IAG FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. of Action G67 of 1979 TITLE OF ACTION REFRIGERATED EXPRESS LINES (A/ASIA) PTY. LIMITED v. AUSTRALIAN MEAT AND LIVE-STOCK CORPORATION & ORS. Date(s) of Hearing 23.11.79, 29.11.79 Judgment 29.11.79 Counsel and A. Rogers QC. Solicitors for K. Mason APPLICANT D. Officer anstructed by Sly & Russell, 68 Pitt Street, Sydney Counsel and G.G. Masterman Q@.C , ) . « . Solicitors for J. McLaughlin ) Ist & 7th Respondents RESPONDENTS instructed by Duggan & Doyle, 66 King Street, Sydney A.M. Gleeson Q.C., ) 2nd and 8th Respondent J.R.T. Wood ) , unstructed by LCbsworth & Ebsworth, 2 Castlereagh Street, Sydney L.J. Priestley Q.C., ) P. Hely ) 1nstructed by "bsworth & Ehsworth 2 Castlereagh Street, Sydney 3rd & 9th Respondcnts g-M.N. Rolfe Q.C., 4th, 5th, 10th, llth ome Respondents instructed by Nicholl & Nicholl, 9 Bligh Street, Sydney K.R. Handley Q.C., ) D.E. Clayton ) instructed by Allen Allen & Hemsicy. 19 Martin Place, Sydney YN st ae ats A AWS Cet add L- Y ASSOCIATE G6th and 12ta Respondeat 3.12.79 CATCHWORDS Discovery and interrogatories - action for redress of civil injury based on alleged contravention of Act - whether defendants should be excused in limine from discovery or answering interrogatories or left to object to producing particular documents or answering particular questions. File No. G67 of 1979 REFRIGERATED EXPRESS LINES (A/ASIA) PTY. LIMITED v. AUSTRAITAN MEAT AND LIVE-STOCK CORPORATION & ORS. Judgment: 29.11.79 in Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No. G67 of 1979 ) ) GENERAL DIVISION REFRIGERATLD EXPRESS LINES (A/ASTA) PTY LIMITED App}acant AUSTRALIAN MCAT AND LIVE-STOCK CORPORATION First Respondent ASSOCIATED CONTAINER TRANSPORTATION (AUSTRALIA) LIMITED Second Respondent AUSTRALIAN SHIPPING COMMISSION (TRADING AS AUSTRALIAN NATIONAL LINE) Third Respondent HAMBURG-SURDAMMRIKANISCHL DAMPPSCHIFIANRIS— GESELLSCHAFT EGGERT & AVSINCK CTRADING AS COLUMBUS LINE) Fourth Respondent FARRLLL LINES INC, Fifth Respondent TRADILR NAVIGATION CO LIMITED ('TRADING AS ATLANTTRATIK LCXPRESS SERVI CL) Sixth Respondent ROY GEOFFREY JONTS Seventh Respondent CHRISTOPHER CULLEN Eighth Respondent NIGEL TULLOH Ninth Respondent HORST WALTER RIK Tenth Respondent EDGAR ALBERT #sNGHLHARDT Eleventh Respondent PETER SEMMLER Twelfth Respondent CORAM. Deane J. Thursday 29 November, 1979. REASONS FOR JUDGMENT In these procecdings, the applicant sceks injunctive relief and damages against six corporate respondents and Six personal respondents The procecdings are bas«d on alleged contravention and involvement in contravention of the provisions of Part IV of the Trade Practices Act 1974 ("the Act"). > An issue has arisen between the applicant and the respondents as to whether the respondents should be 2®Acuscd in Limine from giving discovery of documents and froin answering interrogatories. The fact that the action 1s an urgent one which has been listed for final hearing on 12 February 1980 makes it desirable that I give my decision on these procedural maticrs forthwith. I am conscious of the fact that I shall, in the result, do less than justice to the submissions of counsel who have argued the questions betore me. The respondents claim that they should be excused, generally and in limine, irom discovery and production of documents and answering interrogatories. In support of Lhiet claim, they point to the subject matter of the procecdings and rely upon the principle that a party to litigation ought not to be compelled to provide evidence against hamself which may be used to expose him to a penalty. Section 78 of the Act provides that criminal proceed- ings do not lie against a person by reason only that the person has contravened or been involved in a contravention of Part IV of the Act. Section 76 of the Act provides that, 1f the Court 1s satisfied that a person has contravened, or has uttempted to contravene, or has been involved in specificd ways in contravention of, Part IV of the Act, the Court may order the person to pay to the Commonwealth such pecuniary penalty (not exceeding, in respect of each act or omission, $50,000 in the case of a person not being a body corporate and $250,000 in the case of a body corporate) as the Court determines to be appropriate having regard to relevant matters. By s.77 of the Act, proceedings for the recovery of pecuniary penalties may be instituted by the Minister or the Trade Practices Commission within six years after the relevant contraveniion. The present proceedings do not involve any allegatton of criminal conduct against the respundents Nor are they proceedings for the recovery of a pecuniary peralty. They are proceedings to prevent and redress alleged civil injury. As has been mentioned however, the basis of the present proceed ings 1s alleged contravention and involvement in contravention of the provisions of Part IV of the Act. The applicant wil] only be entitled to succeed in the proceedings 1f 1t establishes against one or more of the respondents such contravention or such involvement. In that sense, the proceedings are, in their entirety, aimed at establishing against the respondents, conduct which would make them liable 1o the imposition of a penalty pursuant to s.76 of the Act in proceedings brought at the suit of the Minister or the Trade Practices Commission. It 1s a well establishcd 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 tu the penalty (see, generally, per Isaacs J , R. v. Associated Northern Coliieries (1910) 1] C.L.R. 738 at pp. 741-748, Naismith v McGovern (1953) 90 C.L.R. 336 at pp. 341-342, Martin v. Treacher (1886) 16 Q.B.D. 