Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Kiefel,Bell,Gageler,Keane JJ.,Nettle J.
• Judgment Date: 17 June 2015
• Neutral Citation: [2015] HCA 21
• Docket Number: M18/2015
• Date: 17 June 2015

Construction, Forestry, Mining and Energy Union

Appellant

and

Boral Resources (Vic) Pty Ltd & Ors

Respondents

[2015] HCA 21

French CJ, Kiefel, Bell, Gageler, Keane and Nettle JJ

M18/2015

HIGH COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd

Practice and procedure — Contempt of court — Discovery — Where proceeding brought under r 75.06(2) of Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘Rules’) to punish appellant for contempt of court — Where appellant is a corporation — Whether a corporation may be ordered to make discovery under r 29.07(2) of Rules in a contempt proceeding — Whether a contempt proceeding is a criminal proceeding or a civil proceeding.

Words and phrases — ‘accusatorial proceeding’, ‘civil proceeding’, ‘companion principle’, ‘criminal proceeding’.

Civil Procedure Act 2010 (Vic), s 3, Pt 4.3.

Evidence Act 2008 (Vic), s 187.

Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 29.07(2), O 75.

Representation

P J Morrissey SC with R B Shann and J D Watson for the appellant (instructed by Slater and Gordon)

S J Wood QC with J L Snaden and D Ternovski for the first to sixth respondents (instructed by Fisher Cartwright Berriman)

J B Davis with B W Jellis for the seventh respondent (instructed by Victorian Government Solicitor)

ORDER

Appeal dismissed with costs.

1 French CJ, Kiefel, Bell, Gageler AND Keane JJ. At issue in this appeal is whether the appellant, a corporation, is amenable to an order under r 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’) to make discovery of particular documents in proceedings brought to punish it for contempt of court.

2 Rule 29.07(2) expressly authorises the making of an order for discovery. If the appellant were a natural person, production of documents pursuant to such an order might be resisted as offending the privilege against self-incrimination (which would not be displaced by the general language of the rule) with the result that an order for discovery would be refused 1. But because the appellant is a corporation, it is unable at common law to invoke this privilege 2 or the privilege against self-exposure to a penalty 3, and so compliance with an order under r 29.07(2) cannot be excused on these grounds. The position at common law is now reinforced by s 187 of the Evidence Act 2008 (Vic), which provides:

• ‘(1) This section applies if, under a law of the State or in a proceeding, a body corporate is required to —

  • (a) answer a question or give information; or

  • (b) produce a document or any other thing; or

  • (c) do any other act whatever.

• (2) The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty.’

3 In Environment Protection Authority v Caltex Refining Co Pty Ltd4, this Court held that a corporation charged with an offence may not resist a lawful command to produce documents to a prosecuting authority. That was so even though the corporation had been charged with criminal offences. In this case the appellant has argued that the terms of r 29.07(2) are not sufficiently clear to oblige it to disadvantage itself as a defendant in proceedings which are either criminal or quasi-criminal. For the reasons which follow, this argument should be rejected. Whether or not the appellant's argument can stand with this Court's decision in Caltex, the appellant's argument fails because the contempt proceeding against the appellant is a civil proceeding to which r 29.07(2) applies according to its tenor.

The Rules

4 Rule 1.05(1) of the Rules provides, relevantly, that ‘these Rules apply to every civil proceeding commenced in the Court’. The term ‘civil proceeding’ is not defined in the Rules. It may be noted that s 3 of the Civil Procedure Act 2010 (Vic) (‘the Act’) defines the term ‘civil proceeding’ for the purposes of the Act to mean ‘any proceeding in a court other than a criminal proceeding or quasi-criminal proceeding’; but the Act does not purport to define the term as it is used in the Rules. Something more will need to be said in due course about this provision and the relationship between the Rules and the Act.

5 Order 29 of the Rules sets out the rules that apply to discovery. Rule 29.07(2) provides that in a proceeding not commenced by writ ‘the Court may at any stage order any party to make discovery of documents.’ Rule 29.07(3) provides that an order made pursuant to r 29.07(2) ‘may be limited to such documents or classes of document … as the Court thinks fit.’

6 Order 75 of the Rules is concerned with proceedings for contempt of court. Rule 75.06 provides as follows:

• ‘(1) Application for punishment for the contempt shall be by summons or originating motion in accordance with this Rule.

