TASMANIAN PULP & FOREST HOLDINGS LTD (ACN 009 488 733)

Procedure - Discovery and interrogatories - Interrogatories - Upon what matters - What questions disallowed - Criminating questions - Penalty privilege.

Judgment Number: [2009] TASSC 93

GUNNS LIMITED, TASMANIAN PULP & FOREST HOLDINGS LTD and

GUNNS FOREST PRODUCTS PTY LTD v SYED ALISHAH, WARRICK JORDAN, PAUL ERIC KIMBELL, NATHAN HARRIS, LEE ANTHONY SARGENT, BRETT THOMPSON, NISHANT ALLAN DANT, URSULA DUBIEL MAJEWSKI, CHRISTOPHER JOSEPH MILLS, BENJAMIN HUW SHARP,

MIRANDA KYMALEE GIBSON, WILLIAM HUGH MOONEY and

1 It is alleged that on 16 December 2008 each of the thirteen defendants entered the plaintiffs' woodchip facility at Triabunna without permission, chained or otherwise attached themselves to equipment there and when directed to do so refused to leave. The consequence was disruption to the plaintiffs' business causing loss particularised in the sum of $28,755. The plaintiffs claim damages in respect of this loss. There is a claim for exemplary damages, presumably to be founded on the contention that compensatory damages of $28,755 would not be sufficient to punish (Rookes v Barnard [1964] UKHL 1; (1964) AC 1129 at 1228).

2 Interrogatories have been administered, but all of the defendants have taken objection on grounds including that the answers might tend to incriminate them. The plaintiffs have applied for an order compelling answers. On the hearing of the application the defendants contended that objection on the ground of penalty privilege was also open to them and this was claimed as an additional reason for refusing to order answers.

3 It is convenient for me to deal with the penalty privilege argument first.

4 As was explained in Refrigerated Express Lines v Australian Meat and Livestock Corp (1979) 42 FLR 204 at 207 - 208 the privilege against exposure to penalties and forfeitures precludes the making of an order for discovery of documents or facts if the proceeding is solely for the purpose of inflicting a penalty. In cases which are not brought solely for such a purpose orders for discovery may be made and it is up to the party against whom the order is made to object to producing particular documents or providing particular information.

5 Here there is a claim for exemplary damages. Exemplary damages are awarded to punish and deter. The submission on behalf of the defendants was that the addition of the claim for exemplary damages attracts the privilege against self-exposure to a penalty.

6 In Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129 the circumstances in which the privilege has been applied were set out. At par26 Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

"The penalties and forfeitures which attract the privileges include, but are not confined to, monetary exactions. The privilege against exposure to penalties has been applied in common informer proceedings (Orme v Crockford (1824) 13 Price 376 [147 ER 1022]; Martin v Treacher (1886) 16 QBD 507) and actions for monetary penalties (Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738) or treble damages (Jones v Jones (1889) 22 QBD 425). But:

"[t]he term 'penalty' was not used in courts of equity merely in the sense of an exaction pursuant to statute as a punishment for contravention thereof. It embraced the wider concept of penalty as understood in the law of relief in equity against the exaction of penal payments in contractual disputes and the forfeiture of property interests." (Trade Practices Commission v Abbco Iceworks Pty Ltd [1994] FCA 1279; (1994) 52 FCR 96 at 143 per Gummow J.)

That is why the privileges against exposure to penalties or forfeiture have been allowed in cases as diverse as those already mentioned and to cases of forfeiture of estate, as for simony (Parkhurst v Lowten [1816] EngR 485; (1816) 1 Mer 391 [35 ER 718]), for infringing the Pluralities Act (1 & 2 Vict c 10) (cf Boteler v Allington [1746] EngR 748; (1746) 3 Atk 453 [26 ER 1061]), for breaches of covenants in leases Mexborough (Earl of) v Whitwood Urban District Council [1897] 2 QB 111), by marriage without consent (Chancey v Fenhoulet [1751] EngR 20; (1751) 2 Ves Sen 265 [28 ER 171]), or by having acted as agent for the Confederate States of America (United States of America v McRae (1867) LR 3 Ch App 79). Moreover, the privilege against exposure to penalties has been held applicable to preclude an order for discovery by the debtor in a petition for bankruptcy (In re a Debtor [1910] 2 KB 59 at 66) on the basis that the loss of civil status consequent on bankruptcy is penal."

