Medina, A v Copenhagen Handelsbank International S.A
[1989] FCA 103
•10 MARCH 1989
Re: ANTHONY MEDINA AND CHERYL ANN MEDINA
And: COPENHAGEN HANDELSBANK INTERNATIONAL S.A.; BRIAN W. RICHARDSON
AND M.G.I.C.A. LIMITED
No. Qld G171 of 1987
FED No. 103
Discovery and Interrogatories - Practice
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Discovery and Interrogatories - privilege against incrimination - whether privilege available to corporations.
Discovery and Interrogatories - privilege against incrimination - claim by Luxembourgian financial corporation of obligation of non-disclosure of 'secrets' pursuant to Luxembourg Criminal Code - whether claim to privilege open.
Practice - Discovery and Interrogatories - privilege against incrimination - claim of privilege by financial corporation on ground of tendency to incriminate under Moneylenders Act 1916 (Qld.) - degree of specificity required in description of documents over which claim advanced.
Federal Court Rules O.15 rr. 6(2), (3), (4) and (11).
HEARING
BRISBANE
#DATE 10:3:1989
Counsel for applicant: Mr. T. F. Carmody
instructed by: Bell Fradgley Smith & Baumann
Counsel for respondent: Mr. J. D. M. Muir Q.C. and
Mr. A. E. Lyons
instructed by: Flower & Hart
Appearance for the Appellant: Appellant in Person
Solicitor for the Applicant: Appellant in Person
Counsel for the First
Respondent: Mr G K Downes QC with
Mr D B McGovern
Solicitors for the First Australian Government Solicitor Respondent:
Counsel for the Second
Respondent: No appearance in Court
Solicitors for the Second
Respondent: Isenberg Spedding & Player
Counsel for the Third
Respondent: No appearance in Court
Solicitors for the Third
Respondent: Minter Ellison
ORDER
The first respondent give further and better discovery of documents within six weeks of today's date.
The first respondent pay the applicants' costs of the notice of motion, including costs of appearances on 18.2.88, 9.3.88 and 10.3.89.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
On a motion by the applicants in these proceedings seeking, inter alia, further and better discovery against the first respondents, Copenhagen Handelsbank International S.A., (Handelsbank) and on a cross-motion seeking, inter alia, similar relief, a number of matters in contention were resolved or were expected to be resolved. One substantial question remained. It concerned the extent to which Handelsbank, which is a financial institution established in Luxembourg is relieved from its obligation to make discovery in the proceedings, based on its claim that so to do would expose it to a penalty under the law of Luxembourg, or alternatively, would have a tendency to incriminate it in criminal proceedings for breaches of the Moneylenders Act 1916 (Qld.).
By an amended statement of claim, the applicants plead that Handelsbank was an unregistered moneylender carrying on business as such in Queensland. The applicants entered into a foreign exchange loan, in Swiss francs. Negotiations took place between the applicants and the second respondent, who is the manager of the third respondent. In turn it is alleged that both the second and third respondents were authorised to act as agents of the first respondent for the purpose of negotiating the lending of moneys to persons in Queensland. It is claimed that the making of representations concerning the loan was misleading and deceptive conduct in trade or commerce contrary to s.52 of the Trade Practices Act 1974.
The details of the material on which these questions fall to be resolved are not as one would ordinarily expect, which exacerbates the difficulty otherwise present in the problem.
A list of documents was filed on 14 January 1988 on behalf of Handelsbank. Paragraph 2 of the affidavit verifying the list recited:-
"The documents enumerated in Part 2 of Schedule 1 are privileged from production on the ground of legal professional privilege."
Part 2 of that schedule is in the following terms:-
"Correspondence between the bank and the bank's solicitors relating to the present proceedings being reports, letters of advice and correspondence in relation to the proceedings."
The affidavit swearing to that list of documents is in these terms:-
"On 6th. January, 1988 we, Ole Hansen, Managing Director and Per Henrik Jensen, Legal Adviser of Copenhagen Handelsbank International S.A., 12 rue Goethe, B.P. 406, 2014 Luxembourg, say on oath:-
1. We are the Respondent on behalf of Copenhagen Handelsbank International S.A.
2. The statements of fact made in paragraphs 1, 2, 3 and 4 of the above list are true."
The affidavit is witnessed by Maitre Marc Elter, notary, residing at Luxembourg-City, Luxembourg, January 7th 1988.
