Martin v Hillier

Case [2022] FCA 351

FEDERAL COURT OF AUSTRALIA

Martin v Hillier [2022] FCA 351

Appeal from: Application for leave to appeal: Hillier v Martin (No 10) [2022] FCA 166
File number(s): SAD 34 of 2022
Judgment of: O'SULLIVAN J
Date of judgment: 15 March 2022
Date of publication of reasons: 6 April 2022
Catchwords: PRACTICE AND PROCEDURE – interlocutory application – application for leave to appeal – production – whether applicant established a decision at first instance is attended with sufficient doubt to warrant it being considered by the Full Court – whether applicant established claim of privilege against self-incrimination – application for leave to appeal dismissed – respondent to this application has liberty to apply
Legislation:

Federal Court of Australia Act 1976 (Cth), ss 24(1)(a) & 24(1A)

Federal Court of Australia Rules 2011 (Cth), r 35.11

Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd (As Trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23; (2020) 144 ACSR 1

Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 392 ALR 1

Ensham Resources Pty Limited v Aioi Insurance Company Limited [2012] FCAFC 191, (2012) 209 FCR 1

Hillier v Martin (No 10) [2022] FCA 166

Hillier v Martin (No 4) [2021] FCA 710

Martin v Hillier (No 2) [2021] FCA 958

Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547; 1 All ER 434

Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 3) [2018] FCA 1107; (2018) 357 ALR 695
Division: General Division
Registry: South Australia
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 43
Date of hearing: 15 March 2022
Counsel for the Applicant: Mr S Ower QC
Solicitor for the Applicant: Norman Waterhouse
Counsel for the Respondent: Mr R Whitington QC
Solicitor for the Respondent: Sykes Bidstrup Solicitors

ORDERS

SAD 34 of 2022
BETWEEN:

VICTORIA MARTIN

Applicant
AND:

JAMES HILLIER

Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

15 MARCH 2022

THE COURT ORDERS THAT:

1.The application for leave to appeal the decision of Justice Anderson is dismissed.

2.The respondent to this application has liberty to apply generally NOTING that if liberty is exercised, the matter will be listed at 2.00pm on Thursday 17 March 2022.

3.The parties have liberty to apply in relation to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’SULLIVAN J

Introduction

  1. The applicant in these proceedings, Ms Victoria Martin (“applicant”), who is the first respondent to Hillier v Martin, Nordburger Operations Pty Ltd and Eric Vari Pty Ltd, SAD 113 of 2020 (“main proceedings”), seeks leave to appeal pursuant to ss 24(1)(a) and 24(1A) of the Federal Court of Australia Act 1976 (Cth) and r 35.11 of the Federal Court Rules 2011 (Cth) from an interlocutory order made 3 March 2022 by Anderson J in…

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AGLC
Martin v Hillier [2022] FCA 351
Case
[2022] FCA 351
Decision Date

CaseChat Overview and Summary

In the matter of Martin v Hillier, the application for leave to appeal an interlocutory decision regarding privilege against self-incrimination was dismissed by the court. The applicant argued that the decision at first instance was attended with sufficient doubt to warrant reconsideration by the Full Court and that substantial injustice would result if leave were refused. The primary issue before the court was whether the applicant had established a decision at first instance that was attended with sufficient doubt to warrant it being considered by the Full Court. The court found that the applicant had not established that the decision at first instance was attended with sufficient doubt to warrant it being reconsidered by the Full Court. The court considered the material provided to Anderson J and to the Court on this application, and found that production of the Xero database to the applicant in the main proceedings, which is the subject of this application, would not give rise to a substantial injustice. Therefore, the application for leave to appeal was dismissed. The legal principles that apply to the granting of leave to appeal against an interlocutory decision are well-known and the applicant must establish that the decision at first instance is attended with sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave were refused. The court found that the applicant had not established either of these limbs. The respondent to this application has liberty to apply generally and the parties have liberty to apply in relation to costs.

Orders

Orders of the court

1. The application for leave to appeal the decision of Justice Anderson is dismissed.

2. The respondent to this application has liberty to apply generally NOTING that if liberty is exercised, the matter will be listed at 2.00pm on Thursday 17 March 2022.

