Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors

[2015] HCATrans 75

[2015] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M18 of 2015

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Appellant

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

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 APRIL 2015, AT 10.21 AM

Copyright in the High Court of Australia

____________________

MR P.J. MORRISSEY, SC:   May it please the Court, I appear for the appellant in this matter and I appear with MS R.B. SHANN and MS J.D. WATSON.  (instructed by Slater & Gordon)

MR S.J.WOOD, QC:   If it please the Court, I appear with my learned friends, MR J.L. SNADEN and MR D. TERNOVSKI, for the Boral parties.  (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, the Attorney‑General for the State of Victoria.  (instructed by the Victorian Government Solicitor)

FRENCH CJ:   Yes, Mr Morrissey.

MR MORRISSEY:   If it please the Court.  If I commence by taking the Court to Order 75 itself.  Perhaps if I could open the submissions by saying that the answer to the appeal here lies within Order 75 itself and the text thereof and that colours the way in which the high level principles to which we have referred apply in this case.  Now, by way of introductory remarks, we would say the answer does lie within Order 75 of the rules.  These rules do not create the contempt jurisdiction.  The contempt power is an inherent power.  But Order 75 provides a procedural framework for the court’s power to protect itself in the procedures that are given to govern the contempt jurisdiction.

At the outset we would say that Order 75, or submit that Order 75 is a distinct procedure for a distinct jurisdiction.  It is noticeable that a special set of procedures for contempt exists at all.  On one view of the respondent’s submissions, if all the rules prima facie apply to contempt subject to a judicial discretion to adjust and to exclude or to alter appropriately, there would scarcely be a need for any separate procedural regime.  That is merely an introductory note, but we do seek to make good the contention that Order 75 is a thorough going scheme.  It may not be correct to describe it as a code, but it is thorough going, if one might say a cradle to grave approach to the procedures appropriate to contempt.

Now, whatever the nature of contempt may have been previously, the Gordian knot with respect to that has been cut in Witham v Holloway (1995) 183 CLR 525 at 534. I may briefly refer the Court to what was said by the majority in that case at 534:

as Deane J said in Hinch, that all proceedings for contempt “must realistically be seen as criminal in nature”.  The consequence is that all charges of contempt must be proved beyond reasonable doubt.

Now, I only pause to gloss that well‑known statement ‑ to make the point that as phrased there, the beyond reasonable doubt standard appears to arise in that judgment as a consequence of the criminal nature that is ascribed to all proceedings of contempt.  The division between criminal and civil proceedings is not a rigid one, it is a high level principle, it is not the sole basis of the submissions that we make here.  But what we do submit is that Witham v Holloway cut the Gordian knot and that contempt proceedings ought to be seen as criminal in nature and that suffuses Order 75 and the appropriate proceedings, the way in which the particular rules ought to be read.

FRENCH CJ:   What significance do you attach to the statement in the next passage – the next paragraph in Witham v Holloway:

to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge –

and so on?

MR MORRISSEY:   That serves to protect contempt proceedings from the arbitrary importation of particular aspects of particular criminal trial modes, either from the indictable stream or from the summary stream or from State to State.  The notion of an accusatorial proceeding, we would submit, is a broad church and it encompasses a number of different modes.  Victoria has a different indictable trial mode to New South Wales.  Victoria also has a different mode of trial of summary proceedings, so that the absence of some particular characteristics of one of those modes – perhaps to rephrase that ‑ so that passage serves to protect contempt proceedings from a requirement to import unsuitable parts of criminal proceedings as set out, for example, in the Criminal Procedure Act (Vic) as applied to different levels of criminal procedure.

FRENCH CJ:   I notice that the original proceedings in which Justice Hollingworth made her order alleged intimidation, that to order unlawful intimidation by reference, inter alia, to section 45D of the Trade Practices Act as an unlawful – contravention which was an unlawful purpose, that would suggest that the proceedings were in the federal jurisdiction.  Does that make any difference in this case?  Nobody has suggested it has, but I just wondered if anybody has thought about it at all?

MR MORRISSEY:   I confess, frankly, that I have not.

FRENCH CJ:   I cannot, for myself, at the moment see that there is any difference in the legal questions that are presented to us by that but I think it is a matter which always has to be addressed.

MR MORRISSEY:   I proceed on that basis, but will consider it as best I can.  Your Honour, there are certain constants about a contempt proceeding which, albeit they are not criminal error – there are distinctions and it would be said, and it is readily conceded, there are distinctions between a proper criminal charge and a contempt proceeding.  One could look at the way in which the charges are framed to see that criminal charges relate to elements of a publicly stated and a permanent prohibition against particular conduct, whereas breaches of the type that are before the Court here, breaches of court order, require some construing.

So, it is a different nature of breach of the law that is being dealt with, but, nevertheless, there are some constants about contempt proceedings which are in distinction to civil proceedings.  They always concern a vindication of the court’s authority.  They always allow for punishment, indiscriminately between individual human defendants or corporate defendants, for punishment by way of a financial penalty, and in particular by way of a fine.

KIEFEL J:   How does the fact of vindication of the court’s authority assume relevance to the question of whether discovery is a proper process in an action for contempt?

MR MORRISSEY:   It touches on the issue of the prosecutorial duty and the way in which matters are brought before the court.  There is a public quality to the dispute, to the proceeding, in the sense that it touches on the vindication of the court’s authorities, and ‑ ‑ ‑

KIEFEL J:   You mean a public interest; it is a public interest question?

MR MORRISSEY:   Yes, I do mean that.

KIEFEL J:    But that one of the differences, of course, with a criminal charge is that in the case of an action for contempt there is not the State charging an individual.  That is a substantial difference, is it not?

MR MORRISSEY:   There is not necessarily the State charging.  The State can always do so and may seek, as they did here, to intervene or to be joined.  Your Honours ‑ ‑ ‑

KIEFEL J:   More rarely these days.  They are usually private actions brought by parties.

MR MORRISSEY:   Yes, that is often the case.

KIEFEL J:   But the fact that the action for contempt could be brought by a private citizen as a party, or the Crown, could not really alter the principle that you are trying to discern from the action for contempt, could it?

MR MORRISSEY:   May I just inquire – is your Honour pointing to the distinction between a criminal proceeding and the contempt proceeding, or a civil proceeding and a contempt proceeding?

KIEFEL J:   Well, in the way in which you are framing your case, that an action for contempt ought to be regarded at the least as one criminal in nature, one of the factors that you do not have is that the State is not bringing the charge against the individual.  Rather, you have a private citizen bringing a charge.  On occasions you can have the Crown.  But, given that a private citizen can bring the charge, does that tell us something about the nature of the proceeding?