By a supplementary list of documents filed on 11 February 1988, "documents enumerated in Schedule 1" are referred to in paragraph 1. Schedule 1 is in these terms:-
"Files situated within Luxembourg pertaining to financial transaction with persons resident in Queensland."
The documents referred to in Schedule 1 are referred to in the affidavit as "the said documents". The affidavit verifying the list of documents is sworn by Per Henrik Jensen, who says:-
"I am the legal adviser of the First Respondent and am duly authorised to make this Affidavit on its behalf."
Mr. Jensen's signature is certified by Jean-Paul Hencks.
Mr. Jensen's affidavit recites, in part:-
"3. The First Respondent claims in respect of the said documents a privilege from having to provide further details as to the identity and nature of the said documents, from having to give any or any further discovery in respect of the said documents and from having to produce the said documents for inspection on the grounds that the said documents and each of them and their contents are secrets within the meaning of the Luxembourg Criminal Code, and in particular, Article 458 and Article 31 of the law of 26th November, 1984 concerning the control of financial institutions in Luxembourg. Disclosure of the nature and identity of the said documents, or the giving of any further discovery in respect thereto or producing the said documents for inspection or production would constitute a contravention of these Articles and expose the First Respondent to the payment of a pecuniary penalty and render the officers of the First Respondent who effect such actions criminally liable to punishment by way of a term of imprisonment. Further, such actions would also lead to the First Respondent being fined by the Luxembourg Monetary Institution.
4. The First Respondent and the Deponents to the Affidavit verifying this list have been advised by the First Respondent's Attorneys Messrs. Faltz & Elvinger of Luxembourg and verily believe that Article 458 of the Luxembourg Criminal Code deems the disclosure of secrets obtained in the course of business conducted by a financial institution, an offence punishable by imprisonment and/or the imposition of a fine. Article 458 provides as follows:-
'Doctors, Surgeons, Health Officers, Pharmacists, Midwifes and any other person which through their profession or their qualifications are depositaries of secrets which are transferred to them except in the case where they are called to witness in Court or where the law obliges them to deposit, have revealed them will be punished to an imprisonment of 8 days to 6 months and to a fine of 100 to 500 francs.'
5. The First Respondent and the Deponents to the Affidavit verifying this list have received advice from the First Respondent's Attorneys Messrs. Faltz & Elvinger and verily believe that Article 31 of the Law of 27 November, 1984 concerning the control of financial institutions in Luxembourg prohibits the disclosure of confidential information in the possession of financial institutions including banks established in Luxembourg. Article 31 provides as follows: 'By derogation to Article 458 of the Luxembourg Criminal Code which prevents directors, members or the management and the auditing teams and other employees of the financial institutions to reveal the secrets which they have received in such capacity the persons that execute the management of the financial institution may communicate to any person which holds at least half of the capital of the financial institution informations relating:
(a) to the amount, to the form and to the terms of the credit granted to one debtor, if the total of these credits exceeds an absolute amount or is higher than a co-efficient relating to determinated elements of the balance sheet of the financial institution.
(b) to the amount, to the form and to the terms of the obligations towards another financial institution if the total of these obligations exceeds an absolute amount or is higher than a co-efficient relating to determined elements of the balance sheet of the financial institution.
the amount and co-efficients referred to under (a) and (b) as well as the procedure of transferring the information will be determined by way of a grand-ducal decree.'
6. The First Respondent is a financial institution established and registered in Luxembourg within the meaning of Articles 31 and 458 and is therefore subject to the provisions of the Luxembourg Criminal Code, including Article 458.
7. Neither of the applicants herein are persons who at any time have held at least half of the capital of the First Respondent.
8. The First Respondent and the Deponents to the Affidavit verifying this list have been advised by the First Respondent's Attorneys Messrs. Faltz & Elvinger and verily believe that all matters pertaining to financial transactions entered into with the First Respondent are secrets within the meaning of the provisions of the Luxembourg Criminal Code referred to herein.
9. The said documents were received by the First Respondent in the course of its banking business and by its directors, members of the management and the auditing teams and other employees in their respective capacities as such."
As to the claim in paragraph 3, while Mr. Hansen is described as legal adviser to Handelsbank, his qualifications nowhere appear, and the evidentiary bases for the claim to privilege based on a tendency to exposure to a penalty has to be found elsewhere.
