
Justices Deane, Dawson and Gaudron dismissed the appeal. Therefore by necessary implication they answered the question in the affirmative because, as your Honour is aware, those Judges decided that the self‑incrimination privilege was enjoyed so they would have set aside the notice. Then Justice Brennan also set aside the notice, but at page 520 he did so only on the basis of the penalty privilege. As your Honour is aware, that privilege has now gone to corporations not only by reason of this Court’s decision in Daniels but also because of section 187 of the Evidence Act.
So the submission put before the Court of Appeal was that if the facts of Caltex represented themselves it was a safe assumption that the rules‑based notice to produce would survive because the only thing standing in its way was the penalty privilege which is now historical insofar as corporations are concerned. So the riposte to that put by the CFMEU was Lee v The Queen and X7, and what was said was that the accusatorial nature of the criminal justice system was somehow antithetical to the notion of discovery.
Now, I said from the outset, your Honour, that subject to any questions from the Court I do not wish to press that point in this application. I wish to confine my submissions to the fact that even if there is doubt about the discovery order, the subpoena question has been decided and they are different processes. We say that there is considerable similarity between them, but they are different processes, and so the question really then is whether Lee v The Queen provides an antidote to Caltex. In my respectful submission, your Honour, it cannot for the following reasons.
First, that was a case concerning the prosecution of individuals and had nothing to do with corporate accused. Secondly, that case, as your Honour is well aware, involved a question of statutory construction of the relevant Crime Commission Act (NSW). Thirdly, that case did not concern the production of documents by compulsion at all. As your Honour is well aware, the case involved the use of compulsory powers to obtain oral evidence and then the subsequent use of that oral evidence in a criminal trial. There the use of the oral evidence in the criminal trial was entirely extraneous to the purpose for which the evidence was compelled.
HIS HONOUR: If your argument is right could there be discovery by interrogation?
MR DAVIS: Your Honour, that was a question dealt with by the Court of Appeal but not answered, and the answer ‑ ‑ ‑
HIS HONOUR: I am asking your submission.
MR DAVIS: Forgive me, your Honour. The answer is the better view is probably not, and the reason is this. The discovery with respect to – it is an
open question, in my respectful submission, but the answer is probably not because as Justice McHugh observed in Caltex, the documents in the case of discovery – the evidence is static, there is some analogy with the search warrant, whereas with interrogatories it is oral evidence that needs to be obtained for the relevant purpose. So the distinction that has sometimes been used is between real evidence in the nature of documents and oral evidence. So, in my respectful submission, there is not necessarily – the corollary of saying that the subpoena lies is not that there could be discovery by way of interrogatories. Your Honour, if I may make one more submission?
HIS HONOUR: Yes, go on.
MR DAVIS: The final submission I wish to make is that the Court of Appeal, as you will have seen, talked about the issuing of one or more subpoenas. Now, I would not be heard to describe that as Delphic, but the best way that I – the way I understand it is that what the Court of Appeal had in mind was one such subpoena might lie against the CFMEU – and I press that, as your Honour has heard – but the other point is that subpoenas duces tecum and/or subpoenas ad testificandum could be issued against, for example, Mr Myles whose employment details were sought and, for example, other Union officials whose telephone numbers were sought and that in those circumstances there would be no substantial injustice because the evidence could be obtained – that is, the evidence sought by this very targeted discovery could be obtained another way, and that was a matter heavily canvassed before their Honours.
So, your Honour, our position is simply that in order to show the exceptional circumstances that your Honour is well aware are required of the Union to show to get a stay in respect of an interlocutory decision, it is necessary to show more than just a prima facie case that the decision below was wrong insofar as that decision was premised upon the fact that a subpoena would lie and our submission is that that case has not been established. Subject to any questions, your Honour, they are my submissions.
HIS HONOUR: Thank you very much. Yes, Mr Snaden.
MR SNADEN: Your Honour, you will see from our written submission we simply adopted the written submission of the Attorney and, with respect, I adopt the oral submissions made in Court today, and I do not intend to go a long way beyond what has been said. May I just amplify one point and it concerns the quality of the prospect that this Court will grant special leave.
Your Honour might have seen in the applicant’s written outline there is reference at page 4, paragraph 18 to a decision of his Honour
Justice McHugh in Collier v Sengos, and as I read that paragraph the suggestion is put that all that need be shown in order to attract the jurisdiction of this Court to grant a stay is that there be a real chance of obtaining a grant of special leave or, indeed, in an appropriate case an arguable case.
