Appellants v Respondents

Appellants v Respondents - [2014] VSC 120 - VSC 2014 case summary — Zoe

[11]

2.2 The Contempt Summons is filed pursuant to r 75.06 of the Rules. By it, the Appellants allege (as now does the Second Respondent), amongst other things, that the First Respondent, acting via its official, Mr Joseph Myles, contravened an injunction issued by Hollingworth J on 5 April 2013. It is alleged that Mr Myles established and maintained a blockade (comprised of vehicles and men) of a construction site at Joseph Road, Footscray, on 16 May 2013, thereby preventing the supply of concrete to that site by the first plaintiff. That construction site was for a project known as the Regional Rail Link project.

2.3 Mr Myles is an official of the CFMEU.[1] He is also a "specialist" "organiser" apparently assigned by the First Respondent to work in connection with the Regional Rail Link project.[2]

2.4 In order to succeed on the charges, the Appellants will need to establish either that the First Respondent authorised Mr Myles to engage in the conduct in which it is alleged that he engaged, or that it failed to take appropriate steps to prevent it - see: Evenco Pty Ltd v. Australian Building Construction Employees and Builders Labourers Federation (Qld Branch);[3] and Grocon Constructors (Vic) Pty Ltd v. CFMEU.[4]

2.5 The Appellants seek discovery of specific categories of documents that go to the question of Mr Myles's authority to do as he did, on behalf of the First Respondent, on 16 May 2013. To understand how the documents are relevant, it is necessary to consider the affidavit material that the Appellants have filed in support of the contempt summons, particularly the affidavits of Acting Inspector Damien Jones[5] and Sergeant Mark Anderson.[6]

2.6 Acting Inspector Jones and Sergeant Anderson are police officers who attended at the Joseph Road site on 16 May 2013. They both spoke to Mr Myles about the blockade that was in place when they arrived. Sergeant Anderson, having been introduced to Mr Myles, asked whether he (Mr Myles) was "the main man" in charge of the blockade, to which Mr Myles is said to have responded, "...I am just doing what I am told and following directions...I will be here until I am told otherwise. When we are told we can go home, we go home".[7]

2.7 Acting Inspector Jones and Sergeant Anderson depose that Acting Inspector Jones asked Mr Myles to permit worshippers from a nearby temple (who bore no apparent connection with the blockade or the reason for it) to pass through the blockade. Both depose that Mr Myles then walked away and spoke to somebody on his mobile telephone. He then returned and said that he would permit the worshippers to pass. Both Acting Inspector Jones and Sergeant Anderson then observed the blockading vehicles moving aside to permit the worshippers' vehicles to pass.[8]

2.8 The Appellants, then, seek orders requiring that the First Respondent discover contact details for members of the executive of the Victoria/Tasmania branch of its Construction and General division (the executive is, for all intents and purposes, the management body that runs that divisional branch). Documents so discovered will then be used, in conjunction with call record subpoenas to telecommunication carriers, to identify the person from whom Mr Myles apparently sought and obtained directions to permit worshippers to pass through the blockade.

2.9 The Appellants also seek orders requiring the First Respondent to discover documents containing the terms of Mr Myles's employment. Those documents are also relevant to the scope of Mr Myles's authority.

2.10 Both categories of documents are peculiarly within the knowledge of the First Respondent.

[151]

...the proceedings are, in my view, criminal in nature.

It is clear on authority that in a civil action for a penalty, saving special statutory provisions, the plaintiff is not entitled to discovery of documents: see R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738. In Queensland, Chubb J. held in R v Hamiguchi [1908] QSR 224 that the rules for discovery do not apply to criminal trials. In criminal trials we have a practice and procedure which stems from the application of considerations which do not apply to civil actions. The fairness which is expected to be shown by the Crown prosecutor to an accused is not part of the adversarial ethic in civil suits. So, whilst it would, generally speaking, be quite unfair for a prosecutor not voluntarily to produce to the accused material relevant to the trial and going to exculpate him, there is no rule which enables the accused to seek at the outset indiscriminately to see the relevant papers within the possession or control or power of the prosecution.

The public interest immunity which operates to excuse the Crown from naming sources, for example, along with the committal process during which witnesses may be called upon to produce documents assists no doubt to provide some rationale for the lack of discovery in criminal cases; but, likewise the rule" that no man shall be required to give or provide evidence to incriminate himself" provides a counterweight from the accused's viewpoint. However, if an accused elects to give evidence, he may be compelled to produce relevant documents in his possession or control: R v Adams [1965] VicRp 72; [1965] VR 563.

Discovery and the right to it pre-trial has an essential element of mutuality about it which it would be difficult to apply in criminal cases. It is the privilege against self-incrimination which appears to lie at the basis of the Court's refusal to order discovery against a defendant in actions to enforce penalties: see Egg and Egg Pulp Marketing Board v Korp Tocumwal Trading Co Pty. Ltd. [1963] VicRp 52; [1963] VR 378, at p. 379; see also the discussion of the matter in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, at pp. 333-6; [1983] HCA 9; 45 ALR 609, per Mason ACJ., Wilson and Dawson JJ.[55]

[159]

My conclusion from the survey made in these reasons of texts and authorities since the eighteenth century is that the privilege against self-incrimination, and that against self-exposure to a penalty, are both reflections of the one fundamental principle. It has been stated in various ways, and with differing emphases. But, with respect, it cannot be better expressed than by the words which Deane, Dawson and Gaudron JJ used in Caltex (at CLR 532 ; ALR 431) with reference to self-incrimination:

In the end, [the privilege] is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself.