Robert Maxwell Lockhart, a member of the firm of Messrs. Flower & Hart, town agents for Messrs. Westgarth Baldick & Co., in an affidavit filed on 3 March 1988, deposed:-
"On the 17th day of February, 1988 I was advised by Faltz & Elvinger, Attorneys at Law, of the Supreme Court of the Grand-Duchy of Luxembourg whose professional address is 6, Rue Heine, Luxembourg and verily believe that the provisions of Article 458 of the Luxembourg Criminal Code where it uses the reference 'where the law obliges them to ..... have revealed secrets' refers only to the Laws of Luxembourg."
In an affidavit filed on 9 March 1988, Mr. Lockhart deposed:-
"I am instructed by Alan Friedlander a solicitor in the employ of Messrs. Westgarth Baldick that his instructions are that the First Respondent claims a further privilege from having to:-
(i) provide further details as to the identity and nature of the Documents referred to in Schedule I to the affidavit of Per Henrik Jensen sworn 8 March, 1988 ('the said Documents')
(ii) give any or any further discovery in respect of the said Documents; and
(iii) produce the said Documents for inspection
on the grounds of self-incrimination.
4. The Applicants have alleged in their amended statement of claim that the First Respondent has acted contrary to the provisions of the Money Lenders Act and in particular sections 3, 4A, 7, 12, 13, 13A and 15 of that Act.
5. I am instructed by the said Alan Friedlander and verily believe that if the First Respondent was to produce the said Documents and the allegations made by the Applicants in their statement of claim are substantiated the First Respondent runs the risk of prosecution for breaches of the provisions of the Money Lenders Act (Qld.)."
The claim to privilege based on self-incrimination advanced in paragraph three above is hardly breathtaking in its directness.
In an affidavit sworn and filed on 9 March 1988, Mr. Geoffrey Stephen Smith, a solicitor acting on behalf of the applicants, deposed in the context of the claim to privilege against exposure to a penalty:-
"... I have been advised by Jean-Marie Bouler a principal attorney of the firm Boucher & Bouler
(Attorneys) 42 Grand-Rue L-1990 Luxembourg and verily believe that:-
(a) The Luxembourg Criminal Code does not define the word 'secret' and whether, in a particular case, a document contains a secret within the meaning of Article 458 depends on the nature and content of the document;
(b) the First Respondent will not be in breach of the Luxembourg Criminal Code if it produces 'secret' documents in compliance with an order of a Queensland Court or during the course of giving evidence as a witness on behalf of one of the parties to an action."
The relevant principle is stated in the joint judgment of Mason, Wilson and Dawson JJ. in Pyneboard Pty. Ltd. v. Trade Practices Commission (1982-83) 152 CLR 328 at 335:-
"It is well settled that 'a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure' to use the words of Bowen L.J. in Redfern v. Redfern
(1891) p 139, at p 147. See also Martin v. Treacher (1886) 16 QBD 507; Earl of Mexborough v. Whitwood Urban District Council (1897) 2 QB 111; R. v. Associated Northern Collieries (1910) 11 CLR 738."
And in the context of s. 155 of the Trade Practices Act 1974, their Honours said at 337:-
"...the construction of s. 155 is to be approached on the footing that the privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a civil penalty is (a) not confined in its application to discovery and interrogatories; (b) available at common law as well as in equity; and
(c) distinct from, though often associated in discussion with, the privilege against exposure to conviction for a crime."
In Adsteam Building Industries Pty. Limited v. The Queensland Cement and Lime Company Limited (No. 4) (1985) 1 Qd R 127, McPherson J. held that a defendant was entitled, at the stage of discovery and inspection, to claim privilege from producing for inspection that class of documents the contents of which tended to disclose particulars of shareholding or shareholders in a company incorporated in Switzerland, where such disclosure would or might tend to expose the party making it to a penalty under the Swiss Penal Code.
There was before McPherson J. an affidavit by a practising member of the Zurich Bar in support of the claim for privilege. No objection was taken to that affidavit and no notice was given to require his attendance for cross-examination. McPherson noted that the settled practice was that cross-examination is not ordinarily permitted. He observed that there was no contradictory affidavit on the plaintiff's side from any other Swiss lawyer. Material from another source was successfully objected to, it not being shown that the source was a practising member of the legal profession in Switzerland or at all. The effect of the material from the Swiss lawyer was summarised in a paragraph of his affidavit:-
"I confirm and conclude from the rulings of the Swiss Federal Supreme Court that the disclosure of the share register of a Swiss corporation which is not a public or generally accessible register, or the disclosure of any other document evidencing information on the shareholding in a Swiss corporation would be an infringement of Art. 273 of the Swiss Penal Code."
