Skilbeck, G.F.B.J v The Federated Furnishing Trades Society of Australasia

[1985] FCA 581

IN THE FEDERAL COURT OF AUSTRALIA 1

)

VICTORIAN	DISTRICT	REGISTRY	)
)

GENERAL DIVISION	1
B E T W E E N :

Applicants

A

N D :

GURIAN PTY LTD (trading

as MYER TEALE)

Respondents

19 NOVEMBER, 1985 KEELY J.

REASONS FOR RULING GIVEN ON 13 OVEMBER 1985

By notice of motion filed	2 0	September 1985, the first,
-

second and third named applicants (the three applicants)

sought orders requiring the first, second, thlrd and fourth

named respondents (the four respondents) to provide "further

and better answers to interrogatories" dellvered by them. By

notice of motion filed 6 November 1985 the three applicants

1	i .	2 .
I

sought similar orders as to each of the remaining respondents

other than the eleventh named respondent. The respondents

have taken various objections to the interrogatories. In

particular, they objected to answering a number of

interrogatories on the ground that to answer them might tend

to expose them to a penalty. The objections on that ground

were the subject of argument on 12 and 13 November 1985 and

on the latter date the three applicants' submissions were

rejected for the reasons which are now given.

Mr Jolson, of counsel, for the three applicants

advanced two submissions that those objections to answerlng

each of the interrogatories were not open to the four

respondents. First, he relied upon the provisions of s.29 of

the Evidence Act 1958 (Vic). Section 29, as amended by the

Crimes (Classification of Offences) Act 1981, is in the following terms:

"No witness shall on the trial of any issue joined

or of any matter or question or on any inquiry

arising in any suit action or proceeding whether

civil or criminal be permitted to refuse to answer

any question which is relevant and material to the

matter in issue on the ground that the answer may

expose him to any penalty or forfeiture or may

disgrace or criminate himself, unless the court or

person having by law or by consent of parties

authority to hear receive and examine evidence is

of opinion that the answer will tend to subject

- such wltness to punishment for treason or an

indictable offence."

In my opinion a person answering interrogatories is

not a "witness" within the meaning of that section and 5 . 2 9

does not apply to an objection to answer interrogatories.

That opinion has been reached as a matter of construction of

i . . ,

I 3

l \ '

the section read in its context in Dlvision 2 of Part I1 of

the Evidence Act. In this connexion it may be noted that

Part I1 is headed "Witnesses" and Division 2 of that Part is

headed "Privileges Disabilities and Obligations of

Witnesses:	'I.
That opinion as to s.29 is consonant with the

decision of the Full Court of the Victorian Supreme Court,

constituted by A'Beckett, Hood and Cussen JJ., in Hushes v

Watson 1917 V.L.R 398. I am not prepared to accept Mr

Jolson's invitation to me to conclude that that decision was

wrong; in my respectful opinion it was correct.

The second submission by Mr Jolson was that, in any

event, the respondents were not entitled to make the

objection in the present proceedings. Various authorities

were cited by him, by Mr Tony North, of counsel, for the four

respondents and by Mr Downing, of counsel, on behalf of the

sixth named respondent. However it is sufficient to refer to

the recent decision of the Full Hiqh Court in Police Service

I	Board v Morris (1985) 58 ALR 1 which cites a number of the
authorities. In that case Gibbs CJ. said (at page 4 ) : -

"It is old law, confirmed by modern authority,

- that a person cannot be compelled to answer a

question whenever the answer would tend to expose him to "any kind of punishment" - "anything In the nature of a penalty": see Phillipps and Arnold: A

Treatise on the Law of Evidence, 10th ed (1852),

v01 2 , p 487; Greenleaf on Evidence, 11th ed

(1863), v01 1, p 621; Bray on Discovery (1885), p

313; Re Westinqhouse Uranium Contract E19787 AC 547

at 563-4 (a statement not challenged on appeal -

see at pp 612, 627, 632, and 647) and Pyneboard Pty

Ltd v Trade Practices Commlssion (1983) 57 ALJR

l

I . I ..

j 4 .

236; 45 ALR 609."

In the same case Wilson and Dawson JJ (at page 7 )

referred to "the rule of the common law that a party is not

bound to answer any questions which might tend to expose him

to the risk of a criminal conviction or the imposition of a

penalty . . . ' I . Mr Jolson acknowledged that, in the light of

the authorities, his task of persuading the court was "a

formidable task". He has not succeeded.

It should perhaps be added that Mr Jolson at one

stage advanced a submission that the objection was not open

to the four respondents because they had waived the privilege

by giving discovery of documents. However, after some

discussion, followed by an opportunity to reconsider the

matter, he expressly withdrew that submission.

Accordingly, in my opinion it is open to the

respondents to object to answering the interrogatories on the

ground that to answer might tend to expose them to a penalty.

The court has not yet heard the parties' arguments as to

whether the particular objections should be upheld in respect

of each of the interrogatories in respect of which it has

been taken.