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

The High Court of Australia considered an appeal by the Construction, Forestry, Mining and Energy Union ("CFMEU") against Boral Resources (Vic) Pty Ltd. The dispute concerned whether the CFMEU, a corporation, could be ordered to make particular discovery of documents in a proceeding brought to punish it for contempt of court. The CFMEU argued that the accusatorial nature of contempt proceedings, which requires the prosecution to prove its case beyond reasonable doubt, meant it should not be compelled to assist in that proof through discovery.

The central legal issue before the High Court was whether a corporation could be ordered to make particular discovery under rule 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in a proceeding for contempt of court, and whether such a proceeding was to be characterised as criminal or civil for the purposes of discovery. The CFMEU contended that the fundamental principle of criminal justice, that the onus of proof rests on the prosecution and an accused cannot be compelled to assist in proving the case, should limit the court's power to order discovery, even though corporations no longer hold privileges against self-incrimination or self-exposure to penalty.

The High Court reasoned that while the "companion principle" (that an accused cannot be required to assist in proving the offence) is a fundamental aspect of a criminal trial, no criminal trial was in prospect in this contempt proceeding. The Court affirmed that the common law does not afford corporations a privilege against self-incrimination or self-exposure to penalty. Furthermore, section 187 of the Evidence Act 2008 (Vic) explicitly states that a body corporate cannot refuse to comply with a requirement to produce a document or do any other act on the ground that it might incriminate it or make it liable to a penalty. The Court concluded that there was nothing in principle or otherwise about the integrity of the criminal justice system that warranted a corporate defendant in a civil contempt proceeding being spared from an order compelling discovery. The rules of civil procedure, including rule 29.07(2), operate accordingly.

The appeal was dismissed with costs.