MR MORRISSEY:   It is a point of distinction, but it should be recognised that a criminal proceeding can be brought by a private litigant in Victoria under the Criminal Procedure Act (Vic). In fact, summary prosecutions are, at least in principle, brought by a private individual, namely, the police informant or other investigator. Nevertheless, it is being done for a public purpose.

KIEFEL J:   But the prosecution itself is then conducted by the State, is it not?

MR MORRISSEY:   Once it comes to the indictable stream, that is so.  It is inevitably so, that is right, and the DPP always has the power to take it over.  So perhaps I could deal with your Honour’s question in short form this way.  Yes, it is a point of distinction, but it does not serve to equate a contempt proceeding with a civil proceeding between private parties because a contempt proceeding always has an interest outside of that of the private parties, it is always amenable to intervention by the State.

FRENCH CJ:   It may go to your proposition 9 – “Contempt proceedings are accusatorial proceedings” – contempt proceedings are, as you accept, proceedings in vindication of the court’s authority.  Does that place them in a special category of criminal proceedings which may not necessarily attract the full force of the accusatorial principle that informs prosecution by the State of an individual and that were considered in cases like X7 and Lee, and so forth?

MR MORRISSEY:   Well, we would submit not.  We would submit that the benefits of - that the accusatorial system has, as I conceded, it is a broad church and it encompasses a number of different – perhaps I should say this – it is not an “all or nothing” situation that either the proceedings are criminal and accusatorial or they are something different.  What I would submit is that “accusatorial” encompasses a number of proceedings, including the procedures appropriate to contempt.  The content will vary, but it will have a bottom line.  That is the bottom line that is, we would say, contained in X7 and Lee v The Queen.

GAGELER J:   Mr Morrissey, could I just ask you a question about the structure of your submissions?  As I understand it, what you are leading to here is the proposition that rule 29.08 does not apply to proceedings under Order 75.

MR MORRISSEY:   Yes, that is correct.

GAGELER J:   Yes, so I understand that proposition, and your proposition 1, proposition 2, 3 and 4, all seem to be directed to that ultimate point.

MR MORRISSEY:   Yes.

GAGELER J:   Do propositions 5, 6, 7, 8, 9 and 10 also lead to the same point, or are they different?

MR MORRISSEY:   They do.  They just seek to deal with the principles at a higher level.

GAGELER J:   Yes.  So it really is a question of the construction of rule 29.08 in light of Order 75.

MR MORRISSEY:   Broadly, yes, although we would seek to put it in the other order – it is a question of construction of Order 75.

GAGELER J:   So, just looking at your grounds of appeal, at page 319 of the appeal book, I see grounds 2, 3 and 4 all seem – at least to me – to go to that proposition.  Is – well, I am sorry, grounds 1, 2 and 3 in paragraphs 2, 3 and 4 seem to go to that proposition.  Is ground 4 pressed – which, it seems to me to go to a different point, something to do with the way in which the discretion was exercised in this case.

MR MORRISSEY:   Your Honour, so ground 4 is that the Court of Appeal erred in deciding that there was no substantial injustice.

GAGELER J:   Well, because a subpoena for production could have been used.  All I am asking is, is that pressed as a separate – it is pressed?

MR MORRISSEY:   Yes, yes, it is.  Yes.

GAGELER J:   All right.

MR MORRISSEY:   Your Honours, just before I go to the provisions of Order 75, a couple of other preliminary comments or submissions are that we say – we are submitting that Order 75 does establish a procedure that is accusatorial in nature subject to points of difference that have already been raised in questions.  There are points of difference.  But it still will be comfortable and, in my submission, mainstream to adopt a procedure that is correctly characterised as accusatorial.

Secondly, we would submit that Order 75 ought to be reviewed as a leading provision.  That is a statutory construction term that when considering the operation of Order 29 and its interaction with Order 75, Order 75 is substantive in nature and deals with – one might say, a self‑contained and thorough going approach to the procedures to be adopted.  Order 29, like the orders around it, are tools to be deployed in civil proceedings.  The application of a tool to what we characterise as a stronger provision is a matter to bear in mind in considering whether or not the words of general application relied upon by our learned friends can carry the weight which they are being asked to.  Order 75 is distinct from the other rules.  It is not a mere tool, it is a guide.

Just turning to Order 75 now, if I may? Could I take the Court now to Order 75 of the Supreme Court (General Civil Procedure) Rules 2005? I have already made the comment that its very existence in the thorough form that it exists bespeaks a distinct procedure.

KIEFEL J:   Well, it is not completely thorough.  It does not, for example, say how evidence is to be taken.  Would the Court act under a general directions power to give directions as to the mode of evidence and as to the conduct of the trial?

MR MORRISSEY:   It is implicit in the section that such a power exists.  If you turned to 75.08 ‑ ‑ ‑

KIEFEL J:   Is that 75.08.1(2)?  But that is after arrest.

MR MORRISSEY:   Yes.

KIEFEL J:   What is the particular provision you are referring to?

MR MORRISSEY:   Sorry, I have lost my place – sorry, my apologies.  Yes, 75.08.1 is the section to which I referred, I apologise, and it is sub (2):

The Court may thereafter adopt such procedure as it thinks fit and in particular may direct that –

(a)proceedings be conducted in accordance with Rule 75.06 with such variation as the case requires –

What we submit is that that strongly implies that Rule 75.06 is regarded as providing a thorough procedure which can be adopted as with such variations as required following an arrest in that situation.

BELL J:   Does it provide two procedures?  If one looks at 75.06(2) there is a procedure where the contempt is committed by a party in relation to a proceeding and then the application is made by summons in the proceeding as distinct from the originating motion entitled in the name of “The Queen” in other forms of contempt and that seems to recognise the hybrid proceedings that may answer the description of contempt.  That might raise an issue about any assumption that Order 75 is directed – is accusatorial in nature in respect of a proceeding.  It seems to be contemplating different sorts of proceedings.

MR MORRISSEY:   Each of the proceedings contemplated there, we would submit, returns to follow the – the only point of distinction is in the originating process.

BELL J:   Well, is there another point of distinction in that some proceedings are by summons in the proceeding?

MR MORRISSEY:   It is a point of distinction but not in terms of the application of the accusatorial system in the flexible manner that we contend it exists.  What follows after – however the contempt proceeding be commenced, and using whichever form of originating process, one then resumes a uniform path of, one might say, a charge that has to specify the contempt and the other matters which I will take you to now.

BELL J:   Yes.

MR MORRISSEY:   In fact, I was about to go to that, so it is time.

KIEFEL J:   The summons procedure deals with contempts in the face of the court which have taken place during the course of the hearing so that the court is apprised of it.