7 Counsel were unable to refer to any case where a claim for exemplary damages has been sufficient to result in the privilege applying. I am unpersuaded that penalty privilege has any application to the present case.

8 I now turn to the interrogatories. There are 39. At this stage the parties have asked me to rule on interrogatories 1 - 33, 38 and 39 but only on the self-incrimination objection and the claim of penalty privilege. Each of the interrogatories goes directly or indirectly to questions concerning whether the defendants were at the Triabunna facility and their conduct whilst there.

9 The first seven defendants were charged with trespass contrary to the Police Offences Act 1935, s14B(1). Each pleaded guilty. The particulars of the offence in each case were confined to the defendants "without reasonable or lawful excuse, remaining on land ... without the consent of the owner, occupier or the person in charge ...". The risk alleged by each of the defendants is now that of being prosecuted for breach of the Workplace Health and Safety Act 1995 (the Act). There is evidence that an investigation was being conducted in February 2009. Proceedings for offences under the Act can be instituted up to 12 months after an inspector becomes aware of the act or omission alleged to constitute the offence (s55). Pursuant to s20(d) it is an offence to "intentionally, recklessly or without reasonable excuse interfere with any plant at a workplace".

10 I commence by observing in relation to the defendants who have been convicted of trespass that a plea of autrefois convict would appear not to be sustainable. The test is "whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first." Li Wan Quai v Christie [1906] HCA 42; (1906) 3 CLR 1125 at 1131. An offence could occur under the Act, s20, without there necessarily being a trespass.

11 The privilege against self-incrimination was described by Gibbs CJ in Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 288 - 289 as follows:

"It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so 'may tend to bring him into the peril and possibility of being convicted as a criminal': Lamb v Munster (1882) 10 QBD 110 at p111 . The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; 'to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer': Reg v Boyes [1861] EngR 626; (1861) 1 B & S 311 at pp 329 - 330 [1861] EngR 626; (121 ER 730 at p738) ."

12 The privilege extends beyond questions which, if answered, might directly incriminate. In Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 Kirby P said at 420 - 421:

"The basis of the privilege against self-incrimination was explained long ago by Lord Eldon LC in Paxton v Douglas (1812) 19 Ves 225, 227 - 228; [1812] EngR 432; 34 ER 502, 503:

'In no stage of the proceedings in this Court can a party be compelled to answer any question, accusing himself, or anyone in a series of questions, that has a tendency to that effect: the rule in these cases being that he is at liberty to protect himself against answering, not only the direct question, whether he did what was illegal, but also every question, fairly appearing to be put with the view of drawing from him an answer containing nothing to affect him, except as it is one link in a chain of proof that is to affect him ...

I have looked into all the cases; and I find the distinctions between questions supposed to have a tendency to criminate and questions, to which it is supposed answers may be given, as having no connexion with the other questions, so very nice, that I can only say, the strong inclination of my mind is to protect the party against answering any question not only that has a direct tendency to incriminate him, but that forms one step towards it.'"

13 Great latitude is allowed to the witness in taking the objection. At 422 Kirby P said:

"Where a question arises as to whether the claimed privilege is not claimed bona fide or whether the danger apprehended is without substance, it is clear law that 'great latitude should be allowed to [the witness] in judging for himself the effect of any particular question'. See R v Boyes [1861] EngR 626; (1861) 1 B & S 310; 121 ER 730 (at 311; 730)."

14 Counsel for the plaintiff submitted that by the pleas of guilty the first seven defendants have already made a public admission about the matter and in this context the claim for privilege can be seen as being disingenuous. Interrogatory 1 simply enquires "Did you on 16 December 2008 enter the land?" Counsel for the defendants did not suggest any basis for thinking that providing an answer to the interrogatory, in light of the admission, would create or add to the danger of a conviction being obtained under the Act. I conclude that the self-incrimination objection made by the defendants who have pleaded guilty is not made bona fide. No other objection to answering appears in the affidavit. There will be an order that these defendants answer interrogatory 1.

