PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
PLEADINGS – GENERALLY – where the defendants
have applied for an
order that pleading rules under the Uniform Civil Procedure Rules 1999
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –PLEADINGS – GENERALLY – where the defendantshave applied for anorder that pleading rules under the Uniform Civil Procedure Rules 1999(Qld) be dispensed with in relation to paragraphs of the statement of claim– where the application seeks to excuse the defendantsfrom having toplead responsively to the identified paragraphs of the statement of claim inaccordance with the pleading rules –where the identified paragraphs ofthe statement of claim are said to allege conduct by the defendants’ soledirector involvingserious criminal offending – where the defendantscontend that to require them to plead to the identified paragraphs wouldcompelthe sole director to provide instructions in abrogation of his privilege againstself-incrimination – where privilegeagainst self-incrimination is asubstantive legal right that is not overridden by a requirement to plead in a
civil proceeding –
where there must be a degree of risk which cannot be
dismissed as tenuous or illusory or so improbable as to be virtually without
substance – whether the defendants’ application to dispense with
pleading rules should be allowed
Environmental Protection Act 1994
(Qld), s 480
Uniform Civil Procedure Rules 1999 (Qld), r 149(1)(b), r 149(1)(c),
r 150, r 157, r 165 and r 166
Anderson v Australian Securities and
Investments Commission [2012] QCA 301
[2013] 2 Qd R 401, followed
Chardon v Bradley
[2017] QCA 314, cited
Connelly and Harris v McGrath (2019) 3 QR
99, considered
Macdonald v Australian Securities and Investments
Commission [2007] NSWCA 304
(2007) 73 NSWLR 612, cited
QC Resource Investments Pty Ltd
(in liq) v Mulligan [2016] FCA 813, considered
Rolfe v Pinnacle ACT Pty Ltd [2025] FCA 638, cited
Judgment (82 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - GENERALLY - where the defendants have applied for an order that pleading rules under the Uniform Civil Procedure Rules 1999 (Qld) be dispensed with in relation to paragraphs of the statement of claim - where the application seeks to excuse the defendants from having to plead responsively to the identified paragraphs of the statement of claim in accordance with the pleading rules - where the identified paragraphs of the statement of claim are said to allege conduct by the defendants' sole director involving serious criminal offending - where the defendants contend that to require them to plead to the identified paragraphs would compel the sole director to provide instructions in abrogation of his privilege against self-incrimination - where privilege against self-incrimination is a substantive legal right that is not overridden by a requirement to plead in a civil proceeding - where there must be a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance - whether the defendants' application to dispense with pleading rules should be allowed
G A Thompson KC, with J D Byrnes, for the plaintiffs
[11]
[1] The defendants have applied for an order that pleading rules be dispensed with "in relation to paragraphs 47 to 62 of the fourth statement of claim ("the statement of claim")".[1] The pleading rules to be dispensed with are those contained in rr 149(1)(b), 149(1)(c), 150, 157, 165 and 166 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"). The application seeks to excuse the defendants from having to plead responsively to the identified paragraphs of the statement of claim in accordance with the pleading rules. The defendants have one director, Mr Peter Murray. The identified paragraphs of the statement of claim are said to allege conduct by Mr Murray involving serious criminal offending. The defendants submit that to require them to plead to those paragraphs would compel Mr Murray to provide instructions in abrogation of his privilege against self-incrimination.
[12]
[2] The proceeding broadly relates to a recycling business and related environmental licences and permits. The business operates from a site in Yatala ("the Site") which is owned by the second plaintiff ("TEB Enterprises"). The first plaintiff ("Recycling Developments") was the registered holder of two licences ("ERA 54 and 62") under an Environmental Authority Permit EPPR00970213 ("the Permit"). Contractual arrangements were entered into between the plaintiffs and the first defendant ("Bespoke") and the second defendant ("Rocky Point") including a management licence agreement dated 10 November 2020 ("the MLA") and a call option dated 10 November 2020 ("the Call Option"). The plaintiffs allege breaches of the MLA and seek relief in respect of their alleged valid termination of the MLA and the Call Option. The proceeding is a civil proceeding in which no penalty is sought to be recovered against the defendants.