Can I simply say that sits uneasily with a more recent decision of his Honour Justice Dawson in Gerah Imports v The Duke Group? Can I hand a copy of that decision up? This was a case that has obvious similarities with the one that is before your Honour. It concerned an order made by the Supreme Court of South Australia requiring partners to attend for examination under the Corporations Law and there was eventually an appeal to this Court, or an application for special leave to appeal to this Court, against that order, and a related application for a stay of the order pending the hearing of that special leave application.
Can I take your Honour to what his Honour Justice Dawson says at page 403 of – sorry, the case is (1994) 119 ALR 401 – page 403, starting at line 8. You will there his Honour deals with the topic of exceptional circumstances and explores in that paragraph the significance of the subject matter of the appeal being rendered nugatory if the stay is declined. Perhaps I will pause and let your Honour read that paragraph.
HIS HONOUR: Yes, go on.
MR SNADEN: Again, I say the similarities are obvious, that is, the similarities between this case and the decision before his Honour are obvious. But then his Honour goes on at line 22 of that page to say:
Importantly, the applicant must establish a substantial prospect that special leave to appeal will be granted.
So it is not enough, in my respectful submission, that there be an arguable case or a real chance; the quality of the prospect must be substantial. It must be substantial prospects that special leave will be granted, even in circumstances where, as here – and this point is not argued, is not contested – the subject matter of the appeal would otherwise be rendered nugatory, and for the reasons that my learned friend, Mr Davis, has given, the standard of the prospects in this case do not rise to that level of substantial. If the Court pleases.
HIS HONOUR: Thank you. Yes, Mr Morrissey.
MR MORRISSEY: Your Honour, briefly in reply. Your Honour, the issue really is one of the sufficiency of the prospects. We accept that. It is a matter for your Honour. Could I just take the Court quickly to – because my learned friend raised an argument based on Caltex now is not the time in this application to entirely unpack Caltex, but in the judgment before or impugned here reference was made to a decision in Nutricia and may I hand up a copy, your Honour? This is NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252.
Your Honour, at paragraph 155 of that judgment Chief Justice Spigelman made this comment – I will not take you to all of it, there is a tangle to the facts of it, your Honour, but anticipating to some degree what was said in X7 and Lee v The Queen his Honour said that:
The accusatory system is, in my opinion, a fundamental element of our traditional method of determining criminal guilt. A public authority which formally alleges criminal conduct by a person must prove it . . . It is derived, as many other aspects of our criminal procedure are derived, from the recognition of the imbalance of power between the State and its citizens. That imbalance extends to corporations.
Nutricia, self‑evidently, is against a background of the existence of Caltex. It means there is a live issue really as to how Caltex interacts with Lee v The Queen, but it is, in any event, in my submission, reasonable ‑ ‑ ‑
HIS HONOUR: The premise for that aspect of the argument is that the questions of construction, recognising what Mr Davis has said about the engagement in Caltex also of rules‑based procedures, but cases like the Nutricia Case you have just mentioned, Caltex and the like and, indeed, Lee and X7 themselves, all ultimately are questions of statutory construction, are they not ‑ ‑ ‑
MR MORRISSEY: Yes.
HIS HONOUR: ‑ ‑ ‑ construction of statutes empowering particular coercive processes against persons or corporations? The issue in this case may ‑ I do not say it is, but may perhaps be a little different. The question is whether the interlocutory processes prescribed generally for the conduct of civil proceedings in the Court, including the coercive processes for discovery or production of documents, can be engaged where punishment is sought for contempt of court orders. Now, that may be a different question, it may ultimately be the same question as that which is dealt with in cases like Caltex, but it just seems to me it may be that the context needs to be taken into account.
MR MORRISSEY: Your Honour, with respect, we agree, and that is, indeed, our position. Your Honour, could I ‑ ‑ ‑
HIS HONOUR: Am I right in understanding that in the Court of Appeal no authority is pointed to in which use of discovery against a person accused of contempt of court has been considered by an intermediate court?
MR MORRISSEY: Not in Victoria, your Honour. I believe two authorities were pointed to – Calderwood and there was a case called Woods v Skyride in Western Australia, each of which was subject to criticism and argument.
HIS HONOUR: Did they support or not support the availability of discovery?
MR MORRISSEY: Calderwood supported the availability of discovery in a contested situation and it is a single instance judgment of Justice Gray.
HIS HONOUR: First instance, yes.