MR MORRISSEY:   Yes.

KIEFEL J:   So, it can proceed immediately to – it can interrupt the proceedings, the action itself, and determine the question of contempt.

MR MORRISSEY:   Yes.

KIEFEL J:   The general procedure that you might have been thinking of, Mr Morrissey, was probably, as the Chief Justice pointed out, Order 75, rule 3.

MR MORRISSEY:   Yes, although that – 75.03 falls under the heading of summary - of Part 2.

KIEFEL J:   Only summary procedure.  Yes, I see.

MR MORRISSEY:   So, after my – I apologise for that fluffing, but we are submitting that it is implicit in 75.08 and it is a power that the court would have and it reflects the fact that this is – that the power is not created – well, I should not say the power – the jurisdiction to deal with contempt is not created by Order 75.

KIEFEL J:   But if you accept that there is a general power to adopt procedures and give directions, do you accept that the court can mould such procedures as it considers appropriate to the particular case?

MR MORRISSEY:   Within the confines of it being an accusatorial process and, indeed, that is the ‑ ‑ ‑

KIEFEL J:   That is the overriding principle that you rely on.

MR MORRISSEY:   Yes.

KIEFEL J:   You say there would be no case in which discovery would be appropriate?

MR MORRISSEY:   Correct. 

NETTLE J:   Mr Morrissey, would rule 75.06 engage rule 45.02?  With respect to Justice Kiefel’s question about evidence, would not 45.02 be the answer, unless the judge otherwise direct?

MR MORRISSEY:   It does not replicate, your Honour.  Rule 45.02 applies more broadly to, one might say, a two‑way street.

NETTLE J:   This is a proceeding commenced by originating motion, which would ordinarily be the case under 75.

MR MORRISSEY:   Yes, it would be.  What we would submit is that a court dealing with a proceeding under Order 75 is not bound to apply Order 45 in that situation.

NETTLE J:   Of course not – be able to direct otherwise, but unless it made contrary directions, 45 would govern, would it not?

MR MORRISSEY:   Your Honour, our submission is it would not govern but it would be open to the court to make an order in the nature of an order under Order 45 in ‑ ‑ ‑

NETTLE J:   So you say it would not apply automatically unless a specific direction as to its application were given?

MR MORRISSEY:   That is correct.

NETTLE J:   That is because, why?

MR MORRISSEY:   It is because the rules do not automatically apply their own force to any but a civil proceeding.  This we characterise as not being a civil proceeding.

NETTLE J:   I see.

GAGELER J:   That is a general proposition about all of the rules, including for example the order for trial, Order 49?

MR MORRISSEY:   Yes.  It is not to say that in the normal run of a case that such orders will not be made routinely, but in terms of the jurisdiction to make such orders they do not automatically apply.  They are applied by the judge.

NETTLE J:   But a civil proceeding for the purposes of these rules is one which is commenced by writ or originating motion.  Put aside whether it is criminal or civil in nature or character, it is a civil proceeding because it is commenced by writ or originating motion.

MR MORRISSEY:   So the rules provide, but that is subject to the Civil Procedure Act which defines a “civil proceeding” as not including “quasi‑criminal” or “criminal” in section 3. That must be given some effect, in our submission. It must have some effect on the rules. Some curious results follow if not so, because you would then have the regulatory regime in the Civil Procedure Act applying to most classes of discovery, for example, but not to discovery if ordered in Order 75.

FRENCH CJ:   “Criminal proceeding” is defined in the Civil Procedure Act as:

a proceeding to which the Criminal Procedure Act 2009 applies ‑ ‑ ‑

MR MORRISSEY:   To which the Criminal Procedure Act applies, that is correct.

FRENCH CJ:   Yes.  Does that pick up these?

MR MORRISSEY:   It is a little unclear, your Honour.  Certainly, there is an appeal path ultimately from a contempt conviction under the Criminal Procedure Act ‑ ‑ ‑

NETTLE J:   It is a civil appeal, is it not?  It is under the civil appeal rules.

MR MORRISSEY:   Yes, but an interlocutory appeal such as this must proceed under the civil appeal rules and is doing so here.

NETTLE J:   Is that not because it is a civil proceeding, albeit, you say, quasi‑criminal in note?

MR MORRISSEY:   What is at issue here is whether or not the rules apply of their own force automatically, or whether they are adaptable into a proceeding, if not inconsistent with the accusatorial nature that we ascribe to Order 75, both because of its own terms and because of the way in which the case law has developed.  We are not submitting that other rules cannot be applied, and that could not be sustained because Order 4 has an express reference to Order 75.06, and the appeal pathway upon which we now tread is a creature of the rules.  We do not put that submission. 

What we are putting is that the court has a power to fashion its procedures under Order 75, and it is not forbidden from relying upon the other civil rules, but they do not apply and it is not to be inferred that this is to be characterised as a civil proceeding to which the rules apply.

NETTLE J:   It is not a proceeding, then, as defined in the rules, is that it – as defined in rule 1.13?  You say it is not that sort of proceeding, do you?

MR MORRISSEY:   Sorry, Rule ‑ ‑ ‑

NETTLE J:   Rule 1.13?

MR MORRISSEY:   No, on its terms – the term “proceeding” in 1.13 can catch ‑ ‑ ‑

NETTLE J:   It does catch an Order 75 proceeding?

MR MORRISSEY:   Yes.

GAGELER J:   What use do you make of the definition of “civil proceeding” in the Civil Procedure Act?  I see the definition, I just do not see how it engages with a relevant operative provision.

MR MORRISSEY:   We are submitting that Order 75 evinces an intention to exclude coercive processes directed to the defendant – to the respondent, I am sorry. We are submitting that those coercive processes, including Order 29 which is the particular subject of the Civil Procedure Act and its regulatory proceedings, ought now to be read as not extending to proceedings in the Court which are criminal or quasi‑criminal in nature.

GAGELER J:   I follow that.  You invoke specifically the definition of “civil proceeding” in the Civil Procedure Act 2010, I am just wondering how you seek to deploy that particular provision in support of your argument?

MR MORRISSEY: It qualifies if the generality of Order 29.07(2) were otherwise amenable to a reading that discovery applied to other than civil proceedings, that such a reading could not be sustained after the Civil Procedure Act.

KIEFEL J: What about sections 54 and 55 in particular of the Civil Procedure Act in relation to discovery?

MR MORRISSEY: All of the sections, including those two that are found in Part 4.3, serve to regulate discovery in civil proceedings which, according to the Civil Procedure Act, would not catch proceedings under Order 75 if they be criminal or quasi‑criminal for that Act.

