Sader v Elgammal

Primary judgment

1. The applicants' access motion was heard by the primary judge on 4 September 2023. At that stage, the contempt proceedings were listed for hearing on 5 and 6 October 2023. The orders sought in the notice of motion included that a named engineer (the structural engineer retained by the applicants) and the applicants' legal counsel be permitted to have access to the Property and carry out (unspecified) tests. It seems to have been contemplated that a report would be prepared as to the observations made by those who were permitted to have access to the Property. During the course of argument on the motion before her Honour, it was accepted by the applicants that it would not be necessary for their counsel to have access and the application was treated as being limited to access by the applicants' structural engineer.
2. The primary judge, with commendable promptness, published reasons on 8 September 2023 refusing the application for access. Her Honour noted (at [13]) that during the hearing of the access motion the applicants had read the lay affidavits filed in the contempt proceedings (both that of the first applicant sworn on 12 April 2023 and that of the first respondent sworn on 11 July 2023). It appears from a review of the transcript that the applicants "read" (more technically, perhaps, it would seem they should be taken to have tendered) the first respondent's affidavit not for the truth of that to which the first respondent had deposed but in order to establish the nature of the factual dispute between the parties as to the demolition or otherwise of the respective slabs. The first respondent did not object to her Honour reading his affidavit for that purpose. (The numbering of the paragraphs in the primary judge's reasons as first published differs from the version published on Caselaw. The discrepancy arises from [6] of the original version, which is numbered [7] in the Caselaw version. These reasons adopt the numbering of the Caselaw version.)
3. As adverted to above, during the course of the hearing of the access motion, the applicants withdrew their application for their solicitor to be in attendance during the inspection they sought to have made of the Property. On the present application, there was some complaint that the expert nominated by the applicants was not "independent" as he was the structural engineer retained by the applicants; and there seemed to be an acceptance by counsel for the applicants that it would be sufficient for any structural engineer to have access to the Property. However, it seems to me that the engineer's independence, as such, is not the real issue for the purpose of determining whether access should be granted. If, later, an application to adduce expert evidence relating to what was observed at the inspection is made, this can be dealt with in the Land and Environment Court.
4. The perceived utility in having an engineer, as opposed to a layperson, carry out the inspection is said to be that engineering expertise might be involved in determining whether whatever (if anything) remains of the slab or slabs is such as to affect the "structural unity" of the slab(s). The significance of this may well turn on what is meant by the order made for the "demolition" of the slabs.
5. Her Honour, having summarised the respective submissions on the access application, commenced consideration of the application from [53] of the primary judgment, in which her Honour noted that it was a well established principle that the applicants bore the onus of proving civil contempt beyond reasonable doubt (citing Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [43]); and that there was no dispute that the Court had power to make the orders sought under r 23.8 of the UCPR.
6. At [54], her Honour said that two of the cases on which the applicants relied in their submissions (Malass v Strathfield Municipal Council [2022] NSWLEC 116 and Council of the City of Sydney v Li [2012] NSWLEC 156) did not assist the applicants; noting that, in the first, the defendant had pleaded guilty to contempt before the order for access was made and the party seeking the order was a local council acting as a regulatory authority (and privilege against self-exposure to penalty was not there raised) and, in the second, this was not a contempt proceeding.
7. At [55], her Honour said that, on the first respondent's evidence, "the extent of the work undertaken in relation to the Northern Slab appeared clearer than the extent of the work undertaken on the Southern Slab".
8. Her Honour also said (at [55]) that the existence of "a factual dispute … on the evidence is not decisive given this occurs in many cases" and that expert evidence would not necessarily be required to determine the nature of the obligations imposed by the court (as to what "demolish" requires). Her Honour said (seemingly in direct response to a submission that had been put to her by the applicants - see below) that "[r]elieving the Court of the burden of making factual findings is irrelevant to whether an order for access ought be made" ([56]). Her Honour said that the circumstance that the first respondent's defence was not known until his affidavit was filed (this presumably having been raised by the applicants as negativing the complaint as to delay) was not persuasive "given the obligation on the mover of contempt proceedings to prove their case" ([56]).
