Appellants v Respondents

2 The Contempt Summons alleges that in breach of orders made by Hollingworth J on 5 April 2013, the First Respondent, by its employee or official, one Joseph Myles, on 16 May 2013, established, maintained and participated in a blockade of a construction site in Footscray, Victoria known as the Regional Rail Link Project.

3 By summons dated 2 October 2013 ("the Discovery Summons") the Appellants sought orders pursuant to r 29.07 of the Rules requiring the First Respondent to make discovery of documents as specified in paragraph 1(a)-(o) of the Discovery Summons, for the purposes of the Contempt Proceeding.

4 The Discovery Summons was dismissed by Daly AsJ on 23 October 2013 ("the Decision").

5 By orders made on 28 October 2013, the Second Respondent, the Attorney-General for the State of Victoria, was joined as a party to the Contempt Proceeding.

6 On 1 November 2013 the Appellants issued a Notice of Appeal against the orders made by the learned Associate Judge on 23 October 2013.

7 It is submitted by the First Respondent, and uncontradicted by the Appellants or the Second Respondent, that there is no precedent in this Court for an order compelling discovery, pursuant to r 29.07(2) or otherwise, by a party responding to contempt charges.

8 I set out the summary of relevant background facts and assertions presented in the Appellants' Outline of Submissions on Appeal, dated 4 November 2013. The below summary identifies the essence of the Appellants' case in this proceeding, as follows:

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.

9 The Appellants' Notice of Appeal proceeds on three grounds. Each is said to identify relevant error on the part of the Associate Judge on 23 October 2013, namely:

1. Her Honour erred in finding that the Supreme Court (General Civil Procedure) Rules 2005 (the "Civil Rules") do not apply to the proceeding.

2. Her Honour erred in finding that discovery under r 29.07 of the Civil Rules is not available in a contempt proceeding involving a corporate defendant.

3. In considering whether to exercise her discretion to grant discovery under r 29.07 of the Civil Rules, her Honour erred by proceeding on the basis of a wrong principle, being that discovery is not appropriate in a contempt proceeding involving a corporate defendant.

10 The appeal is brought pursuant to r 77.06 of the Rules. The nature of such an appeal is by way of re-hearing in which an Appellant must establish error as identified in its Notice of Appeal. Accordingly, such appeals are no longer by way of re-hearing de novo.

11 On this appeal I accept the Appellants' submission that if the alleged errors are established it is for this Court to correct those errors and, in doing so, consider the proper exercise of discretion under r 29.07(2).

12 Further, the learned Associate Judge's exercise of discretion under r 29.07 is appellable only to the extent that it is affected by error of the kind referred to in House v R.[9] This means if the Associate Judge undertook the exercise of discretion under order 29.07, such exercise of discretion is not able to be set aside simply because the Court, undertaking the relevant review, would have exercised the discretion differently. It must be established that some error has been made in exercising the discretion. Such error may be that the judge, exercising that discretion, acted on an incorrect principle by allowing extraneous or irrelevant matters to guide or affect his or her decisions, and/or he or she has mistaken the facts, and/or he or she did not take into account some material consideration. In the event that any of these errors are established, the Court undertaking the review has jurisdiction to exercise its own discretion in substitution for the earlier erroneous exercise of the same discretion.

13 The First Respondent, the CFMEU, submits that because this appeal calls upon this Court to exercise appellate jurisdiction to review a decision that involves the exercise of a discretion and relates to matters of practice and procedure, I should proceed with 'particular caution'.[10] I accept this submission and proceed accordingly.

(i) materials filed in the Appeal Book, (including all the parties' written submissions therein);

(iii) First Respondent's Submissions (before the Associate Judge) dated 17 October 2013 (FRS: 17/10/13);

(iv) Appellants' Supplementary Submissions (before the Associate Judge) dated 21 October 2013 (AS: 21/10/13)

(v) Appellants' Outline of Submissions dated 4 November 2013 (AS: 4/11/13);

(vi) Second Respondent's Outline Submissions dated 17 January 2014 (SRS: 17/1/14);

(vii) First Respondent's Outline Submissions dated 23 January 2014 (FRS: 23/1/14);

(viii) Second Respondent's Reply Submissions dated 29 January 2014 (SRS: 29/1/14);

(ix) additional authorities provided during the course of oral submissions on 29 January 2014;

(x) Second Respondent's Outline Submissions dated 31 January 2014 (SRS: 31/1/14);

(xi) Appellants' Supplementary Submissions dated 31 January 2014 (AS: 31/1/14); and

(xii) First Respondent's Reply Submissions dated 3 February 2014 (FRS: 3/2/14)).

The Decision of the Associate Judge: 23 October 2013

15 In summary the key elements of the learned Associate Judge's decision dated 23 October 2013 were as follows:

(a) Her Honour identified the scope of the orders for discovery sought by the firstnamed Appellant, Boral, pursuant to r 29.07, as follows:

(i) documents recording the telephone numbers of certain CFMEU executives; and

(ii) documents evincing the terms and conditions of employment of Mr Myles, an official of the CFMEU (Decision [1]);

(b) The documents sought are relevant to a fact in issue (Decision [3]);

(c) Boral's discovery application is not in the nature of a "fishing" exercise (Decision [4]);

(d) That "special circumstances" existed which would warrant an order for discovery under r 29.07 and that the usual considerations which would cause the Court to refuse to exercise its discretion under r 29.07 do not apply (Decision [5]). In particular her Honour noted that she was mindful that the documents concerned go to an issue which is peculiarly within the knowledge of the CFMEU;

(e) Production of the documents sought by the Appellants would not be oppressive to the First Respondent. Her Honour also noted at [5] that it was apparent that the relevant proceeding had been commenced by way of summons, and not by way of writ. The Contempt Proceeding was initiated under Order 75 of the Rules, which states that proceedings are by way of summons or originating motion. (Decision [5]);

(f) An order under r 29.07 is not available, or even if available, the Court's discretion under r 29.07 should not be exercised in favour of Boral because, as analysed in Australian Securities and Investment Commission v Sigalla (No 4) ('Sigalla'),[11] the Contempt Proceeding is properly characterised as a "criminal contempt", and as such, the rules of procedure and evidence governing criminal proceedings apply (Decision [6]);

(g) Contempt proceedings which relate to a breach of orders of the Court which are not coercive or remedial, but punitive, are generally characterised as proceedings for criminal contempt (Decision [10] and [11]);

(h) Her Honour observed that Sigalla was not concerned with questions of discovery. Her Honour noted that Sigalla was concerned with whether the consequences of Mr Sigalla making a "no case" submission were governed by the regime applicable to civil proceedings, or by the provisions of the Evidence Act 1995 (NSW) applicable to criminal proceedings (Decision [8]). The charges in Sigalla related to contempts for breaches of orders which were not capable of remedy and were therefore, if proved, criminal offences for procedural and evidentiary purposes (Decision [11]);

(i) Her Honour also found that "In the current case, the rules of criminal procedure would apply, not the rules governing procedure in civil proceedings" (Decision [12]);

(j) Her Honour noted that given the statements of the High Court in Witham v Holloway ('Witham'),[12] a proceeding concerning allegations of contempt whether civil or criminal, would almost certainly be considered to be a "quasi criminal proceeding". As such, the disclosure provisions under s 26 of the Civil Procedure Act 2010 (Vic) would not apply in the current case (Decision [14]);

(k) Her Honour referred to Clarkson v DPP ('Clarkson')[13], a case in which Murphy J found that despite the subject judicial review proceedings being brought pursuant to Order 56 of the Rules to quash a conviction in the County Court, the proceedings were criminal in nature and the rules of discovery were therefore not applicable (Decision [16]). Clarkson was a case involving an individual as defendant (Decision [17]);

(l) Her Honour pointed out that in Witham the Court was concerned with an individual, not a corporate defendant (Decision, [18]);

(m) The learned Associate Judge expressed the view that there is real doubt as to whether the High Court's decision in EPA v Caltex Refinery Co Pty Ltd ('Caltex')[14] is binding authority for the proposition that the compulsory disclosure processes of the Court can be utilised to compel a person, whether a corporation or a natural person, to disclose documents which would expose that person to a criminal penalty (Decision [19]);

(n) The learned Associate Judge noted that in Caltex, Deane J concluded that a corporation could not avail itself of the privilege against self-incrimination. However, his Honour said that a corporation could avoid giving discovery under a notice to produce by claiming the privilege against exposure to penalty, whether criminal or civil. This is unless a statute or rule of Court otherwise provides expressly or by necessary intendment (Decision, [22]);

(o) Her Honour also noted that Deane, Dawson and Gaudron JJ agreed that the notice to produce in Caltex should be set aside, and stated in that context:

If, as it seems to us, the desire to deny the privilege against self-incrimination, whether to natural persons or corporations or both, tends to be dictated by pragmatism rather than principle, then the extent of any denial is more appropriately a matter for the legislature than the courts. We can find no sufficient reason in principle for saying that the doctrine, as it has been developed in our law, has no application to corporations[15]

(Decision [22-23]);

(p) Her Honour cited Trade Practices Commission v Abbco Iceworks Pty Ltd ('Abbco'),[16] and noted that the reasoning of the Full Court in Abbco supports the proposition that discovery ought to be available to Boral in this application, given the immunity from self-exposure to civil penalty is not available to corporations (Decision [25]);

(q) Her Honour also noted that here Boral does not have access to other compulsory processes available to the police and the relevant regulators (Decision [25]);

(r) Her Honour stated in relation to Abbco that in her view it was arguable that Abbco was authority for the more limited proposition that corporations are only precluded from relying on the privilege against exposure to a penalty in actions for civil penalties, not criminal proceedings (Decision [25]);

In the current case, adopting the analysis of White J in Sigalla, the position is that this application is properly characterised as a criminal proceeding, and as such, the rules of civil procedure do not apply. Indeed, the framework of order 75 tends to support this view, in that rule 75.14 expressly empowers the court to make an order for costs

(Decision [25]).