NETTLE J: Order 29, Order 75 and Order 1 were created 30 years before the enactment of the Civil Procedure Act pursuant to the powers of the Supreme Court Act.  You are not suggesting, are you, that the Civil Procedure Act somehow impliedly repealed or restricted aspects of the Rules?

MR MORRISSEY:   Civil Procedure Act – well, our submission is that one should not have read Order 29.07(2) as applying to contempt or – and it never has previously, never once as far as we can see ‑ but if it is amenable to that reading, that reading is closed out by the enactment of section 3 of the Civil Procedure Act because it is quite clear that it has sought to regulate discovery in a general way and it would be a surprising outcome if it did not regulate discovery both by the specific provisions to which your Honour Justice Kiefel referred and by the overarching principles that apply elsewhere in the Act.  It would be an astounding result if, in the more serious ‑ arguably more serious context of an Order 75 proceeding that those principles did not apply in the courts ‑ ‑ ‑

FRENCH CJ:   Well, this is paragraphs 14, 15 and 16 of your outline, is it?

MR MORRISSEY:   Yes.  So that would be – sorry your Honour, we do contend that there has been a change made by ‑ ‑ ‑

NETTLE J:   By the Act.

MR MORRISSEY:   By the Act, yes.

NETTLE J:   And it has, as it were, impliedly altered the rules, do you say?

MR MORRISSEY:   Yes.

FRENCH CJ:   Or else confirmed their correct interpretation.

MR MORRISSEY:   That is the way we would prefer to put it.

FRENCH CJ:   That is what you put in paragraph 15.

MR MORRISSEY:   Correct.  That is correct, but if I cannot sustain that argument ‑ ‑ ‑

FRENCH CJ:   Always a close to heroic proposition.

MR MORRISSEY:   If I do not prevail with that argument, your Honour, then I will seek to answer Justice Nettle’s question as I did, that it has had that effect.

FRENCH CJ:   The most direct application of the definition of civil proceeding under the Civil Procedure Act in your argument would be to an argument that sections 54 and 55 to which Justice Kiefel just referred would have any application in this case.

MR MORRISSEY:   Your Honours, contempt, we would submit, for the purposes of the Civil Procedure Act is at least quasi‑criminal.  It must fall outside of the ambit of a civil proceeding.  It is perhaps for that reason, your Honour, I maintain the stance that I do in respect to your Honour’s questions.

KIEFEL J:   Is one of the distinctions you draw from Order 75 that the person charged with contempt is defined as a respondent under 75.01, but under the order for particular discovery, 29.08, speaks about documents which are “in the possession of a party”.  That is, the discovery rules are speaking about parties to a proceeding in which there is an issue joined.  Order 75 is talking about a respondent charge, not a party to a proceeding.

MR MORRISSEY:   The joint phrase of “respondent charged” is a point of difference.

KIEFEL J:   Yes.

MR MORRISSEY:   The phraseology ‑ ‑ ‑

KIEFEL J:   That is a point in your favour, I think.

MR MORRISSEY:   Yes.  Well, we seek to adopt the – I am using this term descriptively because it is a live issue as to what is meant by criminal terminology, but we do rely upon that.  We rely upon those terms.  The use of terminology of charge, of respondent, of guilt, of punishment, all indicate an intention to pursue a procedure that is correctly characterised as accusatorial – criminal or quasi‑criminal, depending upon what proposition one is meeting.  Yes, so, we do rely upon those provisions, and there is – it is an application for punishment for the contempt.

The contempt must be specified.  One sees here, the analogy with criminal proceedings, pure and simple, is compelling, in our submission.  Albeit we recognise the points of difference, we say they are at the margins.  There is a requirement that the contempt charged be specified.  That is – this is only an analogy by way of human rights – but what is required in all criminal proceedings is particularisation of the charge in an acceptable form, and that is set out in 75.06(4).  There must be personal service of that summons or originating motion which contains the charge, in sub (5).  There must be personal service of every affidavit.

The issue concerning affidavits is not limited to the question of whether there is another power concerning affidavits in Order 45 but the fact - what we accentuate here is that it is one way – the requirement is one way.  It is open to a court to direct that evidence be heard orally and that is done on occasion but the provision of evidentiary disclosure is a one‑way street in Order 75.

KIEFEL J:   You mean in an action for contempt the usual direction from the court would be that a defence, if any, to be filed, whether it be by pleading or by evidence, the point being that the court would leave it in accordance with the order as a matter of choice.

MR MORRISSEY:   The court would not – no, we would be sterner than that in response.  We would submit there would be no question of ordering that a defence be filed or that any evidence be filed on behalf of the defendant until the close of the evidence for the applicant in that situation.  We say that is consistent with the one‑way requirement of disclosure of the charge and of the evidence by way of affidavit.

There can be no question of requiring - if the procedures are quasi‑criminal however characterised and we are using accusatorial, recognising its broad church quantity, there can be no question of requiring a defence.  There can be no question of requiring evidence to be disclosed because each element falls to be proved beyond reasonable doubt – each element of the contempt specified must be proved beyond reasonable doubt.  Everything is in issue until that is done. 

There is a direct link, we are submitting that it is not – which we will come to later – it is Justice Gageler’s question earlier as to how we use those later propositions.  We do submit that it is not appropriate to decouple the companion principle from the foundation principle, if you like, or the accusatorial system.  We would say that they are joined, they are companion principles and the onus and standard of proof set out in Woolmington do carry with it certain implications. 

What we are submitting is that the requirement that the defendant not be compelled – the respondent not be compelled to furnish any material against it is connected to and not simply an optional extra to be added to the burden and the standard of proof.  It is proof that is at issue and it is proof – because it is proof that is at issue the focus is not upon an individual shield – this is an issue we will come to subsequently but it is not an individual shield for a particular accused, the weight of which varies depending on whether the accused is a corporation or an individual person.  Rather, it concerns the mode in which proof of the elements is to be established by the prosecutor or, in a contempt proceeding, by the applicant.  It governs how they are permitted to proceed.

KIEFEL J:   Well, do you say that is the anterior question to any question of an immunity arising – a personal immunity?

MR MORRISSEY:   That is correct and that is a fundamental tenet of our argument is that when considering privileges and their application there is an anterior question, that is, whether there is indeed a power to require.  In Caltex, it was just simply uncontroversial.  There was a power to require and the focus from the beginning of each judgment was upon the question of whether or not there was a shield to be deployed against that power, whereas here, what is being put in issue is not the existence of the privilege but the power to require at all and we are saying that it is – given that Order 75 is accusatorial in nature in its own terms and consistently with modern authority, if we can make that good, then that strongly implies that there will be no requirement no matter that there be words of general import in another section.