McPherson J. noted at 141:-
"... I accept that it is not for me to arrive at a conclusion about the existence, meaning or effect of a rule or rules of foreign law based upon an independent investigation of that subject, for example by construing a provision of a foreign legal code. Foreign law is a fact which like other facts must be established by the evidence, and it is upon the evidence of foreign law that is placed before me, and only on that evidence that I may act. Although not bound to accept the foreign expert's evidence of that fact, I would naturally be reluctant to reject evidence of foreign law if it is, as it is here, uncontradicted: see Sharif v. Azid (1967) 1 QB 605, 616, and generally Nygh: Conflict of Laws in Australia, 4th ed., at p 205."
McPherson J. concluded that disclosure of share register or other document evidencing information on the shareholding in a Swiss corporation would involve an infringement of Art. 273 of the Swiss Penal Code, and that such disclosure, even to the Supreme Court, was liable to attract a penalty or other punishment in Swiss law. The fact that any disclosure would occur in Queensland rather than in Switzerland was held to be immaterial: the evidence not being such as to establish whether that act would constitute an offence under Swiss law, that the correct approach was to assume that the provisions of Swiss law on that point were the same as Queensland law. The act in despatching the documents from Switzerland to Queensland for the purpose of disclosing their contents would thus make that person a principal offender to the Swiss offence. The tendency of the disclosure or production to expose to a penalty being one that arises under Swiss and not Queensland law, was held by him to be no different in consequence from a tendency to expose to a penalty under municipal law, applying the decision of Lord Chelmsford LC. in United States of America v. McRae (1867) LR 3 Ch App 79, a decision treated as good law in Bray's The Law of Discovery (1885) at p 344, and being consistent with the judgment of Ormrod J. in Re Duncan (1968) p 306. McPherson J. concluded that he should direct that the Swiss company was entitled to claim privilege from producing that class of documents the content of which tend to disclose particulars of shareholdings or shareholders in a company incorporated in Switzerland where such disclosure would or may have tended to expose the party making it to a penalty under Art. 273 of the Penal Code.
In Spence v. Jacob and Fire & All Risks Insurance Co. Ltd. (1982) Qd R 748, an application for further and better discovery was made in respect of a completed Notice of Accident form, which had been completed and returned to a licensed insurer after the commencement of proceedings and after service of a copy of writ on the licensed insurer. An affidavit of documents had not specifically disclosed those documents for which inspection was resisted, but merely referred globally to communications between the defendant-by-election and third parties. Master Lee Q.C., as he then was, said at 749:-
"It is clear that documents should be sufficiently disclosed and identified in the affidavit of documents so that production can be enforced if ordered: see Halsbury's Laws of England (4th ed.) vol. 13, para. 67, p 53."
He continued:-
"The case was argued before me on the merits as if the documents had been properly disclosed and identified, with objections duly taken, so that the application in reality sought an order for production, which is the alternative relief sought in the summons, with the respondent objecting on the grounds (of legal professional privilege)."
After inspection of the documents, the claim resisting production on this ground of privilege was upheld.
In the joint judgment of Mason A.C.J., Wilson and Dawson JJ. in Pyneboard Proprietary Limited v. Trade Practices Commission (supra) at 336, their Honours referred to the discussion by Deane J. in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corp. (1979) 42 FLR 204. His Honour had drawn a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty, but the result of which might be used to establish a party's liability to a penalty in other proceedings. Their Honours said:-
"In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action....But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty."
It seems to me that it is for the party required to make discovery to object to the production of particular documents or the provision of particular information specifying the ground or grounds and, if the claim is that a particular class of documents would expose him to a penalty, that class ought to be identified with some particularity.
Finally, before turning to the facts in this case, counsel for the applicants submitted that it was not open to a corporation such as Handelsbank to claim the privilege against self-incrimination. In the Pyneboard Case, the majority, Mason A.C.J., Wilson and Dawson JJ., at 336 were content to assume that such a privilege is available with respect to a corporation in Australia.
Mr. Justice Murphy in Rochfort v. Trade Practices Commission (1983-84) 153 CLR 134 at 150 expressed the view that no privilege against self-incrimination exists with respect to a corporation, a view he maintained in Controlled Consultants Pty.Ltd. v. Commissioner for Corporate Affairs (1984) 156 CLR 385. The point was not taken in the Adsteam Case.
In Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs (1984) VR 137, Marks J., with whom Starke J. agreed, said at 152:-
"...counsel for the respondent did not contend that the privilege did not apply to corporations. This matter has not been finally put to rest in Australia, the High Court having specifically refrained from deciding it in Pyneboard. In the United Kingdom the Court of Appeal in the Triplex Safety Glass Co. Case held that a company was entitled to the same privilege as an individual in this regard. I would not dissent from the reasoning in that case and, if necessary, would hold that no rational distinction can be made in the application of the principle between a company and a natural person."
In Master Builders' Association of New South Wales v. Plumbers and Gasfitters Employees Union of Australia (1986-7) 14 FCR 479; (1987) ATPR 40-786, on the question of an entitlement by a corporation to claim a privilege against self-incrimination, the authorities were collected and analysed by Gray J.. He concluded that it was open to a corporation to resist the production of documents in answer to the subpoena on the ground that such production would tend to expose it to the penalty or penalties sought against it in this proceeding. That case was not one of discovery, but of a subpoena, and the proceedings were proceedings for a penalty.
Notwithstanding those differences, for the reasons which he so persuasively advances, I am of the opinion that the privilege against exposure to conviction for a crime and the privilege against exposure to a civil penalty is available to a corporation in Australia.
With respect to the claim of legal professional privilege concerning the documents described in Part 2 of Schedule 1 of the affidavit of documents filed on 17 January 1988, Handelsbank is obliged to identify with some particularity the documents in respect of which legal professional privilege is claimed but, on that being done, the ordinary application of the rules as to the existence of the privilege to the specified document or class of documents would apply.
As to the claim by Handelsbank that it should be relieved from having to provide further details of the identity and nature of the documents, or from giving any or any further discovery in respect of the documents or from having to produce the documents in the supplementary list of documents on the grounds that so to do would expose them to payment of pecuniary penalty and render officers of the first respondent liable to criminal punishment, there are a number of curious features.
Article 458, in terms, is directed to a class of persons who all have a close connection with the health of natural persons and the provision of services associated with the personal wellbeing or health of natural persons. It is contended that an extrapolation has been achieved by the words "any other person which through their profession or their qualifications are depositories of secrets which are transferred to them" and the Article applies the pecuniary and penal sanctions of the Luxembourg Criminal Code to officers and employees of financial institutions. It seems an odd result at first, but the content of foreign law is a matter of fact to be proved by evidence and that application has not been disputed. Next, the source of the information on behalf of Handelsbank concerning the law in Luxembourg has been deposed to on an information and belief basis, the source being Messres. Faltz and Elvinger, who are described as Attorneys-at-Law. The identity of the natural person and his or her qualifications have not been referred to. No evidence to dispute that such a firm of Attorneys-at-Law of the Supreme Court of the Grand Duchy of Luxembourg exist, or that they gave the information deposed to, and the information from that source was not objected to, (in contradistinction to being challenged, in part.)
As to the exceptions contained in Article 451, namely, "except in a case where they are obliged to witness in court or where the law obliges them to deposit," there is a clear conflict between that which is deposed to in paragraph 2 of the affidavit of Mr. Lockhart filed 3 March 1988, namely that the exceptions refer only to the laws of Luxembourg, and that deposed to in the affidavit of Mr. Smith, filed on 9 March 1988, to the effect that Handelsbank will not be in breach of the Criminal Code if it produces "secret" documents in compliance with an order of a Queensland court or during the course of giving evidence as a witness on behalf of one of the parties to an action.
While the source material is hardly satisfactory, I prefer the latter interpretation. Neither side quoted any authority or any other basis for the bald conclusions at which they respectively arrived. However, Jean-Marie Bouler is an identified attorney, rather than a firm, and while I qm quite aware that it is impermissible to construe for oneself the foreign law, I think I am entitled to resolve the impasse of directly conflicting evidence by asking myself, much as a jury would, which contention more accords with common sense.
On the same basis, I prefer his statement of the law that whether in a particular case a document contains a secret within the meaning of Article 458 depends on the nature and content of the document, rather than the claim deposed to in paragraph 8 of the affidavit of Mr. Jensen sworn on 8 March 1988 based on the information of Messrs. Faltz and Elvinger that:-
"All matters pertaining to financial transactions entered into with the First Respondent are secrets within the meaning of the provisions of the Luxembourg Criminal Code."