(s) In summary, her Honour concluded that discovery ought not be ordered because:

(a) proceedings for punishment for contempt are criminal in nature, and the appropriate safeguards should apply;

(b) discovery is not available or appropriate in criminal proceedings;

(c) if there is any debate about whether a particular action for contempt is civil or criminal in nature, for the purposes of determining which evidentiary and/or procedural regimes apply, the current case is an action for criminal contempt, as the purpose of bringing the application is to punish the CFMEU for breaching the Orders, not to coerce CFMEU to obey the Orders, and there is no breach capable of remedy; and

(d) while EPA v Caltex is authority for the proposition that a corporation is not entitled to rely upon the privilege against self-incrimination in circumstances where compulsory disclosure of documents is authorised by a statutory provision, it is arguably not authority for the proposition that the court's own rules and procedures can be utilised for the purpose of compelling a party, whether a corporation or otherwise, to disclose evidence which would expose that person to a penalty. Further, to the extent that Abbco Iceworks has determined that the privilege against self-exposure to a penalty does not extend to corporations, this decision is arguably limited to cases concerning civil actions for civil penalties

(Decision [26]).

Ground 1 of the Appeal: Application of the Rules

16 The Appellants submit that the learned Associate Judge did not identify any authority for the proposition that applications such as the Contempt Summons are criminal proceedings to which the Rules do not apply. The Appellants also submit that the First Respondent did, at all events, not contend that the Rules did not apply.[17]

17 The Associate Judge's findings impugned by the Appellants are as summarised in Ground 1 of the Notice of Appeal, and also in the overlapping Ground 2, namely that:

1. Her Honour erred in finding that the Supreme Court (General Civil Procedure) Rules 2005 (the "Civil Rules") do not apply to the proceeding.

2. Her Honour erred in finding that discovery under r 29.07 of the Civil Rules is not available in a contempt proceeding involving a corporate defendant.

The Appellants say that the findings relevant to Ground 1 are in paragraphs [6], [12] and [25] of the Decision.

18 The Appellants take issue with the Decision on the basis that her Honour's findings were influenced heavily, if not solely, by the case of Sigalla. The Appellants submit that in Sigalla, White J dealt with proceedings for criminal contempt which were being pursued within a framework of certain specific legislation, none of which contained language equivalent to that used in the Rules.

19 The Appellants submit that there is clear authority for the proposition that, notwithstanding that a contempt may be described as a criminal offence, proceedings in relation to the contempt do not attract the criminal jurisdiction of the Court. They submit that such proceedings attract the civil jurisdiction of the Court and the rules that ordinarily apply to that jurisdiction.[18]

20 Further, the Appellants and Second Respondent cite the following passage of the judgment of Beach JA in Boral Resources:

While the operation of any rule of court that cuts across protections or privileges given to an accused facing criminal charges might need to be mediated so as to ensure a fair trial of those charges without the loss of relevant privileges and protections, rule 9.06 is not a rule that comes within that potential class of rules.[19]

21 The First Respondent's submission is that her Honour made no finding in the terms stated by the Appellants in their Notice of Appeal and arguments.

22 The First Respondent says that the Appellants have overstated the effect of her Honour's statements and by doing so have inaccurately elevated those statements to the effect that the rules of criminal procedure apply to this contempt proceeding, rather than the Rules governing procedure in civil proceedings. The First Respondent submits in essence that her Honour's statements did not amount to a finding that Chapter I of the Rules did not apply.

23 The First Respondent submits that the fundamental point as to the proper characterisation of the Contempt Proceeding is that it is "criminal in nature", whether it is tried in the civil jurisdiction or the criminal jurisdiction.[20] In this regard the First Respondent also refers to and relies on Hinch, where the High Court said:

It should no longer be accepted in this country where, regardless of whether it be imposed in proceedings brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order, imprisonment or fine as a consequence of a finding of contempt of court cannot be justified otherwise than as a punishment for past or continuing breach of law. Proceedings seeking the imposition of such punishment upon an alleged contemnor (or an order for sequestration in the case of a company) must realistically be seen as essentially criminal in nature.[21]

24 The First Respondent notes that even if the learned Associate Judge's formulation as to the character of the proceeding was erroneous, that error is of no significance because the Court, in any event, considered whether discovery under r 29(7) ought to be granted.[22]

25 If the above submission by the First Respondent is to the effect that the learned Associate Judge considered whether in the exercise of discretion under r 29.07 discovery should be ordered in all the relevant circumstances, I reject this submission for the reasons I explained in paragraphs [46]-[50] below.

26 Mr Morrissey SC for the CFMEU argued in relation to Ground 1 of the Notice of Appeal that the learned Associate Judge did not ultimately apply any criminal procedural rules to any aspect of this matter nor did the Associate Judge refer to the Criminal Procedure Act 2008 (Vic) as being applicable.

27 The First Respondent's submission is that her Honour's statements that "the rules of procedure and evidence governing criminal proceedings apply", and that "the rules of criminal procedure would apply, not the rules governing procedure in civil proceedings", should be read in the overall context of her Honour's Ruling and reasons (which her Honour said were necessarily brief). The First Respondent submits that if read in context, it is seen that those statements were referring to a proceeding which is criminal in nature and to the appropriate procedures to be adopted in a criminal contempt proceeding.[23]

28 The First Respondent submits that the contempt power of the Supreme Court is a sui generis specific power, and although Order 75 of the Rules is within Chapter I, contempts of the type dealt with pursuant to Order 75 are "criminal in nature" and the processes followed by the Court are shaped by that characterisation.

29 The First Respondent also submits that because of the special characteristics of the Court's contempt power in relation to a contempt which is "criminal in nature", the rules of Chapter I do not automatically apply to Order 75 proceedings. The First Respondent says this was recognised by analogy in Clarkson[24]. The First Respondent submits that the procedure applicable to the Contempt Proceeding is a matter to be determined by the Trial Judge consistent with the purpose of the contempt power, especially where the proceeding is for a criminal contempt and is quasi-criminal in nature. In such cases the First Respondent submits, neither the Rules nor the Criminal Procedure Act 2008 (Vic) impose a binding or comprehensive process. The First Respondent highlights that this enables the Court to be flexible in relation to the regulation of such proceedings.[25]

30 Further, the First Respondent submits that it is open to the Court to make orders under Chapter I of the Rules, for example directions concerning subpoenas under Order 42. However, it submits that the Rules do not automatically apply, as illustrated by the approach taken by Cavanough J in Grocon Constructors (Victoria) Pty Ltd v CFMEU ('Grocon').[26]

31 During oral submissions Mr Morrissey SC clarified that the First Respondent's contention was that although rule 1.05 is to the effect that all the Rules apply to every civil proceeding commenced in the Court (subject to the exceptions in Rule 1.05(2) which are not presently relevant), not all of the Rules are of appropriate application to criminal contempt proceedings instigated pursuant to Order 75. Rules which are not appropriate include the Rules which establish coercive mechanisms such as Orders 29, 30 and 31.[27]

32 Senior Counsel for the First Respondent also advanced alternative arguments. First, that at its highest Order 29 was not available in respect of an Order 75 criminal or quasi-criminal contempt proceeding. Second, that in the circumstances, and in the exercise of the Court's discretion, Order 29 should not be invoked in relation to a contempt proceeding such as this.[28]

33 The Second Respondent submitted, in essence, that it is uncontroversial that the Contempt Proceeding has been initiated in and continues to be pursued in the civil jurisdiction of this Court. This is confirmed, it submitted, by Boral Resources where Beach JA said:[29]

It may be accepted for present purposes that not all of the rules of civil procedure apply to a proceeding seeking to have a party adjudged guilty of contempt of court. A prime example of a rule which may not apply is a rule requiring an individual party to incriminate himself or herself by giving discovery. However, the mere fact that some rules of civil procedure may not apply in proceedings for contempt does not mean that none of the rules governing civil proceedings apply in such cases. Prima facie, the rules in Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 apply to proceedings brought under Order 75 in relation to alleged contempts of court. There is nothing in those rules that make them inapplicable to such proceedings. In this respect, the position under Order 75 may be contrasted with the position in New South Wales where different statutory provisions and rules apply. Further, what was said by the High Court in Hinch v Attorney-General for the State of Victoria is apposite:

Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.

The Rules apply to an Order 75 proceeding, subject to appropriate exercise of discretion

34 In my view on the proper construction of the Rules, in particular given the terms of r 1.05 of the Rules and the location of Order 75 within the body of the Rules, a contempt proceeding initiated under Order 75 of the Rules is a proceeding in the civil jurisdiction of the Supreme Court and is governed by Chapter I of the Rules. Chapter I governs civil proceedings. This position is, however, subject to the exercise of the Court's discretion in relation to the application of those rules in the particular circumstances of a proceeding. This interpretation of the Rules and this characterisation of the nature of the subject proceeding are supported by the High Court's statements in Hinch[30] and the Court of Appeal's observations in Boral Resources.[31]

35 A party charged with criminal contempt may be granted dispensation from some parts of the Rules to ensure there is no loss of relevant privileges and protections. Examples of such parts of the rules include rr 29.07(2), 30.02(3) and 31.12 (Order 31 is in any event also conditioned by the requirement for consent), which deal with discovery, interrogatories and oral examination, respectively. The application of each of these rules is subject to the Court's discretionary power and the Court may decide not to apply such rules in an Order 75 contempt proceeding. For example, as observed by the Court of Appeal in Boral Resources, the Court's powers to coerce discovery pursuant to Order 29 may not apply in a way which requires an individual to incriminate himself or herself in a contempt proceeding where the contempt alleged is of a criminal character.

36 In this matter, however, it is not an individual who is being proceeded against but an organisation in the nature of a body corporate, registered under the Fair Work (Registered Organisations) Act 2009 (Cth).[32] In passing I note that the First Respondent did not submit otherwise in response to the Appellants' submissions that the First Respondent is a "corporation" and therefore did not enjoy the common law privilege against self-incrimination and self-exposure to a penalty.[33]

37 In any proceeding seeking to have a party adjudged guilty of a contempt of Court the parts of the Rules which are to be specifically applied will be determined on a rule by rule basis depending on all the relevant circumstances.

38 The First Respondent argued that r 75.14 of the Rules suggests that the other rules of Chapter I do not automatically apply to proceedings brought under Order 75. The Associate Judge took a similar view.

