47 Sidebottom was an appeal from a direction made by a judge that personal defendants to an excise prosecution file and serve witness statements prior to the trial. Phillips JA (with whom O'Bryan AJA agreed) noted that s 136 of the Act permits the commencement of excise prosecutions by writ on the civil side and authorises their prosecution accordingly. His Honour observed that directions for the filing of witness statements before trial are nowadays a common part of the usual practice and procedure of the court in civil cases. His Honour referred to two decisions of the Federal Court in which orders for witness statements had been refused (Australian Competition and Consumer Commission v J McPhee & Sons (Australia) Pty Ltd (1997) 77 FCR 217) and Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (1999) 163 ALR 465). In the latter case Sackville J observed that an order for the filing of witness statements, while not amounting to compulsion to provide information, had the effect of leaving a defendant with little choice but to do so if he wished to avoid adverse forensic consequences. Phillips JA was critical of this reasoning, observing that the adverse forensic consequence (and corresponding forensic advantage to the plaintiff) was the product of the defendant's decision to give evidence. His Honour considered the absence of coercion attending to an order for the delivery of witness statements before trial to be critical. He said this (314):
The appellants are required to file and serve witness statements only if they choose to give or adduce evidence and then only in respect of evidence that they choose to lead. The order is concerned rather with the timing of the disclosure of that evidence than with its provision. Cases on the making of orders for discovery or the administering of interrogatories are not to the point: it seems to be well established that in a proceeding such as the present, in which the plaintiff is seeking to establish guilt of offences and to recover penalties by way of punishment, orders will not be made for discovery or interrogatories because of the nature of the proceeding itself and without the need for any further or specific proof of prejudice. It is a different matter when an order is sought for delivery of witness statements before trial and, despite the appellants' submission to the contrary, I see real no support for the proposition that defendants in an excise prosecution for the recovery of penalties are entitled to resist such an order on the ground that they cannot be compelled, as a matter of principle, to disclose their evidence before trial, or indeed before the plaintiff's case has been closed - at least in this instance where pleadings have closed, further and better particulars have been provided and the plaintiff's witness statements were delivered to all defendants some time ago.
48 In Sidebottom Phillips JA observed that the appellants had chosen to rest their case on general principle and that the Court had not been required to consider the position that might arise if evidence had been led to establish some specific risk to a party. Mr Burbidge QC pointed to the absence of evidence of specific risk to either of the personal defendants in the present proceedings.
49 The Full Court of the Federal Court considered Amcor and Sidebottom in FFE Building Services. The proceedings in that case were brought by the Australian Competition and Consumer Commission (the Commission) for the recovery of pecuniary penalties pursuant to s 76 of the Trade Practices Act 1974 (Cth) against four corporations and seven personal respondents. The Commission requested that the Court make orders for the filing and service of statements of evidence of all proposed witnesses on whom the personal respondents proposed to rely. It proffered an undertaking, through its counsel, that, if statements were provided by the personal respondents, the statements would not be tendered in the Commission's case in chief, nor used to support an argument that a particular personal respondent had a case to answer. Two respondents opposed the making of such an order, contending that to do so would be inconsistent with their right to refuse to provide information that might tend to expose them to a penalty. Each offered to consent to a direction that he provide statements of evidence within a short period after the Commission's case against him closed.
50 The Court (Emmett, Hely and Jacobson JJ) discussed the general principles relating to the privilege against self-incrimination, noting that it protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature (at 40 [12]). The Court went on to say (at 40 [14]):
[14] By requiring an individual respondent, prior to the closure of an applicant's case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty. [Citations omitted]
51 In FFE Building Services the Commission submitted that it was highly desirable that the Full Federal Court follow the decision of the Victorian Court of Appeal in Sidebottom, citing the principles enunciated by the High Court in Marlborough Gold Mines Ltd. The Court considered that the question was one relating to the general law and did not concern the construction of a statue. It identified the question as being the content of the privilege against being required to furnish information that might tend to result in the imposition of a penalty. The Court noted that the decision in Sidebottom was inconsistent with the approach which had been taken by a number of judges at first instance in proceedings under the Trade Practices Act (TPA) and the Corporations Law. It also noted the remarks of Austin J in Australian Securities and Investments Commission v Rich (2003) 45 ACSR 305 at [69], doubting the correctness of Sidebottom and describing the reasoning of Sackville J in Amcor as compelling. The Court determined not to follow Sidebottom. The Court said (at 44 - 45):
[29] While there would be no direct compulsion on Fodera and Bell to file statements pursuant to the directions sought by the Commission, the practical consequence of the direction may be that they will be compelled to file statements in order to preserve the option to which they are entitled, to decide after the Commission's case is closed, to go into evidence. If they are compelled either to file statements before the commencement of the trial or to be precluded from going into evidence, there is a practical compulsion imposed on them, in order to preserve the option that the law gives to them, to file statements. That is inconsistent with the privilege.
[30] We agree with the observations of Sackville J, quoted above, that the 'election' which individual respondents face as a result of an order for the provision of witnesses' statements is neither unconstrained nor free and the 'choice' with which a respondent is confronted may be more apparent than real.
…
[33] However, it may readily be inferred that such forensic advantage may accrue to the Commission if only because the Commission sees its interests, as the party seeking a penalty, as being furthered by an obligation to provide the statements. Pre-trial disclosure of the evidence to be called by an individual respondent may assist the Commission to improve its case against that respondent, albeit leave of the Court would be required if the Commission sought to expand its case in chief as a result of "leads" obtained from the statements. The undertakings proffered by the Commission would not preclude the Commission from seeking leave. Whether leave would be granted is a different question. But the possibility that it might be granted indicates that the respondent is at risk of exposing himself to a penalty by reason of the provision of information in advance of the trial. It is not a matter of mistrusting the Commission or the Court. Circumstances might arise where it would be proper to permit such evidence to be adduced by the Commission notwithstanding that it was obtained as a result of "leads" obtained from the statements. As Deane J said in Reid v Howard it is obvious that a person who has to rely on a refusal to exercise a judicial discretion is in a less secure position than one who, by relying on the privilege, can avoid providing the information in the first place.
52 The High Court in Rich held that a disqualification order under the Corporations Act is a proceeding for the imposition of a penalty and, accordingly, that the proper course was that an order for discovery should not have been made. In the joint reasons it is noted that the only question argued before the Court was whether an order for discovery should have been made. Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said at 364 [4]:
The questions agitated in the courts below about the order requiring the appellants to file their affidavit evidence, before the commencement of the trial, were not argued in this Court. The Commission accepted that if discovery should not have been ordered, the order requiring the appellants to file and serve affidavits should not have been made.
53 In the Court of Appeal in Rich v Australian Securities and Investments Commission [2003] NSWCA 342; 183 FLR 361 Spigelman CJ referred to the respondent's notice of contention, which raised the orders concerning witness statements. His Honour commented on the conflicting decisions of intermediate courts of appeal in Sidebottom and FFE Building Services, observing, "that issue should be regarded as open in this Court".
54 McColl JA in Rich discussed the notice of contention at 435-436 [389]-[392]. Her Honour said at [391]-[392]:
[391] ASIC relied upon Sidebottom before Austin J. His Honour was of the view that if it was necessary to decide the point, Sackville J's reasoning in Amcor was compelling. He found it unnecessary, however, to decide between the two approaches in Sidebottom and Amcor because of his view that the present case was not a case for the imposition of a penalty.