Enichem Anic Srl v Anti-Dumping Authority

[1992] FCA 579

Re: METROPLAZA PTY LIMITED
And: GIRVAN NSW PTY LIMITED (IN LIQUIDATION); C.C. (NEW SOUTH WALES) PTY
LIMITED (IN LIQUIDATION) formerly known as CONCRETE CONSTRUCTIONS (NSW) PTY
LIMITED; LEIGHTON CONTRACTORS PTY LIMITED; HOLLAND STOLTE PTY LIMITED; THE
MASTER BUILDERS ASSOCIATION OF NSW; AUSTRALIAN FEDERATION OF CONSTRUCTION
CONTRACTORS and JOHN CUNNINGHAM
No. N G5 of 1992
FED No. 579
Discovery and Interrogatories
(1992) 14 ATPR 41-187
(1992) 37 FCR 91

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Discovery and Interrogatories - interrogatories - whether refusal to answer interrogatories based on claim of privilege against self incrimination soundly based - whether answers which might expose interrogated party to civil liability for breaches of Trade Practices Act 1974 (Cth) or liability at common law or statute capable of basing claim to assert the privilege - whether answers to interrogatories breach s 17(2) Royal Commissions Act 1923 (NSW).

Trade Practices Act 1974 (Cth) - s 45A(1), s 45(2) s 52(1)

Crimes Act 1900 (NSW) - s 78B(A)

Royal Commissions Act 1923 (NSW) - s 17(2)

Navair Pty Limited v Transport Workers Union of Australia (1981) 52 FLR 177

Re Master Builders Association of New South Wales v Plumbers and Gasfitters Employees Union of Australia (1987) 14 FCR 479

Tripodi v The Queen (1961) 104 CLR 1

HEARING

SYDNEY

#DATE 29:7:1992

Counsel for the applicant: B. Coles, QC

with D.J. Hammerschlag

Instructed by: Rosenblum and Partners

Counsel for the first respondent: No appearance

Counsel for the second respondent: R. Dubler

Instructed by: Corrs Chambers Westgarth

Counsel for the third respondent: C.P. Comans

Instructed by: Robin Lee Maxam

Counsel for the fourth respondent: M.R. Ellicott

Instructed by: Addisons

Counsel for the fifth, sixth and
seventh respondents: J.A. Simpkins

Instructed by: Colin Biggers Paisley

Counsel for the cross respondent: F. Kunc

Instructed by: Dunhill Madden Butler

ORDER

The court orders that:

1. the claim to refuse to answer interrogatories administered based on the privilege against self-incrimination be upheld in relation to the questions identified in the judgment be upheld;

2. the claim to refuse to answer questions 22(e) and (f) in the interrogatories directed to the seventh respondent based on s 17() of the Royal Commissions Act 1923 (NSW) be upheld;

3. the applicants pay the costs of the respondents, to be agreed or taxed;

4. if taxation of costs is necessary, the taxing officer should give appropriate consideration to whether more than one set of costs should be allowed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

In this matter the applicant has served notice to answer interrogatories on each of the seven respondents. The notices are in substantially similar terms. I shall make more detailed reference to the terms of the notices later in these reasons. Each of the respondents has declined to answer the interrogatories claiming, inter alia, the privilege against self-incrimination. The question before me substantially is whether or not this privilege has been soundly claimed and is soundly based. The applicable principles in relation to this privilege may be regarded as well established. I have been referred to a number of authorities during the course of careful argument by counsel. In my opinion it is sufficient that I refer only to the following passage from the judgment of Evatt J. in the case of Navair Pty Limited v Transport Workers Union of Australia (1981) 52 FLR 177 at 193:

"The principles relating to such objection are well established and have been succinctly set out in Re Intercontinental Development Corporation Pty Ltd ((1975) 1 ACLR 253 at 259) by Bowen C.J. in Equity, Supreme Court of New South Wales (as he then was): 'Before turning to the particular questions, it is convenient to refer to the law relating to this head of privilege....The question is as to when this objection may properly be taken. The position appears to be that a witness is entitled to refuse to answer a question on the ground that the answer may incriminate him, if the answer may tend to expose the witness, or the husband or the wife of the witness, to a criminal charge or penalty or forfeiture...The bare oath of the witness that he is endangered is not to be regarded as necessarily conclusive of a matter. It is for the court to consider from the circumstances of the case, and the nature of the evidence the witness has called upon to give, whether there is reasonable ground to apprehend danger of prosecution or forfeiture if the witness is compelled to answer. The danger must be real and appreciable, and not of an imaginary or insubstantial character. If there is a risk, the court does not generally go into the question of whether it is probable or not that proceedings will in fact be taken. Two other comments may be made, namely, that a question which at first sight may appear innocent may, by affording a link in the chain of events, become a means of bringing home an offence to a witness, (see Osborne v London Dock Co.