[3] Relevant to this application, the plaintiffs have pleaded allegations which, at a high level, are to the following effect:
[13]
(a) Recycling Developments was the holder of ERA 54 and 62 and the Permit;
(b) the Permit was required to run the recycling business and was issued by the administering authority, being the Department of Environment and Science ("the Department"), under Chapter 5 of the Environmental Protection Act1994 (Qld) ("the EP Act");[2]
(c) the Permit was an "approval" within the meaning of that term as used in the Call Option;
(d) Mr Murray received a conditional offer from a third party for the purchase of the Site and the business from the defendants, a term of which was that the Permit would be registered in Bespoke's name;[3]
(e) Mr Murray created an application form ("the Unauthorised TAF") seeking to bring about the transfer of the Permit from Recycling Developments to Bespoke;
(f) Mr Murray lodged the Unauthorised TAF with the Department without authority to satisfy the term of the conditional offer;
(g) Mr Murray's conduct contravened s 480 of the EP Act, breached clauses 3.1, 3.2(a), 3.2(b) and 4.2(e) of the MLA and was fraudulent.
[14]
[4] To the extent that declaratory relief is sought by the plaintiffs against Bespoke in relation to the MLA, the declarations are to the effect that Bespoke committed an Event of Default pursuant to cl 14.1(a) of the MLA by breaching cls 3.1, 3.2(a), 3.2(b) and 4.2(e) of the MLA. By a draft counterclaim Bespoke and Rocky Point have sought specific performance of the Call Option and claim that they have exercised options for the purchase of the site by Rocky Point and for the transfer of certain approvals to Bespoke.
[5] On 27 January 2023, Rocky Point made an application for leave to lodge a second caveat over the site which was heard by Davis J. His Honour gave leave for the second caveat to be lodged. The reasons for that decision are contained in Rocky Point Holdings Pty Ltd v TEB Enterprises Pty Ltd ("the second caveat decision").[4] In support of that application, Mr Murray provided instructions to a solicitor, Ms Langan, in relation to an asserted transfer of environmental permits. Ms Langan swore[5] to having received instructions from Mr Murray that he had "caused the relevant environmental permits to be transferred to him, in accordance with clause 2.5 of the Call Option". In the second caveat decision, Davis J then relevantly found "... the evidence is that Rocky Point achieved a transfer of the approvals but Mr Perrott caused them to be transferred back to Recycling Developments". Following the second caveat decision, the plaintiffs' solicitors requested a copy of the documents which had effected the transfer. On 3 March 2023, Ms Langan sent an email to the plaintiffs' solicitors in which she attached the Unauthorised TAF. Following that revelation, the paragraphs containing allegations about the Unauthorised TAF were introduced into the plaintiffs' pleading.
[15]
Principles concerning privilege against self-incrimination and relief against pleading rules
[16]
[6] The relevant principles were not controversial as between the parties to this application.
[7] Privilege against self-incrimination is a substantive legal right that is not overridden by a requirement to plead in a civil proceeding.[6] A corporation may not invoke privilege against self-incrimination. However, where the steps required of a sole director of a corporation in filing a defence cannot be fairly or reasonably assigned to another individual who does not have the requisite knowledge to provide full and proper instructions, the corporation may be relieved from its obligation to file a defence in accordance with the UCPR to the extent that such compliance may require the director to tend to incriminate himself or herself or expose himself or herself to a penalty.[7] Any dispensation from the pleading rules should only go so far as is necessary to serve the privileges and the interests they protect.[8]
[8] Although the privilege against self-incrimination and what is described as penalty privilege have different origins, they have generally been regarded as emanations of the same general principle.[9] In Anderson v Australian Securities and Investment Commission,[10] McMurdo J[11] observed as follows about the privilege against self-incrimination and penalty privilege:
[17]
"The content of each privilege and the relevant principles for its operation are not in question. No person can be compelled to incriminate himself or herself and a person may refuse to answer any question, or 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'. The privilege against self-incrimination operates not only to protect against the consequences of the direct use of a person's statement or document, by that being tendered by a prosecutor, but also against its indirect use, by the statement or document setting 'in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character', as Lord Wilberforce said in Rank Film Distributors Ltd v Video Information Centre[12]... In Environment Protection Authority v Caltex Refining Co Pty Ltd, Deane, Dawson and Gaudron JJ said of the privilege against self incrimination:
[18]
'In the end, [the privilege] is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself.'
