"There his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings. In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action ... But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty." (my emphasis)
The unqualified nature of the last sentence is noteworthy. I do not suggest that their Honours intended to reject as inappropriate recognition of the exceptional class of case for which Deane J had allowed in Refrigerated Express, but their failure to refer to it is strong affirmation of Deane J's "ordinary rule".
52 In Adsteam Building Industries Pty Ltd v Queensland Cement & Lime Co Ltd (No.4) [1985] 1 Qd R 127 ("Adsteam") McPherson J held that a defendant was entitled to be excused from producing for inspection certain documents, the disclosure of which would or might tend to expose the party to a penalty under Art 273 of the Swiss Penal Code. There was before his Honour uncontradicted evidence from a doctor of laws and member of the Zurich Bar to the effect that the disclosure sought, which was of a share register of a certain Swiss corporation, would infringe that provision. His Honour was satisfied that disclosure of the document, even to the Court, was liable to attract a penalty or other punishment in Switzerland. But he observed that it was not the mere disclosure in an affidavit of discovery of the existence or possession of the document in question that would constitute an offence under Swiss law, but the production of it for inspection and copying. His Honour therefore ordered discovery, but directed that the individual was entitled to claim privilege against production of documents of a certain description.
53 The case provides little guidance for present purposes, being concerned, as it was, with the question whether the very act of discovery or production for inspection fell foul of Swiss law, not with whether the taking of either step had a tendency to incriminate in respect of an independent offence.
54 In Briggs, a taxpayer (Briggs) sought a declaration against the respondent authorities that any divulging and communication of information concerning the affairs of himself or of certain companies, contravened subs 16(2) of the Income Tax Assessment Act 1936 (Cth) ("the ITA Act") and s 70 of the Crimes Act 1914 (Cth) and consequential relief. Briggs moved for orders that the respondents give discovery and that he have leave to administer interrogatories. Beaumont J refused that application. After referring to Refrigerated Express, his Honour emphasised (at [16]) that Briggs was seeking a declaration that subs 16(2) of the ITA Act had been contravened and that "the main issue" in the present proceeding was "whether any such contravention occurred". In Briggs, Beaumont J sought to distinguish Refrigerated Express on the basis that in Refrigerated Express the only relief sought was injunctive relief and damages, whereas in Briggs it was a declaration of contravention and consequential mandatory and prohibitory injunctions. With respect, this seems to me an unsatisfactory basis on which to distinguish Refrigerated Express. In Refrigerated Express it was the alleged "contravention" of provisions of Pt IV of the TP Act that provided the basis for the injunctive relief and damages sought under ss 80 and 82 of the TP Act. It is difficult to accept that an inclusion in the relief sought in that case of a prefatory declaration of contravention would have had any effect on Deane J's treatment of the issue of self-exposure to a penalty.
55 Spender J followed Refrigerated Express in Medina v Copenhagen Handelsbank International SA (Spender J, FCA, 10 March 1989, unreported) ("Medina"). His Honour ordered further and better discovery by the first respondent, a financial institution established in Luxembourg. The proceeding was based on an alleged contravention of s 52 of the TP Act, but conduct in contravention of the Money Lenders Act 1916 (Qld), for which a criminal proceeding lay,and of certain laws of Luxembourg prohibiting, under penalty, the disclosure of certain secrets and confidential information, was also pleaded. After referring to the approval by Mason ACJ, Wilson and Dawson JJ of Refrigerated Express in Pyneboard, Spender J stated (at [21]):
"It seems to me that it is for the party required to make discovery to object to the production of particular documents or the provision of particular information specifying the ground or grounds and, if the claim is that of a particular class of documents would expose him to a penalty, that class ought to be identified with some particularity."
56 Bell was a claim by a creditor to recover debts owed by a company in liquidation from, relevantly, its directors under s 556 (the "trading while insolvent" provision) of the Companies (Victoria) Code. That section made the same conduct an offence punishable by a fine of $5,000 or imprisonment for one year or both. The section provided for defences, the onus of establishing which lay on the director.
57 The leading judgment was given by Murphy J, with whom Vincent J agreed. His Honour distinguished Refrigerated Express on two grounds: first, unlike the section considered by Deane J, s 556 made it a criminal offence to do what the plaintiff alleged the defendant directors did; and, secondly, an offence against s 556 might be proved by proof of an act or acts of omission, equally as by proof of acts of commission. His Honour thought that the mere making of an affidavit of discovery would go to assist in proof of the criminal offence and that the case was of that kind which Deane J had considered to be exceptional.
58 Young CJ thought the defendants should not be put to the necessity of giving discovery and objecting to production for inspection, since precisely the same facts, if established, would expose a defendant to both civil and criminal liabilities.
59 In the present case, we do not have a single section which creates both civil and criminal liability, but the parties proceeded on the basis that, with the exception of subs 132(2A) of the Copyright Act, the elements of civil and criminal liability, although in different sections, are identical. This difference provides no ground for distinguishing Bell from the present case.