Now, there is some other textual support, bearing in mind the time, I will press on unless I have questions to field about that.  Order 75.10 concerns the finding of guilt.  The punishments available, the sanctions available here are unique to Order 75; punishment by prison or fine or sequestration.  Coercive punishment is still punishment.

Now, I have already taken the Court to Rule 75.08(1) and (2) and the adoption of the procedure and we submit that contains an indication that the section is, if not a code, then a thorough going regulation of procedure.  Notwithstanding, that it has gaps and it certainly has an ability for the trial judge to fix such procedures as are appropriate, but subject to the overarching requirement that it be consistent with the nature of a contempt which is now very clear.  Now, ‑ ‑ ‑

FRENCH CJ:   When you talk of the accusatorial character of these proceedings, I want to be clear that you are not simply wrapping up in that the conclusions for which you are arguing in terms of the procedural unavailability, if you like, of discovery and so forth.  So, when you speak of these as accusatorial proceedings, what do you mean by that?  What in your submissions?

MR MORRISSEY:   Proceedings that ‑ they are accusatorial because – well, perhaps the starting point for this, it is an accusatorial proceeding according to our analysis because criminal punishment is at issue.

FRENCH CJ:   Well, that tells me a reason for characterising it but what does that characterisation mean?  What is the content of the characterisation?

MR MORRISSEY:   Well, the content is ‑ the use of the word consequence in Witham v Holloway suggested that it was because of that background that Justice Deane ‑ well, sorry I should say that Justice Deane’s words in Hinch which were adopted made the adoption of the “beyond reasonable doubt” standard consequential upon the visiting of criminal punishment.  Now, that is not the only way in which one might arrive at the answer but that is the way it was arrived at in that ‑ ‑ ‑

FRENCH CJ:   Does it mean anything more, in your submission ‑ I am just trying to tease out what your submission is, not expressing a view myself ‑ does it mean anything more, in your submission, that these are proceedings in which the person making the allegation of contempt must prove that allegation beyond reasonable doubt, as in a criminal proceeding?

MR MORRISSEY:   It means that and it means the companion principle that must fly with it and travel with it.  Each is entailed.

FRENCH CJ:   Which is?

MR MORRISSEY:   Which is that a person cannot, absent some clear statutory intention to the contrary, cannot be compelled to assist in proving the case against themself.

KIEFEL J:   Well, to take your points about the contempt being required to be proven, it is not just an allegation of contempt is it, under the Rule?  Rule 75.06(4) speaks of it as a charge. 

MR MORRISSEY:   Yes.

KIEFEL J:   So it is a charge prosecuted.

MR MORRISSEY:   Yes.  The use of the term “charge” imports elements. The issue of beyond reasonable doubt must focus upon something within the proceeding.  It concerns proof ‑ the term ‑ we tend to focus ‑ ‑ ‑

FRENCH CJ:   Well, what is alleged in the charge has to be proved beyond reasonable doubt.

MR MORRISSEY:   Yes, and it ‑ ‑ ‑

FRENCH CJ:   The elements of the contempt.

MR MORRISSEY:   Yes.  It is not controversial.  I appreciate that the concept of offence has its difficulties, as Justice Hayne pointed out, and all of the components can be passed, if needs be, but proof of a charge entails the proof beyond reasonable doubt of the constituent elements and it is uncontroversial, that is how contempt proceedings proceed.  Civil contempts have five elements; criminal contempts, as they describe, contain the additional one of contumacy, and there is a focus upon element.

So once that is the case, then it is those elements that must be proved, and our submission, for the reasons set out – you will see that this argument is advanced too at proposition 9 in our – I feel it keenly, your Honour, detaching the textual analysis from the principles can create difficulties in the presentation argument, so could I refer you to what is behind proposition 9 in our argument there?  Your Honours, if you like, the minimum content of a proceeding properly characterised as accusatorial would be the twin principles adumbrated in Lee v The Queen.

In contempt proceedings we are prepared, if needs be, to submit that there be other components of a criminal type of process that would necessarily be imported; for example, we would submit that there would always be a right – I am using “right” in a general term here – to make a “no case” submission and to point out that there was no evidence fit to support a particular conclusion.  If that is right, there would be a specific breach of that system if an accused person, corporate or not, were to be forced to disgorge material that assisted the applicant in discharging that onus in respect of a particular element.

BELL J:   Does it follow that where the contempt is committed in relation to a proceeding, say by the failure to comply with an order, and the other party to the proceedings brings by summons an application of the person be dealt with for contempt, that no order for costs can be made against, assuming that the party that brings the charge is successful?

MR MORRISSEY:   There is a general power to order costs in Order 75 proceedings to be found in Order 75.14.

BELL J:   Order 75.14 does it?

MR MORRISSEY:   It is framed differently, although it is not clear how its operation differs from the general costs power available under the rules.  It should be pointed out that sometimes it is assumed – and I believe it was submitted at one point that costs are not available in criminal proceedings, but that is not the case.  In summary, criminal proceedings in the Magistrates Court, those are clearly criminal proceedings, and costs are routinely awarded there, and I believe – I do not have it in front of me here but I referred the Court to Latoudis v Casey, and it is clear that costs can be awarded in such ‑ the citation of Latoudis v Casey is (1990) 170 CLR 534. I believe a summary of that can be found in Justice McHugh’s judgment.

It is not a point of distinction between a contempt and a summary criminal proceeding that costs are not available, notwithstanding what was said in Hinch, I think it may be that times have moved on and legislative schemes may be different, but Latoudis v Casey postdated Hinch, in any event.  It is quite plain that costs can be awarded in a criminal matter, certainly a summary criminal matter.  There really is not much difference between – that is a comment, I will withdraw it.  Your Honour, we would submit that in conclusion on this textual analysis ‑ in conclusion subject to questions, of course ‑ what we would submit is that the procedures in Order 75 should be construed for themselves.

Order 75 as a unit is to be construed, given that it is a section which – an order which regulates punishment – whether it is characterised as criminal or quasi‑criminal, and whatever the reach of a characterisation of accusatorial may be, what we would submit is that the procedure under 75 falls comfortably within all of them.  There are differences on the margins between the procedure under Order 75 and any given of the many types of accusatorial procedures that exist, but it is very closely analogous to summary criminal proceedings.

The judge’s ability to fashion just and appropriate processes would be exercised subject to that.  We are submitting that that contains a clear indication that coercive processes ought not to be deployed unless with a very clear statutory warrant to impose a requirement on a party.  So that Order 29.07, what we are submitting is, it has a great deal to establish and it simply fails to do so to indicate a clear intention to which we will turn in a moment.

GAGELER J: Mr Morrissey, you mentioned Order 29.07. When I spoke earlier I referred to Order 29.08. I see that the order made in this case was expressly by reference to Order 29.07(2), but is there any relevant difference between Order 29.07(2) and Order 29.08 for present purposes?