[19]
The privilege against exposure to a penalty is similar to but distinct from the privilege against self-incrimination. Its origin was in the rules of equity relating to discovery, but it has developed a wider operation. In the joint judgment in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, it was said that:
[20]
'Today the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it.'
[21]
The penalty privilege also extends to the provision of information that could be used against a defendant indirectly ... the privilege [operates] to prevent the provision of any information that would assist in establishing the defendant's liability to a penalty".
[22]
[9] McMurdo J went on to observe that the privilege against self-incrimination can be claimed "where the claimant establishes a bona-fide apprehension of the consequence on reasonable grounds". By reference to the facts of Anderson, which involved proceedings seeking the imposition of a civil penalty, his Honour then observed:[13]
[23]
"The entitlement to the privilege against exposure to a penalty perhaps more clearly exists here, where the very purpose of the proceedings is the imposition of the penalty".
[24]
[10] In QC Resource Investments Pty Ltd (in liq) v Mulligan,[14]Edelman J considered a claim to dispensation from pleading rules and whether the nature of the proceeding affected what was required to be shown in terms of risk, the contrast being between proceedings which had the very purpose of imposing a penalty and those where the risk was incidental to the relief. Relevantly Edelman J said:[15]
[25]
"The rationale for the distinction between these two circumstances is obvious and capable of application to other circumstances such as dispensation from rules of pleading. In the first case, where the proceedings are themselves for a penalty then any fact which is admitted, or any positive fact which is pleaded in response, might easily be seen immediately to expose the respondent to a penalty. There will be exceptions. For instance, if the respondent's position were that there was some basic legal basis upon which the applicants' claim for a penalty was defective, independently of any facts, then that should be pleaded.
[26]
In contrast, in a civil case which does not seek any penalty something more will be required before dispensation from pleading rules can be given. The reason why something more is required is because any effects of pleadings upon privilege will usually be less direct. For instance, a pleaded admission that is not admissible in separate penalty proceedings might expose the respondent to a penalty if it could start a train of enquiry that would lead to a penalty. I do not accept the submission by senior counsel for QCRI and the liquidators that this could never occur. To the contrary, it is easy to imagine circumstances in which a partial admission could substantially change the complexion of the case and lead to a train of enquiry which exposes the respondent to a penalty. ...
[27]
For these reasons, in the second case, where the proceeding does not seek a penalty, the 'something more' which is required before dispensation from the rules is granted will depend on all the circumstances of the case and upon the rules of pleading from which dispensation is sought. ..."
[28]
[11] In Chardon v Bradley,[16] a case involving privilege against self-incrimination, Morrison JA,[17] after having referred to Anderson, the statement of Lord Wilberforce in Rank Film Distributors and the abovementioned reasoning in QC Resource Investments Pty Ltd (in liq) v Mulligan, then relevantly said "... the court is not called upon to assess the precise measure or degree of risk, as 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." His Honour found that on the facts of the case in Chardon, the risk was "not tenuous, illusory or so improbable as to be virtually without substance". Having made that finding, Morrison JA then decided that "consistent with what was held by this Court in Anderson, the pleading rules have to give way to protect the substantive right of privilege against self-incrimination."
