Refrigerated Express Lines Australasia Proprietary Limited v Australian Meat and Livestock Corporation

REASONS FOR JUDGMENT Counsel for the second to sixth respondents, who are natural persons, argues that the directions already given for the filing and serving of witness statements by his clients in these proceedings for pecuniary penalties under Pt IV of the Trade Practices Act 1974 (Cth) (the Act) should be rescinded. This issue has to be considered in the light of the general practice in the Federal Court today. Parties are usually required to file and serve either witness statements or affidavits prior to trial. However, counsel argues that because pecuniary penalties are sought these respondents can rely on the privilege against making statements which might expose them to a penalty. The starting point is the judgment of Deane J when a judge of this Court in Refrigerated Express Lines Australasia Proprietary Limited v Australian Meat and Livestock Corporation (1979) 42 FLR 204. That case involved alleged contravention of Pt IV, but only injunctive relief was sought. The question was whether an order for discovery and interrogatories should be made. His Honour said (at 207): "It is a well established principle that a defendant in proceedings which are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing his liability to the penalty (see, generally, per Isaacs J in The King v Associated Northern Collieries (1910) 11 CLR 738 at 741-748; Naismith v McGovern (1953) 90 CLR 336 at 341-342 and Martin v Teacher (1886) 16 QBD 507. Even where, as in the present case the proceedings are not for recovery of a penalty but to prevent and redress civil injury, a party to litigation ought not to be compelled to provide information or produce documents for inspection by the other party if the result thereof will be to provide evidence against him which may be used to establish his liability to a penalty in other proceedings Mayor of the County Borough of Derby v Derbyshire County Council [1897] AC 550 at 552. In the former case, that is to say in a mere action for a penalty, a court should, in the absence of statutory provision to the contrary, refuse to make any order at all against the defendant for discovery or production of documents or provision of information for the reason that the whole and avowed object of the proceedings being the imposition and the recovery of a penalty, an order for the production of documents or provision of information against the defendant can, so far as the prosecutor of the action is concerned, properly have no other intended consequence (see The King v Associated Northern Collieries (1910) 11 CLR at 742). This is 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 (Earl of) v Whitwood Urban District Council [1897] 2 QB 111 at 115 and Heimann v Commonwealth (1935) 54 CLR 126 at 130)." The present case is one for the recovery of pecuniary penalties. The filing and service of witness statements by the second to sixth respondents would amount to provision of information by them, to use his Honour's expression. Counsel for the applicant referred to a decision of Drummond J in Australian Competition and Consumer Commission v Pioneer Concrete Queensland Pty Ltd (unreported, 15 December 1995) where his Honour made an order that a respondent in proceedings for a penalty was to file and serve witness statements. His Honour said (at 5): "I see no reason with respect to these other issues to depart from the Court's usual practice of requiring the parties to adduce all their evidence-in-chief in written form, save only for the qualification I have referred to that arises from the penal nature of the proceedings and the need, as I see it, not to deprive a respondent of an opportunity that might otherwise be open to that respondent of persuading the Court to entertain a "no case" submission at the close of the applicant's case. If the applicant is prepared to undertake with respect to each respondent not to make any use of that respondent's evidence in dealing with any "no case" submission that that respondent may make at the close of the applicant's case against it or him and which the court in its discretion is prepared to entertain, in addition to what the applicant is prepared to offer with respect to each respondent in the way of undertaking not to make any use of that respondent's affidavits of evidence in the applicant's case against the respondent, if that respondent does not go into evidence, I will make the following direction as direction number 7." Counsel for the applicant in the present case proffered similar undertakings. However, it does not appear that his Honour was referred to Refrigerated Express Lines. Nor is there any reference to the decision of the High Court in Reid v Howard (1995) 184 CLR 1 (which was handed down only 13 days before his Honour gave judgment). In Reid the High Court confirmed the absolute nature of the privilege against incrimination. Toohey, Gaudron, McHugh and Gummow JJ said (at 14): "There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application, a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v The Trade Practices Commission (1983) 152 CLR 328 at 346, protects the innocent and the guilty. There is no basis for accepting any class or category of person whether by reference to legal status, legal relationship or even the offence in which he or she might be incriminated, because, as already indicated, its purpose is the completely general purpose of protecting against the "peril and possibility of being convicted as a criminal": Lamb v Munster (1882) 10 QBD 110 at 111."