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 unformation or produce documents for inspection by the other party 1f the result there- of will be to provide evidence against him which may be used to establish his liability to a penalty in other proceedings (Derby Corporation v Derbyshire County Couneij [1897] A.C 550 at p. 552). In the former case, thal 18 to say 1n a mere action for a penalty, a court should, in the absence of statutory provision to the contrary, reluse to make any order at all against the defendant {for discovery or production of documents or preo- vision 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 1s concerned, properly have no other intended consequence (see R. v. Associated Northern Collieries, supra, at p. 742). This is a broad and unqualilied 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 proccedings to the common informer (sec Mexborough (Earl of) v. Whitwood Urban District Council (1897) 12 QB. 111 at p. 115, Heimann v. The Commonwealth (1935) 64 C.1.R. 126 at p. 130). In the latter case, that 1S 1n a case such as the present where the proceedings are not for the recovery ol a penalty, there 1s no general rule precluding the making of an order for discovery or unterrogatories and there will ordinarily be no proper ground for objecting to an order for production of documents or provision of information being made. The pariy against whom such an order is made is left to object to produc- ing particular documents or providing particular information on the ground that such production or provision may tend to expose him to a penalty. (See Mayor of the County Borough of Derby v Derbyshire County Council, supra at p. 553). In Spokes v. Grosvenor Hotel Company ([1897] 2 Q.B. 124) the United Kingdom Court of Appeal (Lord Esher M.R., Lindley and Chitty L.JJ.) held that an objection by a defendant that the discovery of documents may tend to incriminate him can only be taken with the production of the ducuments alleged to have that effect and not to the order for discovery In the course of his Judgment Lord Esher, M.R., said (at p. 132) "I think we are bound by the authority of /lblhueen v. Labouchere (3 9.B.D. 654) to say that tn L may be put. In that ease, James Ld. at p. 660): "Nobody vas ever ulloved te relevant questton because that ques.t erimtnate himself. He meght obseut tt was never a ground of demurrer to an or a ground for striking tt cut, that tnvolve htm in a crime. ... Of eours. obliged to answer suc questions, } were put, and could not be cbhjecicd t: judgment I satd (3 @.B.D. at p. 6ul deetston (Ftsher v. Owen (8 Ch. PD. § where interrogatories are relevant, a to them mught ertminate the person anever must nevertheless be allowed, ani he muc elect whether he wtll anewer them cx not Cotton L.d. stated (38 @.3.P. at p. fdd) thie the ~ % 3 ces] nN cf. eA u wy Q " oj [es] ) BY oe ar oe © - $ sore Ess = 7 et = = Ewe ry oe oh ° ry re " on g YN os te ' oe t ee % y ye2Gn x oe, yo» ae gq & S a be ~:%i) o Ls me fa SG eR obeh Se q ~ o " ob ae mn ama ey va s ob Se [aad © D ah % = o > ~ we = ae) =] ae practice ts universal that 11 78 RO ci Goetton to oun interrogatory, tf relevant, that the aresver mians ted to eriminate the party to whom tb reo ean! Jd t t r I cannot sec any distinettron bere * are asked tn the present eace and jucet of tuterregatorzies. Tt ssems tom tha distinet aulhorizy that the obfeeticn ty th called on to make an affidaril of doszuronr diselosure of the documents may ters i eannot be taken to the summons for dia £ ments, but that tne objcetion ean only be bahen fi ene affidavit in ancwer" ts satd that this ts confined to 7. € Chitty L.J., (abid, at pp. 133-134) commented "There are two methods of obtaining diccoreru, vite of them by means of interregatories, ana the other by discovery of ¢ decurents, fo fur an the yarettor vaised in this appeul 73 e2rneernea, Io osvnin thrive fe no differenee between these methods. in tre vaso of interrogatortes tt has been estarticrn:s 2 thav ar ubycel- ton thal to give the discavery sough! miuhe tend te inerimtnate the pereon eallecd on must be paxen Im che affidavit wm answer, In the ease of dceumerts the defendant may not care to raise the ofy ueti answer, or he may have documents not eoverud privilege, or he may eluim that he fe not ealbiod cm to diseover the deeum ments 3 but cn thit