[12] In Anderson, McMurdo J had said that the privilege against self-incrimination might be claimed "where the claimant establishes a bona-fide apprehension of the consequence on reasonable grounds". There has been some doubt expressed about whether a bona fide apprehension on the part of a claimant of being exposed to conviction or penalty is a necessary condition for a successful claim of privilege.[18] I am bound by and intend to follow what was said by McMurdo J in Anderson. It has also been observed that the existence of a bona fide concern is a necessary but not necessarily sufficient condition to engage the privilege.[19]
[13] In Chardon, Morrison JA spoke in terms of "a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance." The origin of the language used by Morrison JA in Chardon has recently been explained by Kennett J in the following observations in Rolfe v Pinnacle ACT Pty Ltd:[20]
[29]
"Formulations of the relevant test in terms involving a 'real and appreciable risk' generally trace that language back to Rio Tinto Zinc Corp v Westinghouse Electric Corporation[1978] AC 547. In the Court of Appeal in that case Lord Denning MR, upholding a claim of privilege, said (at 574):
[30]
'It is not necessary for him to show that proceedings are likely to be taken against him, or would probably be taken against him. It may be improbable that they will be taken, but nevertheless, if there is some risk of their being taken - a real and appreciable risk - as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents.'
[31]
Roskill and Shaw LJJ agreed with Lord Denning in the result and gave separate reasons. Shaw LJ said (at 581):
[32]
'The precise measure or degree of the risk to the witness 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? ...
[33]
It is sufficient if it is shown that there is an appreciable chance [that proceedings may be brought].'
[34]
On appeal, the House of Lords upheld the judgment of the Court of Appeal on this issue. Viscount Dilhorne expressed agreement with the statement by Lord Denning set out above (at 627). The other Law Lords agreed generally with the reasons of the Court of Appeal (at 612 (Lord Wilberforce), 637 (Lord Diplock (with whom Lord Kieth of Kinkel agreed), 647 (Lord Fraser of Tullybelton)). Lord Diplock noted that the risk of further action against the companies could not be dismissed as 'fanciful'. Lord Fraser of Tullybelton said:
[35]
'Although the members of the Court of Appeal expressed themselves in various words they all purported to follow the decision in [Triplex Safety Glass Co Ltd v Lancegaye Safety Class (1934) Ltd [1939] 2 KB 395]. The test is not a rigorous one. All that is necessary is that it should be reasonable to believe that production would 'tend to expose' (not 'would expose') the possessor of the documents to proceedings. I agree with the Court of Appeal that that test is satisfied in the present case.'
[36]
The written submissions of the Rolfes referred to a line of cases in the Supreme Court of Queensland (including the Court of Appeal) and the Supreme Court of Victoria in which language akin to that of Shaw LJ was adopted: Chardon v Bradley[2017] QCA 314 at [34] (Morrison JA; Fraser and Mc Murdo JJA agreeing) (Chardon v Bradley); Le Roi Homestyle Cookies Pty Ltd (in liquidation) v Gemmell[2013] VSC 452 at [11] (Ferguson J); Connelly and Harris & Anor v McGrath & Anor[2019] QSC 304 at [147] (Ryan J); EFM Logistics v David Weerden & Ors[2019] VSC 100 at [11] (Garde J); Dale v Clayton Utz (a firm) (No 2)[2014] VSC 517 at [96] (Croft J); Quinlan v ERM Power Limited & Ors[2023] QSC 80 at [39] (Brown J). Pinnacle's written submissions argued that this approach was wrong and referred to Spotlight Pty Ltd v Mehta[2020] FCA 1422 at [31]- (), where Bromwich J expressly rejected his Lordship's formulation to the extent that it purported to express a different test from that of Lord Denning MR. In oral submissions, however, senior counsel on both sides of the record stepped away from suggesting that there was a real difference in the authorities as to the test to be applied.
[37]
It is apparent from the reasons of Bromwich J in Mehta that his Honour had some doubt as to whether Shaw LJ was proposing a lower threshold for a successful claim than Lord Denning MR. It also appears that his Honour had not been referred to any of the Queensland and Victorian cases relied on by the Rolfes. One of those cases (Chardon v Bradley) is a decision of an intermediate appellate court on the scope of a common law privilege, which a single judge of this Court should at least ordinarily follow. (It should also be noted that the statement of Lord Denning MR was referred to with apparent approval by Gibbs CJ in Sorby v Commonwealth[1983] HCA 10; (1983) 152 CLR 281 at 290, but on a point that his Honour found it unnecessary to decide.)