9. During submissions, what was put to her Honour on behalf of the applicants was that: …the controversy as to the demolition of the slabs can be quelled by inspection by an expert, with a paramount duty to the Court. It may avoid the need for further evidence or a view by the Court in any contempt proceedings. The evidence that we'd seek to rely upon, a report by Mr Manning as to the extent of the demolition, should conclusively determine the state and the extent of the construction or demolition, and should otherwise relieve the Court of the burden of determining those issues on contested evidence [my emphasis]
10. Pausing here, the applicants contend that the statements by her Honour at [55]-[56] as to the existence of a factual dispute not being decisive and as to the irrelevance of relieving the Court of the burden of making factual findings constitute a critical error of principle and a misunderstanding of the central purpose of the power (their proposed ground 1(a)); and they contend that, insofar as her Honour proceeded on the basis that the applicants needed to prove contempt beyond reasonable doubt ([53]), this was an irrelevant consideration (proposed ground 1(b)).
11. At [57], her Honour said that the application to rely on expert evidence under r 31.19 of the UCPR was made late "not being done formally in court until revised orders in the contempt proceedings were provided in the course of the hearing of the notice of motion for access". (The applicants contend this was also an irrelevant consideration, arguing that the access motion implicitly sought such leave - see proposed ground 1(b)).
12. At [58]-[59], her Honour addressed a submission that had been made by the first respondent as to the common law presumption of privacy of use of property, saying that the application of this presumption was wider than the literal circumstance of the first respondent's personal privacy; and as to the related common law right of quiet enjoyment of property. Her Honour considered that the effect "if any" of the orders on the first respondent's privacy did not assist the applicants; and that it was immaterial that no reason had been given for refusing access to an expert nor did the first respondent have to provide any evidence to support his refusal.
13. Her Honour considered that the applicants' submissions did not take into account that these are adversarial contempt proceedings between neighbours (a factor that the applicants say is also an irrelevant consideration but that the first respondent here suggests might have been referable to the question of their standing); and that the first respondent had no obligation to co-operate with the applicants (that being the unstated assumption which her Honour considered underpinned some of the applicants' submissions) ([60]).
14. Stating that the applicants had to prove contempt in civil proceedings, the outcome of which could result in penalty and imprisonment in worst cases, her Honour said at [60] that she was "inclined" not to make the orders sought "for the reasons … already identified".
15. It can be seen from the above that, up to this point, the reasons identified by the primary judge appear to be: that there was no analogous case including in relation to the operation of the privilege against self-exposure to a penalty ([54]); that the existence of a factual dispute was not decisive and expert evidence would not necessarily be required to resolve any contention as to what the orders required by way of demolition ([55]); that relieving the court of the burden of fact-finding was irrelevant ([56]); that the application to rely on expert evidence had been made late ([57]); that the first respondent had the benefit of the common law presumption of privacy and the related common law right of quiet enjoyment of property ([58]-[59]); and that these were adversarial contempt proceedings between neighbours in which the applicants had to prove contempt ([60]).
16. Her Honour then turned to the privilege against self-exposure to penalty (see from [61]), saying that no authority considering the application of that privilege in relation to an application under r 23.8 of the UCPR had been identified by the parties. Her Honour considered, on balance, that the cases referred to by the first respondent (including Sorby v Commonwealth (1983) 152 CLR 281 at 318-319; [1983] HCA 10 (Sorby)) supported a finding that the privilege (against self-exposure to a penalty) should apply in civil proceedings for contempt (accepting that at that point it was unknown if criminal contempt would be alleged) ([64]).
17. Her Honour said that no direct authority on this point was before the Court; that these were adversarial proceedings in which the applicants bore the onus of proof of contempt; that the independent expert was being sought by the applicants "potentially [to] prove their case"; and that the orders sought would require the first respondent to make the Property available to enable the expert to attend and prepare evidence that might be used against him in the contempt proceedings. Her Honour said that no relevant distinction should be made from the application of the principles identified by the High Court in the authorities relied upon by the first respondent; and concluded that those authorities supported the first respondent's reliance on the privilege against self-exposure to penalty. Her Honour concluded that this was "another" basis why the access orders sought in the applicants' notice of motion should be refused ([66]). (The applicants contend this was an error of principle and contrary to well-established authority - see proposed ground 2.)
18. From the above, it therefore seems clear that her Honour regarded the self-exposure to penalty reason for refusing the application as additional to the "already identified" reasons which had inclined her towards refusing the order sought earlier in the judgment (see at [39]).