MR MORRISSEY:   The applicability of 29.08 was not tested.  It appears to be a rule that might be applied if the court were satisfied of certain matters.  So 29.08 requires the court to be – I should not say satisfied, but arises where certain preconditions are met where “it appears to the Court from evidence or from the nature of circumstances” and so on.  That is the sort of preliminary requirement that will be the subject of – arguably the subject of evidence and argument.  It is not plain in this case what might have – had that been relied upon, it is not clear how that order would have applied, so there is a difference.  Whereas Order 29.07, which is that relied upon, is simply ‑ is expressed very generally in sub (2), it may “at any stage” order any party.  There are preconditions in rule 8 which may or may not have been satisfied here.

As a secondary response we would submit that in any event 29.08 would be covered by the same sort of objections that we raise but endeavouring to answer your Honour’s question directly that is our response.  The other point I wanted to make is that ‑ ‑ ‑

FRENCH CJ:   So putting it shortly, your case depends upon reading down the generality of 29.07(2) or saying that it does not apply?

MR MORRISSEY:   Saying that it does not apply or that it does not clearly ‑ ‑ ‑

FRENCH CJ:   As a matter of construction.

MR MORRISSEY:   Correct, that is correct.  One other characteristic of 75 is that applies to corporations and no distinction is drawn between the applicable principles to be applied.  That is telling.  That is a counter indication that a different regime might apply to corporations.  One could leap swiftly to policy and say that it would be a procedural nightmare to have it done differently where you might have co‑accused, one corporate, one not, some officers, some not.  But what is important is that 75 clearly extends in its terms in 75.10 to the punishment of corporations but it is only in respect of the punishment that there is any difference.

KIEFEL J:   But does that tell us anything about whether or not the fundamental principle upon which you rely should, as a common law rule, apply to corporations?

MR MORRISSEY:   The terms of Order 75 indicate that the same procedure should apply ‑ ‑ ‑

KIEFEL J:   Well, no, it says that the procedures provided for in Order 75 should apply.  It says nothing about what other procedures, if any, subject to the fundamental principle, would be appropriate.  That is a separate question, is it not, from the construction of the order and that is one that I think you have to face at some point.  Why should the fundamental principle apply to corporations?

MR MORRISSEY:   Because different considerations apply to depriving a corporation of a shield, on the one hand, where the fundamental process remains consistent and the same to the alteration of that fundamental system of law which governs proceedings of this nature and I am assuming for this that I make good a version of the accusatorial argument.  There are several.  Such a system is coherent.  It is consistent with the rule of law.  It is predictable.  It is useful to the Court. 

It has strong – the rule of law itself may not need a policy gloss and the application of a consistent principle may not need that, bearing in mind that the accusatorial system is, in the way I am putting it in all events in its more focused way, connotes a system of law, a system of proof, a system by which the ascertaining of facts and the trying of those facts to a particular standard is imposed. 

Now, the good of having a system that operates coherently is self‑evident.  Displacing that system or fragmenting it is an entirely different question and a more fundamental question to the removal of the privilege for corporations.  The rationale for removing the privilege from corporations was a nakedly and clear policy‑based one.  It was so articulated by Justice McHugh very frankly.  That was because it was a shield in the nature of a personal right applicable – and it was appropriate there to analyse the nature of the particular defendant or the person who sought to hold and assert the right.

Not so when it comes to the system of justice that is being applied in these proceedings, and we would have it a criminal system of justice.  There is a great detriment in confusing, splitting and diminished – and derogating from that system.  The court will not readily that that was the intention of a piece of legislation unless there is a clear indication to do so.  In Caltex, there was a clear indication to do so.  A requirement was imposed openly and in terms.  So it can be done.  But it will not be done by stealth, it will not be done by accident.  It would need to be done very clearly. 

Perhaps you could test that proposition just finally by asking, rhetorically, why is it that corporations should enjoy a standard beyond reasonable doubt.  The same policy arguments might be deployed to say that corporations have so many benefits and they are a creature of law.  The very same arguments that we use to take away the privilege would take away the standard of proof as well, unless one has regard to the system.  This system of itself has an integrity that is important to protect. 

Although we have chosen not to enter into a policy or to respond to some of the policy arguments that have been put unless we have been invited to do so, it is to the great benefit of a court when imposing punishment that it is done so in a flawless manner, uncontroversial manner.  In the end, this power is designed to protect the court.  To expose the court to the burden of imposing criminal guilt to a lesser standard endangers the regard in which such findings would be held in the community.  It is awkward to impose criminal notions of punishment – general deterrence and the like – but these punishments are criminal in nature.  They are done for a reason and ‑ ‑ ‑

KIEFEL J:   Are you implying by those submissions that when you say that the system is protective of the court that if the court is making orders for discovery it might be seen to have an interest in the matter, rather than standing back and allowing the prosecution to carry forward the charge and prove it?  The court having an interest, in the sense that it is the vindication of the court’s own order that is involved and the court is already placed in a difficult position, is that the kind of argument you are putting?

MR MORRISSEY:   That is the consequential effect.  Yes, that is an argument that we put, but we have not developed that in the submissions because we have been at a fundamental level with that.  That is a clear potential effect.  We have endeavoured not to put floodgates sort of arguments or the many ill effects that might follow.  That is a potential ill effect, but it may be there is an answer to that, I am not sure.  But yes, it is an effect. 

Discovery has not so far played a part in contempt proceedings and one would be cautious to allow it in the door, if I can put that as my policy submission - the court – not merely this Court, but the Magistrates’ Court in Horsham who will be dealing with contempt and will have to decide on these matters.

GAGELER J:   Mr Morrissey, have you got to proposition 6 in your argument yet?

MR MORRISSEY:   I have not as yet.  Your Honour, I believe I have covered in the course of the discussion there proposition 2.  If your Honour is inviting me to turn to proposition 6, we have ‑ ‑ ‑

GAGELER J:   No, I just want to ask you a question at the appropriate time.

MR MORRISSEY:   It arose in the context of the discussion that we had.  I am content if your Honour wishes to ask it now.

GAGELER J:   I really want to understand the nature of the companion rule.  I just do not understand the nature of the rule.  What is its content, and what are its consequences?

MR MORRISSEY:   It is a limit upon the way in which the prosecutor or applicant is permitted to prove their case, and a limit on the way in which the court, however constituted, may come to its findings of fact, and in particular its findings as to elements of the charge that it is dealing with.