((1855) 10 Ex 698;, 156 ER 620). Once the court is of the view that the witness is in danger, some latitude will be allowed to the witness in judging for himself the effect of any particular question (see Boyces' case ((1861) 1 B and S, at p 330; 121 ER, at p 738).'"

1. I should perhaps indicate that I am satisfied that this passage applies not only in respect of evidence sought from the witness in court but also in relation to other areas of evidence such as answers to interrogatories, discovery and the like.

2. It is equally clear that the privilege may be claimed by corporations as well as by natural persons. (See the discussion of the authorities by Gray J. in Re Master Builders Association of New South Wales v Plumbers and Gasfitters Employees Union of Australia (1987) 14 FCR 479 at 484-486). It is similarly clear that it can be claimed not only on the basis that the evidence sought might expose the witness to criminal prosecution or conviction but also on the basis that there may be exposure to pecuniary penalty.

3. In determining whether the privilege has been properly claimed by the respondents in this matter regard must be had in the first instance to the case brought by the applicant against the respondents. This case is very fully set out in the initiating document which is an amended summons. Before referring to portions of that document I should perhaps indicate that the applicant was a building developer. The first four respondents were construction companies at the relevant time. The fifth and sixth respondents were associations of builders and construction contractors and the seventh respondent was an officer of the sixth respondent.

4. In the portion of the summons headed "Nature of Dispute", the following description of matters raised by the plaintiff is set out:
   

"Claim by the Plaintiff as developer of a substantial construction project at North Sydney for recovery of moneys or damages resulting from collusive arrangements between the Defendants with respect to tenders furnished to the Plaintiff in response to invitations to tender extended by the plaintiff to a number of substantial construction companies.

The tender invitees are alleged to have agreed between themselves with the support and encouragement of two trade associations to 'load' their respective tenders with additional amounts totalling $3,000,000, of which $2,000,000 would be paid by the successful tenderer to the other unsuccessful tenderers and the remaining $1,000,000 was to be divided between the two trade associations. The Plaintiff in due course accepted one such tender, which relevantly incorporated the $3,000,000 loading, in ignorance of the collusive arrangements to that effect made between the Defendants."

The portion I am referring to concluded, after a passage to which I do not need to make reference, with the words:

"The practices of which the Plaintiff complains have come to light as a result of the Royal Commission into Productivity in the Building Industry in New South Wales, and the evidence given thereat."

In a portion of the document entitled "Issues Likely to Arise", there appears as a statement of one such issue:

"Whether the conduct of the Defendants constitutes a price fixing arrangement in contravention of the provisions contained in Part IV of the Trade Practices Act, 1974."

There also appears the statement of issue:

"Whether, in the circumstances, the Defendants have conspired or combined to cause injury and damage to the Plaintiff."

Also, the issue is stated:

"Whether each of the Defendants is liable to repay to the Plaintiff certain amounts of money respectively received by it, by reason of having been unjustly enriched in consequence of receipt of the same, or whether each is liable to account for such moneys to the Plaintiff as moneys had and received."

1. As part of the claim it may be noted that the plaintiff seeks an order directing judgment in its favour against the defendants for the sum of $3 million to which reference has been made.

2. In a portion of the summons entitled "Summary of Plaintiffs Contentions", detailed allegations are made in furtherance of the general claims to which I have made reference, namely of conduct in breach of the Trade Practices Act 1974 (Cth) (the "Act") and also conduct amounting to a common law conspiracy. It is unnecessary to set that material out in detail in these reasons, however reference should be made to the allegation, appearing in paragraph 6 of this portion, that:
   

"In or about October 1988 is was agreed by and between each of the Tenderers and further or alternatively between each of the Tenderers and the Fifth, Sixth and Seventh Defendants that in connection with the respective proposed tenders to the Plaintiff for the execution and completion of the project:

(a) the successful tenderer should pay amounts totalling $2,000,000.00 to the four remaining unsuccessful tenderers at the rate of $500,000.00 for each such unsuccessful tenderer; and

(b) the successful tenderers should pay further amounts totalling $1,000,000.00 by way of 'special fees' in amount of $500,000 to each of the (fifth and sixth respondents)."

1. In further particulars provided it is contended that the agreement was made at meetings at the premises of the sixth respondent at St Leonards on 18 October 1988 and on 21 October 1988 and at other times and places unknown to the plaintiff. It is alleged in these particulars that the respondents were present at these meetings, being represented by certain officers of each of them and that agreement in the terms alleged was reached between those persons.