39 Rule 75.14 comes at the conclusion of Part 4 of Order 75. In Part 4, rr 75.10 and 75.11 deal with the situation where the Court finds the respondent guilty of contempt. Part 4, r 75.11 authorises the Court to punish for contempt by committal to prison or fine or both, and where the respondent is a corporation, the Court may punish for contempt by sequestration or fine or both.

40 Order 75 Part 4 is additional to and separate from the rules dealing with applications by the moving party under r 75.06 or r 75.07, and provides powers to the Court in rr 75.10 and 75.11 the exercise of which, it could be contended, does not reflect the success of a litigant in the usual way. Rule 75.11 empowers the Court to punish the contemnor and provides for certain types of punishment. Orders made under r 75.11 which are not analogous to the type of order usually made in a civil proceeding. In civil proceedings, orders typically respond to a party's prayer for relief and established entitlement, and in that way, reflect the success of the litigant. Because of these special features I consider that r 75.14 is intended to clarify the Court's discretion as to costs in relation to proceedings and orders of a different character to the type of proceeding and orders usually addressed by Order 63 of the Rules.

41 Insofar as r 75.14 expressly provides for a discretion in relation to costs, whether or not an order for committal is made, that rule does not, in my view, indicate that Order 75 stands separately from the remainder of the Rules nor that the other rules in Chapter I conferring a discretion in relation to costs are inapplicable. The existence and terms of Order 75.14 therefore do not in my view suggest that the Rules do not apply to Order 75 proceedings.

42 Rather, r 75.14 reflects an intention to clarify, lest there be any doubt, that the Court has a discretion as to costs "whether an order for committal is made or not". It might otherwise be argued that s 24 of the Supreme Court Act 1986 (Vic) and Order 63 of the Rules are not apposite to confer a cost discretion in relation to a proceeding pursuant to Order 75 of the Rules.

43 In my view on a fair reading of the Decision, and in particular her Honour's findings at [6], [12], [25] and [26](b), her Honour found that relief under r 29.07 of the Rules was not available to Boral. This was principally because, as a result of the nature of the Contempt Summons, namely a proceeding properly characterised as a "criminal contempt", the rules of procedure and evidence governing criminal proceedings applied. Further, her Honour found that the Rules do not apply to the Contempt Summons and accordingly, discovery is not available or appropriate in the context of the Contempt Proceeding.

44 The key basis for denying the Appellants' discovery application was her Honour's finding that the rules of criminal procedure apply and that the rules governing civil procedure in civil proceedings do not apply. In so denying the discovery application, her Honour therefore erred. Her Honour's approach to the possible exercise of discretion as to the application of r 29.07, and her Honour's decision not to enter into that exercise of discretion under r 29.07, was based on an extraneous and therefore erroneous consideration concerning the non-application of the Rules.

45 Further, given the unequivocal finding by her Honour that the Rules, including r 29.07 were not applicable or available to Boral in this proceeding, it is clear that her Honour's reasoning was that the inapplicability of r 29.07 also resulted in the threshold decision that it was inappropriate or unnecessary to enter into an exercise of discretion under r 29.07.

Her Honour ultimately did not enter into the exercise of discretion permitted under r 29.07(2)

46 I accept the Appellants' submission that her Honour "did not purport to undertake any weighing of competing factors". It is clear that her Honour identified some matters relevant to the exercise of discretion. Her Honour considered the relevance and potential significance of the documents the subject of the Appellants' application and the "special circumstances" which might ordinarily satisfy r 29.07. Her Honour also considered the nature of the Appellants and their inability to avail themselves of certain other compulsory processes, the scope of discovery being sought, whether or not it was potentially oppressive, and that appropriate safeguards should apply in relation to contempt proceedings of a criminal character.

47 I find, however, that the learned Associate Judge did not ultimately engage in exercising the Court's discretion under r 29.07. This is clear from her Honour's statements in the Decision at [6]. Her Honour there stated firstly that no relief was available to Boral under r 29.07. It appears this finding was founded on her Honour's conclusion that the civil procedural rules, including r 29.07, did not apply and that the privilege against self-incrimination and/or the privilege against exposure to penalty was available to the CFMEU.

48 Her Honour stated in the Decision at [6] that if discovery under r 29.07 were available to Boral, her Honour would not exercise her discretion in favour of the Appellants for the "same reasons" that supported the decision that discovery under r 29.07 was not available. By alluding to the possible exercise of the Court's discretion in that way her Honour made it clear why, if hypothetically she had entered upon the exercise of discretion under r 29.07(2), an order for discovery would have been refused. The matters discussed at [2]-[5] of the Decision, which may well have favourably influenced the possible exercise of discretion, were clearly not part of the "same reasons" referred to in [6] of the Decision. Furthermore, her Honour's summary reasoning and conclusions at [26] of the Decision confirm that her Honour did not embark upon an evaluation of relevant factors in the exercise of her discretion under r 29.07 of the Rules.

49 Accordingly, her Honour also erred in failing to enter into the exercise of the discretion which was in fact available to her Honour under r 29.07 of the Rules. Additionally, for reasons I explain below, I also consider that her Honour erred in not ultimately exercising the Court's discretion in favour of granting the Appellants' application for discovery.

50 For the above reasons I do not accept the First Respondent's submission that the Appellants' descriptions of the effect of her Honour's statements relating to the non-application of the Rules overstate what is said in the Decision. I do not accept the First Respondent's submission that, properly understood, her Honour did no more than recognise the correct procedural position. I have addressed what I consider to be the "correct procedural position" as part of my conclusion above.

Ground 2 of the Appeal: Availability of discovery in contempt proceedings

51 The Appellants submit in essence, in ground 2 of their Notice of Appeal that her Honour erred in finding that discovery under r 29.07 of the Rules is not available or appropriate in a criminal contempt proceeding involving a corporate defendant.[34]

52 The Appellants also submit that a corporate respondent cannot, in criminal cases, successfully claim privilege against self-incrimination and cannot, in civil penalty actions, successfully claim privilege against self-exposure to a penalty.[35]

53 The Appellants submit that there is no blanket rule to the effect that discovery is unavailable or inappropriate in criminal proceedings, let alone in prosecutions for contempt. They submit that corporate defendants may be compelled to produce documents for use against them in criminal and quasi-criminal proceedings.[36]

54 The Appellants submit that the making of an order for discovery, if appropriate in the circumstances, serves important forensic objectives and the interests of justice. These factors, it was said, outweigh a contingency like the prospect of a "flood" of many such applications being made in other contempt proceedings in the future including for discovery and interrogation.

55 The Appellants respond to the First Respondent's submission that the summary nature of the Order 75 proceeding and the expedition and flexibility that order was intended to produce would be detrimentally impacted by the imposition of the discovery process by submitting that, on balance, the justice of the case should not be "sacrificed on the altar of efficiency". The Appellants however, concede that efficiency is of some importance. Counsel for the Appellants also submitted however that the impact of discovery on the length of the proceeding is likely to be minimal in this case.[37]

56 The First Respondent seeks to uphold the conclusion in [26(b)] of the Decision that discovery is not available or appropriate in criminal proceedings.[38]

57 However, the First Respondent expressly placed no reliance upon [4.2]-[4.3] of its submissions of 23 January 2014 that the CFMEU can avail itself of the penalty privilege referred to in Abbco.

58 The First Respondent submits that discovery is unsuitable in any criminal contempt proceedings because of the criminal nature of such proceedings and also because of the summary nature of the Order 75 process.[39]

59 The First Respondent says that in proceedings of a criminal nature:

(i) The accused enjoys protection including the imposition of a higher standard of proof, stricter evidentiary standards, enhanced prospect of making a no case submission and the privilege against self-incrimination;

(ii) The onus and standard of proof dictate that the "mutuality" of the discovery process in civil cases is inapplicable;

(iii) In a case of a criminal nature the procedure is one encompassing proper disclosure of the case and the evidence of the plaintiff, before the defendant determines what course to take (for example seeking to stay the proceedings as hopeless, making a no case submission, or electing to go into evidence);

(iv) The Court's approach and procedures in this regard are founded not on the right to silence enjoyed by individual defendants in criminal cases, but more broadly on the criminal nature of the proceeding, and the onus and standard of proof, which cannot accommodate the "mutuality" inherent in the requirement for discovery under Order 29;

(v) The summary nature and inflexibility of the power under Order 75 means that cumbersome civil trials should be avoided. Allowing a process of discovery and interrogation is in conflict with speed and efficiency;

(vi) It is submitted that the consequences of permitting discovery would be dire and may cause a "flood" of applications by parties seeking discovery, and pursuing discovery, if not granted, through the appeal processes.

(vii) The First Respondent also submits that there may well be inconsistent disclosure required where in a single proceeding there was both a corporate and a non-corporate defendant jointly charged; and

(vii) It would create inconvenience and uncertainty, as well as trial management difficulties, if the discovery process were permitted, particularly if discovery was permitted against one defendant and not the other, merely based on the corporate status of one party.[40]

60 The First Respondent also points out that there is no precedent offered by the Appellant in relation to orders made in similar, or the same, circumstances to those presently being sought by the applicant. The First Respondent also points out that the Courts have held against the appropriateness of orders to compel discovery in criminal trials, R v Naramatsu Hamiguchi[41] and Clarkson.

61 The First Respondent emphasises that criminal proceedings are different, not only because of the privilege against self-incrimination, but because the Crown (the prosecution) owes a particular duty of fairness including in relation to disclosure. The Appellant says that these principles and requirements stand separately from and are unaffected by what has been said by the High Court in Caltex and the Full Court of the Federal Court in Abbco.[42]

62 The First Respondent referred to Ragg v Magistrates' Court of Victoria ('Ragg'),[43] where Bell J discussed the functions and responsibilities of a criminal prosecutor. Senior counsel for the First Respondent pointed out that, as discussed in Ragg, that in a criminal prosecution there are a number of components to the prosecutorial duty to act fairly towards an accused, including a duty to disclose material documents to the defence. The First Respondent says that such requirements should apply to both Boral and the Attorney-General in this matter.

63 The First Respondent submitted that if discovery were available there could be "a scandal of competing disclosure regimes", because where a contempt proceeding is against an individual, or individuals, and also against a body corporate, the Court might, in the same proceeding, order discovery against the corporate party but not the individual, or individuals.