MR MORRISSEY: First instance. That was not a contempt matter. Woods is a first instance Western Australia decision where the issue was not ‑ ‑ ‑
HIS HONOUR: This is the only intermediate court decision that we have on the availability of discovery in connection with contempt. Is that right?
MR MORRISSEY: Yes, your Honour.
HIS HONOUR: Yes.
MR MORRISSEY: Your Honour, I will not recanvass things that we have said, but your Honour, we would just respond briefly. The issue of the availability of subpoenas, we would submit that matter has not been determined. No subpoena was issued, in fact no subpoena still, so that remains the position now, so the availability of a subpoena for these documents is simply untested. We are submitting that it is impossible because it is a coercive process of the court and our arguments of principle apply equally to it but, in any case, it is an abstract possibility.
To say that it was heavily canvassed in the court on the last occasion – it was the subject of argument in court, but that is as far as it goes, your Honour. Certainly, no subpoena was issued. The matter was not – so it could not be said that the discovery issue is anything but an important point of principle and will lead to – in our submission is erroneously granted and leads to prejudice.
HIS HONOUR: Yes, thank you, Mr Morrissey.
On 24 October 2014, the Court of Appeal of the Supreme Court of Victoria - Justices Ashley, Redlich and Weinberg - made orders and published reasons with respect to proceedings brought in that court by the Construction, Forestry, Mining and Energy Union, the CFMEU. The proceedings in the Court of Appeal can be sufficiently identified as being an appeal and an application for leave to appeal against convictions and orders made against the CFMEU in consequence of findings of contempt of court in a matter known in the courts below as the Grocon matters and an application for leave to appeal against an order of a judge of the Trial Division of the Supreme Court of Victoria, Justice Digby, made on 25 March 2014 in a matter known as the Boral matter.
CFMEU’s applications to the Court of Appeal failed. On 14 November 2014, CFMEU filed two applications for special leave to appeal to this Court against the orders made by the Court of Appeal. One of the applications related to the Grocon matters, the other application related to the Boral matter. The application before me is made in the application for special leave to appeal against the orders the Court of Appeal made in connection with the Boral matter.
By those orders the Court of Appeal refused leave to appeal against the orders made by Justice Digby. By summons issued on the same day as the application for special leave to appeal was filed, CFMEU applies for orders that, until the determination of its application for special leave to appeal, or until further order, orders 2 and 3 of the orders of Justice Digby made in Boral Resources (Vic) Pty Ltd and Ors v CFMEU and Anor [2014] VSC 120 as amended by orders Justice Digby made on 30 October 2014 be stayed. CFMEU further asks for orders that the hearing of its application for special leave to appeal be expedited. My concern at the moment is limited to the question of stay. Questions of expedition arise separately and will be considered separately.
In order to understand the orders which are the subject of the application for stay it is necessary to say something shortly about the history of the proceedings and the matters that give rise to the proceedings. In March and again in April 2013, Justice Hollingworth sitting in the Trial Division of the Supreme Court of Victoria made orders restraining CFMEU from engaging in certain conduct. Those orders were made on the application of Boral Resources (Vic) Pty Ltd and other companies. It is convenient to refer to them generally as Boral.
In August 2013, Boral applied to the Supreme Court of Victoria seeking orders that the CFMEU be punished for contempt constituted by disobedience of the orders of Justice Hollingworth. Particulars given of the alleged contempt included particulars that CFMEU “by its employee Mr Joseph Myles” had done certain things. In October 2013, Boral sought orders pursuant to rule 29.07 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that CFMEU make discovery of identified documents including, for example, any business card which the CFMEU had issued for the use of Mr Myles, any one document that recorded his mobile phone number and any one document that recorded the mobile phone number of other persons allegedly associated with the Union.
On 23 October 2013, Associate Justice Daly of the Supreme Court dismissed the application for discovery. Boral applied to a single judge of the Supreme Court, Justice Digby, by way of appeal by rehearing de novo of its application. That appeal was heard at the end of January 2014 and on 25 March 2014 Justice Digby published reasons and made orders providing that the CFMEU within one week make discovery of the documents which Boral sought and within three business days of making that discovery the CFMEU should produce to the solicitors for Boral for inspection and, if required, copying of the documents that were discovered.
As I have already noted, CFMEU sought leave to appeal against the orders of Justice Digby to the Court of Appeal. That application together with the applications in the Grocon matters were heard on 25 and 28 July 2014 and on 24 October 2014 the Court of Appeal published its reasons and made orders dismissing CFMEU’s applications.