• 2) Where the contempt is committed by a party in relation to a proceeding in the Court, the application shall be made by summons in the proceeding.

• 3) Where paragraph (2) does not apply, the application shall be made by originating motion which —

  • a) shall be entitled “The Queen v” the respondent, “on the application of” the applicant; and

  • b) shall require the respondent to attend before a Judge of the Court.

• 4) The summons or originating motion shall specify the contempt with which the respondent is charged.

• 5) The summons or originating motion and a copy of every affidavit shall be served personally on the respondent, unless the Court otherwise orders.’

7 In this case, the contempt proceeding was commenced by summons in accordance with r 75.06(2).

8 Part 4 of O 75 sets out the rules that apply ‘where the Court finds that a respondent is guilty of contempt of court.’ Rule 75.11 sets out the types of punishment that may be imposed. Pursuant to r 75.11(2), a corporation may be punished for contempt by sequestration of property or fine or both.

The history of the proceedings

9 On 22 August 2013, the first to sixth respondents (‘the Boral parties’) filed a summons seeking orders in the Supreme Court of Victoria that the appellant be punished for contempt of court. The Attorney-General for the State of Victoria was subsequently granted leave to intervene in this proceeding pursuant to r 9.06(b)(ii).

10 The Boral parties alleged that the appellant had disobeyed orders made by Hollingworth J on 5 April 2013 by establishing a blockade of a construction site to which the first respondent supplied concrete. The blockade was alleged to have been organised and implemented by an employee of the appellant, Mr Joseph Myles, between 12.00 pm and 2.00 pm on 16 May 2013.

11 On 2 October 2013, the Boral parties filed a summons seeking an order pursuant to r 29.07(2) directing the appellant to make discovery of specific documents going to the question of whether the appellant authorised Mr Myles to establish the blockade. Other than documents containing the terms of Mr Myles' employment, the documents sought were business cards and other documents recording the mobile telephone numbers of officers of the CFMEU Construction and General Division, Victorian branch. The Boral parties seek to prove they communicated with Mr Myles at the relevant time.

12 On 23 October 2013, the Boral parties' summons for discovery was dismissed by Daly AsJ. Daly AsJ held that the contempt proceeding was ‘properly characterised as a criminal proceeding, and as such, the rules of civil procedure do not apply.’ 5 On that footing, her Honour concluded that an order for discovery pursuant to r 29.07(2) was not available, and that, even if it were, such an order was not appropriate because the contempt proceeding was ‘criminal in nature’.

13 The Boral parties appealed the decision of Daly AsJ to a judge of the Trial Division of the Supreme Court of Victoria (Digby J) pursuant to r 77.06 of the Rules. The Boral parties contended that Daly AsJ erred: (a) in holding that the Rules did not apply to the contempt proceeding; and (b) in holding that, even if they did, discovery under r 29.07(2) was inappropriate as a matter of discretion. Digby J upheld both of these contentions.

14 In relation to the Boral parties' first contention, his Honour held 6, relying on this Court's decision in Hinch v Attorney-General (Vict)7, that the contempt proceeding was a civil proceeding to which the Rules, including r 29.07(2), applied. This was said to be the case even though the contempt proceeding could be described as criminal in nature 8.

15 In relation to the second contention, Digby J held 9 that an order for discovery was appropriate in the circumstances because the documents the Boral parties sought were relevant to the contempt proceedings and were peculiarly within the knowledge of the appellant; and because an order for discovery would not infringe any right or interest of the appellant. As to this latter point, Digby J

noted 10 that the privileges against self-incrimination and self-exposure to a penalty were not available to the appellant as a corporation.

16 In the upshot, Digby J set aside the decision of Daly AsJ and, pursuant to r 29.07(2), made an order directing the appellant to make discovery of the documents sought by the Boral parties.

17 Pursuant to O 64 of the Rules, the appellant applied for leave to appeal to the Court of Appeal of the Supreme Court of Victoria. In a joint judgment, Ashley, Redlich and Weinberg JJA refused 11 the appellant leave to appeal because: (a) there was insufficient reason to doubt the decision of Digby J; and (b) the appellant would suffer no substantial injustice if Digby J's order for specific discovery were permitted to stand.

18 As...