Great Lakes Council v N & S Keerie & Anor

IN THE LAND AND Matter No.: 40166 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 22 May 2001

Great Lakes City Council Applicant v Noel Keerie and Susan Keerie First Respondents Terry David Delardes Second Respondent REASONS FOR JUDGMENT

1. The first respondent, Mr Noel Keerie, applies by notice of motion to set aside a notice to produce served by the applicant.
2. The notice to produce is expressed to be served pursuant to Part 13 rule 32 of the Land and Environment Court Rules 1996. That rule, however, applies only to proceedings in Classes 1, 2 and 3 of the Court's jurisdiction. The proceedings to which the notice to produce relates is a motion for contempt in Class 4 of the Court's jurisdiction. The parties accept that a mistake in the source of power to issue the notice does not invalidate the notice if there is another source of power to achieve the same thing. In the present case the respondent accepts the fact that the applicant is able to rely upon the alternative source of power in Part 36 rule 16 of the Supreme Court Rules 1970 (which applies in this Court by force of Part 6 rule 1 (1) and (2) of the Land and Environment Court Rules).
3. In my opinion the parties were correct in accepting that a mistake in the source of power does not invalidate the notice if there is an alternative source of power. I extensively discussed the ability to rely upon an available source of power in Holster v Director-General of National Parks and Wildlife Service [1999] NSWLEC 102, at pars [86]-[111]. In The Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 it was accepted by Cole JA (at 85-89), with whom Handley JA (at 36) and Sheller JA (at 98) agreed, that it is clear law that a mistake in the source of power works no invalidity.
4. The notice to produce requires the first respondent to produce documents set out therein. The basis upon which the first respondent seeks to set aside of the notice is the fact that the first respondent is charged with contempt of court and the documents called for may tend to incriminate him. There are two notices of motion for contempt, each of which alleges that the first respondent did not comply with orders of the Court made on 21 December 1999.
5. Mr T G Howard, who appears for the respondent, made the following submissions. (1) It has been settled as early as the eighteenth century that the courts would not make an order requiring an accused person to produce documents which would or might tend to incriminate him. (He referred to Environment Protection Authority v Caltex Refining Co Pty Ltd (1992-1993) 178 CLR 477, per Mason CJ and Toohey J at 501). (2) The privilege against self-incrimination is at least partially based on on the underlying principle that the onus rests on the prosecutor of proving a charge beyond reasonable doubt. (He again referred to, by way of example, Environment Protection Authority v Caltex Refining Co Pty Ltd, per Mason CJ and Toohey J at 501.) (3) The privilege against self-incrimination (or the analogous privilege against self-exposure to penalty) applies not just to pure criminal proceedings, but also to proceedings which are criminal in nature. (He cited as an example Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96 per Burchett J at 119, 122, 124, 128-129.) (4) The notice to produce can only have one forensic purpose - namely to aid in the prosecution of the contempt charges against the respondents. (5) The notice to produce should be set aside, because the only forensic purpose it can serve infringes upon the respondents' privilege against self-incrimination (or self-exposure to penalty). (6) The production of documents pursuant to Part 36 rule 16 of the Supreme Court Rules is, by reason of the above matters, prevented by Part 36 rule 13(2)(c) of those rules.
6. Mr J. A. Ayling, who appears for the applicant, made the following submissions. (1) The documents described in the notice to produce do not relate to the subject matter of the charges, but relate to matters raised in mitigation referred to in an affidavit filed by the first respondent. (2) There is no prohibition upon a prosecutor requiring, by notice, the production of documents by a defendant. (He referred to Environment Protection Authority v Caltex Refining Co Pty Ltd at 535, following Morgan v Babcock & Wilcox Pty Ltd (1929) 43 CLR 163 at 172; Trade Practices Commission v Abbco Ice Works Pty Ltd 52 FCR 96 at 114, R v Watson (1788) 2 TR 199; and Attorney-General v Le Merchant (1772) 2 TR 201; 100 ER 109.) (3) It may well be that a defendant cannot be compelled to produce documents upon a call pursuant to a valid notice. Whether this is so will depend upon a proper understanding of the nature of the proceedings. (4) If a privilege exists in proceedings of the present kind against self-exposure to a penalty, it may be possible for the respondent to rely on a right to silence and refuse to produce anything, without explanation. Otherwise, he may have to claim privilege against self-incrimination, with the usual consequences. (5) The law on this distinction is to say the least unclear. If either form of privilege is claimed, it must be claimed when the documents are called for at the hearing. The notice to produce is itself perfectly valid and regular. The response to it is a matter for a different time. Conclusions