Second Respondent's Submissions (Grounds 2 and 3)

64 The Second Respondent, the Attorney-General for the State of Victoria, deals with Grounds 2 and 3 together.[44]

65 The Second Respondent submits that Abbco is compelling appellate authority for the proposition that the penalty privilege is unavailable to the CFMEU as a basis for it to resist providing the discovery sought. The Second Respondent further submits that Caltex is binding authority for the proposition that the privilege against self-incrimination is likewise unavailable.

(a) majority of the High Court in Caltex held that the privilege against self-incrimination does not apply to corporations;[45]

(b) Associate Judge incorrectly held that Abbco was arguably not authority for the proposition that the CFMEU could not rely on the penalty privilege to avoid giving discovery;[46]

(c) Associate Judge's conclusions in relation to Abbco were based on her Honour's findings that the Contempt Proceeding is a criminal proceeding, unlike the proceeding in Abbco; and

(d) Associate Judge was wrong in her characterisation of the Contempt Proceeding as criminal and the Second Respondent further submits that there was no proper basis for distinguishing the current case from the Abbco case.[47]

67 There are two questions I must answer in order to deal with Ground 2. The first is whether r 29.07 of the Rules applies in contempt proceedings involving a corporate defendant. The second is whether discovery is otherwise unavailable by reason of the privilege against self-incrimination and/or the privilege against exposure to penalty.

As a matter of construction, does r 29.07 apply to the Contempt Proceeding

68 In my view the Appellants and the Second Respondent are correct in their submissions that the learned Associate Judge characterised the Contempt Proceeding as a "criminal" proceeding.[48] Her Honour's conclusion in this regard is to be found at [25] of the Decision, where her Honour stated "...adopting the analysis of White J in Sigalla, the position is that this application is properly characterised as a criminal proceeding, and as such, the rules of civil procedure do not apply".

69 In determining the proper characterisation of a proceeding, it is critical to consider the nature of the relevant offence being prosecuted and the jurisdiction of the Court in which the proceeding is being prosecuted. It is also critical to identify the procedural rules of the relevant jurisdiction which regulate those proceedings, namely the rules of the Court in which the proceeding is being prosecuted.

70 In Hinch the High Court distinguished between the nature of the offence, which in relation to a contempt is described as criminal, and the jurisdiction of the Court in which the offence is prosecuted.[49]

71 In Boral Resources the Court of Appeal found that this proceeding is a proceeding under Order 75 of the Rules and that prima facie Chapter I of the Rules applied to this proceeding.

72 The Court of Appeal also made it clear that because of the criminal nature of the Contempt Proceeding, it may be accepted that not all of Chapter I of the Rules will apply because some of those rules may cut across protections or privileges afforded to an accused facing criminal charges. Accordingly, in the exercise of the Court's discretion, the application of the Rules might need to be moderated to ensure fair and appropriate interlocutory and trial procedures are adopted in the case of a person prosecuted for contempt of Court.

73 Further, similar findings have been made by Cavanough J in Grocon[50] and by me in Boral Resources (Vic) Pty Ltd v CFMEU,[51] to the effect that the rules in Chapter I of the Rules apply to a contempt proceeding brought under Order 75, however some rules of civil procedure may not apply.[52]

74 Although the learned Associate Judge was correct in characterising this proceeding as a "criminal contempt", her Honour was not correct in her characterisation of this proceeding as "a criminal proceeding". This error then led her Honour to wrongly conclude that the rules of procedure (and evidence) governing criminal proceedings apply and that the rules of civil procedure do not apply to this proceeding, save by clear implication for Order 75 which expressly founded the summons initiating the Contempt Proceeding.[53]

75 As I have addressed above under Ground 1, the learned Associate Judge erred in finding that the Rules, including r 29.07(2), did not apply to this proceeding. The learned Associate Judge should have held that the applicable procedural rules are those of the Court's civil jurisdiction, including Order 29, subject to the Court's discretion, where available, not to apply inappropriate procedures. In the circumstances of this proceeding, Order 29 is not an inappropriate procedure for the reasons referred to below.

The privileges against self-incrimination and exposure to penalty

76 Her Honour drew upon the cases of Clarkson, Caltex and Abbco and the usual safeguards in criminal proceedings to support the conclusion that discovery under r 29.07 of the Rules is not available in a contempt proceeding involving a corporate defendant. I have summarised her Honour's references to those cases above at [15(m)]-[15(s)].

77 In terms of the usual safeguards in criminal proceedings, her Honour asked the question "...whether such safeguards do or should extend to immunity from discovery or other compulsory disclosure obligation" in the Contempt Proceeding. The safeguards referred to were those associated with the applicable onus of proof, stricter evidentiary standards, the privilege against self -incrimination, where available, and similar safeguards

78 It is clear that the Associate Judge considered that in this case the relevant safeguards extended to, in effect, afford the CFMEU immunity from discovery and other compulsory disclosure obligations.[54]

79 As I have explained above, contempt proceedings are criminal in nature but are nevertheless proceedings in the Court's civil jurisdiction. However, on my view of Caltex and Abbco, which I explain below, the safeguards which apply to a proceeding, in which a charge of contempt is prosecuted, do not preclude orders for discovery under r 29.07 in respect of corporations in contempt proceedings.

80 Before considering the authorities on privilege against self-incrimination and exposure to penalty, it is relevant to consider s 187 of the Evidence Act 2008 (Vic) ("the Act"), which states:

No privilege against self-incrimination for bodies corporate

(1) This section applies if, under a law of the State or in a proceeding, a body corporate is required to -

(a) answer a question or give information; or

(b) produce a document or any other thing; or

(c) do any other act whatever.

(2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty.

81 The language employed by the Act, namely, 'or in a proceeding', makes it clear that s 187 will apply where a corporation is required under r 29.07 to give discovery. It is thus clear. On this statutory basis alone, that a corporation will not be able to avail itself of the Rules of the privileges against self-incrimination or against exposure to penalty.

82 Section 187 of the Evidence Act 1995 (Cth) contains similar provisions. Section 1316A of the Corporations Act 2001 (Cth) also abrogates the privileges in issue.

83 As to the case law, in Clarkson, the Appellant claimed he had been denied natural justice because the prosecution had not released certain material to him that was potentially exculpatory. He also sought two orders for discovery. One application for discovery was held to be a criminal proceeding. The other was civil. Both applications for discovery were dismissed. In relation to the criminal proceeding application, Murphy J, with whom Crockett and Nathan JJ agreed, said:

...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]

84 Clarkson, however, did not concern a corporate defendant. Further, Clarkson was decided well before the High Court's decision in Caltex and the Full Federal Court's decision in Abbco.

85 In Caltex, the State Pollution Control Commission had charged a corporation in the Land and Environment Court. Before the charges were to be heard, the Commission served the corporation with two notices to produce identical documents. One notice was served under the Clean Waters Act 1970 (NSW); the Second Notice under the rules of the Land and Environment Court. The notices' purpose was to obtain evidence and information to use against the corporation in the prosecutions.

86 A bare majority of the High Court, Mason CJ, Brennan, Toohey and McHugh JJ, held that the privilege against self-incrimination does not apply to corporations. Deane, Dawson and Gaudron JJ held that the privilege against self-incrimination applied to corporations. Brennan J held that the privilege against exposure to penalty applied to corporations.

87 The result in Caltex was that the notice served under the Clean Waters Act was valid and the corporation was required to comply with it. The corporation could, however, avoid complying with the second notice. Deane, Dawson and Gaudron JJ said this was because the corporation could rely on the privilege against self-incrimination. However, Brennan J based the finding in the privilege against exposure to penalty.

88 Accordingly, the only authoritative principle emerging from Caltex is that the privilege against self-incrimination is not available to corporations.

89 In Abbco, the Trade Practices Commission instituted civil proceedings against Abbco for the recovery of pecuniary penalties. It served notices to produce on Abbco, seeking production of various documents from Abbco. Abbco applied to have the notices set aside on the ground that compliance might expose it to civil penalty.

90 Burchett J, with whom Black CJ and Davies J agreed, first summarised the various judgments in Caltex, and then set out the history of the privileges against self-incrimination and exposure to penalty. His Honour held that the privileges against self-incrimination and exposure to penalty were part of the same general rule, and therefore, as the High Court had held that the former privilege did not apply to corporations, the latter privilege also did not apply:

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]

91 Burchett J also held that there was no binding principle emerging from Caltex that some sort of privilege applied in favour of corporations in respect of notices to produce.[57]

92 The principles in Caltex and Abbco were applied by Gray J in Calderwood v SCI Operations Pty Ltd.[58] There, two defendant corporations had been charged with criminal offences. The prosecutor required the defendants to give discovery of and produce documents pursuant to the Industrial Relations Court Rules 1994 (Cth). The defendants objected to giving discovery and producing documents and claimed privilege against self-incrimination.

93 Discovery and production were sought under the following rules:

Order 15 Rule 1

After a directions hearing pursuant to Order 10 and within any period limited by the Court for this purpose, any party may, unless the Court otherwise orders, by notice of discovery filed and served on any other party, require any other party to give discovery of documents.

...

Order 27 Rule 2

The Court may, in any proceeding, issue a subpoena to give evidence, or a subpoena for production, or a subpoena both to give evidence and for production in the prescribed form or in such other form as the Court may direct for the attendance of the person named before the Court or before any Judge, Judicial Registrar, officer, examiner or other person having authority to take evidence.

94 Gray J held that if not abolished by s 187 of the Evidence Act 1995 (Cth), the privileges against self-incrimination and against exposure to penalty were abolished in respect of corporations by the combined effect of Caltex and Abbco. His Honour held that as those privileges did not apply, the defendant corporations were required to comply with the disputed notices to give discovery and produce documents.

95 The defendants also argued that, despite the privilege no longer being available to corporations, overriding principles of law protected a defendant in a criminal proceeding from being compelled to produce documents in a proceeding which might be used against it. The argument failed. Indeed, the only principle 'motivating a Court to decline the use of its procedures to compel production of documents by a party sued for a penalty' is privilege.[59] The Court concluded that no separate rule exists to the effect that a Court will not aid a prosecution in relation to the production of documents. Gray J said:

...Since Caltex and the enactment of s 187 of the Evidence Act 1995, no court has decided whether there is any surviving rule that a court's processes to compel the production of documents are available or unavailable to a prosecutor in criminal proceedings. To the extent to which there is authority, it is in Abbco, which deals with the civil proceeding for recovery of penalties.