GAGELER J:   Is it descriptive of processes, or is it a proscriptive rule of the common law, and if the latter, what are its metes and bounds?  You see, as the terminology was used in Caltex, the companion rule seems to me, as articulated by Chief Justice Mason and Justice Toohey, to have been the privilege against self‑incrimination.  I may have misunderstood what they were saying, but you are divorcing this companion rule from any privilege, as I understand it?

MR MORRISSEY:   We are.  We are adopting what was said in – I am sorry, your Honour.

GAGELER J:   You will have to unpack it for me, I am afraid.

MR MORRISSEY:   Yes, very well.  We rely upon – I am sorry, because we have moved forward I do not have the passage, but it is well known to the Court, it is the passage in Lee v The Queen which sets out that there is the principle and there is the companion principle, and that the – I believe it is at paragraphs [31] and [32] ‑ ‑ ‑

BELL J:   I think it is actually at paragraph [33]:

The companion rule to the fundamental principle is that an accused person cannot be required to testify –

and it continues.

MR MORRISSEY:   Yes.  What we are submitting there is ‑ and we do rely upon the comment ‑ that was that the privilege may be lost but the principle remains.

GAGELER J:   The principle is what?

MR MORRISSEY:   The principle is that it is a limit that is directed to – I shall call it “the prosecutor”, generally appreciating that it may not be apt in a contempt, but it is a limit on the prosecutor as to how they are permitted to prove their case.  That is how it functions.  It is not to be confined in specific situations.  It is not analogous to a privilege.  It is a limit; it is a systemic limit.

We submit that going with that – and we adopt what was said by Justices Dawson, Deane and Gaudron who were not in the minority in this respect, but they made the comment that there really was no difference in terms of the incriminatory value of thesis material between documentary material and testimony.

The tenderness shown to an individual accused as far as testimony is concerned is quite different to the systemic – the system which we say is established and maintained by the companion principle.  So, it is a limit and the limit is articulated as not compelling the accused to provide proof.  We say it extends both to documentary and testimonial evidence against themselves in respect of an element of the charge, and it will impose that limit as a bottom line.  Once below that level, it becomes a tendentious issue to describe a system as accusatorial.  It can be done but it becomes – the term has a use and at the moment what we are submitting is that X7 and Lee provide the bottom line of content.

BELL J:   So the rule is those who allege must prove and implicit in this your submission is and without assistance from the person against whom the allegation is made.

MR MORRISSEY: That is correct. Yes, and our submission about that is to be found at proposition – so we have the outline of argument that was provided today is to be found at paragraph 24 of our submissions. Your Honours, there was a – in light of the timing here I would seek to turn to Order 29 and to Caltex, but not if I have further questions to deal with, but I am aware of the time. It may readily be accepted that Order 29.07(2) contained words that on their face are of general application. We will seek to deal with that.

What I would like to do, if I may, though, is to take your Honours at the outset of these submissions to proposition number 10 concerning the application of Caltex because Caltex formed a fundamental component of our learned friends’ submissions.  It is our contention that the respondents here have overstated the importance of Caltex and the ability to rely upon a rules‑based notice in criminal or quasi‑criminal proceedings. 

Now, here, it is being contended that Order 29.07(2) is in general terms and that there is no bar once the privilege has gone to applying that generally phrased rule to proceedings under Order 75, subject to judicial discretion. That is what we must meet. It is said that Caltex provides support for that because in that case it is said that a generally worded rule did give rise to a requirement to disclose documents in the hands of a corporate accused in a proceeding that was frankly criminal in nature and there is no difficulty about that.

KIEFEL J:   Was it the rules of Court which were the subject of the reasons for judgment in Caltex or the notice under section 29 of the Clean Waters Act?

MR MORRISSEY:   Generally the focus was on the section 29 notice but the rules of court were upheld and our friends rely ‑ ‑ ‑

KIEFEL J:   But not by all justices.

MR MORRISSEY:   Sorry, no, pardon me.  The rules of court, the rules‑based notice was set aside on a 3‑3‑1 basis and they are ‑ ‑ ‑

FRENCH CJ:   Justice Brennan’s particular position.

MR MORRISSEY:   Yes, Justice Brennan’s position is the subject of contention.  What we would say – the submission I am about to make here might avoid the need to try to construe what Justice Brennan may have done.  In any event, Justice Brennan does not belong to a majority on those questions.

KIEFEL J:   Well, the one thing you can say about Caltex is that there are differences of approach.

MR MORRISSEY:   Yes, it can be said.  But, your Honour, one thing that can be said about Caltex is that the rules which were at play there are different to the rules in this case and they are significantly less favourable than what may appear at first glance. Now, the specific criminal summary scheme within which the general rule was placed in that case was different to the situation that applies here. Here we have Order 75 which does not in terms import or give a role to Order 29 and if our contention be accepted it implies the reverse, so that you have in our scheme Order 29 that does have general words but is not expressly imported. Now, in Caltex, on the face of it, a similar position applied because the relevant rule was rule 16.

I mean to take the Court to these rules in some detail. It is the reason I have leapt to this now because of time issues but it may take a moment to go through these rules. What we would seek to do here is to take you through those rules and indicate that, in that case, although rule 16 which was the rule allowing for the requirement to be made which gave rise to the operation of the privileges, it found its place within a section of the New South Wales Supreme Court Rules which was openly criminal in nature. It was under the heading of “Criminal” and the subsection was under the heading of “Summary Criminal” proceedings. In other words, the criminal proceedings that faced Caltex operated under an equivalent of Order 75 but which openly and expressly imported the ability to require documents to be produced under a rules‑based notice to produce.

If I may endeavour to conduct the Court through that process now.  Your Honours have been provided with the relevant rules in the further amended authorities.  In March 1990, Caltex was charged with offences under two quite separate Acts.  The first set of offences was under the Clean Waters Act, section 16(1), which forbade the pollution of water.

The other set of offences were laid under the Pollution Control Commission Act 1970 and that concerned contraventions of conditions on a licence issued under the Environment Offences and Penalties Act 1989.  Each was to be characterised as a summary offence and the way in which the Clean Waters Act offences unfolded was that a breach of section 16(1), which was a prohibition of polluting water, constituted an offence. 

Section 33 of the Clean Waters Act provided that the proceedings for an offence may be taken before the court in its summary jurisdiction and court was defined in section 5 as being the Land and Environment Court.  The other strand of offences under 17D(9) proceeded as follows, that under the Environment Penalties Act 1989, section 8D provided for penalties for contravention and identified that such offences would be viewed as tier 2 offences, and then that Act provided the tier 2 offences were to be dealt with summarily before the Land and Environment Court in its summary jurisdiction.  That meant that each of the sets of offences were before the Land and Environment Court in its summary jurisdiction.

