Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission

Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission - [1983] HCA 9 - HCA 1983 case summary — Zoe

[22]

It is well settled that "a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure" to use the words of Bowen L.J. in Redfern v. Redfern [14] . See also Martin v. Treacher [15] ; Earl of Mexborough v. Whitwood Urban District Council [16] ; R. v. Associated Northern Collieries [17] . Indeed, in a civil action brought merely to establish a forfeiture or enforce a penalty the rule is that neither discovery nor interrogatories will be allowed (In re A Debtor [18] ; Associated Northern Collieries [19] ). See generally the discussion by Deane J. in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corp. [20] . 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 [21] . 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. His Honour described this as "a broad and unqualified rule whose origins are apparently to be found in a reluctance on the part of the Court of Chancery to lend the aid of its discovery proceedings to the common informer (see [Mexborough] and Heimann v. Commonwealth [22] " [23] ). To these authorities there should be added a reference to the statement of Lord James of Hereford in National Association of Operative Plasterers v. Smithies [24] , that courts of equity were averse to actions for penalties and forfeitures being brought and would not assist them. 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.

[89]

The appellants' argument begins by showing that the privilege against exposure to a penalty is distinct from the privilege against self-incrimination, as Lord Esher M.R. held in Earl of Mexborough v. Whitwood Urban District Council [13] . Though the privilege against self-incrimination is sometimes expressed to include the privilege against exposure to a penalty, the two privileges are in truth different grounds of excuse for not answering questions or not producing documents. An early example of a case where there was no question of self-incrimination is Reg. v. Newel [14] where the compellability of an assignee in Bankruptcy to answer questions before a sheriff's inquisition was upheld provided the answers did not subject him to a penalty or forfeiture. The next step in the appellants' argument is that the privilege against exposure to a penalty recoverable in civil proceedings, unlike the privilege against self-incrimination of an offence, was not taken away by sub-s. (7) and therefore remains to protect a person obliged to furnish information or to produce documents pursuant to a s. 155 notice. This argument assumes that the privilege against exposure to a penalty extends to and qualifies the obligation created by sub-s. (5) unless expressly excluded. That assumption is countenanced by the first part of sub-s. (7) which, by expressly excluding self-incrimination as an excuse for failing to comply with the requirements of a notice, implies that the privilege against self-incrimination would otherwise extend to and qualify the obligation created by sub-s. (5). But if sub-s. (7) had not been enacted, would the privilege against self-incrimination have extended to and qualified the obligation created by sub-s. (5)? If the answer is "no", two conclusions can be drawn: first, that the analogous privilege against exposure to a penalty does not extend to and qualify the obligation; and second, that the exclusion by sub-s. (7) of self-incrimination as an excuse for failing to comply with sub-s. (5) has been inserted ex abundanti cautela. Therefore the first question is whether the privilege against self-incrimination is implied, even if it is not statutorily expressed, as a qualification upon the obligation created by sub-s. (5).

[97]

[Maher being a prices officer] that he was bound to answer all the questions put to him. McTiernan J. was of the same opinion. His Honour said [22] : Regulation 17 does not contain any express provision excusing a person from answering on the ground that the answer might incriminate him . Williams J., however, expressed the opposite conclusion [23] : It is a fundamental rule of the common law that "nemo tenetur seipsum accusare," so that it would not have been unreasonable to expect that, in a set of regulations which give Government officials wide powers to interrogate members of the public, some care would have been taken clearly to indicate to what extent such a fundamental rule has been abrogated, but the Regulations as a whole are quite incoherent and incapable of affording any clear guide. In these circumstances I can see no reason why the rule should not continue to apply, so that persons interrogated under reg. 17 are entitled to refuse to answer questions which will incriminate them. Starke J. found it "unnecessary to say whether reg. 17 excludes the rule" stating his opinion, however, in a way which noted no distinction between judicial examinations and interrogations by the Executive [24] : According to English law, the depositions on oath of a witness legally taken are admissible in evidence against him if subsequently tried on a criminal charge - Reg. v. Coote [25] . But where authority is given to compel the examination of persons, the ordinary rule of the common law which protects a person from answering questions which tend to criminate him applies unless expressly excluded. And whether the rule is excluded must depend upon the provisions of the legislative act or the nature of the subject Rich J. [26] did not advert to the division of opinion among other members of the Court. After considering these judgments, Jordan C.J. in Ex parte Zietsch; Re Craig [27] held that the Full Court should adhere to the view "that answers are compellable notwithstanding that they are incriminating". 1. (1944) 44 S.R. (N.S.W.) 416. 2. (1944) 44 S.R. (N.S.W.), at p. 429. 3. (1913) 13 S.R. (N.S.W.) 451, at 458-460. 4. [1944] A.L.R. 249. 5. [1944] A.L.R., at p. 251. 6. [1944] A.L.R., at p. 253. 7. [1944] A.L.R., at p. 254. 8. [1944] A.L.R., at p. 253. 9. (1873) L.R. 4 P.C. 599. 10. [1944] A.L.R., at p. 252. 11. (1944) 44 S.R. (N.S.W.) 360, at p. 368.

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Judgment (116 paragraphs)

Legislation Cited (1)