ease he mus do so tn his affidavit th ansver", >Pay > oS ~Fe + To the same effect was the decision of the House oi Lords in National Assoc zation of Operative Plasterers v Smithies ( [1906] A.C..434) where damages where the facts the defendant could not on the ground that they Macnaghton dealt with t language (ibid at p. 43 "T think the lL Court of Chan judgments of Labouchere (3 says there ts of the Court under the fet that tt ts no ground for ta relevant, tha the party te he thinks fit the answer ma that okjeetio not bound to In t atory tending merely called relevant to L of doeuments; I thirk some me", The ans Lord James of marginally less strong " The reatly carry pestttan of a aetion eapabl would be erin obtained. Th aciton brough tt would te s the dtscovcry 1t was held that, in an action for alleged amounted to a criminal conspiravy, refuse to discover the material documenis may tend to incriminate him. Lord he delendants submission in peremptory VT): aw ts laid down, ard the prascties oy the cery te eorreetly deseriicd, in tae Cotton and dames L.-(. 17 Alinusen v. Q.B.D. 664, 60). What Cobltor Led. : "It alwayc has been tre pruchier of Chaneery, and that practice fs now, of 1873, 8.25, subk-s. Tl, ~riveveadl, objeetion to an interrogatory und no king the interrogatory off tre fiies, .f t tne answer niaht tend to tnertminst< whom tt ts exhibited, He may cau, ef » (1 refuse to angver on the areurn?] that y tend to ertrinate mils lur then mo omyvel etton on his cath, and if be dows rucse noon hts oain tin the prow? wan he fe ansucs tne interrogutory". hts particular case there fe p> tetersog- to eriminate tae defendant. ae fea upon to say veheti he macticore en ques Twtil not tell of them may prsstily turd TO Leeriv ts Ite wer in my optnton ve absuril. Hereford used language which was only (ibid, at pp. 437-8) argumer? al the Bar, ¢f aet.d upen, wc dl F the deetatone of the Cour! aimosr to tie bsurdity. The apa i e of having too aspeets, une of wh t tnal, no ord-r fer diseover; eoula ky "org nad " wis Pratl te OVI us, taking fhe inating. vieon, lroan t for tthel whure diseotouu var sougnt, uffteterct for ihe percon asariet akon ? was sought simply to Gke anower ant Pe ~8- say, "This ts an aetton tn whieh a erimenal aspect may present ttself, and therefere I am entitled not to answer or make discovery". why tn an eetton line this there should be an entirely new abfeacttyun (0 discovery, without good eause for tt, T do not Know. In the instances given the reason wh. Courts oF Equity would not relteve in acttons of forseit watdli- tes was not made very clear ai the sar, b suppose it was this, that the Courts of Eg so averse to acttons of that nature be all that they would not assis! them, a tained. Sul 7% the action we are dealing wtih here no sun natural ohjeetton can possibly Le found. Tf thes argument were acted upon the tmmuntty from diseovery weula uc infinitely further, as was potnied out in the cource of the argument, thar 18 aecorded to a eluncRo. TF} awttness says, "I decline to unaver because tt would terd to ertmnate mel! b- dress ner escape by 80 saying unless he eun sit that there ts reasonakle greund for th betng made. Here all thar tne defenda do is to maxe a statement and say, "FT eriminate me tf I give an anever". 3 statement the Court will have to deal gtven. But the argument goes much fur and relies upon the nature of the set giving immunity from making an ancurr", eee » These strongly worded statements plainly establish the general rule that a party to proceedings which are for Clvil redress and not for a penalty ought not ordinarily be excused, tin Zimine, [rom giving discovery or answering iunterrog— atories but should be left to object to producing particular documents or answering particular questions on the ground that such production or answer might tend 10 expose him to liabil.ty to a penalty (see also Egg and Egg Puip Markoting Bosrd v. kU Korp Tocumal Trading Co Pty. Limited & Anor. 119633 V.R. 378 at pp. 379-381, Castlicomaim Perkins Limiled v. Qucen Street Hotels Limited (No. 2) (1969) 62 Q.D L.R 397 at pp 399-340). That general approach 1s not however, as a matter of law, necessarily appropriate to all circumstances (sce per Lindley L.J., Martin v. Treacher, supra, at p. 514, R- v. Assoc tated Northerr Collier1es, supra, at pp. 742-743). IC ei_reumstances arose where the only means of protecting the right against self-incrimination and self-penalizationwere to cxcuse a party in limine from discovery or interrogatories, such circumstances should, 1n my view, be seen as exceptional and as justifying a departure from the general rule. In particular, if it appeared to the court that the making of an affidavit of discovery as distinct from producing the documents referred to in such an affidavit would tend to expose a party to a penalty, any order for discovery should be adjusted to the extent necessary to preclude that tendency It 1s,perhaps, conceivable that circum— stances could arise