2. It is further alleged that the agreement was implemented in accordance with its terms, that a collusive and inflated tender was made, which was accepted by the plaintiff, and that payments pursuant to the agreement were made to the unsuccessful tenderers, the amounts of the payments being set out.

3. On the basis of these allegations of fact, the applicant in the summons claims that the agreements and arrangements referred to were made in contravention of the provisions of s 45(2) read with s 45A(1) of the Act. A claim is also made that the tender in itself was not a bona fide tender and contained relevantly misrepresentations which involved breaches of s 52(1) of the Act. Finally, a claim is made for the tort of common law conspiracy. This claim is clearly based upon the alleged understanding or agreement already referred to. It is made in two ways: first as an unlawful conspiracy to cause injury and damage to the plaintiff by:
   

"Procuring that each Tenderer amongst them, if successful, would at the plaintiff's direct or indirect expense pay secret fees to the unsuccessful tenderers and the fifth and sixth respondents."

And secondly, a conspiracy is pleaded that the plaintiff would be injured by unlawful means namely by:-

"(a) entering into agreements or arrangements with each other in contravention of s 45A(1) of the Act;

(b) deception and dishonestly obtaining for themselves and each other money in contravention of s 178BA of the Crimes Act 1900 (NSW); and

(c) engaging in misleading and deceptive conduct in contravention of s 52 of the Act."

1. Particulars supplied in relation to these claims in the summons refer to the meetings to which I have already made reference, and to the agreement to inflate the tender price by the amount of $3 million and to the agreement for the subsequent payments to the unsuccessful tenderers and to the two industry organisations. It is in relation to this set of claims that the applicant has sought to administer the interrogatories which are at issue in these proceedings.

2. Although separate sets of interrogatories were, of course, issued to each defendant it has proved unnecessary to examine each separate set. They are largely repetitive and the questions arising, with one exception, are common to all. Consequently, my decision in respect of one set of interrogatories will cover the same matters arising in respect of the other sets.

3. This approach has been facilitated by the general agreement that the interrogatories fall into three groups namely; first, those interrogatories which deal with the meetings to which I have made reference. Secondly, those which relate to the payments made to unsuccessful tenderers and to the two industry associations and thirdly, those relating to answers given and appearing on the transcript of the proceedings before the Royal Commissioner in New South Wales.

4. Save for one matter, those relating to the transcript are no longer in issue between the parties. Mr Coles, QC on behalf of the applicant, has not pressed the final question in the set of questions which appear in relation to transcript references and all parties except the seventh respondent have indicated agreement in those circumstances to answer the previous questions. I might add that those questions appear to have no purpose other than to facilitate proof of what was said by certain persons before the Commissioner in their evidence. The question that has been withdrawn is one seeking an admission as to the truth of the answers so given.

5. The case of the seventh respondent is different. He, in fact, gave evidence before the learned Royal Commissioner and certain of the questions directed to him in the notice of interrogatories served upon him relate to answers that he personally gave. They are to be found in question 22(e) and (f). By those questions he is asked to admit that answers given by him in the transcript before Commissioner Holland reflect what was said by him and also by counsel assisting the commission in questions directed to him. The point is taken by counsel on his behalf that for him to be required to answer those questions would transgress s 17(2) of the Royal Commissions Act 1923 (NSW) in circumstances where that section had been made applicable to the particular Royal Commission. That section reads:
   

"An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings."

1. It may be observed that the section does not precisely cover answers sought by the administration of interrogatories. Indeed, the objection to the admission of evidence as being in contravention of this section should no doubt properly be taken only when an attempt is made to put an answer into evidence in the course of actual litigious proceedings. However, as the point has been taken I have formed the view that it is pointless to require an answer to paragraphs 22(e) and (f) as inevitably any attempt to use that answer in later proceedings would fall foul of the section.

2. Moreover, I have also formed the view that the requirement of an answer to these questions would fall foul of the principle against self-incrimination in accordance with the exposition of it which appears earlier in these reasons.

3. Objection has also been taken to answering the first four questions of question 22. These are in similar form to the questions to which I have already made reference in the notice to answer interrogatories served on the other respondents. I can see no reason why a similar decision should not be given in respect of these. In my view, they are answerable and should be answered there being no demonstrated contravention of the principle against self-incrimination.

4. I turn then to determine whether the interrogatories relating to the events of the meetings of October 1988, and the payments of monies to the unsuccessful tenderers and the industry organisations, should be disallowed on the basis of the claim of privilege against self-incrimination. I have had regard to the interrogatories administered to the second respondent as being typical of the interrogatories administered in relation to these topics to all respondents. The interrogatories in relation to the meetings of October 1988 read as follows:
   

"1A. Did Mr Peter Woollard or any other representative of the Second respondent, attend any meeting during the period 1 October 1988 to 31 October 1988 at which any of the following were present:

(a) any representative of the following tenderers for the Metroplaza project, namely Girvan NSW Pty Limited, (Receiver Appointed) (In Liquidation), Leighton Contractors Pty Limited, Hollands Stolte Pty Limited and Multiplex Constructions Pty Limited, including David May, Leon Dixon, Harry Shead, Don Smythe and Geoff Palmer.