On 30 October 2014, before the initiation of the application for special leave to appeal, Justice Digby (on the application of CFMEU) varied the orders he had made for discovery by varying the dates for their satisfaction. CFMEU seeks to stay the orders made by Justice Digby as varied in the manner I have indicated in order to preserve the subject matter of its application for special leave to appeal to this Court. It is not disputed that unless the orders are stayed the application for special leave to appeal which has been filed will be rendered futile.
There is, of course, no doubt of this Court’s power to grant a stay of operation of an order, made if that stay is necessary to preserve the subject matter of the application for special leave: see, for example, Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681. As Justice Brennan pointed out in Burgundy Royale the jurisdiction which the Court has to grant a stay is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. Preservation of the subject matter of the litigation is one, but only one, category of case in which exercise of that extraordinary jurisdiction may, not must, be exercised. Preservation of the subject matter of the application for special leave may, not must, constitute exceptional circumstances sufficient to warrant a grant of a stay.
In the present matter it is to be observed that CFMEU’s argument in the courts below, and which it would seek to advance in this Court, is one which seeks to draw substantial equivalence between proceedings for punishment for contempt of court and criminal proceedings. The point which it seeks to agitate in this Court is one about the availability of the processes for discovery of documents. At once it may be seen then that the application for special leave is one which might be characterised as seeking to fragment what CFMEU would say are criminal or quasi‑criminal processes by means of interlocutory appeal to this Court in a matter which might be thought to be a matter substantially of practice and procedure. Each of those considerations is a matter which has often been identified by the Court as tending against both the grant of special leave and also, therefore, as tending against the grant of any stay of orders made pending the hearing and determination of the application for special leave.
The principal argument in opposition to the application for a stay was advanced on behalf of the Attorney‑General for Victoria. The submissions of the Attorney were, in relevant respects, adopted by the Boral parties. It was submitted on behalf of the Attorney‑General that in this case it is plain that the application for special leave to appeal has either no or so slight prospect of success that the application for stay should be refused.
The principal basis upon which the application for stay was opposed was that the orders made by Justice Digby, which the Court of Appeal declined to interfere with, are orders which work no substantial injustice to CFMEU because the documents sought to be obtained by discovery are documents which could have readily been obtained by subpoena duces tecum directed to the Union by its proper officer. It was submitted on behalf of the Attorney that it has been decided by this Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 that a corporation has no privilege against self‑incrimination and that, accordingly, CFMEU could not, by its proper officer, object to production in response to a subpoena duces tecum to any of the documents which it has sought by processes of discovery.
Plainly, the validity of that argument and arguments building on that foundation is a matter for determination by the Court as constituted to consider the application for special leave and, if special leave to appeal were to be granted, by the Court determining any consequent appeal. It is to be noted that, so far as the researches of counsel have gone and so far as the reasons of the Court of Appeal reveal, the decision of the Court of Appeal, against which CFMEU seeks special leave to appeal, is the only decision of an intermediate court in Australia determining whether discovery of documents can or should be ordered against a person whom it is sought to have punished for contempt.
There was some debate in the course of argument about the chances of success that an applicant for a stay must demonstrate before a stay should be granted. Various formulae were deployed in the course of that argument such as must “real prospects” be shown, must “substantial prospects” be shown or the like. The discretion to grant a stay is one which is not to be hedged about by the adoption of particular verbal formulae thought to dictate the outcome in all cases. The discretion to grant or refuse a stay of orders pending the hearing and determination of an application for special leave to appeal is to be exercised having regard to the fact that, as Justice Brennan said in Burgundy Royale, it is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. The exercise of the discretion is not to be confined by some mechanical checklist of considerations.
In this case, if I grant a stay of the orders of Justice Digby, trial of the proceedings for contempt presently fixed for 8 December will have to go off. As counsel for the Attorney pointed out, proceedings in this matter have already long been protracted. Further protraction of the proceedings is intrinsically undesirable. Proceedings in which punishment is sought for contempt are proceedings that by their very nature need to be dealt with promptly and efficiently.
Apart from that consideration, which is no doubt a weighty consideration in determining questions of convenience, perhaps even questions of loss, no other consideration of loss or inconvenience was adverted to in the course of argument. Because the question is one, apparently, of first impression, at least in the intermediate courts of this country, and because the point is, on its face, one which I would not classify as incapable of argument, I am of the opinion that a stay of the orders of Justice Digby should be granted until the hearing and determination of the application for special leave to appeal and, subject to any further or other order, if special leave to appeal were to be granted, the stay should continue until the hearing and determination of the appeal.