where the mere making of an order for interrogatories might have a similar tendency. The cases where the making of an order for discovery or interrogatories will, in itself, involve exposing a party to self-inerimination or selif- penalization must, however, be rare indeed in view of the fact that the party will remain entitled to refuse to answer questions asked or produce documents discovered 1f the answers or pruduci- 1on might tend to incriminate him or expose him to a penally. It was submitted on behalf of the respondents that a general order excusing the respondents 7x Zimzne from discovery of documents or answering interrogatorics was Justified in the present matter for the reason that the whole basis of the present action for injunctive relief and damages was alleged contravention and involvement in contravention of the provisions of Part IV of the Act. In these circumstances, 1t was said, the only purpose of discovery or interrogatories would be to provide evidence which would tend to establish the alleged contravonLion and involvement in contravention of the Act which, 1£ established, -10- would inevitably tend to render the respondents liable to a penalty at the suit of the Minister or the Trade Practices Commission. It followed, 1t was said, that the ordinary approach appropriate to proceedings other than proceedings for a penalty should not be followed and the respondents should be granted the general immunity from discovering documents or answering interrogatories to which they would be entitled in proceedings for a penalty. While I can see great force in the respondenis' argument, I am unable to accept it. In my view, the only circumstances which would warrant a departure in the present case from the ordinary approach that a party should be lett to object to production of particular decuments or to answering particular interrogatories would be that it appeared that the actual discovery, as distinct from production for inspection, of docu- ments or the actual order for interroyatories would tend to exposo the party ordered to make discovery or answer interrogatories to liability to a penalty. Notwithstanding the argument to the contrary advanced on behalf of the respondents, I am unable to sce that either an order jor discovery or an order for interrogatories would, in the present case, in itself have or be directly productive of that effect. In those circumstances, I consider the ordinary approach should apply and the respondents should be lcft to object to producing particular documents or answering particular interrogatories. I should, perhaps, add that if, in relation tou any particular document of which discovery 1S required by a respondent, -1l1l-— the view is taken that to describe it by reference to its nature or contents would tend to render that respondent liable to a penalty, that circumstance in itself would justify less precision an the description of the document than would otherwise be appropriate. In circumstances where lack of precision olf description would not, in the view of the particular respondent, suffice to avoid a tendency to expose to a penalty, an applicat-— 1on to modify the order for discovery could of course be inade to the Court. I would also add that the lact that the whole basis of the present proceedings 1s alleged contravention and involvement in contravention of the provisions of Part IV of the Act will, in my view, be relevant 1f and when the Court comes to rule upon any disputed 1ssues between the parties as to whether the production for inspection of particular documents should be ordered or the answering of particular interrogatorics should be enforced. In other words, it scems to me, as ol present advised, that in proceedings where the whole basis of the action is alleged contravention of an Act punishable by a penatty, the party against whom the proceedings are brought will have a lighter onus in persuading the Court thar the pro- duction cf particular documents or the answering of particular interrogatories may tend to expose him to a penalty than would otherwise be the case. Finally, I should mention that it was submitted on behalf of the respondents that the present proccedings were akin to proceedings for the recovery ol a penalty itor the reason that the Court could impose penalties pursuant to o.76 ' -12- of the Act in the event that any of the alleged contraventions or involvement in contravention of the Act be established. I do not agree with that submission. In my view, penaltics pursuant to s.76 of the Act can only be imposed by the Court in proccedings by the Minister or the Commission pursuant to s.77. In the result, I do not propose to make orders pursuant to Order 15 Rule 3(1) or Order 16 Rule 3(1) granting the respondents immunity tn Limine from discovery or interrogatoi tes. Peotiy thel dete ces urn, Paces WE Al true cop, Gf tae reasons for duc pment herert of Ve a" - 7 vii blliete tl P ASSOCIATE = «7 His Honour Mec Justice Deane Tereerers eres so