Current status of contempt proceedings

1. The hearing of the notice of motion for contempt in the Land and Environment Court has been vacated following the filing of these proceedings. The first respondent notes that, if leave to appeal is granted, that will have the effect of further delaying the final hearing of the notice of motion for contempt. The applicants seek that leave be granted and the appeal allowed; and argue that the discretion should be re-exercised in favour of the grant of access.

Ground 1 - relevant and irrelevant considerations

Applicants' submissions

1. The applicants accept that, to impugn the primary judge's decision, they must demonstrate an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King). In that regard, the applicants contend that the primary judge erred in the exercise of discretion: first, by treating as irrelevant the "central question", i.e., the fact that such orders might assist the Court in the making of factual findings; and, second, by misunderstanding the significance of the burden of proof in civil proceedings for contempt and placing weight on this, which the applicants say is an irrelevant consideration.
2. The applicants note that considerations relevant to the exercise of a power depend upon the purpose or object of the power; and that the power contained in r 23.8 of the UCPR (to order the inspection of property) is a longstanding power found in the rules of all Australian courts, and is co-extensive with this Court's inherent power (deriving from the inherent powers of the Court of Chancery) to order the inspection of property. The applicants further note that the power was granted to the common law courts by the Common Law Procedure Act 1854 (UK) and was reflected in this State in s 104 of the Common Law Procedure Act 1899 (NSW). Reference is made to the consideration of this legislative history by Isaacs J in Barton v Australian Consolidated Press Ltd [1970] 3 NSWR 141 (Barton).
3. As to the purpose of the power conferred by r 23.8(1) of the UCPR, it is noted that the chapeau refers to the power being "[f]or the purpose of enabling the proper determination of any matter in question in any proceedings". The applicants note that it has been described as being "to enable the true issue to be justly and properly fought at the trial and to achieve the ends of justice by these means" (Barnes v Australian Oil Refinery Limited (Supreme Court (NSW), Isaacs J, 20 April 1966, unrep)), extracted in Barton at 142; and "to ascertain the true facts ... and to do this as quicky, efficiently and economically as the interests of justice will admit" (Oswin v Radio 2UE [1968] 1 NSWR 461 at 463).
4. The applicants also point to the further reason identified in the report of the Law Commissioners which led to the Common Law Procedure Act 1854 (UK), namely that: Inspection by parties and their witnesses is in many cases requisite in order to do equal justice. The party in whose possession the object sought to be inspected is, has opportunities of showing it to any persons, and selecting such only as are favourable to his own views; other evidence, equally important, may be excluded altogether, if the opposite party is debarred from obtaining inspection. They contend that this consideration has relevance in the present application, where they maintain that the first respondent is able to obscure visibility of the works and the applicants cannot themselves access the Property.
5. The applicants say that the orders sought would enable the proper determination of a matter in question, namely whether the two concrete slabs had been demolished by the relevant date. The applicants say that the inspection of the slabs by an independent engineer would assist the Court in correctly determining that matter; and they complain that the primary judge concluded that this consideration was irrelevant (referring to her Honour's statement at [56] dismissing the relevance of relieving the court of the burden of making factual findings) (see above at [32]).
6. The applicants say that the primary judge's findings at [55] implicitly acknowledge that there is a lack of clarity as to the extent of demolition; and hence a question for determination exists. The applicants say that this lack of clarity is precisely the reason why the proposed order would "enable the proper determination" of a matter in question in the proceedings for the purposes of r 23.8 of the UCPR.
7. Complaint is also made that the primary judge failed to consider or give any weight to the central importance to the administration of justice of compliance with a court's orders. The applicants note that Brennan, Deane, Toohey and Gaudron JJ said in Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3; at [15] that: [T]he public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.
8. The applicants say that the primary judge's failure to consider this public interest was a further error that vitiated the exercise of discretion. The applicants submit that, in the context of the contempt motion, it is important for the Court (and for the administration of justice) to know the truth as to whether there has been compliance with the demolition orders; and that her Honour failed to consider or give weight to this important consideration.
9. Finally, complaint is made that the primary judge placed weight on a trivial or unimportant consideration, namely the lateness of a "formal" application to rely on expert evidence. The applicants say that the timing of a formal application was irrelevant in circumstance where the filing of the motion on 25 July 2023 constituted an implicit application.
10. Accordingly, the applicants submit that the primary judge's exercise of discretion miscarried in a way that significantly affects the administration of justice and would cause substantial injustice if leave were refused. It is submitted that a House v The King error has been shown in circumstances that warrant a grant of leave.

First respondent's submissions

1. The first respondent argues that the applicants are not able to establish that there is an error of the kind identified in House v The King.
2. The first respondent says that the primary judge was cognisant of the issues in dispute in the contempt proceedings, noting that her Honour made specific mention of both the factual issue and potential construction issue in the course of the judgment (at [55]). The first respondent says that, in doing so, the primary judge gave consideration to the degree to which the Court would be assisted by the evidence obtained. The first respondent notes that, while there was a dispute on the lay evidence about what had been done in compliance with the orders, there was also a dispute about what compliance with the orders required (at [55]); and that her Honour specifically noted that the expert evidence would not assist with the construction of the word "demolish" in the terms of the order (at [55]).
3. Furthermore, the first respondent says that her Honour was conscious of the role of the Court in routinely resolving factual disputes between the opposing parties (at [56]). It is said that, in recognising the Court's burden regularly to resolve factual disputes between opposing parties, her Honour acknowledged the nature of the evidence being sought (at [66]).
4. The first respondent maintains that the burden of proof in the contempt proceedings and the lateness of the application to rely on expert evidence were important (not irrelevant) considerations because both informed the Court as to the conduct of the applicants in the course of the proceedings. The first respondent says that these matters "put paid" to any suggestion that what was being done was "in the interests of justice [or] provides for the just, quick or cheap resolution of proceedings" (at [67]).
5. As to the submission by the applicants that it is in the interests of the administration of justice to know the truth of whether the orders were complied with, the first respondent argues that this is problematic in two respects: first, it ignores that there were two issues identified as being in dispute on the contempt proceedings, one of which concerned the construction of the word "demolish" in the order made (as to which expert evidence would not have assisted the Court); and, second, it fails to acknowledge that it was the applicants who filed the proceedings absent any application to rely on expert evidence. The first respondent emphasises that the applicants did not seek leave to rely on expert evidence even at the time that the access motion was filed; and points out that, at that time, the applicants were seeking an order for both an expert and the applicants' counsel to enter the premises.
6. The first respondent cavils with the submission by the applicants that the access motion was an implicit application for leave to adduce expert evidence and that the timing of the formal application was irrelevant. The first respondent says that it was upon receipt of the affidavit filed by the first respondent "inferring the trespass by the applicant onto his property in order to obtain the photographic evidence the applicant has produced" that the application for access was first sought.
7. The first respondent says that the submission by the applicants that that the order should be granted to ensure that the proceedings are resolved in a manner consistent with the principles in the Civil Procedure Act 2005 (NSW) is inconsistent with the manner in which the applicants have conducted the proceedings to date. It is submitted that there is no issue of principle nor matter of importance disclosed in relation to this ground of appeal.