No authorities are quoted for that conclusion. If "secret" is not defined in the Luxembourg Criminal Code, a claim by Mr. Jean-Marie Bouler that was not challenged, it seems more likely, again as a notional juror, that his view is right rather than the all inclusive view of Messrs. Faltz and Elvinger.
In my view, whatever be the documents or classes of documents for which the privilege is claimed, I am not satisfied that the discovery of those documents would expose the first respondent to a penalty under the Luxembourg Penal Code.
As to the claim that production of the documents specified in either of the schedules of the affidavit of documents of Handelsbank are privileged from production on the grounds that they would tend to incriminate it, I have earlier expressed my view that such a claim is open to a corporation. I am of the view, however, that such a claim requires the documents or classes of documents to be specified.
In Sorby v. The Commonwealth of Australia ((1983) 152 CLR 281, Gibbs C.J., said at 288:-
"It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so 'may tend to bring him into the peril and possibility of being convicted as a criminal': Lamb v. Munster
(1882) 10 QBD 110, at p 111. The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; 'to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer': Reg. v. Boyes (1861) 1 B & S 311, at pp 329-330 (121 ER 730, at p 738). That statement of the law has frequently been approved; see Ex parte Reynolds; In re Reynolds (1882) 20 Ch D 294; Triplex Safety Glass Co. v. Lancegaye Safety Glass
(1934) Ltd. (1939) 2 KB 395, at pp 403-404; In re Westinghouse Uranium Contract (1978) AC 547, at pp 612, 627, 647."
Murphy J., in the Full Court of the Supreme Court of Victoria in Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs (1984) VR 137, said at 142:-
"The mere fact...that a person claims the right to refuse to answer or to produce documents on the ground that to do so would tend to incriminate him is not sufficient of itself to excuse his refusal: R. v. Boyes (1861) 1 B & S 311; Sorby v. The Commonwealth (1983) 57 ALJR 248, at p 251, per Gibbs C.J.
The claim must be bona fide, and the court must be able to see that it is so."
I take from the observations in Boyes, Sorby, and Controlled Consultants v. Commissioner for Corporate Affairs, to which I have just referred, that it is for a party to bring himself within the protection of the privilege claimed.
A party who claims that a document be not produced for inspection because it is privileged is required to describe the nature of the privilege. The privileged document is liable to be disclosed in a list of documents. Claim for privilege is examinable by the court and a bald claim for privilege is insufficient. Sufficient details must be specified so that an opposing party can decide whether the claim for privilege is valid or whether he should challenge it by applying to the court for an order to inspect; see O. 15 r. 11 of the Federal Court Rules.
Order 15, r. 6(2) provides that a list of documents shall enumerate the documents which are or have been in possession, custody or power of the party making the list. As to the description of documents, O. 15 r. 6(3) provides:-
"A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified."
And O. 15 r.6(4) in relation to privilege, provides:-
"Where a party making a list of documents claims that any document in his possession, custody or power is privileged from production, he shall, in the list, sufficiently state the grounds of the privilege."
See Alfred Crompton Amusement Machines Ltd. v. Commissioners of Customs and Excise (1971) 2 All E R 843 and the cases cited therein by Eveleigh J.
The necessity for such a description as will enable the document or group of documents to be identified, does not require such a description as will enable the opposing party, from the description, to discover the contents of the document. That would allow him to obtain indirectly of what the law permits a party to preserve from disclosure. Cairns in his The Law of Discovery, Law Book Company 1984, says at 39:-
"However, the statement of the nature of the document and the ground of the privilege must permit the court to see what document is the subject of the claim. If privilege is claimed for a class, then the class must be defined and it must be possible to tell which documents fall within the class: Associated Dominions Assurance Society Pty.Ltd. v. John Fairfax & Sons pty. Ltd.
(1955) 72 WN (NSW) 250 at 253. In an appropriate case the court may examine a document for which privilege is claimed to resolve any dispute about the validity of the claim."
It follows from the above that, in my opinion, the privilege against self-incrimination is open to Handelsbank in the appropriate circumstances, but it is obliged in accordance with what has just been said to comply with the requirements of O. 15 r. 6.
I will hear from the parties as to the form of orders I should make in the light of these reasons and I will hear the parties on costs.
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