(b) any representative of the Master Builders Association of New South Wales, including John Twyford and Wendy Roydhouse.

(c) any representative of the Australian Federation of Construction Contractors, including John Cunningham and Geoff Sexton; and

(a) at which the subject of 'a tender fee', 'tender fees', 'unsuccessful tenderers fees', or 'special fees' was discussed."

1. The second respondent objected to answering these interrogatories on the ground that:
   

"to do so may tend:-

(a) to expose the Second Respondent to the imposition of a civil penalty pursuant to ss 76 and 77 of the Trade Practices Act for contravention of s 45 by virtue of the operation of s 45A of the Trade Practices Act and;

(b) to expose the Second Respondent to criminal liability in respect of the offences of conspiracy to defraud, at common law, and obtaining money by deception, in contravention of s 178B(A) of the Crimes Act 1900

(NSW)."

1. A further set of questions in relation to the meetings was objected to on the same grounds. It is appropriate to note at this point that the references to the contravention of the Act are identical with the contraventions asserted to found civil liability in the summons. Equally, the references to the common law of conspiracy to defraud and the statutory offence under s 78B(A) of the Crimes Act 1900 (NSW) (the "Crimes Act") form part of the allegations of conspiracy relied upon in the summons. Similar objections in similar terms were made to similar interrogatories in all of the other notices. The notice served upon the second respondent goes on in paragraph 3 and following to seek answers to questions relating to amounts of money received by the respondents.

1. The questions are posed in relation to references to such amounts in particular documents and questions are asked as to whether the amounts were paid or received pursuant to any agreement, arrangement or understanding. It appears, with quite sufficient clarity, that these questions are directed to the amounts allegedly paid in the summons. The questions, if answered in the affirmative, would certainly tend to establish that those amounts had been paid as a result of the agreement referred to in the summons and sued upon.

2. The claim for immunity from answering on the basis of self-incrimination is framed in exactly the same way as the answers to which I have made previous reference, namely, it is asserted that answers given to those questions might expose the second respondent to the imposition of a civil penalty in respect of breaches of the relevant sections of the Act or to criminal liability in respect of conspiracy or breach of s 78B(A) of the Crimes Act.

3. It has been conceded, on behalf of the applicant, that there exists in each of the respondents a genuinely held apprehension that proceedings may be taken against them in respect of the matters alleged in these summons by the Trade Practices Commissioner for a pecuniary penalty in respect of breaches of the Act alleged, or that criminal prosecutions may be brought in New South Wales in respect of the conspiracy and the statutory offence alleged. The main contention which has been advanced by the applicant against the upholding of the claim for privilege amounts to an assertion that the material placed before me does not make it sufficiently clear that there is a basis for the claim of privilege established.

4. It is also submitted that, at least in respect of some of the questions answered, there would appear to be no reasonable basis for the claim. In particular, it is said that questions which seek information as to what representatives of other respondents had to say at the meetings could not reasonably ground any claim that such answers would breach the privilege against self-incrimination. Indeed, that was one of the main contentions put forward on behalf of the applicant's continued insistence that the questions be answered. I do not think that this submission has any weight. One must bear in mind that the a claim is made in the summons for civil conspiracy.

5. In circumstances where conspiracy is asserted it is, of course, trite law, in accordance with what is generally described as the "Tripodi" principle (see Tripodi v The Queen (1961) 104 CLR 1), that once some prima facie evidence exists of an agreement of an unlawful kind, then overt acts and statements in furtherance of that agreement by one party to it are admissible against other parties.

6. I am quite satisfied that the claim for privilege is well-founded and has been sufficiently proved. In those circumstances, I uphold the claim. The result of that is that the particular interrogatories which are directed to the two topics which I have been considering, and which can be readily identified by the parties in the notices, need not be answered.

7. Although there has been no motion filed in these proceedings by either party I am tolerably satisfied that what has occurred can properly be described as an adversarial proceeding with one side asserting that the privilege should not attach and the respondents asserting that it should. I think in all the circumstances the appropriate order is that costs follow the event.

8. I order that the applicant pay the costs of the respondents, to be agreed or taxed. I think I should give a direction that if taxation is necessary that the taxing officer should give appropriate consideration to whether more than one set of costs should be allowed in circumstances where indeed the contest was, for practical purposes, the same in respect of each respondent.