Roo-Roofing Pty Ltd v The Commonwealth (Ruling No 5) - [2018] VSC 338

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 3382

ROO-ROOFING PTY LTD (ACN 131 182 093)	First Plaintiff
MATSUH PTY LTD (ACN 105 461 818)	Second Plaintiff
v
THE COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 15 June 2018
DATE OF RULING:	21 June 2018
CASE MAY BE CITED AS:	Roo-Roofing Pty Ltd v The Commonwealth (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2018] VSC 338

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EVIDENCE – Privilege against self-incrimination – Whether reasonable grounds for objection – No reasonable grounds for objection – Witness required to answer – Certificate given - Evidence Act 2008 (Vic) s 128, Coroners Act 2003 (Qld) s 50A, Workplace Health and Safety Act 1995 (Qld) s 165, Workplace Health and Safety Act 2011 (Qld) s 232.

EVIDENCE – Admissibility – Whether document a business record – Tender permitted - Evidence Act 2008 (Vic) ss 48, 69.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D Delaney QC with Dr C G Button, Ms C Van Proctor and Mr R Chaile	ACA Lawyers
For the Defendant	Ms R M Doyle SC with Ms R L Enbom, Mr L T Brown and Mr J Hooper	Australian Government Solicitor

HIS HONOUR:

This ruling concerns two discrete issues in this proceeding:

(a) I overruled objections taken by Mr Nicholas Lindsay when giving evidence that his evidence might tend to incriminate him by tending to prove that he had committed an offence arising under an Australian law; and

(b) the admissibility of the document MSC.010.698.0001, from the Electrical Regulatory Authority Council entitled ‘Insulation Session’, dated May 2010, which the plaintiffs sought to tender, was contested by the defendant.

What follows are my reasons for the former ruling and my ruling and the reasons for it in respect of the admissibility of the document.

Evidence of Mr Lindsay

Mr Lindsay gave evidence for the defendant in this proceeding under subpoena. Senior and junior counsel announced an appearance on his behalf and indicated, by an advance submission, that he would object to certain questions or lines of questioning on the grounds of self-incrimination.

Although appearing via video link from Queensland, Mr Lindsay gave evidence before the Supreme Court of Victoria and the applicable rules governing his objections are found in s 128 of the Evidence Act 2008 (Vic) (the Act).

Mr Lindsay was a director of Titan Insulations Pty Ltd (Titan), a company that installed retro-fitted ceiling insulation under the Home Insulation Program (HIP). Titan engaged Mr Mitchell Sweeney as a sub-contractor to install ceiling insulation. Mr Sweeney died on 4 February 2010 when he was electrocuted while installing insulation for Titan under the HIP in a domestic ceiling space.

Mr Lindsay neither swore an affidavit nor gave evidence about any background matters relevant to his claim of privilege against self-incrimination. So far as I am aware there was no relevant material in the large body of…

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: [2018] VSC 338
Decision Date: 21 June 2018

CaseChat Overview and Summary

Roo-Roofing Pty Ltd sought to challenge the admissibility of evidence obtained during a coroner's investigation in relation to the death of one of its employees. The case came before the Court, which needed to decide on the admissibility of the evidence obtained under various statutory provisions and the applicability of privilege against self-incrimination. The court's decision involved interpreting the interplay between the Evidence Act 2008 (Vic) and the Coroners Act 2003 (Qld) and the Workplace Health and Safety Act 1995 (Qld) and Workplace Health and Safety Act 2011 (Qld).

The legal issues included whether there were reasonable grounds for the witness to object to answering questions on the basis of privilege against self-incrimination and whether the evidence obtained under the statutory provisions was admissible. The court had to consider the provisions of the Evidence Act 2008 (Vic) and the statutory powers of the coroner under the relevant Acts. Furthermore, the court had to assess whether the documents tendered were business records and whether they met the requirements of admissibility under the Evidence Act 2008 (Vic).

The court determined that there were no reasonable grounds for the witness to object to answering questions on the basis of privilege against self-incrimination. The court found that the statutory powers of the coroner under the Coroners Act 2003 (Qld) and the Workplace Health and Safety Act 1995 (Qld) and Workplace Health and Safety Act 2011 (Qld) were sufficient to compel the witness to answer questions. The court held that the evidence obtained under these statutory provisions was admissible. Additionally, the court found that the documents tendered were business records and met the requirements of admissibility under the Evidence Act 2008 (Vic).

The court ruled that the evidence obtained during the coroner's investigation was admissible, and the witness was required to answer questions. The court granted the Commonwealth's application for a certificate under the Evidence Act 2008 (Vic) s 128, which allowed the evidence to be used in the proceedings. The court also found that the documents tendered were admissible as business records under the Evidence Act 2008 (Vic) ss 48, 69.

Orders