Determination

1. Ultimately, in view of the conclusion I have reached in relation to ground 2, it is not necessary to determine the first ground of appeal. Nevertheless, I make the following comments on this ground.
2. First, it is by no means clear that what was being sought (or intended to be sought) when the application for access was made was the grant of leave to adduce expert evidence in the proceedings (although the applicants argued before the primary judge that such an application was implicit in the bringing of the access application and the first respondent acceded to the making of such an application orally before the primary judge) (see T 12.39ff). That is because, on one view, it is not necessary for the inspection to be carried out by an expert, as such, if what is required is simply to make an observation of what in fact is on the Property in the area of the Northern and Southern Slabs. Arguably, all that would be required is that someone take photographs of what is present in the relevant areas (removing topsoil or debris if necessary to see what is below material that has been placed on the surface of the areas). Evidence of observation of what was or was not there might be adduced by someone with engineering expertise but it would not of itself be expert opinion evidence. Of course, it is possible that expert evidence might then be sought to be adduced as to the composition or "structural unity" of whatever material is actually shown to be there, which as I understand it is the reason that the applicants are seeking to have the inspection made by an engineer. The point here is that it is by no means the case that the application for access to the Property to inspect the slab areas would necessarily culminate in the giving of expert evidence and the application that was made by the applicants therefore did not necessarily (or implicitly) involve an application to adduce expert evidence. Hence, the proposition by the first respondent (although seemingly accepted by the applicants) that the application for access involved some late application to adduce expert evidence was both incorrect and likely to have led the primary judge into error,
3. Second, the making of an application that contemplated unspecified tests being carried out seems problematic to say the least, particularly in circumstances where one might infer there is a level of suspicion on both protagonists (the applicants and the first respondent) as to the motives or conduct of the other. Even on the hearing of this proceeding it was not clear precisely what test(s) the applicants might seek to carry out on the Property (other than in some fashion to remove whatever has been placed over the top of the area originally occupied by the Slabs to see what if anything there remains). Equally, the stated concern of the first respondent that there might be damage caused to the Property is somewhat circular if what is contemplated is damage to slabs that, on the first respondent's case, have already been demolished.
4. That said, turning to the substance of the applicants' challenge under Ground 1, I do not accept that the primary judge misapprehended the purpose of an order for access to the Property. The statement by the primary judge that "[r]elieving the Court of the burden of making factual findings is irrelevant to whether an order for access ought be made" ([56]) appears, as noted above, to be addressing a submission that was made to the primary judge in almost those same terms (other than adding the words "on contested evidence"). Perhaps more accurately, what the primary judge might have said (and what her Honour appears to have intended) was that the burden of making findings on contested facts was one that is to be borne by the Court - and hence that burden would not be relieved whether or not access was granted. No doubt, that burden might have been assisted by clearer evidence of what was and what was not on the Property (perhaps even by a view of the Property by the judge hearing the contempt motion). However, it was not incorrect for her Honour to reason that the fact-finding burden would not be obviated by an order for access to the Property.
5. Hence, while it can readily be accepted that the purpose of orders for access is as the applicants have indicated, it was not an error of principle for her Honour to consider as irrelevant (indeed, wrong) the proposition that the burden of fact-finding on the part of the Court would be "relieved" by an order for access.
6. As to the second basis of complaint, there is more force. Her Honour appears to have accepted that it was relevant to the exercise of the discretion whether to grant access that the applicants bore the onus of proof in respect of the contempt allegations. Undoubtedly, the applicants bear the onus of proof; and, in the case of contempt allegations, that burden is not lightly discharged. But the question of onus is not relevant to whether to grant an application for access to the Property (that being an application no doubt intended by the applicants to assist in them meeting their onus). The primary judge appears to have accepted the first respondent's submissions (repeated with no little emphasis on the appeal) in this regard, to the effect that, as it was for the applicants to establish the contempt (and they had initiated the contempt application on the basis of the evidence served prior to the first respondent's affidavit), they should not be permitted to test the evidence served by the first respondent. That proposition need only be stated to be rejected. The fact that a party bears an onus of proof (whether in civil or criminal proceedings) says nothing as to how that onus may be discharged.
7. The position of the first respondent here seems to be that the applicants should be restricted (in seeking to prove the serious contempt allegations they make) to the evidence served by them at the time they adduced the first applicant's affidavit. There is no basis for such a contention if it be as broadly stated as that.
8. Accordingly, if necessary to decide, I would conclude that House v The King error was demonstrated in that regard.

Ground 2 - privilege against self-exposure to penalty

1. Ground 2 contends that the primary judge erred (at [66]) in holding that the privilege against self-exposure to penalty had any application to the access motion. The applicants say that, if this privilege were to apply, it must be the privilege as exists at common law since the text of s 131A of the Evidence Act 1995 (NSW) applies that statute only to an order "which requires the disclosure of information or a document" and the access order sought does not have that character. In essence, the argument of the applicants is twofold: first, that the privilege did not apply and, second, if it did, that it was waived by the service of the first respondent's affidavit (notwithstanding that it has not yet been read by the first respondent in the contempt proceedings). The first respondent maintains that her Honour correctly found that the privilege applies; and complains that the waiver ground was not raised before her Honour. As to that last matter, it is difficult to see any prejudice to the first respondent if waiver is now raised - it being an argument as to the legal effect of service of the first respondent's affidavit.
2. I address the two aspects of this ground sequentially.