[38]
My view (consistent with the position at which counsel eventually arrived in this case) is that there is no material difference between:
[39]
(a) 'a real and appreciable risk - as distinct from a remote or insubstantial risk'; and
(b) a risk which is 'recognisable' and 'which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance'.
[40]
Neither formulation is particularly precise. While it may be unhelpful to add further glosses to the underlying concept, it can be observed that both formulations attempt to distinguish between a risk that is 'appreciable' (or 'recognisable') and one which is 'remote', 'insubstantial', 'tenuous or illusory'. Neither Lord Denning MR nor Shaw LJ seems to have apprehended that they were proposing different criteria, and no member of the House of Lords seems to have understood their formulations to have been different.
[41]
I therefore consider that 'real and appreciable risk' can safely be adopted as a statement of the test to be applied (as it was by the Full Court in Sadie Ville), while noting that it is not a demanding standard."
[42]
[14] In Connelly and Harris v McGrath,[21] Ryan J applied a test as to "whether there is a real and genuine basis for asserting that a defendant is at risk of criminal proceedings or penalties". Her Honour outlined a number of principles relevant to the application of that test as follows:[22]
[43]
"The test as to whether there is a real and genuine basis for asserting that a defendant is at risk of criminal proceedings or penalties is not a rigorous one (In re Westinghouse Electric Corporation Uranium Contract Litigation MDL Docket No 235; Chardon v Bradley).
[44]
The privileges are not available when the taking of the step in question will not add to a defendant's jeopardy or expose them to an additional peril of prosecution (Sorby v Commonwealth; Microsoft v CX; Gemmell v Le Roi). ...
[45]
Reasonable grounds may be shown by affidavit or submission (QC Resource Investments v Mulligan).
[46]
The defendant must show, or it must be clear, that there is a real and appreciable risk of criminal prosecution or a tendency to expose a person to penalty (Gemmell v Le Roi; HRF Nominees).
[47]
The nature of the proceeding itself might clearly establish an entitlement to the privilege, in which case a defendant need not establish on oath that the production of documents would tend to penalise him or her (R v Associated Northern Collieries(1910) 11 CLR 738, 742; Anderson v ASIC).
[48]
The more serious the claim in the non-penalty proceeding, the more likely the real possibility of criminal or civil penalty proceedings (TTAC v Williams).
[49]
Once it appears that a defendant is at risk, great latitude should be allowed to them in judging for themselves the effect of any particular question (Gemmell v Le Roi).
[50]
Where the allegations are very serious, the circumstances will colour the extent to which a defendant must descend into detail to show a reasonable basis for dispensation (QC Resource Investments v Mulligan).
[51]
Further, in terms of the way in which a defendant might show reasonable grounds in non-penalty proceedings, I note the following:
[52]
In Bell Packaging, in which in limine relief from disclosure was granted, the defendants deposed on affidavit that the discovery of any or no documents would tend to incriminate them. The defendants did not depose that the mere making of an affidavit of discovery would tend to incriminate them, but they were not required to do so because the court was otherwise satisfied that taking objection to the production of certain documents in the affidavit of documents would not achieve for the defendants the protection to which they were entitled.
In Pascoe v Divisional Security Group Pty Ltd[2007] NSWSC 211; (2007) 209 FLR 197, in which no relief was granted, there were no ASIC proceedings on foot or foreshadowed and the defendants had not deposed on affidavit that the verification of the defence could tend to prove liability to civil penalty or the grounds for such a belief.
In CC Containers Pty Ltd v Lee (No 2)[2012] VSC 149 the pleading of serious allegations (regular and systemic fraud) was alone sufficient to establish the real and appreciable risk of criminal prosecution."
"It will not be difficult to show that the provision of information or the production of documents in a civil case leads to a real and appreciable risk of a criminal prosecution when the proceeding is aimed at proving that persons engaged in particular conduct, proof of which would establish, or go a long way towards establishing, that they had committed criminal acts (Gemmell v Le Roi)."
