The Master Builders Association v The Plumbers and Gasfitters Employees Union of Australia

[1987] FCA 243

Re: THE MASTER BUILDER ASSOCIATION OF NEW SOUTH WALES
And: THE PLUMBERS AND GASFITTERS EMPLOYEES' UNION OF AUSTRALIA
No. NSW 7 of 1987
Practice and Procedure - Industrial Law
20 IR 397

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Practice and Procedure - subpoena to produce documents - privilege against exposure to penalty - whether subpoena properly directed to respondent in proceeding to recover penalty - whether privilege available to corporation.

Industrial Law - award - proceeding for penalty for breach - whether respondent will be ordered to produce documents.

Conciliation and Arbitration Act, 1904 s.119

HEARING

MELBOURNE

#DATE 8:5:1987

ORDER

The subpoena directed to the respondent, issued on 6th March 1987, is set aside.

(NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.)

JUDGE1

This proceeding was commenced on 23rd January 1987. The applicant alleges that the respondent has imposed a ban or bans on the performance of work on various building sites in New South Wales, and has thereby committed a breach or breaches of The Plumbing Industry (New South Wales) Award 1983. The application seeks the imposition of penalties on the respondent, pursuant to s.119 of the Conciliation and Arbitration Act 1904 ('the Act').

1. On 6th March 1987, the applicant caused to be issued a subpoena for the production of documents. Although in terms, the subpoena is directed to "The Proper Officer, The Plumbers and Gasfitters Employees' Union of Australia", it has been agreed expressly between the parties that I should treat the subpoena as being one directed to the respondent, and not as being one directed to any natural person. Compare the approach taken by Wilcox J. in Concrete Constructions Pty. Ltd. v. The Plumbers and Gasfitters Employees' Union of Australia (Federal Court of Australia, 13th March 1987, not yet reported) at pp 33-37. In other words, the subpoena calls upon the respondent itself to produce to the Court the documents described in it. On 20th March 1987, the respondent filed a notice of motion, seeking an order that the subpoena be set aside, or alternatively an order that the respondent be excused from the production of documents in answer to the subpoena. This notice of motion was supported by an affidavit deposing to the fact that the respondent is an organization of employees, registered pursuant to the Act, to the issue of the subpoena, and to the fact that the proceeding is a civil proceeding for a penalty. On 23rd April 1987, Mr. Kenzie Q.C., with Mr. Kimber of counsel, appeared for the respondent, to move the Court. Mr. Camilleri and Mr. Street of counsel appeared for the applicant, to contend that the respondent should be required to produce documents in answer to the subpoena.

2. As to two matters, there is no dispute. In Gapes v. Commercial Bank of Australia Ltd. (1979) 38 FLR 431, the Full Court held that a proceeding for a penalty for breach or non-observance of an award, pursuant to s.119 of the Act, is a civil proceeding for the recovery of a penalty, and not a criminal proceeding. In so deciding, the Court declined to follow the decision of the Australian Industrial Court in Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (1977) 32 FLR 100, in which it had been held that a proceeding of that kind was criminal in nature. Although the present proceeding is a civil one, there can be no doubt that its object is the imposition of a penalty or penalties upon the respondent. The other matter which is clear is that, by virtue of being an organization registered pursuant to the Act, the respondent is a body corporate. See s.136 of the Act and Williams v. Hursey (1959) 103 CLR 30, at p 32 per Fullagar J., with whom Dixon C.J. and Kitto J. concurred. The respondent is, therefore, a corporation, having a legal personality independent of its members.

3. Mr. Kenzie sought to rely upon what he claimed is a well established rule that a court will not compel a defendant in an action, the object of which is to recover a penalty against that defendant, to divulge documents or other information. The rule was said to be an aspect of the privilege which a person has against being compelled to divulge information which will tend to expose that person to a penalty. This privilege is similar to, although separate from, the privilege against self-incrimination. Mr. Camilleri contended that both the privilege against self- incrimination and the privilege against exposing oneself to a penalty are wholly inapplicable to corporations, being privileges which attach only to natural persons. It follows that the respondent is obliged to produce documents and cannot claim any privilege against exposing itself to a penalty. In the alternative, Mr. Camilleri argued that a claim of privilege cannot be taken until such time as documents have been produced to the court in response to a subpoena, and access to those documents is sought by some other party; it is then appropriate for the court to look at the documents, for the purpose of determining whether or not they do tend to expose the party producing them to the penalty concerned.

