Maggbury Pty Ltd & Gisma Pty Ltd v Hafele Australia Pty Ltd

[2000] QCA 1

[MAGGBURY PTY LTD & Anor v HAFELE AUSTRALIA PTY LTD & Anor]

[2000] QCA 1

COURT OF APPEAL

DAVIES JA

No 512 of 2000

MAGGBURY PTY LTD  First Respondent/
(ACN 011 007 793)  First Plaintiff

and

GISMA PTY LTD  Second Respondent/
(ACN 072 964 311)  Second Plaintiff

and

HAFELE AUSTRALIA PTY LTD               
(ACN 006 021 432)  First Defendant

and

HAFELE GmbH & CO  Appellant/
  Second Defendant

BRISBANE

..DATE 10/01/2000

ORDER

DAVIES JA:  This is an application for a stay of orders made by Justice Fryberg on 6 January this year.  The orders, if I may summarise them, were orders for production of specified documents and an order giving leave to administer interrogatories.  Those orders have not been taken out and I need hardly say no notice of appeal has been filed to this Court.  However, I have proceeded to hear this application to stay those orders on the undertaking of Mr Douglas QC for the applicant to take those orders out and to file a notice of appeal in terms of Exhibit JPD2 to the affidavit of
Mr Dy which has been filed in this Court.

It is not appropriate for me to embark upon any analysis of the correctness of his Honour's decision in this application but I should say something about those orders and his Honour's reasons for them.  The objection put before his Honour to the production of those documents and to the interrogatories was an objection based upon the privilege against self-incrimination and the argument before his Honour, in so far as it is relevant before me, centred around that question.

With respect to the application for production his Honour said that the applicant before this Court, the second defendant, had failed to show a bona fide apprehension of incrimination on reasonable grounds and his Honour cited some authorities for that proposition. His Honour reached that conclusion with, as Mr Douglas pointed out to me, a greater standard of satisfaction with respect to the individual defendants than with respect to the corporate partner of the second defendant, but with respect to the latter, his Honour also reached his conclusion in reliance on Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 for the conclusion that as a corporation it was not entitled to claim the privilege.

Mr Douglas has correctly, in my view, pointed to the difficulties of finding a ratio in that decision relevant to this case as indeed did his Honour Justice Fryberg.  However, his Honour reached the conclusion, which it is unnecessary for me to discuss further, that the correct ratio of that case did not assist the second defendant's argument in this respect. 

The first of those grounds for his Honour's rejection of
Mr Douglas' argument below is also supported by a passage, which I cited to Mr Douglas during the course of argument, from the judgment of Chief Justice Gibbs in Sorbey v The Commonwealth 152 CLR 281 at 289.

The evidence which was placed before his Honour in this respect appears to have been in the form of statements about rather than the relevant documents themselves.  The documents themselves were in a foreign language and they were, I was told today, deliberately kept out of the precincts of the Court in any event. 

The consequence of both of these is that his Honour was precluded from arriving at any conclusion himself as to whether there was any reasonable ground to apprehend danger to any of the partners of the second defendant from being compelled to produce those documents.  The appeal therefore seems to be in this respect an appeal on a question of fact upon which at the moment it seems to me his Honour was probably correct.

The application so far as it related to the interrogatories was decided by his Honour on the grounds I have already mentioned but also on the additional ground that this was an application for leave to deliver interrogatories, that the claim for privilege was premature and that the time to make it was at the time of answering those interrogatories.  That seems to me to be also correct.

I then come to consider the application for the stay on the basis, though it is a tentative one and not intended in any respect to preclude the view of this Court when it hears the appeal, that the appeal has little prospects of success. 

The application which was made before his Honour for a stay and which was made here today was based on the ground of irremediable harm to the applicant, the second defendant, if the appeal were to later succeed because it was submitted that even if it is correct, and that does not seem to be disputed, that the documents themselves would be inadmissible in contempt proceedings, if the appeal were to succeed nevertheless, the disclosure of those documents at this stage might or would lead to a train of inquiry which would unfairly advantage the plaintiff/respondent in its contempt proceedings against the applicant.

In that respect, the applicant relies on a paragraph in the affidavit of Mr Dy to the effect that he has expressed the opinion that the documents if disclosed would, as he put it, certainly lead the plaintiffs to a line of inquiry which would allow them to make further inquiries with third parties thereby prejudicing the second defendant in the conduct of its defence of the contempt proceedings.  But as with the application before Justice Fryberg, no attempt has been made to put any evidence before me which would satisfy me of that possibility.  I am disinclined to accept the opinion of Mr Dy to this effect in the circumstances of this case and the likely prospects of success of the appeal.

In any event, the respondent to this application submits that if the appeal were successful then not only would the documents not be admissible in contempt proceedings against the applicant but so also would any evidence uncovered as a result of a train of inquiry revealed by those documents. 
Mr Douglas, whilst not disputing the correctness of that proposition as a proposition of law, submitted that as a matter of practicality it might be difficult to prove what later evidence was obtained as a result of that train of inquiry and what was not and there is no doubt a good deal of substance in that submission.  Nevertheless, the submission is as a matter of law a good one. 

The more serious problems are those which I have already indicated, it seems to me.  The weakness of the prospects of success on appeal, the fact that they are primarily in respect of a finding of fact by the learned primary Judge and the failure of the applicant to produce evidence to satisfy me that the possibility of disclosure would or even may open up a line of inquiry which is likely to harm the defendants if it is later held that the documents are not admissible.

For those reasons therefore I would refuse the application with costs.

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