Applicants' submissions

1. The applicants maintain that the privilege against self-exposure to penalty is not engaged in relation to an order to inspect property, relying on Baldwin v State of New South Wales (2020) 102 NSWLR 447; [2020] NSWCA 112 (Baldwin) at [24]-[25], [30] per Basten JA (Macfarlan JA and Emmett AJA agreeing). The applicants note that Basten JA there approved, as well-established, the distinction drawn (in respect of an Anton Piller order) by Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 425, namely that, while the privilege would apply to orders requiring a person to disclose documents and supply information, it "has no application" to an order requiring a person to allow access to premises (see Baldwin at [25]). It is noted that in Baldwin Basten JA also referred to Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385; [1985] HCA 6, where Gibbs CJ, Mason and Dawson JJ said at 392-393: whilst the privilege ... would protect a person against a requirement that he produce or identify incriminating documents or reveal their whereabouts or explain their contents in an incriminating fashion, it has no application to the seizure of documents or their use for the purpose of incrimination provided they can be proved by some independent means. The privilege is not a privilege against incrimination; it is a privilege against self-incrimination.
2. Reference is made to the following passage in JD Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths) at [25095], approved in Charara v Commissioner of Police [2008] NSWCA 22 (at [74]-[75]): The rule prevents oral and documentary disclosures only. One may, therefore, be required to provide a finger-print or show one's face for identification or furnish a sample of breath or hair for analysis notwithstanding that compliance with the requirement may mean exposure to civil penalty or conviction. [the authors there citing, inter alia, Sorby v Commonwealth (1983) 152 CLR 281 at 292 (Gibbs CJ)]. This is subject to the judge's power to exclude the evidence at trial where such requirement is unlawful or unfair: see [27245]. Similarly, the privilege cannot be invoked where there is power under an enactment to inspect premises. [citations omitted]
3. For the last proposition in the above passage the authors rely on Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 2) [1989] 2 Qd R 537, where orders were sought under the relevant rules of court in Queensland for the inspection of a mine to obtain evidence in civil proceedings about the state of the mine. At 541, Senior Master McLauchlan QC said: I do not consider that the asserted privilege against self-incrimination has any application to an order under O.58 r. 1. The privilege applies to oral evidence in court and also to answers to interrogatories and to the production of documents upon subpoena. All these are situations in which an occasion for self-incrimination may arise. The making of an order for the inspection of property in the possession of a party is not, in my opinion, an occasion on which any incrimination of that party can be correctly styled "self-incrimination".
4. On this basis, the applicants contend that the primary judge was in error to hold that the principle had any application to the access orders; and they maintain that, properly understood, the privilege had no application.

First respondent's submissions

1. The first respondent maintains that there is a distinction (although the first respondent does not articulate precisely what that distinction relevantly entails) between privilege against self-exposure to a penalty (the subject of ground 2) and privilege against self-incrimination, noting that at first instance the first respondent conceded that the privilege against self-incrimination did not apply. The first respondent says that the authorities relied on by the applicants are focused on the privilege against self-incrimination, usually in the case of a regulatory body or authority exercising search powers; and that those cases are not analogous to the facts in the present case.
2. The first respondent says that the primary judge started with the proper approach to the privilege against self-exposure to penalties; and says that the applicability of the privilege to proceedings that are punitive necessitates a finding that it does apply to proceedings for contempt. Thus, it is submitted that the primary judge did not err.

Reply submissions

1. In reply submissions, the applicants cavil with the proposition that they have elided any relevant distinction between the privilege against self-incrimination and the privilege against self-exposure to a penalty; and indeed they say that no such distinction exists and that the privileges are analogous and have developed jointly and simultaneously. In that regard, reference is made to the statement by Burchett J (Black CJ and Davies and Gummow JJ agreeing) in Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96; [1994] FCA 543 (Abbco Iceworks) at 121: Although it was held in Pyneboard (at CLR 336) that the privilege against self-incrimination and "the privilege against exposure to penalties or forfeiture or ecclesiastical censure" are "four different aspects or grounds of privilege", that does not mean that each developed into its present form in the law in isolation from the others. Whatever the origins of the equitable rules about forfeiture and penalty in relation to suits for discovery, at least from the time of Lord Hardwicke LC, "equity", to use the words of Mason ACJ, Wilson and Dawson JJ in Pyneboard at CLR 337, "looked to the existing model of the common law and applied the rule which it had established". Inevitably, therefore, the principles governing privilege against self-incrimination and self-exposure to a penalty underwent a joint development. The privileges were "analogous", as Brennan J put it in Pyneboard at CLR 350.
2. The applicants also refer to Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 at 518-519; [1993] HCA 74 (Caltex Refining), where Brennan J stated that the privilege against self-exposure to a penalty is "akin to the privilege against self-incrimination" and "was developed by analogy with the privilege against self-incrimination"; and, similarly, Mason CJ and Toohey J noted that the privilege against self-exposure to a penalty "has developed by analogy from the privilege against self-incrimination" (at 505).
3. As to the proposition by the first respondent that cases dealing with a "regulatory body" of "authority" exercising search powers would not be applicable by analogy in the present case, the applicants maintain that the principle that the privileges against self-incrimination and self-exposure to a penalty cannot be claimed to prevent inspection of a property apply whether the inspection is conducted pursuant to the search powers of a regulatory body or pursuant to another power.