7. Although the proceedings for contempt are criminal in nature (Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 49) and the distinctions between civil and criminal contempt are, in significant respects, illusory (Witham v Holloway (1995) 183 CLR 525 at 534), it seems that the enforcement of orders of the Court by way of such proceedings remains civil and not criminal proceedings (Witham, at 534, 549). As Brennan, Deane, Toohey and Gaudron JJ said in Witham (at 534): However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge.
8. In the same case, McHugh J. said (at 549): However, although the principal, if not sole, object of the present proceedings was to punish the appellant, the proceedings were and remain civil and not criminal proceedings for contempt.
9. The proceedings for contempt are the exercise of a penal or disciplinary jurisdiction alleging a breach of order, the objects of which are both punitive and remedial (Witham, at 533-534). Whilst the Court in such proceedings can punish a comtemnor by imprisonment, the imposition of a fine and/or the sequestration of property, any such imprisonment serves a dual purpose of the vindication of judicial authority and of coercing obedience in the interests of the individual (Witham, at 534). In view of the comments in Witham to which I have referred I am, therefore, not prepared to conclude that the respondent has been charged with a criminal offence, although he is potentially exposed to the penal sanctions which I have described.
10. This conclusion does not, however, resolve the matter. I accept Mr Howard's submission that the privilege against self-incrimination includes a related privilege against self-exposure to a penalty. In Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96, Burchett J (with whom Black CJ and Davies J agreed), citing a number of authorities, held that a person cannot be compelled to produce any document or thing if to do so would expose the person to punishment, whatever may be the nature of that punishment, or would expose the person to any penalty (at 118-119, 122, 124, 129).
11. There is a difference, however, between requiring a respondent to produce documents, not for the purpose of use in the proceedings, but to lay the foundation for proof of their content by secondary evidence. As long ago as 1788 it was held in England that in a criminal prosecution a prosecutor may give notice to a defendant to produce documents in his possession (R v Watson at 201). In Environment Protection Authority v Caltex Refining Co Pty Ltd, Deane, Dawson and Gaudron JJ referred to the distinction (at 535): Even in criminal proceedings, a notice to produce may be served upon an accused Corporation, not as a means of compelling it to produce the documents sought, but to lay the foundation for the proof of their contents by secondary evidence [Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163]. And the prosecution's powers of search and seizure are an important resource for discharging the onus which the prosecution bears. As Holmes J observed in Johnson v United States [(1913) 228 US 457, at p. 458]: "a party is privileged from producing the evidence but not from its production".
12. In Trade Practices Commission v Abbco Ice Works Pty Ltd Burchett J recognised the distinction. His Honour noted (at 114) that a notice to produce is an accepted procedure, in a criminal case and as well in a civil case, in order to lay the foundation for proof of documents by secondary evidence. Service of such a notice could not be set aside in advance of the hearing.
13. Neither, in my view, can the first respondent rely upon Part 36 rule 13(2)(c) of the Supreme Court Rules. That sub-rule will apply is where a party is required by a notice served under rule 16(1) to produce any document (rule 13 (1)). Rule 13 (2) provides: The Court shall not compel, and rule 16 shall not require, production of a document or an answer to a question, unless and until the Court directs that the production or an answer shall not be prevented by this subrule: (c) if the person required to produce, or an answer, is a natural person and an answer to the question, or the contents or production of the document, would tend to prove that the person: (i) has committed an offence against or arising under an Australian law or a law of a foreign country; or (ii) is liable to a civil penalty, within the meaning of section 128 of the Evidence Act;...
14. The provisions of section 128 of the Evidence Act set out in statutory form of the privilege against self-incrimination. That section does not apply, however, to the production of documents. Sub-rule 13(2)(c) does not assist the respondents' argument in the present case.
15. In my opinion the first respondent, Mr Noel Kerrie is bound by Part 36 rule 16(1) to produce the documents described in the notice to produce in accordance with the notice if those documents are in his possession, custody or power. It may be the case, however, that if at the hearing the documents are called for, the first respondent may object at that stage to them being admitted into evidence if the claimed privilege is established.
16. The formal orders of the Court are: (1) The first respondent's notice of motion dated 2 March 2001 is dismissed. (2) The costs of the notice of motion shall be the applicant's costs in the hearing of the motion for contempt.

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