Hadgkiss v Blevin

Case [2003] FCA 1083

FEDERAL COURT OF AUSTRALIA

Hadgkiss v Blevin [2003] FCA 1083

PRACTICE & PROCEDURE – Notices to Produce – Privilege Against Self-incrimination – where claim for civil penalty – where applicant undertakes not to us produced documents against those respondents protected by privilege – where undertaking cannot prevent the possibility that the documents will have direct or indirect incriminating consequences

Workplace Relations Act 1996 (Cth)

Alfred v Walter Construction Group Ltd [2003] FCA 993

Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132

Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204

Reid v Howard (1995) 184 CLR 1
Sorby v Commonwealth (1983) 152 CLR 281

NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE v ALAN BLEVIN, JOSEPH MCGAHAN AND CONSTRUCTION FORESTRY MINING AND ENERGY UNION

N 414 OF 2003

BENNETT J
9 OCTOBER 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N414 OF 2003

BETWEEN:

NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE
APPLICANT

AND:

ALAN BLEVIN
FIRST RESPONDENT

JOSEPH MCGAHAN
SECOND RESPONDENT

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
THIRD RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

9 OCTOBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s request for access to the documents produced by the first and second respondents under paragraphs 1, 2 and 4 of notices to produce filed 26 August 2003 is refused.

2.The notices to produce are otherwise stood over to 20 October 2003.

3.The documents produced under the notices to produce are to remain with the Court until further notice.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N414 OF 2003

BETWEEN:

NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE
APPLICANT

AND:

ALAN BLEVIN
FIRST RESPONDENT

JOSEPH MCGAHAN
SECOND RESPONDENT

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
THIRD RESPONDENT

JUDGE:

BENNETT J

DATE:

9 OCTOBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant has served notices to produce documents on the first and second respondents in the following terms:

    ‘The Applicant requires you to produce …

    1.Any records in relation to the [respective] Respondent’s employment with any company or organisation during the period June to December 2002, including (without limitation) payslips, employment contracts or correspondence.

    2.A copy of the [respective] respondent’s tax return for the period 1 July 2002 to 30 June 2003.

    3.Copies of any permit issued to the [respective] respondent under any section or part of the Workplace Relations Act 1996 (Cth) or the Industrial Relations Act 1996 (NSW).

    4.Any document recording or relating to the appointment and/or functions of the [respective] respondent as [an employee or delegate] officer or other representative of the Third Respondent or the Construction Forestry Mining and Energy Union (New South Wales Branch) (the state union).

    5.Any document relating to or concerning Conrado de los Reyes’ employment or contract work at the site at Lot 98,…

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Details
AGLC
Hadgkiss v Blevin [2003] FCA 1083
Case
[2003] FCA 1083
Decision Date

CaseChat Overview and Summary

The case of Hadgkiss v Blevin involved the applicant seeking access to documents produced by the first and second respondents under notices to produce. The documents were sought for the purpose of establishing a case against a third respondent, but the applicant argued that such access would not infringe upon the privilege of the first and second respondents. The court had to decide whether the applicant's access to the documents would indirectly infringe upon the legal privilege of the first and second respondents, and whether such access was necessary for the case against the third respondent. The court held that granting access to the documents would likely result in the indirect use of information against the first and second respondents, thereby infringing upon their legal privilege. The court refused the applicant's request for access to the documents and ordered that they remain with the court until further notice.

The legal issues before the court were whether the applicant’s access to the documents would indirectly infringe upon the legal privilege of the first and second respondents and whether such access was necessary for the case against the third respondent. The court considered the principle that a defendant in proceedings solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing their liability to the penalty. The court also considered the possibility that in perusing the documents for the purpose of determining their relevance to the case against the third respondent, the applicant would obtain information relating to the first and second respondents or open up a line of inquiry in the case against them. The court concluded that granting access to the documents would likely result in the indirect use of information against the first and second respondents, thereby infringing upon their legal privilege.

The court's reasoning was based on the principle that a defendant in proceedings solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing their liability to the penalty. The court also considered the possibility that in perusing the documents for the purpose of determining their relevance to the case against the third respondent, the applicant would obtain information relating to the first and second respondents or open up a line of inquiry in the case against them. The court refused the applicant's request for access to the documents and ordered that they remain with the court until further notice.

ORDERS:
1. The applicant’s request for access to the documents produced by the first and second respondents under paragraphs 1, 2 and 4 of notices to produce filed 26 August 2003 is refused.
2. The notices to produce are otherwise stood over to 20 October 2003.
3. The documents produced under the notices to produce are to remain with the Court until further notice.

Orders

Orders of the court

1. The applicant’s request for access to the documents produced by the first and second respondents under paragraphs 1, 2 and 4 of notices to produce filed 26 August 2003 is refused.

2. The notices to produce are otherwise stood over to 20 October 2003.

3. The documents produced under the notices to produce are to remain with the Court until further notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BENNETT J
Counsel also suggests that, to protect the use of a tendered document, it be subject to a confidentiality order on tender to avoid the subsequent use of the document (which would otherwise be in the public arena by reason of an open tender in proceedings) by other persons in other proceedings, such as a person within s 298T(2) of the Act.Conclusion Mr Fernon concedes that before granting access, I would need to be satisfied that there is no risk the documents could be used to aid the case as against the first or second respondents. The applicant has offered undertakings designed to avoid or diminish the likelihood of any such risk. I am mindful, however, of what was said in FFE at [13] (above) and again at [27]:‘However, the Commission points to the undertaking that it has proffered and says that the consequence of the undertaking is that it would not be able to make any use of statements filed that would be inconsistent with the rationale for the privilege. However, the existence of the undertaking cannot be determinative of the question. Either the privilege is infringed by the proposed direction or it is not. If the privilege is infringed, then the undertaking does not justify infringement. The respondent cannot be required to surrender a privilege in return for protection different from that which the law provides.’ As was said by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204, a case approved in a number of cases in this Court, at 207-208:‘It is a well-established principle that a defendant in proceedings which are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing his liability to the penalty … [A] court should, in the absence of statutory provision to the contrary, refuse to make any order at all against the defendant for discovery or production of documents or provision of information for the reason that the whole and avowed object of the proceedings being the imposition and the recovery of a penalty, an order for the production of documents or provision of information against the defendant can, so far as the prosecutor of the action is concerned, properly have no other intended consequence…’ While, in the present case, another ‘consequence’ is put forward, that is, the case against the third respondent, the principle as stated by Deane J argues against granting access, particularly where the actions of the first and second respondent are, by reason of s 298B(2), taken to be the actions of the third respondent. The real risk must be that, in perusing the documents for the purpose of determining their relevance to the case against the third respondent, it is highly likely (and the contrary has not been argued or established) that the applicant will obtain information relating to the first and second respondents or open up a line of inquiry in the case against them. If such information were present, despite the best intentions on the part of the applicant and his legal advisers, the benefit of the privilege would have lessened and the possibility may arise that indirect or derivative use would be made of that information as against the first and second respondent.

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

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