A consequence of the grant of the stay would inevitably be expedition of the application for special leave and that is a matter about which I will have to hear counsel, not only in this matter, but also counsel in the Grocon matters for, at least as a matter of first impression, it would seem to me to be unwise and inappropriate to expedite the hearing of only one of the applications for special leave. If the Court is to consider the judgment of the Court of Appeal it would be by far the more efficient course to deal with both applications together.
Subject then to hearing counsel about the precise form of the order for a stay, and subject also to hearing counsel, not only in this matter, but also in the Grocon matters about questions of expedition, there will be an order for a stay. Again, subject to anything that counsel may say as to questions of costs, it would seem to me that the costs should be costs in the application for special leave, thus falling according to the outcome of that application.
May I turn now to questions of directions and if we call on the second matter. Now, there is a leave day coming up on 12 December which will focus the minds of the parties somewhat closely. There is also a leave day likely to be had in the February sittings of the Court in Melbourne. First, if we were to shoot for the December leave day, the timetable would be very tight. I think, because it would be listing on 12 December the timetable would likely have to take something along these lines: applicant’s summary 24 November, respondents’ summaries 28 November, reply 1 December, books 3 December. That is very tight. If we were to go for 13 February then the timetable would likely be: applicant 12 December, respondents 7 January, reply 12 January, books 23 January.
Now, I recognise that it is Hobson’s choice. I recognise that it is an extraordinarily tight timetable for December or dates of 7 January and 12 January usually do not meet with instant approval by practitioners, but that seems to be the way in which the timetables will likely work out. Mr Morrissey, what do you say I should do?
MR MORRISSEY: Your Honour, we would abide the order of the Court but we favour the latter. These matters need to be well prepared and the refinement of the questions ‑ ‑ ‑
HIS HONOUR: That is just a question of how much time counsel put in to it, Mr Morrissey, yes. It is not necessarily a question of the calendar but you want the February date
MR MORRISSEY: We would seek the February date.
HIS HONOUR: Yes. Now, Mr Snaden, what do you say?
MR SNADEN: The opposite, your Honour. We would push as hard as we can for leave on 12 December. It is a very tight timeframe, with respect, but it is one that we will meet and it can be met.
HIS HONOUR: Mr Davis.
MR DAVIS: Your Honour, two points. One is we also press for the earlier date but, secondly, your Honour, Mr Jellis is trying to find for me the copy of the order of Justice Digby granting interim stays in which the applicant before you undertook to the Court to seek the first available date.
HIS HONOUR: I thought it was move with expedition, was it not?
MR DAVIS: Would your Honour excuse me because I do not want to get this wrong. Please forgive me for the delay. Your Honour, I am indebted to Mr Snaden.
HIS HONOUR: I assume the undertaking is recorded in the order. I would want to look at the order.
MR DAVIS: Yes, it is, thank you. Your Honour, may I first read it myself. The order recites in “Other Matters”:
The defendant, by its Counsel, gives the following undertakings:
. . .
(b)To prosecute the application for special leave and the application for a stay (referred to in the preceding sub‑paragraph) with all reasonably possible expedition including by seeking and agreeing to the first available hearing dates.
May I hand to your Honour a copy of the order?
HIS HONOUR: I think I have seen it and I think I have it.
MR DAVIS: Thank you, your Honour.
HIS HONOUR: Yes. Well, you say December, yes? Ms Nelson.
MS NELSON: Your Honour, the Grocon parties are in a position of not yet having filed an appearance in this matter and are not due to do so until 1 December. At present I do not have instructions as to the nature of the appearance that will be filed by the Grocon parties. Therefore I am restricted in what I can say in relation to our ability to meet either of those dates, save to say that the matter has had a long and complex history over the last two years. Senior counsel, as your Honour is no doubt aware, has recently been appointed to the Supreme Court. Junior counsel who has been involved in the matter for the last two years is presently away, hence my appearance today. He will be overseas from 5 to 7 December and on leave from 18 December to 19 January. At present we have been unable to even contact and discuss the matter with junior counsel. Between the two dates, in those circumstances, all I can say, your Honour, is the February dates would clearly be preferable, but both are difficult.