I am of the view that I should follow the reasoning in Abbco. I do not accept that it is distinguishable from the High Court's answer to question 7 in Caltex. Nor do I accept that Abbco is incorrectly decided in the light of Caltex. Abbco stands for the proposition that, in the absence of a privilege protecting a party, provisions in the rules of a court under which the production of documents by that party can be compelled are applicable. In terms of s 187 of the Evidence Act 1995, there are in O 15 and O 27 of the Industrial Relations Court Rules provisions requiring the defendants to produce documents. Those requirements must be obeyed.[60]

96 The defendants had also argued that O 15 r 1 and O 27 r 2 did not apply to criminal proceedings. That argument also failed. It was held that the terms of O 15 r 1 and O 27 r 2 were not limited to parties to civil proceedings.

97 Finally, Gray J noted that 'Courts have ample powers to prevent abuses of their processes'.[61]

98 Caltex and Abbco were also applied by the Full Court of the Supreme Court of Western Australia in Bridal Fashions Pty Ltd v Comptroller-General of Customs.[62] There, the corporation was relying on the privilege against exposure to penalty to avoid including information in its defence that might assist in establishing liability to penalty. Malcolm CJ, Ipp and Owen JJ said:

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]

99 I note, however, that the second last paragraph of the above excerpt no longer represents the law, at least in Victoria. In Re Australian Property Custodian Holdings Ltd,[65] a sole director defendant claimed privilege against self-incrimination and against exposure to penalty, in order to avoid filing defences compliant with the ordinary rules of pleading. The corporate defendants accepted 'that a corporation cannot ordinarily claim privilege on the ground that complying with a particular step in litigation might tend to incriminate another person'.[66] However they argued that if the corporate defendants were required to comply with the ordinary rules of pleading, the director's privilege claims would be undermined.

100 Robson J noted[67] that in Microsoft Corporation v CX Computer Pty Ltd,[68] Lindgren J held that a corporation could not rely on the privilege against self-incrimination. His honour did so on the basis that giving discovery would tend to incriminate its sole director, an individual, and also that the individual could not complain that he/she might be incriminated, because such action would not be self-incrimination. Lindgren J held that the individual could not rely on his privilege against self-incrimination to prevent the corporation from giving discovery or complying with the notice to produce. It was held that requiring the corporation to comply with discovery and production rules would not require the individual to engage in self-incriminatory conduct.[69]

101 In Re Australian Property Custodian Holdings Ltd Robson J concluded that in terms of giving discovery or producing documents, another proper officer can be found or appointed to perform the company's obligations. By following that course the sole director will not be required to engage in self-incriminatory conduct. However, where the obligation on the company related to pleadings, and the only appropriate person to give meaningful instructions for the preparation of pleadings is the sole director, that circumstance allowed the corporation to rely on the same privilege the sole director relies on. His Honour said:

If it were to be shown to be the case (and it has not been thus far) that there is no-one with custody or possession of the records who could lawfully answer the call of the subpoena on the corporations' behalf without risk of testimonial self-incrimination, then the corporations must still take steps to comply. his many mean the appointment of a receiver. Or it may mean that a "proper officer" with nothing to fear by way of self-incrimination has to be appointed.

The issue remains open as to what is to occur when the sole director is the only appropriate person to secure the company's compliance.

...

What is required of a company in filing a defence is markedly different from that which is required of the company in producing and verifying documents in its possession. Further, the steps required of a sole director of a company in filing a defence cannot be fairly or reasonably assigned to another individual who does not have the requisite knowledge to provide full and proper instructions.

...

In my opinion, the principles are clear. Mr Lewski is entitled to rely on the privilege against exposure to penalty. It is unnecessary for me to decide whether he has established real and appreciable risk of a prosecution being instituted. The knowledge alleged against the companies is the knowledge of Mr Lewski. I accept that the appointment of a receiver would not be an appropriate step. Meaningful instructions can only be obtained from Mr Lewski.

Accordingly, I conclude that the Lewski companies are entitled to the same ruling as the common directors in relation to their defence.[70]

102 The position that the privileges against self-incrimination and against exposure to penalty are not available to corporations was confirmed by the High Court in Daniels Corporation International Pty Ltd v ACCC ('Daniels').[71] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

...it should now be accepted that, as the privilege against self-incrimination is not available to corporations, the privilege against exposure to penalties is, similarly, not available to them.[72]

In Australia the privilege against self-incrimination is not available to corporations. Nor is the privilege against self-exposure to a penalty. In this respect Australia no longer follows the English authorities. There is no rule that a court's processes to compel the production of a corporation's documents are unavailable in criminal proceedings.[73]

104 Accordingly, Caltex is authority for the principle that corporations do not enjoy the privilege against self-incrimination, whether discovery or production is sought under statutory powers or pursuant to the Court's own processes. Further, since Caltex, both Abbco and Daniels have clarified that corporations are not entitled to invoke penalty privilege. As a result, neither the privilege against self-incrimination nor penalty privilege are available to corporations.

105 I consider that her Honour erroneously concluded that Caltex is arguably not authority for the proposition that the Court's own rules and procedures can be utilised for the purpose of compelling a party to disclose evidence which would expose that person to a penalty. Her Honour's analysis of the scope of the Caltex decision ascribes too narrow an application of the stated principles in Caltex.

106 It follows, that the Court's own discovery and production procedures may be used to compel discovery and/or production in the case of corporations, including in criminal proceedings. Rule 29.07(2 ) is such a procedure and is available to be deployed, in the right circumstances, in a criminal contempt proceeding.

107 Furthermore, as noted, the provisions of s 187 of the Act are to the same effect in relation to corporations, and the identical s 187 of the Evidence Act 1995 (NSW) has been so interpreted.[74] The learned Associate Judge did not appear to consider the effect of s 187 of the Act on the Discovery Summons.

108 Accordingly, in my view the learned Associate Judge was in error in concluding that there is doubt as to the abrogation of the privilege of self-incrimination and/or exposure to a penalty in the case of a body corporate. Put another way, the learned Associate Judge was in error in failing to find that the privileges against self-incrimination and self-exposure to penalty did not apply to the First Respondent and in holding that discovery was not available to the Appellants on that basis.

109 The Associate Judge should have decided the Discovery Summons on the basis that both Caltex/Abbco and the provisions of s 187 of the Act abolish the privileges against self-incrimination and self-exposure to penalties in relation to corporate entities, including where discovery is sought pursuant to the Court's own processes, as confirmed by the High Court in Daniels Corporation International Pty Ltd v ACCC.[75]

110 The above error in the way the learned Associate Judge regarded the availability of the privilege against self-incrimination and non-exposure to penalties in respect of corporations also constituted a threshold error similar to her Honour's threshold error in proceeding to determine the Discovery Summons upon the finding that r 29.07 was not available to be invoked by the Appellants. This is because in failing to find that the asserted privileges were unavailable to the First Respondent, the learned Associate Judge appears to have concluded, and held, that such privileges (at least one of them) resulted in r 29.07 being unavailable to the Appellants. Further, according to her Honour's reasoning, this meant the Court did not need to enter upon the exercise of its discretion under r 29.07.

111 Further, as to the First Respondent's arguments that Order 29.07 should not in any event be available and the Court should not decide that Order 29.07 is applicable to this proceeding, I consider there is here no sufficient reason, nor cumulative reasons, to justify not applying rule 29.07 because:

(i) The relevant law in relation to corporations as provided in s 187 of the Evidence Act 2008 (Vic) and stated in Caltex and Daniels recognises the legitimate deployment of the Court's discovery processes, and subject to the existence of an identifiable breach of a protection or privilege to which the First Respondent is entitled, negates the First Respondent's objections to discovery on the general grounds asserted, namely that in a criminal or quasi criminal proceeding discovery should not be ordered because it offends the rules and processes applied to criminal and quasi criminal proceedings, as more specifically referred to in paragraph [59] above. No breach of a relevant protection or privilege has been established by the First Respondent;

(ii) The complaint that in criminal, or quasi criminal proceedings, there can be no "mutuality", is in my view adequately met by the operation of order 29.07(2) which provides only for an order that discovery be provided to the party seeking it; mutual discovery is not envisaged;

(iii) Further in relation to the First Respondent's reference to the more demanding onus, stricter evidentiary requirements, heightened ability to put the prosecutor to proofs and to mount a no case submission and the special obligations imposed on the prosecutor in such proceedings, as applied in criminal and quasi criminal proceedings, I consider that these general points are in substance addressed by the matters identified in (i) above;

(iv) The provisions of the Evidence Act cited and the common law recognised that there is no blanket rule that discovery is unavailable or inappropriate in proceedings of this type. On the contrary, discovery can be enforced against corporate defendants in criminal and quasi criminal proceedings as identified above;

(v) At all events the Court hearing the trial of the Contempt Proceeding will be well able to apply the safeguards, in the nature of available protections and privileges, such as are required to be afforded to the First Respondent and so as to ensure a fair trial in the proceedings;

(vi) No inconsistency of discovery will arise in this proceeding in respect of which only a corporate defendant is charged;

(vii) I also consider that the factors referred to in paragraphs [152], [153], [154], [160], [161] and [162] support the appropriateness of applying Order 29.07(2) of the Rules.

Upon finding that Order 29.07 is applicable, the Court will then consider the exercise of its discretion under Order 29.07. The factors specifically relevant to this exercise are addressed below.

112 Finally, in my view, the case of Woods v Skyride Enterprises Pty Ltd ("Skyride")[76], relied on by the Appellants, is distinguishable and therefore unhelpful in this matter for the same reasons advanced by her Honour.[77]

Ground 3: Whether the Associate Judge exercised or exercised properly the Court's Discretion under Order 29.07

113 I refer to my above stated reasons and conclusions in paragraphs [46] to [49] wherein I stated my view that the learned Associate Judge did not enter into the exercise of discretion under r 29.07. This means the Associate Judge did not enter into error as described in Ground 3. Rather, the error was not engaging in the exercise of discretion at all. I discuss below the proper exercise of the Court's discretion under Order 29.