4. In R. v. Associated Northern Collieries (1910) 11 CLR 738, Isaacs J. was called upon to deal with an application for an order for discovery of documents against a number of defendants in a civil action for the recovery of penalties under the Australian Industries Preservation Act 1906. At pp.742-743, his Honour said:
   
   

"There is an inherent distinction between a civil action to prevent or redress a civil injury on the one hand, and a civil action to recover a penalty on the other. In the latter case the whole and avowed object of the proceedings is the infliction of the penalty, and the discovery sought of documents relevant to the claim can therefore have no other intended consequence. It does not require in such a case the oath of the defendant to establish the fact that the production of the documents would tend to penalize him. The Court can see the effect of discovery from the nature of the proceeding. In the former case there is no such necessary consequence, and whether the objectionable tendency exists or not has to be otherwise ascertained, and claiming immunity upon oath in the course of making discovery is the most usual, but not the only other means of establishing it."

After dealing with a number of authorities, his Honour said at p.747:

"In view of these clear and undeviating authorities I am bound to refuse the application to compel the defendants to give discovery."

1. In reliance on that decision, orders for discovery of documents against respondents in proceedings pursuant to s.119 of the Act have been refused, unless the privilege has been waived. See Harris v. Ansett Transport Industries (Operations) Pty. Ltd. (1978) 45 FLR 469, at p 473 and Birrell v. Australian National Airlines Commission (1984) 1 FCR 526, especially at p 527. In proceedings seeking to recover penalties under the Trade Practices Act 1974, the Court set aside subpoenas directed to the defendants, calling upon them to produce documents. See Trade Practices Commission v. TNT Management Pty. Ltd. (1984) 1 FCR 172.

2. In Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation (1979) 42 FLR 204, at pp 207-8, Deane J. said:
   
   

"It is a well-established principle that a defendant in proceedings which are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing his liability to the penalty (see, generally, per Isaacs J. in R. v. Associated Northern Collieries

(1910) 11 CLR 738, at pp 741-748; Naismith v. McGovern (1953) 90 CLR 336, at pp 341-342 and Martin v. Treacher (1886) 16 QBD 507). Even where, as in the present case, the proceedings are not for recovery of a penalty but to prevent and redress civil injury, a party to litigation ought not to be compelled to provide information or produce documents for inspection by the other party if the result thereof will be to provide evidence against him which may be used to establish his liability to a penalty in other proceedings (Mayor of the County Borough of Derby v. Derbyshire County Council (1897) AC 550, at p 552).

In the former case, that is to say in a mere action for a penalty, a court should, in the absence of statutory provision to the contrary, refuse to make any order at all against the defendant for discovery or production of documents or provision of information for the reason that the whole and avowed object of the proceedings being the imposition and the recovery of a penalty, an order for the production of documents or provision of information against the defendant can, so far as the prosecutor of the action is concerned, properly have no other intended consequence (see R. v. Associated Northern Collieries (1910) 11 CLR, at p.742). This is a broad and unqualified rule whose origins are apparently to be found in a reluctance on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see Mexborough (Earl of) v. Whitwood Urban District Council (1897) 2 QB 111, at p 115 and Heimann v. Commonwealth (1935) 54 CLR 126, at p 130).

In the latter case, that is in a case such as the present where the proceedings are not for the recovery of a penalty, there is no general rule precluding the making of an order for discovery or interrogatories and there will ordinarily be no proper ground for objecting to an order for production of documents or provision of information being made. The party against whom such an order is made is left to object to producing the particular documents or providing particular information on the ground that such production or provision may tend to expose him to a penalty (see Mayor of the County Borough of Derby v. Derbyshire County Council (1897) AC, at p 553)."