15 Counsel for the plaintiffs also submitted that the claim for privilege was not objectively reasonable.

16 Firstly, it was said that answers to the questions of an inspector could be required in any event. However, the Act provides protection. Section 37(4) is as follows:

"(4) In proceedings for an offence against this Act, any answer given, or information provided, to an inspector pursuant to a requirement of an inspector under this Act is not admissible in evidence against the person giving the answer or providing the information -

(a) if the person claims before giving the answer or providing the information that the answer or information may tend to incriminate the person; or

(b) unless the person's entitlement to make a claim of the kind referred to in paragraph (a) was drawn to the person's attention before the answer was given or the information was provided."

In light of the protection provided by s37(4), I do not consider that the fact that an inspector might require answers makes the claim for privilege unreasonable.

17 Next it was submitted on behalf of the plaintiffs that there is no reasonable basis for concern that a prosecution might be instituted under the Act. I agree that it might be unlikely that a prosecution would now be instituted by an inspector. However, it is clear that the plaintiffs want to see the defendants punished for their conduct. There is the claim for exemplary damages. The time for instituting proceedings has not yet run out. Although the answers to the interrogatories could not be used in other proceedings, if admissions are made, that might fortify the plaintiffs in a resolve to prosecute. As earlier mentioned defendants are to be allowed great latitude in taking the objection. Having regard to the circumstances of the case and nature of the question asked and giving the required latitude to the defendants I am satisfied that the question has an objective tendency to expose the defendants to the risk of prosecution. The defendants who have not pleaded guilty to trespass will not be required to answer interrogatory 1.

18 Interrogatories 2 - 5 are expressed to be contingent upon the answer to interrogatory 1 being in the affirmative. Notwithstanding this each of the defendants has taken objection to interrogatory 2. Sub-questions (a) - (d) enquire as to matters pertaining to the initial entry onto the land. The objection and the considerations are the same as those which applied to interrogatory 1. Accordingly, any of the first seven defendants who answer interrogatory 1 in the affirmative will be required to answer interrogatories 2(a) - (d), but the other defendants will not.

19 Interrogatories 2(e) - (k) concern matters going beyond those to which the pleas of guilty to the trespass charge related. The matters enquired about include whether the person interrogated attached himself or herself to plant and equipment on the land and erected protest banners. The matters enquired after have the objective tendency of exposing the defendants to risk of prosecution for interfering with plant at a work place. There will not be an order compelling any of the defendants to answer interrogatories 2(e) - (k).

20 As I have said the requirement to answer interrogatories 3, 4 and 5 is expressed in the interrogatories to be contingent upon the answer to interrogatory 1 being in the affirmative. In response to these interrogatories each defendant has said "Unnecessary to answer." Only the first seven defendants are required to answer interrogatory 1. Accordingly, it is appropriate to require those defendants, if answering in the affirmative to interrogatory 1, to answer or object to interrogatories 3, 4 and 5.

21 Interrogatories 6 - 30 ask each of the defendants to look at various photographs of persons, presumably on the land and in most cases on equipment, and state whether they are depicted. These fall within the same class as interrogatories 2(e) - (k) and answers will not be compelled.

22 Interrogatories 31 - 33 enquire about travel to the land on the day in question. It is not clear that the answers would not assist in forming a link in the chain which might lead to prosecution and conviction under the Act. Giving the defendants the latitude required in judging for themselves the potential danger, answers will not be compelled.

23 Interrogatory 38 enquires of the defendants whether they were arrested whilst present on the land and, if so, requires them to state whether they were charged with any offence and provide the outcome of any such charge. The same reasoning applies to this interrogatory as applied to interrogatory 1. However, there is an objection to answering this interrogatory in addition to the self-incrimination objection. An answer cannot be compelled until after there has been argument and a determination on the additional ground of objection.

24 Interrogatory 39 enquires whether the defendants entered the land with the intention of disrupting business operations. The question has an objective tendency to extract answers on a matter which might be relevant to a prosecution under the Act. Allowing the defendants the required latitude in judging for themselves the possible effect of answering the question there will be no order compelling an answer.

25 The order will be that the first seven defendants are to answer interrogatory 1 and if the answer is in the affirmative interrogatories 2(a) - (d) are to be answered and interrogatories 3 - 5 are to be answered or objected to.