Discretionary factors referred to in Associate Judge's Decision

114 Although the Learned Associate Judge did not ultimately engage in the task of exercising the Court's discretion pursuant to the relevant rule, her Honour did in her Decision refer to several discretionary factors. Her Honour found that:

(i) the documents sought were relevant to a fact in issue;

(ii) Boral's pursuit of the subject documents was not "fishing" because such documents were potentially germane to establishing Mr Myles's authority and ultimately potentially germane to establishing that the CFMEU is liable for contempt as alleged. The documents sought were also germane to establishing further details in relation to Mr Myles's telephone calls subsequent to his discussions with the police at the relevant time and the Appellant's contention that Mr Myles was seeking instructions in relation to the management of the blockade during the course of such telephone communication;

(iii) there were "special circumstances" such as to warrant an order for discovery under r 29.07, subject to other matters. Those "special circumstances" were that it appeared that the documents sought went to an issue which is "particularly within the knowledge of the CFMEU";

(iv) the production of the documents sought would not be oppressive;

(v) Boral had not elected to bring its claim in a proceeding other than by writ, and thereby in a context to which it did not afford discovery to the plaintiff. Her Honour noted that, on the contrary, Boral had commenced proceedings as the rules required under Order 75 and thereby subjected itself to Order 29 of the Rules which provided for discovery of another party's documents, if the Court exercised its discretion and ordered discovery; and

(vi) discovery ought not be ordered because the proceedings were criminal in nature, seeking to have the First Respondent punished for contempt, and in such proceedings "appropriate safeguards should apply".

The parties' submissions as to considerations relevant to the proper exercise of discretion

Scope of parties' submissions to be considered on appeal

115 During oral submissions some controversy arose as to what submissions the First Respondent was relying on in relation to the proper exercise of discretion by this Court, and whether or not the appeal was broad enough to accommodate the scope of the First Respondent's submissions on appeal.

116 The First Respondent submitted, in effect, that if the learned Associate Judge erred in failing to recognise that discovery was available to the Appellants pursuant to the Rules, or erred because her Honour recognised discovery was available but failed to properly exercise her discretion under r 29.07, then this appeal Court should, having identified relevant error, exercise its discretion on the basis of all the matters which the First Respondent asserts should properly inform the exercise of such a discretion. In this regard, the First Respondent sought to adopt its earlier submissions in relation to discretionary factors of relevance.[78]

117 During argument counsel for the Appellants also took the point that the Appellants' Notice of Appeal did not challenge certain findings of her Honour's, including that the documents sought by the Appellants are relevant to facts in issue, that the documents in issue are not sought as part of a "fishing" exercise and finally that the Appellants have demonstrated "special circumstances" which would otherwise warrant discovery orders being made under r 29.07.[79]

118 Appellants protested that the findings in the decision as to relevance, and as to Boral not "fishing", and as to the existence of "special circumstances" were not sought to be disturbed by any Notice of Contention filed by the CFMEU. The Appellants therefore argue that my decision in this matter should not in any way cut across those findings.[80]

119 At all events those aspects of the Decision were addressed in argument before me either in oral submissions or the written submissions relied on by the parties, to the extent the parties sought to agitate those aspects of the Decision. I have therefore dealt with those matters, to the extent I consider necessary.

120 Ultimately the parties were directed to file any supplementary written submissions they wished to make in relation to matters relevant to the proper exercise of the Court's discretion pursuant to r 29.07.[81] It was made clear that on this appeal I would consider all such matters, if I was persuaded that error was established and that I should consider the exercise of discretion called for by the Discovery Summons.

Appellant's Submission (Ground 3): Proper Exercise of Discretion

121 The Appellants they submit that the learned Associate Judge's exercise of discretion not to order discovery was based upon wrong conclusions about the application of the Rules and the availability of discovery in criminal proceedings.[82] They say that her Honour did not purport to undertake any weighing of competing factors but rather proceeded on the basis of a purported blanket rule that "discovery is not available or appropriate in criminal proceedings".

122 The Appellants submit that the learned Associate Judge was in error in so doing because there is no blanket rule against discovery in contempt proceedings against a corporate defendant. I dealt with this above in Ground 2.

123 Further the Appellants submit that her Honour did not purport to undertake any weighing of competing factors as should have occurred in the process of exercising the discretion under r 29.07(2).

124 The Appellants submit that on appeal this Court is possessed of all it requires to properly exercise the discretion conferred by r 29.07(2). The Appellants say that the existence of the factors that her Honour accepted and properly considered relevant to the exercise of her discretion namely, the relevance of the documents sought, (and it can be taken as submitted the absence of any "fishing exercise" by the Appellants) and the existence of "special circumstances", warrants an exercise of discretion in favour of the Appellants.[83]

125 The Appellants accept that if this Court concludes that her Honour's judgment exhibits error then I may proceed to correct any error by exercising the Court's discretion under r 29.07(2) in accordance with the principles in House v R[84]. In this regard the Appellants also accept that this Court may have regard to the matters advanced by the parties before the Associate Judge in relation to the proper exercise of discretion.[85]

126 The Appellants also submit, in response to the First Respondent's arguments about the ordering of discovery in this proceeding being inappropriate, that:

(i) The Appellants' application for discovery should not be regarded as a "fishing" exercise because the documents which the Appellants seek go to a live issue in the substantive proceeding.

(ii) For the reasons identified by the learned Associate Judge at Decision [3]-[5] the documents sought are relevant and "special circumstances" are made out by reason of which it is appropriate and desirable to order discovery.[86]

(iii) Further in relation to "special circumstances" the Appellants submit that:

(i) it is a special circumstance that the documents sought relate to the central question in the proceeding concerning Mr Myles' authority, which issue remains live;[87] and

(ii) the relatively unusual absence of any pre-commencement, coercive statutory powers applicable to this matter is a factor that should tend to favour the exercise of the Court's discretion to order discovery. The Appellants submit that prosecutions that are "essentially criminal in nature" are usually attended with some relevant compulsory disclosure power, prior to the commencement of proceedings, in contra-distinction to the situation which obtains in this matter..[88]

(iv) Enforced discovery would not be detrimental to the flexible and summary nature of the process established under Order 75 because of the narrow scope of discovery sought. The Appellants submitted that the Court should be slow to deprive a party of a mechanism that is available in the usual course to secure relevant and helpful evidence, on the basis that precluding such discovery might expedite the Court proceedings. Mr Snaden's submission was that "the justice of the case ... should not be sacrificed on the altar of efficiency..."[89] The Appellants contend at all events that discovery in this case would have no substantial, if any, impact on the progress of the proceeding.

127 The Appellants also addressed the suggestion by the First Respondent that the Appellants had delayed in their application for discovery and in particular that the Appellants' Discovery Summons was issued only days after it says the CFMEU indicated that it would not voluntarily provide the information sought[90] (T 69 L 1-17). In my view this submission by the First Respondent seeks to raise a matter which is insignificant on this application. In any event, I am unpersuaded that any material delay has been identified.

First Respondent's Submissions in relation to the Proper Exercise of Discretion

128 The First Respondent submits that her Honour applied the correct principles and no error is shown in the Decision.[91] They submit that her Honour did not purport to engage in the exercise of discretion, as she was not required to do so.

129 The First Respondent then says that if her Honour is found to have wrongly applied a blanket rule that discovery is not available in proceedings of a criminal nature, then the task of weighing the relevant factors in the proper exercise of discretion to grant discovery under r 29.07 remains to be performed by this Court.[92]

130 As explained above, I have concluded that the Associate Judge did not engage in the exercise of discretion under Order 29. This means, having identified error, that the exercise remains to be undertaken by this Court, if it is appropriate to do so.

131 In addition to the submissions summaries in [58]-[63] above in relation to Ground 2, the First Respondent submits that the following factors should inform the Court's exercise of discretion under r 29.07(2):

(i) The differences in the way proceedings concerning a quasi-criminal or criminal contempt are dealt with prior to and during the trial of such a charge;

(ii) The more demanding onus and standard of proof in relation to a proceeding dealing with a quasi-criminal or criminal charge;

(iii) The heightened ability of the responding party in a quasi-criminal or criminal proceeding to put the prosecutor/plaintiff to their proof and to mount a no case submission where appropriate to do so;

(iv) The circumstance that the above features of a proceeding dealing with a matter of criminal character are also applicable to a proceeding prosecuting a corporation, rather than an individual;

(v) The consideration that the recognition of an entitlement to discovery in appropriate circumstances pursuant to r 29.07(2) is likely to engender not only applications for discovery but also applications for interrogatories under Order 30 in relation to most, if not all, contempt proceedings under Order 75;

(vi) the Appellants' application for discovery was brought late and that discovery and associated steps are disproportionate to the evidentiary value of the material sought in this case;[93]

(vii) that "special circumstances" are not shown in the current proceeding;[94]

(viii) No special circumstance arises from the fact that a private litigant pursuing an alleged contempt does not have the coercive powers of police forces and regulatory agencies. The First Respondent says that this cannot be a special circumstance because if it were most parties prosecuting contempt would qualify and discovery would be common place;

(ix) There is no evidence before the Court to the effect that the only way in which Boral can construct its case is to coerce the First Respondent to produce the documents sought;

(x) This appeal concerns a matter of practice and procedure and accordingly I should proceed with particular caution in reviewing the Decision; and

(xi) There is no credible or apparent policy reason why the CFMEU should produce documents in this proceeding.

132 The First Respondent clarified that it did not persist with its blanket objection on the basis of relevance,[95] nor did the First Respondent maintain its submissions to the effect that the documents sought were not relevant to the Contempt Proceeding.

The Second Respondent's Submissions concerning the Proper Exercise of Discretion

133 The Attorney-General submits that the Associate Judge has properly decided that there are no discretionary reasons which militate against the grant of the order for discovery which is sought.[96]

134 The Attorney-General submits, in response to the First Respondent's submissions, that "mutuality" is not required for discovery under r 29.07 which in terms contemplates discovery by any, rather than all, parties.[97] The Attorney-General also says that "mutuality" of discovery was not identified as a reason for the orders made for discovery in the Skyride case.