HIS HONOUR: What do you say about splitting – it seems to me that I should not split the applications. It would be inefficient for the Court to face a 150‑page judgment of the Court of Appeal twice and so, from our point of view, splitting it seems unwise.
MS NELSON: Yes, your Honour. We accept that the matters have overlapped in the sense of it would be more efficient for the Court to hear them together.
HIS HONOUR: Yes, thank you, Ms Nelson. Mr Jellis, I take it you do not wish to add to the – or vary the position for the Attorney in ‑ ‑ ‑
MR JELLIS: No, definitely not. We are ready to meet ‑ ‑ ‑
HIS HONOUR: The Attorney is happy to speak with only the one voice, I hope.
MR JELLIS: Yes.
HIS HONOUR: What do you say, Mr Morrissey – (a) you have the discretion of undertaking around your neck and, second, what do you say about December?
MR MORRISSEY: December will create difficulties and your Honour should ‑ ‑ ‑
HIS HONOUR: What are they?
MR MORRISSEY: Simply the workload. Your Honour, there are 24 hours in a day. I accept, your Honour, we will work each of those but the reality is that it is matter that involves some complexities involving the two sides, if you like, of how the accusatorial system operates in a contempt proceeding. In the Boral proceeding it is what coercive powers can be brought to bear on the defendant and in the Grocon proceeding it is what obligations does the plaintiff have by way of disclosure of the nature and cause of the charge and pleading that charge.
They really should proceed together and they inevitably will involve a principled look at the nature of contempt. In my submission it is one where the Court would benefit from the additional time between February and December. It is true that we made that undertaking. We therefore, obviously, abide the Court’s ruling concerning February but it should be read as being subject to our duty – our more important duty to the Court to present the argument properly and thoroughly.
HIS HONOUR: I would not start walking away from the undertaking, Mr Morrissey. Do not.
MR MORRISSEY: I do not seek to walk away from it, your Honour. We seek the first available date to be construed, your Honour, in light of the proper presentation of the argument.
HIS HONOUR: Least said soonest mended, Mr Morrissey. The trial date was fixed for the 8th, was it not?
MR DAVIS: That is correct, your Honour.
HIS HONOUR: So whatever we do, the trial date goes.
MR DAVIS: Yes. May I say - your Honour, I think I could say without fear of contradiction that the indication from the Court was that it would fix the first available date, so on the assumption that the December date were given and special leave were refused, that may have listing advantages for expedition in the New Year. May it please the Court.
HIS HONOUR: I will have some inquiries made about just how heavy the December list is, if you could just wait a moment. I want to be sure that – I think it is looking like – well, we will just see how heavy it is. I suspect that the most efficient means of dealing with this will be to direct the matter for listing on 13 February 2015. To that end, the timetable that would be fixed would be: applicant’s summary of argument in each matter by 12 December 2014; respondents’ summaries of argument in each matter 7 January 2015; reply, if any, in each matter 12 January and joint books by 23 January 2015. The matter would then, subject to further or other order, be fixed for hearing in Melbourne on Friday, 13 February 2015. Now, do counsel seek to be heard about the form of the order for stay?
MR DAVIS: No, your Honour.
HIS HONOUR: Just so that we can be certain of the text of the stay order it would be that:
1.Until the determination of the applicant’s application for special leave to appeal, or further order, orders 2 and 3 of the orders of Justice Digby made in Boral Resources (Vic) Pty Ltd and Ors v CFMEU and Anor [2014] VSC 120 on 25 March 2014 as amended by further order of Justice Digby made on 30 October 2014 are stayed and further, if special leave to appeal is granted, those orders as so varied are further stayed until the hearing and determination of the appeal, or further order;
2.Expedite the hearing of the application for special leave to appeal;
3.Direct the applicant’s summary of argument be filed and served on or before 4.00 pm, 12 December 2014;
4.Respondents’ summaries of argument on or before 4.00 pm, 7 January 2015;
5.Reply, if any, filed and served on or before 4.00 pm, 12 January 2015;
6.A joint application book in matters M117 of 2014 and M118 of 2014 be filed and served on or before 23 January 2015;
7.The costs of the application for stay be costs in the application for special leave.
In matter M118 of 2014, orders in the form of paragraphs 2, 3, 4, 5 and 6 of the orders made in M117 be made. The costs of today’s directions should be costs in the application for special leave. Do counsel seek to be heard further about those orders? Very well, there will be orders in those terms. Adjourn the Court.
AT 11.05 AM THE MATTER WAS ADJOURNED
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