The distinction drawn by Deane J. between actions to recover penalties, and other civil actions which may concern conduct likely to give rise to later penal proceedings, was recognised by the majority of the High Court of Australia in Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 CLR 328, at pp 335-336, where Mason A.C.J., Wilson and Dawson JJ. said:

"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. Indeed, in a civil action brought merely to establish a forfeiture or enforce a penalty the rule is that neither discovery nor interrogatories will be allowed (In re A Debtor

(1910) 2 KB 59, at p 66; Associated Northern Collieries (1910) 11 CLR, at p 747). See generally the discussion by Deane J. in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corp. (1979) 42 FLR 204. There his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings (1979) 42 FLR, at pp.207-208. 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. His Honour described this as 'a broad and unqualified rule whose origins are apparently to be found in a reluctance on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see (Mexborough) and Heimann v. Commonwealth (1935) 54 CLR 126, at p.130' (1979) 42 FLR, at p.208). To these authorities there should be added a reference to the statement of Lord James of Hereford in National Association of Operative Plasterers v. Smithies (1906) AC 434, at pp 437-438, that courts of equity were averse to actions for penalties and forfeitures being brought and would not assist them. 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."

1. These authorities establish clearly that there is a class of case in which no order will be made requiring a defendant to make an affidavit of documents, or to answer interrogatories. That class is the class of actions brought to recover penalties. In such a case, a defendant will not be required to claim privilege in respect of the production of particular documents, or to object to particular interrogatories, on the ground that the production or the answers would tend to expose the defendant to the penalty. Because of the nature of the action itself, the court will decline to order the making of discovery of documents, or to allow the process of interrogation. The authorities which I have cited are a complete answer to the submission of Mr. Camilleri that, even in action to recover a penalty, the defendant is bound to make specific objection to the production of individual documents and to the answering of individual interrogatories. Further, in my view, the same principle applies to the production of documents upon subpoena. If it did not, the rule that no discovery could be had would be circumvented easily. In the T.N.T. Management case, at pp.176 and 177, Franki J. reached the conclusion that there is no difference in principle between an application for discovery or to answer interrogatories and the issue of a subpoena. His Honour relied upon Cavendish v. Cavendish (1926) P 10 and on a passage from Wigmore on Evidence (McNaughton rev., vol. viii para. 2264). In my view, that conclusion is correct, and I follow the decision of Franki J. Unless the privilege against self-exposure to a penalty is inapplicable to a corporation, the applicant will be unable to enforce its subpoena.

2. It has been accepted in England that a corporation is entitled to claim the privilege against self-incrimination, in the same manner as a natural person. See Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395 and Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation (1978) AC 547. It is fair to say that this conclusion has been reached without any real discussion as to the appropriateness of the privilege to a corporation. See Triplex at p.408, and Rio Tinto Zinc at pp.612, 627-628, 636-637, 646-647 and 652. In a number of cases in Australia, it has been assumed without discussion that the twin privileges of self-incrimination and self-exposure to a penalty are available to corporations, including companies and organizations registered under the Act. R. v. Associated Northern Collieries (above) was such a case; at p.739 of the report, the defendants were described as including "shipping companies". In Harris v. Ansett Transport Industries (Operations) Pty. Ltd. (above), the respondent was a company, and in Birrell v. Australian National Airlines Commission (above), the defendant was a statutory corporation. The Refrigerated Express Lines case (above) also concerned a company. Reference should also be made to Navair Pty. Ltd. v. Transport Workers' Union of Australia (1981) 52 FLR 177, in which it was assumed that an organization registered under the Act was entitled to claim both of the privileges when called upon to answer interrogatories, in a proceeding which did not itself involve a claim for a penalty or any criminal liability. In Trade Practices Commission v. T.N.T. Management Pty. Ltd. (above) at p 174, Franki J. considered that he was bound to follow Triplex and Rio Tinto Zinc. In the light of the comments made by the majority of the High Court of Australia in Cook v. Cook (1986) 61 ALJR 25, at pp 31-32, Franki J. may have overstated the weight to be given to English decisions. In Warman International Ltd. v. Envirotech Australia Pty. Ltd. (1986) 67 ALR 253, at pp 260-267, Wilcox J. seems to have assumed, without discussion of the point, that a company was entitled to claim the privilege against self-incrimination when subpoenaed to produce documents, although his Honour held that, on the facts of the case, the privilege could not be claimed.