[55]
[16] The reasoning of Ryan J was applied by Brown J in Quinlan v ERM Power Limited.[24] In that case, Brown J observed that "[w]here serious allegations are made the more likely the real possibility of criminal or civil penalty proceedings and the circumstances will colour the extent to which the defendant must descend into detail". Her Honour found that on the facts of that case, serious allegations had been made which involved contraventions of provisions of a statute which could lead to civil penalties and criminal prosecution.
[56]
[17] The relevant paragraphs of the statement of claim may be outlined in more detail as follows.
[18] Paragraph 47 contains an allegation to the effect that Recycling Developments was the registered holder of two environmental authority permits, including the Permit, which were required for the purpose of conducting the Business. Paragraph 48 contains an allegation to the effect that the Permit was issued by the Department as the administering authority under Chapter 5 of the EP Act.
[19] Paragraph 49 alleges that in about October 2021, Mr Murray, on behalf of Bespoke, received a conditional offer from a potential purchaser to purchase the Site and the Business from the defendants. Paragraph 50 alleges that it was a term of the conditional offer that the Permit be registered in Bespoke's name.
[20] Paragraphs 51 to 61 then relevantly provide:
[57]
(a) on or about 16 November 2021, Mr Murray, on behalf of Bespoke, caused the Unauthorised TAF to be executed in respect of the Permit by applying an electronic signature and attaching a signature page from another document that had previously been signed by Recycling Development's director, Mr Perrott, (para 51);
(b) the Unauthorised TAF was caused to be created by Mr Murray with the intention of transferring the Permit to Bespoke to satisfy the relevant term of the conditional offer (para 52);
(c) Mr Perrott did not authorise the use of his signature on the Unauthorised TAF (para 53);
(d) Mr Murray (on behalf of Bespoke) caused or instructed Mr Brent Winning of Claron Consulting to lodge the Unauthorised TAF with the Department (para 54);
(e) In accordance with Bespoke's instructions, on or about 17 November 2021, Mr Winning lodged the Unauthorised TAF with the Department (para 55);
(f) Mr Perrott did not authorise the lodgement of the Unauthorised TAF with the Department (para 56);
(g) By causing or instructing Mr Winning to lodge the Unauthorised TAF with the Department, Bespoke (by Mr Murray) intended to satisfy the relevant term of the conditional offer (para 57);
(h) Section 480 of the EP Act was an "applicable law" within the meaning of that expression in cls 3.1 and 4.2(e) of the MLA (para 58);
(i) The conduct of Bespoke (by Mr Murray) in creating and lodging the Unauthorised TAF:
(i) was a contravention of s 480 of the EP Act in that Bespoke (by Mr Murray) gave the Department as the administering authority a document that contained information that it knew or ought reasonably to have known was false or misleading in a material particular (para 59(a));
(ii) further involved the intentional falsification of a document and dealing with that document to dishonestly obtain property, benefit or advantage (para 60);
(iii) was fraudulent (para 61(a)).
[58]
[21] Section 480 of the EP Act provides that a person must not give to the administrating authority a document containing information that the person knows, or ought reasonably to know, is false or misleading in a material particular. The maximum penalty is 4,500 penalty units or 2 years imprisonment. Chapter 10 of the Act deals with legal proceedings. Section 494(1) provides that "an offence against this Act for which the maximum penalty of imprisonment is 2 years or more is an indictable offence." Section 495(1) then states that a proceeding for an indictable offence against this Act may be taken, at the election of the prosecution by way of summary proceedings or an indictment. There is a one year limitation on the time for starting summary proceedings (s 497).
[22] The defendants also referred to the following offences under the Criminal Code 1899 (Qld) ("the Code"), namely:
[59]
(a) the offence of forgery and uttering of a document (s 488) which has a maximum penalty of 3 years imprisonment, or 7 years imprisonment if the forged document is kept by a lawful authority; and
(b) the offence of fraud, or an attempt to commit fraud (ss 4 and 408C), the maximum penalty for which ranges from 20 years imprisonment for a benefit over $100,000, 14 years imprisonment if the benefit is between $30,000 and $100,000, and 5 years imprisonment if the benefit is under $30,000.