Determination

1. In my opinion, given the recognition in Abbco Iceworks and Caltex Refining as to the analogous development of the respective privileges (privilege against self-incrimination and privilege against self-exposure to a penalty), there is no basis not to apply the principle in Baldwin to the facts of the present case.
2. In Baldwin there was a challenge to the validity of four conditions of an extended supervision order imposed under the High Risk Offender legislation. Relevantly, one of the impugned conditions required the defendant to consent to the search and inspection of his property and the search and examination of his person in certain circumstances. The defendant sought to rely on the privilege against self-incrimination, relying on Meneses v Directed Electronics OE Pty Ltd (2019) 273 FCR 638; [2019] FCAFC 190 (Meneses) where the Full Court of the Federal Court said that the privilege extended to grounds upon which the production of documents by way of discovery, a notice to produce, or a subpoena might be resisted.
3. Basten JA noted the distinction between execution of a search warrant and an order for production of documents by the person the subject of the order ([29]) and considered that it was far from clear that the privilege was engaged by the conditions imposed by the impugned order ([39]-[41]). His Honour noted that the requirement for consent to a search or seizure would prevent what would otherwise be an unlawful trespass to person or property but went on to say (at [30]): …However, unless the conditions were construed as in some way requiring the applicant to produce documents or things or otherwise assist in identifying possibly incriminating material for the searchers, the privilege is not engaged.
4. Both Macfarlan JA (at [70]) and Emmett AJA (at [75]) agreed with Basten JA.
5. In the present case, to adopt the language in Baldwin, an order for access to the Property only for the purpose of an inspection does not require the first respondent to assist in identifying any incriminating material (such as the existence of part or all of the slabs that were required to be demolished). It simply renders lawful what would otherwise be a trespass to property by the person carrying out the inspection.
6. Insofar as the first respondent places great weight on the criminal nature of contempt allegations, it should be noted that in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21, the High Court made clear that, where a charge of criminal contempt is made in civil proceedings, the applicable rules of procedure are those which apply to other civil proceedings (see Nettle J at [66]; French CJ, Kiefel, Bell, Gageler and Keane JJ at [35], [42]). The plurality there noted that the companion principle was not engaged in such a proceeding because it is an adjunct to criminal proceedings ([35]) and that the companion principle is not a corollary of the criminal standard of proof; it is an aspect of the accusatorial nature of a criminal trial whereby an accused cannot be compelled to assist the prosecution to make its case ([37]). See also the decision of this Court in Kostov v YPOL Pty Ltd [2018] NSWCA 306 at [14]-[17] (Beazley P, as Her Excellency then was, Meagher JA and Simpson AJA).
7. Accordingly, ground 2(a) is made good.

If applicable, was the privilege waived? (Ground 2(b))

1. Although this ground (2(b)) does not arise in light of the conclusion I have reached on ground 2(a) above that the privilege against self-exposure to a penalty does not apply, it is appropriate that I briefly address the question of waiver.

Applicants' submissions

1. To the extent that the privilege did apply, the applicants contend that it was waived by the first respondent, by his consenting to orders for the service of his evidence, and then by his serving evidence in response to the contempt motion. The applicants say that the first respondent's evidence advanced a positive case as to whether or not the slabs had been demolished , as summarised at [14]-[16] of the primary judgment. The applicants point out that they read the first respondent's affidavit (without objection by the first respondent) at the hearing of the access motion .
2. The applicants note that the privilege against self-incrimination can be waived (citing, by way of example, BTR Engineering (Aust) Ltd v Patterson (1990) 20 NSWLR 724 (BTR Engineering) at 727G-728F; Reid v Howard (1995) 184 CLR 1 at 5 (Deane J), 12 (Toohey, Gaudron, McHugh and Gummow JJ); [1995] HCA 40; Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 423-424 (Kirby P, as his Honour then was), 432 (Clarke JA) and 437-438 (Meagher JA)). The applicants also refer in this context to M Pearce, "Waiver of Penalty Privilege in Civil Penalty Proceedings" (2021) 95 Australian Law Journal 695 (Pearce) at 699-702.
3. The applicants rely on authority to the effect that filing an affidavit or giving a statement dealing with the subject matter of the privilege will waive the privilege (referring to Australian Securities and Investments Commission v One Tech Media Ltd [2017] FCA 1080; (2017) 122 ACSR 572 at [40], which involved service of an affidavit purporting to answer charges; and BTR Engineering at 729E, which involved the making and service of a statutory declaration).
4. In these circumstances, the applicants say that any privilege that existed was waived. The applicants acknowledge that the issue of waiver was not raised before the primary judge. However, they say that this is not a case where different facts might have affected the conclusion on waiver; and they maintain that error is therefore shown.

First respondent's submissions

1. The first respondent says this argument was not raised below. It is noted that the affidavit filed by the first respondent was in response to the Court's earlier direction to file evidence; and was not read by the first respondent. Thus, it is submitted that the privilege against self-exposure to penalty was not waived.

Reply submissions

1. As to the first respondent's contention that the privilege was not waived because the first respondent filed his affidavit in response to a direction of the Court and because the affidavit was not read by the first respondent, the applicants argue that it is irrelevant that the first respondent filed his affidavit in response to a direction of the Court. The applicants say that, had the first respondent wished to claim the privilege against self-exposure to a penalty, it was incumbent on him to do so and to seek vacation of the order for the filing of his affidavit. Reference is made to the observation by the Full Court of the Federal Court (Moshinsky, Wheelahan and Abraham JJ) in Meneses at [87] that: The penalty privilege may be invoked in judicial proceedings to resist a requirement that a defence be filed that complies with the rules of pleading, to resist an order for the filing of witness statements, to resist answering interrogatories, and to resist the production of documents by way of discovery, or in response to a notice to produce or subpoena.
2. The applicants say that the procedure "routinely adopted in civil penalty proceedings" is that "a defendant who wishes to rely on the privilege is initially relieved of the obligation to file a responsive defence or to file evidence in advance of trial but then may elect to file a responsive defence and go into evidence after the plaintiff closes its case", again citing Pearce at 699.