3. In Rochfort v. Trade Practices Commission (1982) 153 CLR 134 at p 150, Murphy J. said:
   
   

"The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity. The history of, and reasons for, the privilege suggest that it should not be extended to artificial persons such as corporations or to large or amorphous voluntary organizations. (See Hale v. Henkel (1906) 201 US 43 (50 Law Ed 652); Baltimore & Ohio Railroad Co. v. Interstate Commerce Commission (1911) 221 US 612 (55 Law Ed 878); United States v. White

(1944) 322 US 694 (88 Law Ed 1542).) The English decisions (such as Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395) are in my opinion unconvincing and should not be followed here."

In the same case, at p.148, Mason J. (as he then was) said:

"In the United States it has been held that the privilege against self-incrimination is available only to natural persons and not to corporations. Indeed, in White (1944) 322 US 674 (88 Law Ed 1542) it was decided that it is not available to unincorporated associations or at least those which are organized as business enterprises or labour unions. However, in England it has been affirmatively decided that the privilege is available to corporations (Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395; Rio Tinto Zinc Corporation

(1978) AC 547) and the argument in the present case has proceeded on the footing that it is available to unincorporated associations."

The two other members of the Court who delivered judgments (Aickin J. having died before judgment was delivered) did not deal with the question whether the privilege against self- incrimination was only available to natural persons. That question was discussed again in Pyneboard Pty. Ltd. v. Trade Practices Commission, referred to above. In that case, at pp 334-335, Mason ACJ., Wilson and Dawson JJ. said:

"The English Court of Appeal has held that the privilege of refusing to answer a question on the ground that the answer may tend to incriminate is available to corporations (Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395). There du Parcq L.J. (1939) 2 KB, at pp 408-409, who delivered the judgment of the Court, agreed with the Supreme Court of Alberta in Webster v. Solloway, Mills & Co. (1931) 1 DLR 831, at pp 833, 834 that "'on principle one cannot see any reasonable ground for the support of (the) view' that 'this claim of privilege should be limited to natural persons'". His lordship went on to state that 'It would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence' (1939) 2 KB, at p.409. Canadian courts have continued to adopt the same approach (Reg. v. Bank of Montreal (1962) 36 DLR (2d) 45; Klein v. Bell (1955) 2 DLR 513).

In the United States the opposite approach has been taken - corporations cannot claim the privilege. In Campbell Painting Corp. v. Reid

(1968) 392 US 286, at p 288 (20 Law Ed (2d) 1094, at p 1097) Fortas J. said: "It has long been settled in federal jurisprudence that the constitutional privilege against self-incrimination is 'essentially a personal one, applying only to natural individuals'." It would not be a profitable exercise in this case to attempt to trace the steps by which the United States courts have reached this result. It depends partly on the presence in the Constitution of the Fifth Amendment and the interpretation which has been given to it and partly on the policy and purpose which the privilege has been thought to serve. Thus in United States v. White (1944) 322 US 694, at p 698 ((88 Law Ed 1542, at p 1546) Murphy J. described the privilege as one which prevents 'the use of legal process to force from me the lips of the accused individual the evidence necessary to convict him' and observed 'The prosecutors are forced to search for independent evidence instead of relying upon proof extracted from individuals by force of law' (1944) 322 US 694, at p.698 (88 Law Ed 1542, at p.7546). But it is not easy to assert confidently that the privilege serves one particular policy or purpose. A glance at the variety of views which have been expressed on this point, summarized in Wigmore on Evidence (McNaughton rev., 1961), vol. viii, pp.297-318, demonstrates the difficulty.