[60]
[23] Mr Murray is the sole director of the defendants and has deposed that as the pleaded allegations "relate to alleged conduct undertaken by me, as well as my state of mind at the time", he believes that he is "the only person capable of giving instructions on these matters". In those circumstances, the defendants submitted that the steps required to file a defence in conformance with the pleading rules could not reasonably be assigned to another person. Mr Murray has deposed to his belief that "responding to the allegations will expose me to a risk of criminal prosecution". He has asserted his privilege against self-incrimination and deposed that he believes that responding to the allegations may tend to incriminate himself or expose himself to criminal prosecution.
[24] The application was argued on the accepted basis that there was no evidence of any existing or threatened prosecution of Mr Murray. There was no evidence that the Department had expressed any interest in the allegations made in this proceeding. The plaintiffs emphasised that the declaratory relief sought was not of "a criminal offence".[25] The plaintiffs placed particular reliance upon the statement of Edelman J in QC Resource Investments and submitted that the requisite "something more" had not been established by the defendant such that the prospect of any criminal prosecution of Mr Murray was no more than theoretical and was not real and appreciable in the sense discussed by the authorities. The plaintiffs' submission was ultimately expressed in these terms: "The main obstacle to the [d]efendants' application is that they have not established that responsive pleading would lead to a real and appreciable risk of a criminal prosecution or a bona fide apprehension based on reasonable grounds of such a consequence".
[61]
[25] On the basis of the evidence and my review of the statement of claim, I find that Mr Murray is the sole director of the defendants and the steps required of him as the sole director of the defendants in filing a defence cannot be fairly or reasonably assigned to another individual who would not have the requisite knowledge to provide full and proper instructions.
[26] Paragraphs 51, 53, 54, 55, 56, 57, 59, 60 and 61 contain or rely upon direct allegations that Mr Murray falsified a document and caused it to be lodged with the Department to gain a benefit. Paragraphs 52, 57, 59(a), 60(a) and 60(b) allege that Mr Murray acted dishonestly, intentionally falsified a document, and caused the document to be lodged to gain a benefit. I find that these are very serious allegations made in a civil proceeding in which the plaintiffs plainly intend to attempt to prove that Mr Murray engaged in conduct which involved him committing, or which would go some significant way towards establishing that he committed, criminal acts. Notably, the statement of claim alleges in terms that Bespoke, by Mr Murray, contravened s 480 of the EP Act (para 59(a)), that he intentionally falsified a document (para 60(a)) and engaged in fraudulent conduct (para 61(a)). Whilst it may be correct to say that no declaration is sought in relation to a breach of s 480, the breach of s 480 is a matter directly alleged within the paragraphs of the statement of claim.
[27] In the present case, the particularly relevant pleading rules are rr 149(1)(c) and 150(4)(c) UCPR which require a pleading to state specifically any matter that if not stated specifically may take another party by surprise and rr 165(1), 166(3), 166(4) and 166(6) which deal with the circumstances in which non-admissions and denials may be made and, in the case of non-admissions, maintained. Relevantly, a non-admission may only be made where a party has made reasonable inquiries to find out whether the allegation is true or untrue and remains uncertain as to its truth or falsity. A denial or non-admission must be accompanied by a direct explanation of the party's belief that the allegation is untrue or cannot be admitted. A party making a non-admission becomes obliged to make any further inquiries that may become reasonable. The limitations imposed by rr 165 and 166 mean that a defence filed in accordance with the pleading rules must accord with the defendants' actual state of mind. A defence according to these rules should reveal the defendants' state of mind as to every allegation. In this case, the defendants' acts and state of mind are alleged to be the acts and state of mind of Mr Murray. Further, each of those rules may require matters to be pleaded which could well constitute information which, according to the privileges against self-incrimination and penalty, Mr Murray cannot be compelled to provide.
