EFM Logistics v David Weerden & Ors [2019] VSC 100

s 131A, rather than s 128A. Section 128A applies to freezing orders and search orders made under ords 37A and 37B of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') which govern these types of orders. Freezing orders and search orders were formerly known as Mareva injunctions and Anton Piller orders. No such order has been made in this proceeding.

6. It is s 131A that applies where orders are made for the disclosure of information or a document in pre-trial discovery. Nonetheless this is of no consequence as an objection to production on the basis of the privilege against self-incrimination is available under both provisions. At the request of the first defendant, I have taken the course of inspecting the documents for the purpose of determining the question of privilege.
7. As a first step, it is common ground that the only relevant offence is that of contempt of court. This would potentially arise in the event that a court held on an application by the plaintiff that the first defendant had acted in contravention of Cavanough J's order. Contempt of court must be established beyond reasonable doubt.[2]
8. The test that must be established if the privilege against self-incrimination is to be sustained in discovery processes is found in authority. It is set out in the cases of

HRF Nominees Pty Ltd (in liq) v Man Civil Constructions Pty Ltd ('HRF Nominees'),[3] a decision of Derham AsJ who extensively quoted from and relied on the decisions of Robson J in Re APCH (No 2),[4] and Ferguson J, as the Chief Justice then was, in Le Roi Homestyle Cookies Pty Ltd (in liq) v Gemmell ('Le Roi').[5] It is also to be found in the decision of Lindgren J in Microsoft Corporation v CX Computer Pty Ltd.[6]

9. I now quote from HRF Nominees where Derham AsJ says:

In the case of self-incrimination privilege, the defendant must establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked;[7]

1. A little later in (c), (d), (e) and (f), his Honour says:

In civil actions, where no claim for penalty is made, the defendant must show that providing the information requested would tend to subject him to a penalty in separate proceedings before he can rely on the privilege;

The privilege against exposure to penalty is a common law right of privilege that may be availed of as of right and is enforced and protected by the Court;

The privilege against the exposure to penalty may be relied on by a defendant in a civil proceeding, in which a penalty is not sought;

The privilege against the exposure to penalty extends to the obligation upon a defendant to plead, give discovery, and answer interrogatories in a non-penalty civil proceeding;

1. In Le Roi, the Chief Justice held that in civil actions where no claim for penalty is made, for the defendant to show that providing information requested would tend to subject them to a penalty in separate proceedings, the defendant must show or it must be clear, that there is a real and appreciable risk of criminal prosecution or tendency to subject a person to a penalty:[8]

The precise measure or degree of the risk to a [defendant] is something which the court is not called upon to assess so long as there is a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance. The question is, whether there is a recognisable risk?[9]

1. I have now reviewed the sealed affidavit and each of the exhibits to that affidavit. Having done so, I am not satisfied that the documents provided, whether taken individually or collectively, show that there is a real and appreciable risk, or a recognisable risk to the defendant of prosecution for contempt of court.
2. Still less, is there sufficient material that might conceivably satisfy a court beyond reasonable doubt. In particular, I am not satisfied that the documents show a real or appreciable risk that the necessary purpose can be shown, noting again that it is required to be established beyond reasonable doubt before there can be a civil contempt of court. In the case of almost all of the documents, there is simply no risk at all.
3. In the circumstances, the claim for privilege against self-incrimination is not sustainable as to any document produced. There is no reason why the sealed affidavit of documents and the documents exhibited to the affidavit, should not be provided to the plaintiff as part of discovery in this proceeding. I will make orders to this effect.

1. The plaintiff brings a summons dated 15 February 2019 seeking an order that the first defendant serve forthwith the sealed affidavit referred to in his affidavit, sworn 12 February 2019.
2. Counsel for the first defendant submitted that I should look at the documents and come to a view about the privilege against self-incrimination. This is the course I have taken.
3. The plaintiff has been successful on its summons. There is no document where the claim for privilege against self-incrimination has been upheld. In the case of almost all of the documents, there is no doubt they should have been discovered without objection. Parties to proceedings have an obligation of continuing discovery. If further documents come into existence or become known by a party, and they are relevant, the party has an obligation to disclose them to the other parties.
4. In all the circumstances, it is appropriate and reasonable for the Court to order the first defendant to pay the plaintiff's costs of and incidental to the plaintiff's summons dated 15 February 2019.

EFM LOGISTICS SERVICES GROUP PTY LTD (ABN 35 144 724 685)

FREIGHT AND LOGISTICS SERVICES AUSTRALIA PTY LTD (ACN 609 570 390)

[1] The rulings which follow are written version of the oral rulings given by the Court on 21 February 2019.

[2] Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors [2014] VSCA 261, [167]; Witham v Holloway (1995) 183 CLR 525, 534.

[3] [2014] VSC 93 ('HRF Nominees').

[4] [2012] VSC 576, [115].

[5] [2013] VSC 452, [9] ('Le Roi').

[6] [2002] FCA 3.

[9] Ibid, citing Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, 581 (Shaw LJ).