3. The parties have liberty to apply in relation to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Next, the applicant referred to Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, 574; 1 All ER 434, and the judgment of Lord Denning:There is the further point; once it appears that a witness is at risk, then "great latitude should be allowed to him in judging for himself the effect of any particular question": see Reg. v. Boyes (1861) 1 B. & S. 311, 330. It may only be one link in the chain, or only corroborative of existing material, but still he is not bound to answer if he believes on reasonable grounds that it could be used against him. It is not necessary for him to show that proceedings are likely to be taken against him, or would probably be taken against him. It may be improbable that they will be taken, but nevertheless, if there is some risk of their being taken-a real and appreciable risk-as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents.The applicant submits that Anderson J did not conclude that the material did not give rise to a potential contravention of the law. Rather, his Honour concluded in the circumstances, first that the material itself was not incriminating on its face, and second, that the applicant had not satisfied the requirement for there to be evidence of related civil or criminal proceedings on foot. In so doing, the applicant submits that his Honour has erred in requiring too high a threshold in relation to the question of the risk of prosecution in that he did not apply the statements of Lord Denning in Rio Tinto.No evidence of a “possibility or likelihood” of prosecution The failure to adduce evidence of related civil and criminal proceedings on foot is the second ground relied upon by the applicant. The applicant submits that Anderson J erred in that at [34] in Shi, Gordon J was not restating the propositions by Lord Denning that arose in Rio Tinto but was otherwise endorsing those propositions. On that basis, the applicant submits that taking grounds 1 and 2 together, his Honour erred in requiring too high a threshold in relation to the risk of prosecution by requiring evidence that there is a possibility or likelihood of a prosecution: Reasons [20(2)]. To make good that submission, Mr Ower QC refers to Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd (As Trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23; (2020) 144 ACSR 1 and a statement in the judgment of Wigney J at [68] when referring to the judgment of Moshinsky J in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 3) [2018] FCA 1107; (2018) 357 ALR 695 at [110] where his Honour said:… like the primary judge (Sadie Ville v DTT (No. 3) at [110]) I consider that the prospect of any prosecution of the uninvolved partners simply on the basis that, by reason of their partnership with Mr Saayman and any involved partners, they are somehow jointly liable for their offences, is theoretical rather than real. I do not consider that there is a real or appreciable risk of the uninvolved partners being prosecuted for any of the relevant offences on that basis. Indeed, the suggestion that uninvolved partners who had nothing whatsoever to do with the relevant engagements, or even knew anything about them, faced any risk of being prosecuted for a serious offence, such as the offence created by s 1041E and s 1311 of the Corporations Act, which carries a potential penalty of imprisonment, simply on the basis that they were partners of those who carried out the allegedly criminal acts, borders on being fanciful. The primary judge was correct in finding that if there was any risk, it was at best theoretical rather than real.

Decision

Reasons for decision

That being the case, the question then became whether there was any evidence of any related civil or criminal proceedings on foot which may or might give rise to the possibility or likelihood of prosecution, notwithstanding that the confidential affidavits do not disclose any information which could reasonably lead to a “real and appreciable risk of prosecution”. His Honour found that there was no evidence that suggests such a possibility or likelihood of any prosecution. In so doing, his Honour did not consider the Xero database alone, but in view of his finding of no ‘real and appreciable risk of prosecution’ on the documents themselves, his Honour was considering whether there was any other evidence that might give rise to the possibility and likelihood of prosecution. As is apparent, his Honour found there was none.Conclusion The applicant has not established that the decision at first instance is attended with sufficient doubt to warrant it being considered by the Full Court. Although, undoubtedly, questions of privilege against self-incrimination are important matters, on the material provided to Anderson J and to the Court on this application, production of the Xero database to the applicant in the main proceedings, which is the subject of this application, would not, in my view, give rise to a substantial injustice. It is for these reasons that the application for leave to appeal is dismissed.

Ratio Decidendi

Legal Principle Established

The legal principles that apply to the granting of leave to appeal against an interlocutory decision are not in doubt. In Ensham Resources Pty Limited v Aioi Insurance Company Limited [2012] FCAFC 191, (2012) 209 FCR 1, 11 [58], Lander and Jagot JJ, after referring to Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, said:The circumstances in which leave to appeal could be granted from an interlocutory decision are well-known:. Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor). The applicant must establish that the decision at first instance is attended with sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave were refused supposing the decision at first instance to be wrong. Both limbs must be satisfied.Consideration The first point the applicant makes is that his Honour did not conclude that the material did not give rise to potential contravention of the law, but concluded the material itself was not incriminating on its face. With respect to that submission, that is contrary to what Anderson J says in [20(1)]. It is apparent that in that paragraph of his reasons, his Honour is applying [34] of Gordon J’s judgment in Shi, that is to say, his Honour has found that the confidential affidavits do not disclose any information which could reasonably lead to a “real and appreciable risk of prosecution” if the relevant information is disclosed. So much so is evident from the fact that the Xero database, which is the document to be disclosed, contains financial records, none of which are incriminating on their face itself. As I have noted, that conclusion as to no incriminatory material, was accepted by the applicant. That being the case, the question then became whether there was any evidence of any related civil or criminal proceedings on foot which may or might give rise to the possibility or likelihood of prosecution, notwithstanding that the confidential affidavits do not disclose any information which could reasonably lead to a “real and appreciable risk of prosecution”. His Honour found that there was no evidence that suggests such a possibility or likelihood of any prosecution. In so doing, his Honour did not consider the Xero database alone, but in view of his finding of no ‘real and appreciable risk of prosecution’ on the documents themselves, his Honour was considering whether there was any other evidence that might give rise to the possibility and likelihood of prosecution. As is apparent, his Honour found there was none.Conclusion The applicant has not established that the decision at first instance is attended with sufficient doubt to warrant it being considered by the Full Court. Although, undoubtedly, questions of privilege against self-incrimination are important matters, on the material provided to Anderson J and to the Court on this application, production of the Xero database to the applicant in the main proceedings, which is the subject of this application, would not, in my view, give rise to a substantial injustice.