IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIAN DISTRICT REGISTRY ) VG No. 284 of 1984 ) ) GENERAL DIVISION BETWEEN: GARRY FRANCIS BULLOCK, JOHN SKILBECK, GRAHAM JAMES HARKNESS and WILLIAM BARLOW Applicants AND: THE FEDERATED FURNISHING TRADES SOCIETY OF AUSTRALASIA, L. KYRIACOU, A. FINDLAY, R. SHUGG, ALVONNE NOMINEES PTY LTD (trading as A.F. CARPET DISTRIBUTORS), COLONY CARPETS PTY LTD, R.G. "LPN CARPET AGENCIES PTY LTD, SES CARPET WHOLESALERS (VIC) ct, PTY LTD, OTTO FLOORS PTY eed a LTD, V.E. MACKEY & CO PTY CEN es LTD, JASON CARPETS COMMERCIAL PTY LID and os ETE OS * GURIAN PTY LTD (trading q vee ' as MYER TEALE) NOs. Respondents NS! oG . 1 | : 19 NOVEMBER, 1985 KEELY J. REASONS FOR RULING GIVEN ON 13 NOVEMBER 1985 By notice of motion filed 20 September 1985, the first, 'second and third named applicants (the three applicants) sought orders requiring the first, second, third and fourth named respondents (the four respondents) to provide "further and better answers to interrogatories" delavered by them. By notice of motion filed 6 November 1985 the three applicants a = + ve Se ne tr en ee on sought similar orders as to each of the remaining respondents other than the eleventh named respondent. The respondents have taken various objections to the interrogatories. In particular, they objected to answering a number of interrogatories on the ground that to answer them might tend to expose them to a penalty. The objections on that ground were the subject of argument on 12 and 13 November 1985 and on the latter date the three applicants' submissions were rejected for the reasons which are now given. Mr Jolson, of counsel, for the three applicants advanced two submissions that those objections to answering each of the interrogatories were not open to the four respondents. First, he relied upon the provisions of 5.29 of the Evidence Act 1958 (Vic). Section 29, as amended by the Crimes (Classification of Offences) Act 1981, is in the following terms: "No witness shall on the trial of any issue joined or of any matter or question or on any inquiry arising in any suit action or proceeding whether civil or criminal be permitted to refuse to answer any question which is relevant and material to the Matter in issue on the ground that the answer may expose him toa any penalty or forfeiture or may disgrace or criminate himself, unless the court or person having by law or by consent of parties authority to hear receive and examine evidence is of opinion that the answer will tend to subject such witness to punishment for treason or an indictable offence." In my opinion a person answering interrogatories is not a "witness" within the meaning of that section and 5.29 does not appiy to an objection to answer interrogatories. That opinion has been reached as a matter of construction of t I i t t- I. ie. I, the section read in its context in Division 2 of Part II of the Evidence Act. In this connexion it may be noted that Part II is headed "Witnesses" and Division 2 of that Part is headed "Privileges Disabilities and Obligations of Witnesses.". That opinion as to s.29 is consonant with the decision of the Full Court of the Victorian Supreme Court, constituted by A''Beckett, Hood and Cussen JJ., in Hughes v Watson 1917 V.L.R 398. Iam not prepared to accept Mr Jolson's invitation to me to conclude that that decision was wrong; in my respectful opinion it was correct. The second submission by Mr Jolson was that, in any event, the respondents were not entitled to make the objection in the present proceedings. Various authorities were cited by him, by Mr Tony North, of counsel, for the four respondents and by Mr Downing, of counsel, on behalf of the sixth named respondent. However it is sufficient to refer to the recent decision of the Full High Court in Police Service Board v Morris (1985) 58 ALR 1 which cites a number of the authorities. In that case Gibbs Cd. said (at page 4):- "It ais old law, confirmed by modern authority, that a person cannot be compelled to answer a question whenever the answer would tend to expose him to "any kind of punishment" - "anything 1n the mature of a penalty": see Phillipps and Arnold: A Treatise on the Law of Evidence, 10th ed (1852), vol 2, p 487; Greenleaf on Evidence, llth ed (1863), vol 1, p 621; Bray on Discovery (1885), p 313; Re Westinghouse Uranium Contract [1978] AC 547 at 563-4 (a statement not challenged on appeal - see at pp 612, 627, 632, and 647) and Pyneboard Pty Ltd v Trade Practices Commission (1983) 57 ALJR ae ToT Te ee ' ' i . a whos arn ae ~~; 236; 45 ALR 609." In the same case Wilson and Dawson JJ (at page 7) referred to "the rule of the common law that a party is not bound to answer any questions which might tend to expose him to the risk of a criminal conviction or the imposition of a penalty ...". Mr Jolson acknowledged that, in the light of the authorities, his task of persuading the court was "a formidable task". He has not succeeded. It should perhaps be added that Mr Jolson at one stage advanced a submission that the objection was not open to the four respondents because they had waived the privilege by giving discovery of documents. However, after some discussion, followed by an opportunity to reconsider the matter, he expressly withdrew that submission. Accordingly, in my opinion it is open to the respondents to object to answering the interrogatories on the ground that to answer might tend to expose them to a penalty. The court has not yet heard the parties' arguments as to whether the particular objections should be upheld in respect of each of the interrogatories in respect of which it has been taken. al Te Bae Keay . 14, N.S —