As will appear, this case is susceptible of determination on other grounds. For this reason we are content to assume, without deciding, 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."

In the same case, Murphy J. repeated and expanded upon his earlier view. At pp.346-347, his Honour said:

"The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society's acceptance of the inviolability of the human personality. In the widest sense it prohibits compulsory admission of criminality, that is, infamy, even where there is no prospect of punishment, because, for example, of a pardon, of the expiration of the time limited for prosecution. In a narrow sense, it is privilege against exposure to jeopardy of criminal prosecution, and is available only where there is a real danger of prosecution and conviction. The privilege developed in England out of concern for lack of due process in Star Chamber and criminal proceedings. It was introduced into the constitutions of several of the American States following the 1788 Revolution, and entrenched in the federal Bill of Rights. (See The Constitution of the United States of America - Annotated, 1106-1107.) It is referred to in the International Covenant on Civil and Political Rights, Art. 14(3)(g).

The privilege is personal, so that one required to produce documents cannot resist production on the ground that this would tend to incriminate another. The history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities (see United States v. White

(1944) 322 US 694, at p 701 (88 Law Ed 1542, at p 1547); Baltimore & Ohio Railroad Co. v. Interstate Commerce Commission (1911) 221 US 612, at p 622 (55 Law Ed 878, at p 884); Hale v. Henkel (1906) 201 US 43, at pp.69-70, 74-75 (50 Law Ed 652, at pp.663, 665); George Campbell Painting Corp. v. Reid (1968) 392 US 286 (20 Law Ed (2d) 1094)). An official of a corporation or organization cannot claim the privilege on behalf of that corporation or organization (United States v. White (1944) 322 US, at pp 699-700 (88 Law Ed, at pp 1546-1547); Wilson v. United States

(1911) 221 US 361, at pp 384-385 (5 Law Ed 771, at p 781). However, a different view has been taken in England (see Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395; Rio Tinto Zinc Corp. v. Westinghouse Electric Corp. (1978) AC 547), which I do not find persuasive."

Brennan J., at p.358 contented himself with saying:

"It is unnecessary to consider the argument that the privilege against self-incrimination does not apply to corporations and to consider what was said upon that question by the Court of Appeal in Triplex Safety Glass Co. v. Lancegaye Safety Glass

(1934) Ltd. (1939) 2 KB, at pp 408, 409."

1. Somewhat similar comments were made in Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs (1985) 156 CLR 385. At p 394, Gibbs C.J., Mason and Dawson JJ., after concluding that the privilege against self-incrimination was not applicable in any event, said:
   
   

"This conclusion makes it unnecessary to consider the respondent's alternative submission that the privilege does not extend to corporate bodies. The competing approaches are referred to in Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 CLR, at pp 333-334 but here, as there, the matter may be left for decision in a later case."

Murphy J. restated his view at pp.394-395 in the following terms:

"The privilege against self-incrimination is a human right. It is 'a safeguard of conscience and human dignity and freedom of expression' as well as 'protection against conviction and prosecution': Black and Douglas JJ., Ullman v. United States

(1956) 350 US 422, at p 445 (100 Law Ed 511, at p 528). It 'registers an important advance in the development of our liberty - one of the great landmarks in man's struggle to make himself civilized' .... It reflects many of our fundamental values and most noble aspirations ...": Murphy v. Waterfront Commission of New York Harbor (1964) 378 US 52, at p.55 (12 Law Ed (2d) 678, at p.681). It is enshrined in the International Bill of Human Rights: see The International Covenant on Civil and Political Rights, Pt III, Art. 14(3)(g). The privilege is peculiarly a human right and thus not available to corporations or unincorporated associations or political entities. In this respect it is distinguishable from other rights such as that of the right of an affected party to be heard in judicial and other proceedings, which extend to artificial persons (e.g., corporations and political entities like the Commonwealth and the States).