Determination

1. As noted above, it is not necessary to determine this issue in light of the conclusion I have reached that the privilege against self-exposure to a penalty is not here applicable.
2. Had it been necessary to reach a concluded view on this issue, this would have raised the question as to the time at which any such waiver would occur (i.e., whether the first respondent waived that privilege simply by serving his affidavit following the making by consent of an order for the service of any evidence on which he intended to rely or whether the privilege would not be waived unless and until the affidavit was read by him in the proceedings). It would be open to the first respondent (notwithstanding that his affidavit had been served) to elect, at the appropriate time during the contempt proceedings, not to read his affidavit at all. It is a different position once the affidavit is read (see, for example, Varma v Varma [2010] NSWSC 786 at [341]) but here the first respondent has not yet read the affidavit in the contempt proceedings and he did not read the affidavit in the proceedings before the primary judge; he simply did not object to the applicants choosing to rely on it for the (limited) purpose of establishing the factual dispute that had emerged with the service of his affidavit (and photographs exhibited thereto).
3. Questioned as to any analogy with cases relating to waiver of legal professional privilege, the applicants referred to Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32 where the Full Court of the Federal Court (Mansfield, Kenny and Middleton JJ) held that "litigation privilege" did not attach where finalised proofs of evidence were created by a party for the purpose of being served on the party's opponent in earlier proceedings and were in fact served on that opponent in those earlier proceedings (see at [37]; see also at [97]). That question arose in the context of subsequent proceedings in which the ACCC (intervening) argued that privilege in the proofs of evidence had not been waived by the filing and service of those documents in the earlier proceedings (or that any waiver was limited by operation of the implied Harman undertaking); and the issue raised was as to confidentiality of the documents. Reference was also made in this context by the applicants to Hunt Leather Pty Ltd v Transport for NSW [2022] NSWSC 1547 at [11], [27]; WCX M4-M5 Link AT Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2022] NSWSC 375 at [17].
4. However, those cases consider the somewhat different issue of litigation privilege (or legal professional privilege). A distinction has been drawn between waiver (of legal professional privilege) in a pre-trial process and waiver by use of evidence at trial (see General Accident Fire and Life Assurance Corp Ltd v Tanter (The "Zephyr") [1984] 1 WLR 100, where Hobhouse J (as his Lordship then was) rejected an application for discovery of all documents relating to a conversation recorded in a privileged memorandum (that was not yet in evidence but which had been served in the course of the pre-trial process), in part on the basis that all that had been waived was the privilege attaching to the memorandum as a document itself (until tendered in evidence)). Academic commentary is to similar effect (see Cross on Evidence at [25015]), namely that waiver before tender in the trial affects only the document itself whereas waiver by tender at trial entitles the other party to disclosure of all material bearing upon the communication.
5. As to the issue of implied waiver, which might also potentially arise by service of a document in advance of the trial and where the test is one of inconsistency (see Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ), in Sevic v Roarty (1998) 44 NSWLR 287 (Sevic) Powell JA (considering a privilege dispute concerning an expert report filed pursuant to a direction given by the Court) said (at 301): ... waiver is not to be implied or imputed where the document the delivery of which is relied upon to found the implication, or to support the imputation, of waiver was delivered - whether to the other party to the litigation or to a third party - pursuant to an order of a court or otherwise under compulsion of law unless the documents be later tendered in evidence on the hearing of the proceedings...or otherwise used in such a way on the hearing of those proceedings as would make it unfair to the other party not to treat the privilege as having been waived.
6. His Honour there concluded that privilege attached to the documents noted by the expert to have been received concerning the claim and had not (at that time) been waived.
7. Similarly, in Waugh Asset Management v Merrill Lynch [2010] NSWSC 197, McDougall J concluded (at [17]) (dealing with the question of waiver at common law, where a statement had been produced prior to the hearing in which the deponent gave evidence of a particular state of mind) that there could be no implied or imputed waiver of privilege in such legal advice as may have been received from the deponent's solicitors simply because the deponent gave evidence of a state of mind which might have been informed by a perusal of that advice as the statement had been filed and served under compulsion of law (namely, the Court's directions) and there was no other suggested basis of relevant unfairness or (for the purposes of s 122 of the Evidence Act) inconsistency. McDougall J indicated that the same result is, or would be, reached under s 122 of the Evidence Act (referring to Akins v Abigroup Ltd (1998) 43 NSWLR 539 (Akins) and Ingot Capital v Macquarie Equity [2008] NSWSC 25 at [32] per Campbell JA sitting at first instance). His Honour distinguished (see at [22]) between the statement itself (over which any privilege was lost once it was served on the other side) and the antecedent documents recording the legal advice, noting (at [23]) that a different analysis would be required if the statement were ultimately put into evidence.
8. See also Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) [2015] NSWSC 994, where Sackar J considered, on the basis of Akins, that the question of waiver would not arise until the affidavit in question in that case was sought to be read or deployed in the proceedings (see at [43]). It had there been suggested that service of the affidavit (as opposed to reading it at trial) would suffice to waive the privilege. Sackar J noted that in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, the Full Court of the Federal Court (at [24]-[25]) had expressed some doubt as to the correctness of decisions including Akins and Sevic, at least insofar as they deal with the question of waiver at common law by service of statements (or affidavits) of witnesses in advance of the trial. However, Sackar J considered himself bound by Akins.
9. Here, as already noted, while the first respondent has served the affidavit in compliance with the timetable ordered by consent, there is no compulsion on him to read it as evidence in the ultimate contempt proceedings. Therefore, the answer to the question whether there was a waiver of the privilege against self-exposure to a penalty at that point is not obvious; and, since it is not necessary here to decide that issue, I consider it best to leave it for more careful consideration if it arises at some later time.