Now, under the legislation applicable to that court, the Land and Environment Court Act 1979, section 21 provided that:

The Court has jurisdiction (referred to in this Act as “Class 5” of its jurisdiction) to hear and dispose of in a summary manner –

each of those two classes of offence.  Under sub (b) –

proceedings under section 33 of the Clean Waters Act –

and under section (i) –

any other proceedings for an offence which an Act provides should be taken before, or dealt with by, the Court.

The Land and Environment Court had rules and the Land and Environment Court Rules of 1996, Part 6, Rule 2, sub (1) of which provided:

Division 2 of Part 75 of the Supreme Court Rules 1970 is taken to form part of these rules and to apply to proceedings in Class 5 of the Court’s jurisdiction with such adaptions as may be necessary ‑

Part 75 was headed “Criminal Proceedings”. Division 2 of that part was headed “Summary Jurisdiction”. It provided rules and it also imported, pursuant to rule 6, the following rules in application to proceedings to which this division applied. It took from Part 36 – sorry. I am reminded to tell the Court that I am now taking the Court to the Supreme Court Rules, and here we are in Part 75, Division 2 of those rules, entitled “Summary Jurisdiction”. Those rules took by express adoption into the criminal process which they regulated rules 13 and 16, and rule 16 is the requirement rule, and rule 13 is the shield rule – the privileges rule. If I can take you to those now.

Those are to be found in Part 36. They are expressly imported, and they had to be expressly imported, into Part 75. It is those rules which were set out early in the judgment of Justice Brennan and which plainly formed the background against which the Court in Caltex came to consider the privilege.  It is important because there was no issue in that case whether there was a valid requirement or not.  The question did not have to be addressed and was not addressed because it was quite clear that there was a valid power to require and that valid power was rule 16(1), which provided:

Where a party to any proceedings –

it is general in nature –

to any proceedings serves on another party notice requiring the party served to produce . . . any document . . . the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice –

Now, that provision found its way into the criminal rules because it was expressly adopted there, not because it applied of its own force.  It was qualified by rule 13, which said:

Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document –

There you have the shield and it is that shield that was in contention.  So, the position of the prosecutor in Caltex was markedly more favourable when it came to consider whether there was a requirement or not. There, there was uncontroversially a requirement in place, and focus of the judgments turned to that question. Here, Order 29 is by no means imported into Order 75 in the same terms. The analogy with Caltex is far – perhaps I will put it in other terms.  Reliance upon Caltex is far less secure than it was, and really, when you look at Order 29, that is just a generally phrased section or subsection which evinces no clear intention to apply discovery ‑ ‑ ‑

FRENCH CJ:   But if as a matter of construction it is applicable to proceedings under Order 75 are you in a different position from Caltex?

MR MORRISSEY:   I am sorry, your Honour, I did not hear the very first ‑ ‑ ‑

FRENCH CJ: If as a matter of construction Order 29 is applicable to proceedings under Order 75 are you in any different position than the position under the rules in Caltex – any relevantly different position?

MR MORRISSEY:   We are in a different position because Order 75 is more strongly resistant to the – I am misunderstanding your Honour’s question.

FRENCH CJ: I am assuming the importation of the rule of Order 29 and its applicability to Order 75 proceedings. Assuming against you that proposition, are you then in any different position that the position under the rules to which you directed our attention in Caltex?

MR MORRISSEY:   With respect, I will say no more about it.  I have two other matters in reply.  Your Honours, it has been put against us that the rules, prima facie, apply.  It may be that here that the debate as to whether the rules, prima facie, apply or whether they are applicable by a judge pursuant to a power under Order 75 is not decisive of any issue before the Court here.  

What we would say though is that where a rule deals with a criminal - or sets out a procedure that is applicable to a case or a proceeding that is at least in part criminal, then the rules of discovery have been previously held not to apply to that.  The illustration I would seek to give here is that of Clarkson v Director of Public Prosecutions [1990] VR 745. This is a case in which discovery was sought of a prosecutor by Mr Clarkson ‑ it was perhaps not the usual situation – and, at page 759, Justice Murphy speaking for the Court said:

It is clear on authority that in a civil action for a penalty, saving special –

and this was an Order 56 proceeding, an order to review proceeding –

statutory provisions, the plaintiff is not entitled to discovery of documents –

The court went on to point to differences between the prosecutor’s duty and what occurs in civil proceedings.  Whilst it would –

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 Court went on to say:

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. 

Now, we rely on that mutuality provision.  I should, in fairness, go on to say that the view taken by Justice Murphy at that time was that that rested within the privilege and he said this:

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 -

Now, of course, what we see that is in 1990 and it predates the cases which have set the landscape here.  It is very easy to point out it is specific to penalties.  What I am seeking to point out though is that it is open to find that a particular rule ousts the operation of 29.07(2) because it is criminal in nature, notwithstanding the breadth with which that rule is expressed.  So, we rely on it simply as an illustration of that point. 

Your Honours, finally a question arose from the Chief Justice concerning what is the significance of the fact that an underlying proceeding involves a tort of intimidation by unlawful means where the unlawful means is a breach of a federal Act.  We differ from our friends in respect of this and we make the following submissions.  The test of whether federal jurisdiction is invoked is cited in LNC Industries Ltd v BMW (Australia) Limited (1983) 151 CLR 575 and at 581 the test is whether or not the action in question:

owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law”.

Here, it may be argued the cause of action may be said to owe its existence to the breach of the federal statute.  It may be the position taken by my friend as well.  Without the unlawful means there is no tort of intimidation by unlawful means.  The consequence of invoking federal jurisdiction is that by virtue of 79(1) of the Judiciary Act 1903 (Cth), any laws regulating the exercise of jurisdiction including laws regulating procedure are surrogate federal laws and such laws cannot be inconsistent with Chapter III of the Constitution. To the extent that they are they will be invalid.

Now, we point out that that includes a rule of the court because rules are made under Acts and those Acts cannot confer a power to make rules that are inconsistent with the Constitution. So our submission is in fact that a rule purporting to allow discovery in contempt proceedings is likely to be unconstitutional.

GAGELER J:   You cannot make that submission in reply without a section 78B notice.  Really.

MR MORRISSEY:   Your Honour, I frankly concede that I have not been in this position before and the matter being raised by Justice French and having been addressed we raise it now, but are content obviously to abide such directions as are needed, other than to say that we flag a disagreement with our friends.

FRENCH CJ:   It is not open to you to raise that submission.

MR MORRISSEY:  As the Court pleases.  Those are the submissions.

FRENCH CJ:   Yes, thank you.  The Court will reserve its decision.  The Court adjourns until 9.45 tomorrow morning for pronouncement of orders.

AT 4.02 PM THE MATTER WAS ADJOURNED