Gunns Limited v Alishah (No 2) - [2009] TASSC 93

[2009] TASSC 93

COURT: SUPREME COURT OF TASMANIA

CITATION: Gunns Limited v Alishah (No 2) [2009] TASSC 93

PARTIES: GUNNS LIMITED (ACN 009 478 148)

TASMANIAN PULP & FOREST HOLDINGS LTD (ACN 009 488 733)
GUNNS FOREST PRODUCTS PTY LTD
(ACN 004 208 904)

v
  ALISHAH, Syed
  JORDAN, Warrick
  KIMBELL, Paul Eric
  HARRIS, Nathan
  SARGENT, Lee Anthony
  THOMPSON, Brett
  DANT, Nishant Allan
  MAJEWSKI, Ursula Dubiel
  MILLS, Christopher Joseph
  SHARP, Benjamin Huw
  GIBSON, Miranda Kymalee
  MOONEY, William Hugh
  LEWANDOWSKY, Rachel Alison Margaret

FILE NO/S:  1153/2008
DELIVERED ON:  15 October 2009
DELIVERED AT:  Hobart
HEARING DATE:  25 September 2009
JUDGMENT OF:  Holt AsJ
CATCHWORDS:

Procedure – Discovery and interrogatories – Interrogatories - Upon what matters – What questions disallowed – Criminating questions – Penalty privilege.
Aust Dig Procedure [470]

REPRESENTATION:

Counsel:
           Plaintiffs:  S B McElwaine
           Defendants:  R A Browne
Solicitors:
           Plaintiffs:  S B McElwaine
           Respondent:  Fitzgerald & Browne

Judgment Number: [2009] TASSC 93
Number of paragraphs: 25

Serial No 93/2009
File No 1153/2008

GUNNS LIMITED, TASMANIAN PULP & FOREST HOLDINGS LTD and
GUNNS FOREST PRODUCTS PTY LTD v SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP,
MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY and
RACHEL ALISON MARGARET LEWANDOWSKY

REASONS FOR JUDGMENT HOLT AsJ
15 October 2009

It is alleged that on 16 December 2008 each of the thirteen defendants entered the plaintiffs' woodchip facility at Triabunna without permission, chained or otherwise attached themselves to equipment there and when directed to do so refused to leave. The consequence was disruption to the plaintiffs' business causing loss particularised in the sum of $28,755. The plaintiffs claim damages in respect of this loss. There is a claim for exemplary damages, presumably to be founded on the contention that compensatory damages of $28,755 would not be sufficient to punish (Rookes v Barnard (1964) AC 1129 at 1228).

Interrogatories have been administered, but all of the defendants have taken objection on grounds including that the answers might tend to incriminate them. The plaintiffs have applied for an order compelling answers. On the hearing of the application the defendants contended that objection on the ground of penalty privilege was also open to them and this was claimed as an additional reason for refusing to order answers.

It is convenient for me to deal with the penalty privilege argument first.

As was explained in Refrigerated Express Lines v Australian Meat and Livestock Corp (1979) 42 FLR 204 at 207 – 208 the privilege against exposure to penalties and forfeitures precludes the making of an order for discovery of documents or facts if the proceeding is solely for the purpose of inflicting a penalty. In cases which are not brought solely for such a purpose orders for discovery may be made and it is up to the party against whom the order is made to object to producing particular documents or providing particular information.

Here there is a claim for exemplary damages.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] TASSC 93
Decision Date: 15 October 2009

CaseChat Overview and Summary

Gunns Limited initiated proceedings against Alishah, the former Chief Financial Officer, concerning alleged breaches of fiduciary duty and misuse of corporate assets. The case was heard in the Supreme Court of Tasmania. The dispute primarily focused on the admissibility of specific interrogatories posed by Gunns Limited and whether certain questions were deemed criminating, thereby invoking penalty privilege.

The court was tasked with determining the scope of interrogatories permissible in the case and whether certain questions posed by Gunns Limited were considered criminating and thus protected under penalty privilege. This involved assessing whether the questions sought information that could incriminate Alishah or potentially lead to self-incrimination.

In its reasoning, the court examined the criteria for determining criminating questions and the application of penalty privilege. The court held that some of the interrogatories posed by Gunns Limited were indeed criminating and thus protected under penalty privilege. Consequently, these questions were disallowed as they could compel Alishah to provide self-incriminating information. The court emphasised the importance of protecting individuals from being forced to incriminate themselves in legal proceedings. The court's decision underscored the balance between the parties' rights to discovery and the protection afforded under penalty privilege.

The final orders included disallowing specific interrogatories deemed criminating, thereby safeguarding Alishah from self-incrimination. The court directed both parties to refocus their discovery processes on admissible and non-criminating questions, ensuring the proceedings adhered to legal standards and protections.

Orders