Relief

1. The applicants contend that, if leave is granted and the primary judge's orders are quashed, then the discretion should be re-exercised and the orders sought in the access motion should be made. In that regard, the applicants rely on their written submissions before the primary judge and emphasise the following matters.
2. First, that the orders would clearly assist the Court to come to the correct factual conclusion about the important matter of whether there has been compliance with the demolition orders. Second, they submit that it is unsatisfactory, and contrary to the interests of justice, that this important question should be decided based on photographs taken by the applicants from outside the Property in circumstances where they say that the first respondent has erected screens, and placed soil and debris on top of the slabs, in order to obscure the true position from being ascertained.
3. The first respondent resists the relief sought but in any event expressed concern as to the ambit of the orders in relation to access (and as to the proposed access by someone not independent in the sense that he is the structural engineer retained by the applicants). It is submitted that if an order for access were proposed to be made then there should be an opportunity for submissions as to the terms of the order.
4. In my opinion, an order for access should be made. There is sufficient uncertainty as to what the respective photographs show (particularly in relation to the area of the Northern Slab) to make a physical inspection of the Property (followed by photographs and/or a report as to what was there observed) of utility to the judge ultimately determining the contempt allegation so as to assist the judge to come to a conclusion as to the disputed facts. The first applicant's affidavit (deposing to the conversation overheard between the workers on site) raises legitimate concern as to what has happened at least in relation to the Northern Slab. An order for access will not relieve the trial judge of the burden of fact-finding but there can be little doubt that it is capable of assisting the judge in that process. There is thus utility in the making of such an order.
5. Delay in the making of the access application was no doubt a relevant consideration before the primary judge (although the delay can in part be explained by the fact that, until service of the first respondent's affidavit, it was presumably not appreciated that there might be conflicting photographic evidence which would need to be tested). However, even then, it is difficult to see why an inspection could not have been expeditiously effected, particularly if there is no need for invasive tests (as now appears to be the case - it being said that at most there might be the need to remove topsoil or debris and prod the surface underneath). In any event, delay is not now a relevant consideration because the hearing of the motion has already been vacated and there is not a new listing for the contempt motion.
6. It is also important in the administration of justice that court orders be obeyed and be seen to be obeyed. It is appropriate for a legitimate concern in that regard to be tested; and, taking the first applicant's affidavit at face value, I accept that there is a real concern as to what has happened in that regard. Photographic evidence is notoriously unreliable (see Blacktown City Council v Hocking [2008] NSWCA 144 at [169]; Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [92]-[93]). I consider that, without the ability to make a close observation of the relevant areas of the Property, the serious allegations of the applicants may not be able to be properly tested; and that this would not be in the interests of the proper administration of justice.
7. I do not accept the submission of the first respondent that no issue of principle is involved given the dispute as to the applicability of the privilege against self-exposure to penalties to an access application of the kind that was made by the applicants. Therefore, where the decision here impugned is attended by error and the present application raises important issues of principle as to the operation of the privilege against self-exposure in the context of an application for access to property under r 23.8 of the UCPR, I consider that leave to appeal should be granted pursuant to s 58(3)(a) of the Land and Environment Court Act 1979 (NSW).

Conclusion

1. For the reasons above, leave to appeal should be granted and the appeal should be allowed. As to costs, the applicants note that there is authority that in contempt cases ordinary costs will follow the event (referring to Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 89; [1987] HCA 56, as cited by Professor David Rolph, Contempt (2023, Federation Press) at 817). The first respondent should pay the applicants' costs of this appeal. The primary judge reserved the question of costs of the application before her. I consider that it is appropriate not to interfere with that order, given that the costs of the application might ultimately be treated as costs in the cause in the contempt proceedings.
2. I propose the following orders (with liberty to the parties to apply to vary the order for access if there be a legitimate concern as to its scope or intent). In that regard, I do not consider it necessary to place a restriction on the identity of the structural engineer to be appointed by the applicants for the purpose of access. 1. Leave to appeal be granted pursuant to s 58(3)(a) of the Land and Environment Court Act 1979 (NSW). 2. The appeal be allowed with costs. 3. Set aside the order made by Pain J dismissing the applicants' notice of motion seeking access to the first respondent's property. 4. Pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) order that the first respondent within 28 days provide access to the Property to a structural engineer appointed by the applicants, for the purpose of that structural engineer inspecting the areas referred to in these reasons as the Northern Slab and Southern Slab areas and taking photographs or other records of the inspection. 5. For the purpose of the inspection the subject of Order 4, the structural engineer may remove any topsoil, debris or building materials that are in place over the top of the areas of inspection and may (using reasonable care not to damage the area below any such topsoil, debris or building materials) take reasonable steps to identify the structure and characteristics of any material below the surface of any such topsoil, debris or building materials. Any material so removed must be replaced in as near as possible the same location and condition as when it was removed.
3. MEAGHER JA: I agree with Ward P.
4. SIMPSON AJA: I agree with Ward P.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2024