135 The Second Respondent submits in relation to the First Respondent's points that the flexibility and summary nature of Order 75 dictates that the cumbersome processes of civil trials including discovery and interrogatories be avoided and that those processes are in conflict with the very purpose of the power under Order 75, and that the practical consequences of permitting discovery may well be that all parties might seek it and pursue it through an appeal process,[98] that the above "floodgates" type concerns are in practical terms addressed by the availability of any discovery under r 29.07 against a corporate defendant in contempt proceedings. The Second Respondent points out that the availability of discovery is filtered by the requirement for "special circumstances" and the added exercise of judicial discretion, taking into account the case by case circumstances of matters where such orders are sought.

136 The Second Respondent submits that the best approach is to identify what the justice of a particular application indicates, and that r 29.07, amongst other things, facilitates the "flexibility" of the Order 75 procedures.

137 The Second Respondent also submits that the matters which the learned Associate Judge identified in the nature of special circumstances, militate in favour of a discovery order being made, particularly the circumstance that the documents go to an issue which is peculiarly within the knowledge of the CFMEU. The Second Respondent also relied on the Associate Judge's finding that the Appellants were not engaged in a fishing expedition, and that requiring production of the documents would not be oppressive.[99]

138 As to issues relating to delay, the Second Respondent submits that discovery will not delay the hearing of the substantive proceeding.

139 The Second Respondent also emphasises that the documents sought are relevant and that the CFMEU has conceded that to be the case during the course of the appeal.[100]

140 The Second Respondent points out that the CFMEU has foreshadowed that it may call no evidence at the trial of the Contempt Proceeding but rather make a submission that it has no case to answer. Accordingly the Second Respondent submits that the documents sought in this case have "a particular forensic significance" because they are likely to evince matters which are within the knowledge of the CFMEU and cannot be obtained through cross-examination.[101]

141 The Second Respondent submits that the last above factor separates the case under consideration from those in which defendants seek to call evidence to prove their innocence.

142 The Second Respondent also notes that Boral has submitted that Mr Myles's authority is to be inferred.[102] He then says that to the extent Boral relies on inference, documents which might buttress such inference are forensically significant.[103]

143 The Second Respondent relies on the overarching consideration that all relevant evidence should be put before the Court and cites the observations of McHugh J in Caltex as follows:

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".

...

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.[104]

144 The Second Respondent noted the First Respondent's concerns about inconsistent findings and outcomes arising from a situation where a corporation did not enjoy the privilege against self-incrimination and was being proceeded against in tandem with an individual, or individuals, entitled to claim that privilege. The Second Respondent countered by submitting that no impediment to requiring discovery arises by reason of this potential inconsistency.[105] The Second Respondent further submits that, in any event, this is not a case with both a corporation and individuals being prosecuted for contempt and therefore the tensions alluded to are mere potentialities and do not presently here arise.

Ground 3 : Conclusion as to the Proper Exercise of Discretion

Exercise of discretion pursuant to Order 29.07 of the Rules

145 Having identified relevant errors as explained above it is necessary to consider the appropriate exercise of discretion under r 29.07 of the Rules.

146 I undertake this process on the basis that the Rules apply to this proceeding under Order 75, subject to the Court's discretionary powers not to apply a rule or rules in Chapter I of the Rules if, in the circumstances, it is inappropriate to do so. As already noted above, an example of the proper exercise of these discretionary powers may be the non-application of a rule which may in effect require an individual person to incriminate himself or herself by being compelled to give discovery or produce a document, or the like.[106]

147 In the case of an appeal, to an exercise of discretion in relation to a matter of practice and procedure, an appellate Court should, as I have accepted, exercise particular caution in reviewing a discretionary decision relating to a matter of practice and procedure.

148 However, as I have sought to explain, the learned Associate Judge did not exercise the subject discretion and accordingly having found error I undertake that exercise afresh.

Factors which weigh in favour of ordering discovery

149 I consider that the following factors favour the exercise of discretion to order limited discovery in this proceeding:

(a) The extent of discovery sought is narrow and cannot be said to be in any way oppressive. The documents sought by the Appellants are a copies of business cards issued by the CFMEU to any of seven persons, current as at 16 May 2013, alternatively a copy of one document that records the mobile telephone numbers of the same seven persons at either 16 May 2013 or the present time, and documents which confirm the basis or terms pursuant to which the CFMEU employed Mr Joseph Myles as at 16 May 2013;

(b) There is no real contest as to the learned Associate Judge's finding that the discovery sought in the Discovery Summons is not "fishing";

(d) It is accepted that the documents sought are relevant to the Contempt Proceeding;

(d) The Appellants argue, and the First Respondent does not contradict, that the documents sought are peculiarly within the knowledge of the CFMEU;

(e) As noted by the learned Associate Judge the Contempt Proceeding is not a proceeding where Boral elected to bring its claim other than by Writ, thereby putting itself in a position where it was not entitled to discovery, but rather is a proceeding brought appropriately under Order 75 as required by the Rules;

(f) For the reasons set out in (a)-(e) above, both individually and cumulatively, I support the learned Associate Judge's conclusion that special circumstances exist which warrant an order for discovery under r 29.07 (2);

(g) The nature and extent of the apparent evidentiary issues is a factor which both supports the finding I have made that there are relevant "special circumstances" for the purposes of r 29.07(2) and is also a weighty factor militating in favour of the exercise of discretion to require the limited discovery sought. These evidentiary issues, described in the paragraphs below, arise in the case sought to be established by the Appellants against the First Respondent; and

(h) Relevant features of the case sought to be established by the Appellants against the First Respondent on the Contempt Summons:

(i) It is sufficiently clear in relation to the Contempt Summons that the Appellants acknowledge that in order to succeed in relation to those charges they pursue the Appellants will need to establish either that the CFMEU authorised Mr Myles to engage in the conduct in which it is alleged he engaged, or that the CFMEU failed to take appropriate steps to prevent such conduct.[107]

(ii) Accordingly, the documents which the Appellants seek by way of limited discovery are documents going to the question of Mr Myles's authority to do as he did, on behalf of the CFMEU, on 16 May 2013. On the above bases it is reasonable to conclude that the Appellants are likely to rely heavily on inferences to establish that Mr Myles acted with the authority of the First Respondent, and to establish the content of the alleged telephone call on 16 May 2013 involving Mr Myles, and with whom my Myles spoke on that occasion.[108]

(iii) The Appellants state in their submissions that they have issued subpoenas to various telecommunication companies in order to recover records that may assist in confirming aspects of the key mobile telephone call made by Mr Myles on 16 May 2013. The Appellants note that the subpoenas which they have issued are based on what the Appellants understand are the correct contact details for Mr Myles and executive members of the Victorian/Tasmanian branch of the CFMEU's Construction and General Division. The Appellants further state that the information sought on discovery will in their view either confirm the accuracy of the Appellants' information and serve as a basis for the admission into evidence of the records produced on subpoena. Alternatively, the information sought on discovery may confirm the inaccuracy of the Appellants' information and allow the Appellants the opportunity to recover accurate, or relevant, records.[109]

(iv) The First Respondent has made submissions in relation to possible difficulties concerning the admissibility and probative value of the documents which the Appellants seek to discover. In my view however the admissibility and probative value of the documents sought are potentially impacted by a number of factors which will not be clear until the point at which the Appellants seek to adduce and tender the relevant evidence in trial. The First Respondent's submission on this aspect is therefore at the moment speculative, and should be given very little weight.

(v) The First Respondent also submits that the documents sought could not prove, or tend to prove, that the CFMEU, via any official, actually spoke to Mr Myles at the time in question; nor, the First Respondent submits, can the content of any such conversation be proved.[110] However, at this stage of the proceeding I do not consider that I should ignore the prospect that the Appellants may be able to materially advance their case at trial by deploying the sorts of documents they press to be discovered. Indeed access to the documents sought may be the only way Boral can construct its case.

(vi) The nature of the Appellants' case in the Contempt Proceeding renders the documents sought on the Discovery Summons of great potential significance because they may be pivotal to establishing that in the early afternoon of 16 May 2013 Mr Myles communicated by mobile phone with a person or persons of authority in the CFMEU. This, in turn, may also be of significance in relation to the inferences the Appellants may ask the Court to draw.

(vii) The evidence referred to discloses that Mr Myles, was described in the First Respondent's own publications as a specialist organiser with responsibilities covering the subject construction site [111], was "following directions" from some person or persons and that he made at least one telephone call whilst at the alleged blockade. The Appellants assert that Mr Myles made the telephone call for the purposes of receiving instructions.[112]

(viii) Accordingly, there can be little doubt that the documents the Appellants seek go to a live issue in the substantive proceeding, namely whether Mr Myles's actions and conduct on 16 May 2013 were authorised by his employer, the First Respondent. For these reasons the discovery sought is potentially very important to the key issue to which I have referred. I ascribe great weight to this fact a factor militating in favour of exercising the Court's discretion to order limited discovery.

(ix) I do not accept as weighty the Appellants' submission that the absence of ancillary statutory powers of compulsion in relation to potentially relevant documents of the type which would be available to the police force and most regulatory authorities prosecuting an offence, is a factor militating in favour of the exercise of discretion to order discovery in this matter. If such a circumstance did justify the conclusion that special circumstances thereby existed, it could be anticipated that all normal applicants for discovery would make out such a special circumstance. Further, it would be an odd and unpredictable position if a party could contend that special circumstances existed because it did not have available to it powers or rights or entitlements which the law did not afford to them. Such a circumstance does not appear to be special but indeed the status quo and normal in that sense. At best I consider this factor, as such, adds very little to the force of the Appellants' discovery application.

150 In my view, in this proceeding, the strongest argument in favour of discovery is that it is likely to promote the interests of justice, and in particular facilitate the ability of a party to call in aid processes which will assist the Court in identifying the true factual situation.

151 Bearing in mind the promotion of the interest of justice referred to in the last preceding paragraph, and also the above discussed abrogation of the privilege against self-incrimination with respect to corporate bodies, I accept the Appellants' submissions that in the case of a corporate respondent an order for discovery in a case of this nature should not be considered inappropriate, per se, or otherwise unavailable as a matter of policy. Conversely, I reject the First Respondent's submission that there is no good policy reason why discovery should be permitted in this proceeding.