I prefer to decide this case on the basis that only natural persons on their own behalf can claim the privilege: see Hale v. Henkel (1906) 201 US 43, at p 74 (50 Law Ed 652, at p 665); United States v. White (1944) 322 US 694, at pp 698-699 (88 Law Ed 1542, at p 1546); see generally Antieau, "The Individual and the Government", Modern Constitutional Law, vol. 1, pp.182-185. There is no satisfactory rationale for extending the privilege beyond humans. English cases which extend the privilege to corporations (Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass

(1934) Ltd. (1939) 2 KB 395; Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation

(1978) AC 547) have not advanced any rationale for doing so."

At p.396, Brennan J. took the view that it was unnecessary to consider the argument that privilege does not apply to corporations.

1. In National Companies and Securities Commission v. Sim (Supreme Court of Victoria, Nicholson J., 28 January 1987, not yet reported) the Court was able to decide that no claim of privilege was available on the facts, and accordingly did not attempt to resolve the question whether a corporation could claim the relevant privilege. It was argued that the English authorities were to be preferred to those in the United States cited by Murphy J., and that in any event the English authorities bound a judge at first instance. Nicholson J. expressed himself as "doubtful as to the validity of either of those arguments". In the Concrete Constructions case (referred to above), at p.35, Wilcox J. referred to the authorities, and then proceeded on the assumption that the privilege against self-incrimination does extend to corporations. Again, on the facts, the question did not have to be determined.

2. In the present case, Mr. Camilleri's argument was that there is no authority binding upon me to hold that the privilege against self-exposure to a penalty is available to a corporation, and that I should act upon the considerations referred to by Murphy J., and follow the American authorities cited by him. It is undoubtedly true that the question is an open one; the majority of the High Court in the passages referred to above from Pyneboard and Controlled Consultants make this clear. It is much less clear that the rest of Mr. Camilleri's argument should be accepted by a court at first instance.

3. Accepting that the English authorities are no more than persuasive, they, coupled with the Canadian authorities referred to in the joint judgment in Pyneboard, show that in two important common law jurisdictions, the view has been taken that corporations have the benefit of the privilege against self- incrimination, and its allied privilege against self-exposure to a penalty. There is a suggestion in Pyneboard that the authorities to the opposite effect in the United States of America may depend in part upon the interpretation of the fifth amendment to the United States Constitution, a factor which is not applicable in Australia. There is also to be considered the very long line of authority in Australia based on the assumption that the two privileges are available to corporate bodies. The considerations referred to by Murphy J. in the passages quoted above are weighty indeed, but the statement that "it is not easy to assert confidently that the privilege serves one particular policy or purpose" in the joint judgment in Pyneboard suggests that it is not easy to decide the question without a full examination of all the relevant policy considerations.

4. On the one side, therefore, are the English and Canadian authorities and a long standing practice (based on an assumption) in this country. On the other side are the American authorities, possibly influenced by consideration not relevant in Australia, the policy considerations advanced by Murphy J., and the doubts expressed by Nicholson J. There can be no doubt that the decision that either privilege is unavailable to a corporation would amount at least to a major change in practice in Australia. Corporations could be charged with criminal offences and then compelled by subpoena to divulge documents in their possession, which documents could then be used as evidence to convict them. In my view, such a startling change should not be brought about by a judge at first instance. If it is to be effected, it must at least be by a higher court, better positioned to examine all of the policy questions involved.

5. For these reasons, I hold that it is open to the respondent to resist the production of its 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.

6. There is a question as to the form of the order I should make. Mr. Kenzie was at first inclined to suggest that I should do no more than excuse the respondent from the production of documents. Upon examination of the authorities, however, it appeared that Franki J. in the T.N.T. Management case (above) ordered that the subpoenas in that case be set aside. In my view, that order is appropriate in the present case. Once the respondent has claimed its privilege and objected to the production of its document, it would be futile to allow the subpoena to remain in existence. I therefore propose to order that the subpoena directed to the respondent, issued on 6th March 1987, be set aside.