60 With respect I do not find the distinctions drawn by Murphy J between Bell and Refrigerated Express persuasive. The distinction between self-incrimination in the strict sense and self-exposure to a civil penalty was treated as immaterial in related contexts by a Full Court of this Court in TPC v Abbco and by Heerey J in ACCC v McPhee (both decided after Bell). I note, in passing, that a maximum civil penalty may far exceed a maximum fine for an offence. With respect, I do not find the "commission/omission" distinction a cogent one either. The distinctions made seem to elevate form over substance.
61 Stimulated by the decision of the Full Court of the Supreme Court of Victoria in Bell on 22 October 1990, the four defendant directors in Southern Star Group Pty Ltd T/A KGC Magnetic Tapes v Taylor (1991) 4 ACSR 133 (Rolfe J) ("Southern Star"), a similar proceeding under s 556 of the Companies (NSW) Code, moved the Court for an order setting aside consent orders recently made for the giving of discovery and filing of affidavits by those directors. Rolfe J distinguished Bell and followed the "ordinary" approach identified by Deane J in Refrigerated Express. The reason given by Rolfe J was that in the case before him, analysis of the pleadings revealed that the defendant directors were relying on the exculpatory defences provided by subs 556(2), on which they, rather than the plaintiff creditor, bore the onus of proof, whereas it appeared to his Honour that in Bell the onus had rested on the plaintiff creditor to prove the elements of the statutory liability identified in subs 556(1). Further, Rolfe J referred to "discretionary matters in the nature of the guidelines laid down by Wootten J in McMahon v Could (1983) 7 ACLR 202 ... approved by the Court of Appeal in Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26". Rolfe J thought that in the exercise of his discretion, an order excusing discovery in limine should not be made.
62 In New World,discovery had already been given by the directors in a proceeding against them under s 592 of the Corporations Law ("the Law"), the successor provision to s 556 of the Companies Code, and the plaintiff applied for inspection. Sections 1311-1316 of the Law (rather than the substantive provision itself as under the Companies Code) had the effect of making the alleged conduct of the directors a punishable offence. The parties agreed that the appropriate course was that which had been followed, namely, for the respondents to file lists of documents and to object to the production of those documents which they claimed might tend to expose them to the imposition of penalties. Sheppard J said this approach was "in accordance with" the judgment of Deane J in Refrigerated Express. His Honour noted that Deane J's decision had been "consistently applied by judges of [the Federal] Court", and he referred to Briggs, Master Builders Association of New South Wales v Plumbers and Gasfitters Employees' Union of Australia (1987) 14 FCR 479 (Gray J) ("MBA") and Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union of Australia (1987) 15 FCR 3 (Wilcox J) ("Concrete"). MBA was a proceeding for a penalty, while Concrete concerned the answering of a subpoena, so, like New World itself, neither case is directly relevant to the issue of the availability of the privilege against self-incrimination to excuse in limine the giving of discovery. After deciding that no "middle course" was available, Sheppard J declined to make an order granting the applicants or their legal advisers access to the documents discovered by the directors.
63 Hince v Caratti (French J, FCA, 25 February 1994, unreported) was another proceeding by the creditors of a company in liquidation to recover from its directors on the basis of "insolvent trading" under s 592 of the Law. A director moved for an order excusing him from compliance with an order for discovery. French J referred to English authorities in favour of the proposition that the privilege against self-incrimination does not relieve in limine from the obligation to give discovery, including Spokes v Grosvenor & West End Railway Terminus Hotel Company Ltd [1897] 2 QB 124 at 132, and National Association of Operative Plasterers v Smithies [1906] AC 434 at 436, 437, 438, and to Refrigerated Express, Briggs and New World. His Honour observed, however, that it was not clear, and had not been contended, that in the case before him the conduct relied on by the applicant, if established, amounted to conduct which was an offence against the Law (his Honour distinguished the position in New World in this respect). His Honour concluded that it had not been established on the evidence before him that the case fell within the exception recognised by Deane J in Refrigerated Express.
64 Trade Practices Commission v IMB Group Pty Ltd (1994) ATPR 41-348 (Drummond J) ("TPC v IMB"), was a proceeding for contravention of Pt IV of the TP Act. As against the individual respondents, the Commission was seeking injunctive and other relief, but not the payment of penalties (it sought civil penalties under s 76 of the TP Act against the corporate respondents). Drummond J acknowledged that while the filing of a list of documents would not necessarily tend to expose the individual respondents to penalties, it was possible that the identification of some of the documents in their lists of documents might do so. His Honour followed the procedure suggested by Deane J in Refrigerated Express of ordering discovery but reserving liberty for the respondent individuals to apply for an order absolving them from describing any particular document if to do so would expose them to a penalty.