[62]
[33] The orders I make are as follows:
Any defence filed by the defendants to the extent that it pleads to paragraphs 49 to 57 and 59 to 61 of the statement of claim must at a minimum state with respect to each allegation of fact whether the allegation is admitted, not admitted or denied but is not otherwise required to comply with rr 149(1)(b), 149(1)(c), 150, 157, 165 and 166 of the UCPR.
As part of their disclosure obligations in the proceeding, the defendants are directed to identify by way of a list of documents any document which is claimed to be the subject of any claim referable to a privilege asserted by Mr Murray and the basis for the claim of privilege in relation to each particular document.
Each parties' costs of the application filed 3 July 2025 are costs in the proceeding.
[28] Noting that reasonable grounds may be established by affidavit or submission, I am satisfied having regard to Mr Murray's affidavit and the analysis of the relevant paragraphs of the statement of claim that the defendants have established that Mr Murray has a bona-fide apprehension on reasonable grounds that his privilege will be abrogated in consequence of the defendants being required to file a defence in accordance with the pleading rules. It was submitted that Mr Murray should not be found to have any such apprehension because "such an apprehension is inconsistent with instructions he has previously provided and with the fact that the Unauthorised TAF was voluntarily provided by the [d]efendants' instructing solicitors". I reject that submission. The previous instructions provided by Mr Murray were provided in a very different context, namely in circumstances where the plaintiffs' pleading in the proceeding did not make any allegations of dishonest intent, fraudulent conduct or contravention of s 480 of the EP Act.
[29] Whether there is a real and genuine basis for asserting that a defendant is at risk of criminal proceedings or penalties is not a rigorous one. In the present case, the mere pleading of the very serious allegations is in my view itself a significant matter. There is the further context to the allegations that the alleged conduct was engaged in for gain and involved a dishonest dealing with the Permit which was issued as part of a statutory regime with the object of protecting Queensland's environment.[28] There is a plain public interest in ensuring compliance with the EP Act. Viewed as such, the allegations in the statement of claim are not exclusively private matters. In my consideration, the defendants have demonstrated "a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance."
[30] Paragraph 58 merely alleges certain questions of law based upon the proper construction of cls 3.1 and 4.2(e) of the MLA. That paragraph does not contain any allegation that might bring with it a real and genuine risk of abrogation of the privilege. Paragraphs 47 to 50 allege matters of background to the central allegations of misconduct. Paragraphs 47 and 48 do not contain any allegation that might bring with it a real and genuine risk of abrogation of the privilege. Paragraphs 49 and 50 are in a different category. Paragraph 49 alleges that in about October 2021, Mr Murray on behalf of Bespoke received a conditional offer from a potential purchaser to purchase the Site and the Business from the defendants. Paragraph 50 alleges that it was term of the conditional offer that the Permit be registered in Bespoke's name. I accept the defendants' submissions that these paragraphs are in the nature of "building blocks" to the central allegations of misconduct of the kind discussed in Zuce Tech Pty Ltd v Glen Ian Ebert.[29]
[31] The plaintiffs are concerned not to be taken by surprise as a result of any dispensation afforded to the defendants in respect of the pleading rules. There is a potential problem if the defendants wish to run a positive case not revealed by their pleading. That kind of problem is a problem which may be able to be dealt with by proper case management directions. During the course of case management of this proceeding, consideration will need to be given to the form of the evidence in chief and whether it is possible to formulate agreed lists of issues of fact and law without abrogating any relevant privilege. Ultimately, if there is surprise caused at any late stage it may be necessary to deal with that by way of a short adjournment during the trial. The imperative at the moment, is to protect the substantive right of privilege.
[32] The parties were content to defer any disputes as to the extent to which the defendants might validly resist disclosure by reference to a privilege asserted by Mr Murray. Having regard to the philosophy of r 5 of the UCPR and noting that this proceeding is being managed on the Commercial List, I accept the plaintiffs' submission that during disclosure the defendants should be directed to identify any document which is claimed to be the subject of any claim referable to a privilege asserted by Mr Murray. The list should identify each particular document and the basis for the claim of privilege.