152 Further, I do not consider that discovery should not be ordered because the process of pre-trial discovery ordinarily entitles the parties involved to mutual discovery, and this feature of mutuality is not ordinarily able to be accommodated in quasi-criminal and criminal proceedings. Here the relevant framework is one which does not proceed on an assumption of "mutuality" because r 29.07(2) provides for the Court, in its discretion, to order a specific party to make discovery of documents. The rule itself does not, in terms, provide for mutual discovery by all parties.

153 The First Respondent submits that compliance with the Boral request for discovery of "business cards of phone numbers, as current on 16 May 2013", would require an admission of fact to be made by the First Respondent.[113]

154 I do not accept this submission. The discovery, were it to be ordered and the discovered documents produced, does not of itself affect either the admission into evidence of the documents discovered nor does the admission into evidence of the documents discovered equate to the admission of self-incriminating evidence.

155 I am not persuaded that requiring discovery in this case would open the floodgates in many other contempt and analogous proceedings. Before such an order could be made the applicants would need to satisfy that the Court that special circumstances existed so as to justify an order for discovery. This therefore imposes a filter and makes it most unlikely that there will be a flood of orders for discovery in these sorts of proceedings. Harris v Bennett & Anor (No 3)[114] is authority for the need for "special circumstances" under r 29.07(2).

156 Further, any exercise of discretion will necessarily be undertaken on a case by case basis after careful consideration of the relevant factors specific to the matter in question. This process will of itself obviate a flood of inappropriate applications.

157 Further, given the effect of r 29.07(2), the Court will always be called upon to consider an application for discovery in cases such as the present and will thereby be given the opportunity to consider whether as a matter of justice and convenience, discovery should be allowed. Put another way the Court will be given the opportunity to mediate the application of rule 29.07(2), including in the case of a contempt proceeding being pursued via Order 75 , in the particular circumstances of the case in question.

158 I have dealt with the potential evidentiary significance of the documents in relation to which discovery is sought in this proceeding. Because of the particular features of the case being prosecuted against the First Respondent, discovery, as I have explained, could be most important to the case being sought to be developed by the Appellants.

159 I have also emphasised, the extent of documentation sought by the Appellants. The extent of the discovery sought is small and should not be burdensome for the First Respondent. Accordingly, I do not accept the First Respondent's contention that if discovery is ordered, the steps associated with that discovery will be disproportionate to the evidentiary value of the material to be discovered.

160 Further, I do not accept the First Respondent's submission that to order limited discovery would be an unacceptable contradiction to the intent of Order 75 because proceedings pursuant to that order are intended to be summary, expedited and flexible. The imposition of a simple interlocutory step such as the First Respondent complying with a limited discovery order will not substantially compromise any of these intended features of an Order 75 proceeding. Further, even if this were not the case, an overriding counter prevailing consideration is the possible forensic value of the documents sought and the importance, in a case such as this involving a corporation, of enhancing the likelihood that the true factual situation in question will be presented to the Court.

161 In the circumstances of this application, directed as it is to invoking the Court's direction to order discovery against a corporation, such an order is unlikely to give rise to any real risk that there will be a relevant diminution of the dignity or the privacy of the accused nor any recognizable risk of the fair state-individual balance being upset. That balance requires that a prosecutor should not proceed against persons unless the prosecutor is itself able to satisfy the required onus and proofs in Court, and further that the State should bear the load of establishing what is required to prove its criminal and quasi-criminal charges in a Court of law.

162 When considering whether corporations should be afforded the privilege against self-incrimination McHugh J stated as follows in Caltex:

Accordingly, although a corporation cannot itself give evidence in civil or criminal proceedings, denial of the privilege against self-incrimination to a corporation will undermine its position in the adversary system.

However, in determining what common law rule concerning self-incrimination is "appropriate to current times in Australia", weight must be given to the difficulties in obtaining evidence against corporations if they are entitled to claim the privilege against self-incrimination...

After considering the factors favouring the privilege against self-incrimination not being available to corporations, McHugh J continued:

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]

163 I consider that the overarching public interest in the administration of justice, which requires that parties be given a fair trial on all the relevant and material evidence, heavily favours the exercise if the Court's discretion to order discovery. In my view the likely prejudice to the fair and just determination of the matters at issue would be unacceptably high if the specific and limited discovery sought was denied to the Appellants in this proceeding. This is because of the nature of the Appellants' case in this proceeding and the potential importance of the evidence sought by the Appellants' application for discovery. I have detailed these considerations above.

164 I consider that the likely prejudice to the Appellants' case, referred to above, decisively outweighs the prospect of harm or injustice to the first named respondent arising from it being compelled to make discovery of the limited and specifically described documents sought by the Discovery Summons.

165 Likewise here, a most important and weighty consideration is the parties' entitlement to a fair trial on all the relevant and material evidence. I weigh the need to facilitate this factor very heavily in the discretionary balance in favour of discovery.

(ii) Order 29.07 (2) applies to the Contempt Proceeding;

(iii) the Court will exercise its discretion under r 29.07(2) of the Rules in favour of ordering discovery of the limited documents sought by the Appellants in their Discovery Summons dated 2 October 2013.

(a) orders 1 and 4 of the orders of the Honourable Associate Justice Daly of 25 October 2013 be set aside.

(b) pursuant to rule 29.07 the First Respondent must, within one week, make discovery of the documents defined in the Discovery Summons dated 2 October 2013.

(c) within three business days of making discovery as above, the First Respondent shall produce to the solicitors for the Appellants for inspection and, if required, copying all documents so discovered.

(d) the Appellant's and Second Respondent's costs of the appeal are reserved.

(e) these orders are stayed pending the hearing and determination of the appeal or further order.

[1] AB 163 (tab 13, sixth affidavit of Rodney William Marshall, exhibit RWM-14).

[2] AB 246 (tab 14, seventh affidavit of Rodney William Marshall, exhibit RWM-19).

[3] (2001) 2 Qd R 118 (at 130 [27], per Pincus JA.

[4] [2013] VSC 275 (at [60]).

[7] AB 277 [9] (tab 16, affidavit of Mark Anderson, paragraph [9]).

[8] See: AB 264-265 [10]-[12] (tab 15, affidavit of Damien Jones); and AB 278 [13]-[14] (tab 16, affidavit of Mark Anderson).

[9] [1936] HCA 40; (1936) 55 CLR 499 at 405-406.

[10] See Oswal v Carson [2013] VSC 355, [11]; and Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.

[11] [2011] NSWSC 62; [2011] 80 NSWLR 113.

[12] (1995) 183 CLR 525.

[13] [1990] VicRp 65; [1990] VR 745.

[14] [1993] HCA 74; (1993) 178 CLR 477.

[16] [1994] FCA 1279; (1994) 52 FCR 96.

[18] See Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378 ('Boral Resources'), [10]; and Hinch v Attorney-General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15 ('Hinch'), 89.

[19] [2013] VSCA 378, [11].

[21] Hinch [1987] HCA 56; (1987) 164 CLR 15, [49].

[24] [1990] VicRp 65; [1990] VR 745, 759.

[26] [2013] VSC 275. See FRS: 23/1/14, [3.6]-[3.7].

[27] T62:6-31, T63:1-4, T66:12-26, and T67:1-23.

[29] [2013] VSCA 378, [10]. (Citations omitted.)

[30] [1987] HCA 56; (1987) 164 CLR 15, [89].

[31] [2013] VSCA 378, [10]-[11].

[32] Sixth Affidavit of Rodney William Marshall, sworn 22 August 2013, [3]-[6].

[35] Abbco (1994) 52 FCR 96; s 187 of the Evidence Act 2008 (Vic). See AS: 4/11/13, [6.9].

[41] [1908] St R Qd 224.

[43] [2008] VSC 1.

[48] AS: 4/11/13, [3.6(b)]; and SRS: 17/1/14, [1(a)], [4(c)].

[49] [1987] HCA 56; (1987) 164 CLR 15, 89.

[50] [2013] VSC 275, [13].

[51] [2013] VSC 572, [31].

[52] [2013] VSCA 378, [10] (Beach JA).

[53] The Decision, [6], [11], [12], and [25].

[54] The Decision, [17], [19], [25], and [26(d)].

[55] [1990] VicRp 65; [1990] VR 745, 758-759.

[56] [1994] FCA 1279; (1994) 52 FCR 96, 129-130.

[57] [1994] FCA 1279; (1994) 52 FCR 96, 111D-G.

[58] (1995) 130 ALR 456.

[62] (1996) 140 ALR 681.

[65] (2012) 93 ACSR 130.

[68] [2002] FCA 3; (2002) 116 FCR 372.

[69] See (2012) 93 ACSR 130, [151]-[153].

[70] Ibid, [159]-[160], [163], [165]-[166].

[71] [2002] HCA 49; (2002) 213 CLR 543.

[72] Ibid, [31]. (Citations omitted.)

[73] J D Heydon, Cross on Evidence (LexisNexis Butterworths, 8th ed, 2010), [25080]. (Citations omitted.)

[74] WorkCover Authority of NSW v Crown in Right of NSW [2000] NSWIRComm 234; (2000) 50 NSWLR 333, [13], [26]-[28].

[75] [2002] HCA 49; (2002) 213 CLR 543.

[76] [2012] WASC 4.

[78] T64:15-17. Those earlier submissions were at [4.1]-[4.9] of the First Respondent's submissions dated 17 October 2013. See also T79:17-31, T80:1-5.

[84] [1936] HCA 40; (1936) 55 CLR 499 at 505.

[104] [1993] HCA 74; (1993) 178 CLR 477, 553, 556. (Citations omitted.)

[106] Boral Resources [2013] VSCA 378, [10].

[111] Appeal Book, tab 14 (seventh affidavit of Rodney William Marshall, exhibit RWM-9 - Appeal Book page 246).

[112] AS: 31/1/14, [2.3]. See also: Appeal Book, tab 16 (affidavit of Mark Anderson, paragraphs 9-13 - Appeal Book pages 277-278); and Appeal Book, tab 15 (affidavit of Damien Jones, paragraphs 10-12 - Appeal Book pages 264-265).

[114] [2004] VSC 171; (2004) 8 VR 425, [11] (Redlich J).

[115] [1993] HCA 74; (1993) 178 CLR 477, 552-556 (McHugh J) (Citations omitted).