Substituting "the incurring of a penalty" for "the commission of a crime" and "the defendant" for "the accused", I think this statement applies to the privilege against self-exposure to a penalty. So applied, the principle may evoke less feeling, but it remains the same principle. It is therefore wrong to regard the two grounds or aspects of privilege as depending on unrelated or different considerations. They should not be seen as separate props in the structure of justice, but rather as interlocking parts of a single column. The foundation of this column is that "great justice and tenderness in the law of England", that "humane policy of the law", which Lord Hardwicke and Alexander CB expounded, and the High Court has so recently examined. In the Supreme Court of the United States, it has been said to be a matter of "protecting individual civil liberties": United States v White [1944] USSC 109; (1944) 322 US 694 at 700.

If that foundation will not support the allowance of the privilege in respect of self-incrimination to a body corporate, it will not support the allowance to the same body of the privilege against self-exposure to a penalty. Even when actions by common informers were significant features of the legal landscape, the authorities do not suggest that an aversion to them was the true basis of the rule. The ghost of an almost forgotten procedure should not be allowed to warp the fabric of the modern law, in which an action for a civil penalty (particularly against a corporation) is most likely to be maintained by a minister or an authority constituted under an Act of the parliament. To see the policy of the law as contrary to the maintenance of an action for a civil penalty under the Trade Practices Act, or under other legislation, is to see the law as a house divided against itself - for such penalties are imposed by the law framed by parliament in order to enforce policies of the law. Once given that a corporation cannot claim the benefit of the privilege against self-incrimination, there is no sound reason why a proper authority, suing a corporation for a civil penalty, should not have the assistance ordinarily given to a litigant in the court with respect to discovery and production of documents - assistance generally thought to be in the interests of justice....[56]

[170]

We would interpose here that there is a fundamental difference between the corporate entity and the personality of an individual in the context of the privilege against self-incrimination. The distinction lies in the adage that ``a corporation has no body to be kicked or soul to be damned'': British Steel Corp v Granada Television Ltd [1981] AC 1096 per Lord Denning MR at 1127. Again, this is to be seen in the light of the historical development of the privilege. As Brennan J recognised in Caltex Refining (at CLR 512), a corporation cannot be at risk of corporal punishment or excommunication. These were the ``dread terrors against which the privilege against self-incrimination was designed to protect''. This fundamental difference must necessarily have an impact on the way in which the affairs of corporations are investigated because the whole management and control of a corporation lies in the hands of individuals. This court recognised the distinction in relation to investigations under the Companies Code in Bond Corp Holdings Ltd v Sulan [1990] 3 WAR 49 per Wallace J at 69.[63]

...

We have found three reported cases, all decisions of single judges in either the Federal Court of Australia or the Industrial Relations Court of Australia in which Abbco has been applied: Trade Practices Commission v IMB Group Pty Ltd (1994) 16 ATPR 41-348; Calderwood v SCI Operations Pty Ltd (1995) 130 ALR 456; Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426; 131 ALR 581. The fact that the declaration of the common law position as propounded in Abbco has been acknowledged and acted upon in other arenas is a further reason why this court should be slow to come forward with a different ruling.

There is one other issue with which we should deal. Counsel for the Appellant submitted that in a case such as this, where there are two defendants, one of which is a corporation and the other an individual, to deny to the corporation the privilege would, in a practical sense, destroy the utility of the privilege for the individual. This is because the information disclosed by the corporate defendant would of necessity refer directly to the individual. This problem was raised in Abbco. Burchett J rejected it as a basis for holding that the privilege applied to corporations. We adopt, without repeating them, his Honour's reasons for that rejection at FCR 116. We would add that a similar approach to this issue was taken in IMB Group Pty Ltd, supra, at 42,546.

In our opinion, while s 254 does not abrogate the penalty privilege, in a customs prosecution a corporate defendant cannot avail itself of the privilege because the common law does not extend to a corporation the immunity enjoyed by an individual defendant.[64]

[298]

Weighing heavily against granting the privilege to corporations is "the public interest in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence"...

...

To deprive the corporation's opponent - whether it is the Crown or a private litigant - of evidence which will assist that party's case is a high price for the administration of justice to pay in return for securing the integrity of the adversary system of justice. Corporate behaviour, moreover, has enormous social impact, a factor recognized in the United States cases. In Braswell, for example, the Supreme Court was influenced to restrict the scope of the privilege by its conclusion that "white collar crime" was "one of the most serious problems confronting law enforcement authorities".

In civil actions, the case for requiring corporations to disclose all relevant documentary evidence is overpowering. To permit a corporation to claim the privilege in civil proceedings is to deprive the opposite party of evidence which will assist that party's case. Sometimes, that evidence will completely destroy the corporation's case...

Similarly, a strong case can be made in favour of the conclusion that the privilege should not be exercisable by a corporation so as to prevent the prosecution obtaining, by subpoena, documents which are relevant to the issues in criminal proceedings. The documents exist. They can be obtained by search warrant. If they are relevant to an offence, they cannot be altered or destroyed because to alter or destroy them would constitute the offence of attempting to pervert the course of justice. Why then should this evidence be allowed to remain hidden in the files of the corporation when it is relevant to an issue to be tried in criminal proceedings? It is difficult to see how the administration of justice, even under the adversary system of criminal justice can be advanced by allowing a corporation to refuse to produce documents on subpoena simply because the documents tend to incriminate the corporation. If a corporation can refuse to produce documents, the public interest in detecting and punishing crime is diminished so that the integrity of the adversary system can be maintained for the benefit of an artificial entity. This is much too high a price to pay for allowing corporations to claim the privilege.

In my opinion, the public interest in the adduction of relevant evidence in civil and criminal proceedings outweighs the detriments associated with refusing to allow corporations to claim the privilege. This Court should hold, therefore, that a corporation cannot claim the privilege against self-incrimination.[115]

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