FEDERAL COURT OF AUSTRALIA Hadgkiss v Blevin [2003] FCA 1083 PRACTICE & PROCEDURE – Notices to Produce – Privilege Against Self-incrimination – where claim for civil penalty – where applicant undertakes not to us produced documents against those respondents protected by privilege – where undertaking cannot prevent the possibility that the documents will have direct or indirect incriminating consequences Workplace Relations Act 1996 (Cth) Alfred v Walter Construction Group Ltd [2003] FCA 993 Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132 Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204 Reid v Howard (1995) 184 CLR 1 Sorby v Commonwealth (1983) 152 CLR 281 NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE v ALAN BLEVIN, JOSEPH MCGAHAN AND CONSTRUCTION FORESTRY MINING AND ENERGY UNION N 414 OF 2003 BENNETT J 9 OCTOBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N414 OF 2003 BETWEEN: NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE APPLICANT AND: ALAN BLEVIN FIRST RESPONDENT JOSEPH MCGAHAN SECOND RESPONDENT CONSTRUCTION FORESTRY MINING AND ENERGY UNION THIRD RESPONDENT JUDGE: BENNETT J DATE OF ORDER: 9 OCTOBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's request for access to the documents produced by the first and second respondents under paragraphs 1, 2 and 4 of notices to produce filed 26 August 2003 is refused. 2. The notices to produce are otherwise stood over to 20 October 2003. 3. The documents produced under the notices to produce are to remain with the Court until further notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N414 OF 2003 BETWEEN: NIGEL HADGKISS AS DELEGATE OF THE EMPLOYMENT ADVOCATE APPLICANT AND: ALAN BLEVIN FIRST RESPONDENT JOSEPH MCGAHAN SECOND RESPONDENT CONSTRUCTION FORESTRY MINING AND ENERGY UNION THIRD RESPONDENT JUDGE: BENNETT J DATE: 9 OCTOBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant has served notices to produce documents on the first and second respondents in the following terms: 'The Applicant requires you to produce … 1. Any records in relation to the [respective] Respondent's employment with any company or organisation during the period June to December 2002, including (without limitation) payslips, employment contracts or correspondence. 2. A copy of the [respective] respondent's tax return for the period 1 July 2002 to 30 June 2003. 3. Copies of any permit issued to the [respective] respondent under any section or part of the Workplace Relations Act 1996 (Cth) or the Industrial Relations Act 1996 (NSW). 4. Any document recording or relating to the appointment and/or functions of the [respective] respondent as [an employee or delegate] officer or other representative of the Third Respondent or the Construction Forestry Mining and Energy Union (New South Wales Branch) (the state union). 5. Any document relating to or concerning Conrado de los Reyes' employment or contract work at the site at Lot 98, Saunders St, Pyrmont (hereafter called 'Clifton Apartments') in the period from September 2002 to date. 6. All documents relating to or concerning Clifton Apartments, Bakkante Constructions Pty Limited, Beljen Developments Pty Limited, Shah Yee, Benjamin Yee, Property Services of Phoenix Pty Limited, Conrado de los Reyes, Lecan Constructions Pty Limited in the period June to December 2002. 2 The applicant does not press paragraph 3. Paragraphs 5 and 6 were not called on at this stage and, by consent, they will be stood over to the first day of the hearing, 20 November 2003. 3 The documents the subject of the notices to produce have been produced to the Court by the first and second respondents. The applicant seeks access to those documents. The first and second respondents object to the production of any documents under paragraphs 1, 2 and 4 on the ground that they are privileged by reason of self-incrimination. 4 The proceedings are brought by the applicant under s 298T(2)(d) of the Workplace Relations Act 1996 (Cth) ('the Act'). The applicant seeks an order pursuant to s 298U(a) of the Act imposing a civil penalty on each respondent for a contravention of s 298P(3) of the Act and an order pursuant to s 298U(c) requiring each of the respondents to pay compensation or such an amount as the Court thinks appropriate to a named person. The first and second respondents are said, in the amended statement of claim, to be persons within the description of s 298B(2) of the Act so that their actions are taken to have been done by the third respondent. The statement of claim pleads that the third respondent is an association of employees. The principles 5 As the hearing progressed, it became clear that there was little disagreement as to the principles to be applied. In that regard, I would like to record the assistance given by counsel, Mr Fernon for the applicant and Mr Latham for the respondents. In particular, Mr Fernon properly conceded the difficulties with his case and the correct principles to be applied. He drew to the Court's attention potential difficulties which might arise if access to the documents were given. He then sought to provide solutions to overcome those difficulties if access were granted to the applicant. 6 In Reid v Howard (1995) 184 CLR 1 ('Reid') Toohey, Gaudron, McHugh and Gummow JJ confirmed the principle that a person cannot be compelled 'to answer any question, or to produce any document or thing, if to do so may tend to bring him into the peril and possibility of being convicted as a criminal' (at 12). See Sorby v Commonwealth (1983) 152 CLR 281 at 288 per Gibbs CJ. The privilege provides protection against direct, indirect and derivative incrimination: Reid. 7 In Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCAFC 132 ('FFE'), the Full Court considered the general principles with respect to the privilege against self-incrimination and, in particular, said at [12] – [13]: 'The privilege against self-incrimination protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature: Sorby v Commonwealth of Australia (1983) 152 CLR 281 at 310. Further, a respondent in a proceeding that is solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents that may assist in establishing his or her liability to the penalty: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 336. The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty: * is not confined to discovery and interrogatories; * is available at common law; * is distinct from the privilege against exposure to conviction for a crime (Pyneboard (at 337)). The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561 at 570, at [31]. The privilege can only be abrogated by statute: Reid v Howard (1995) 184 CLR 1. As the privilege is not subject to judge-made exceptions or qualifications, it cannot be abridged or undermined in consequence of a Court accepting undertakings proffered by the applicant designed to avoid or diminish the danger that provision of the information would expose the respondent to a penalty.' (emphasis added) The protections offered by the applicant 8 The applicant has offered an undertaking that any documents produced will only be tendered as against the third respondent and will not be tendered against the first or second respondents. Counsel also points to the normal undertaking that applies to documents produced under a notice to produce, that the documents will not be used in relation to other proceedings. This is said to ensure that there is no chance of incrimination of the first or second respondents. 9 Counsel also suggests that, to protect the use of a tendered document, it be subject to a confidentiality order on tender to avoid the subsequent use of the document (which would otherwise be in the public arena by reason of an open tender in proceedings) by other persons in other proceedings, such as a person within s 298T(2) of the Act. Conclusion 10 Mr Fernon concedes that before granting access, I would need to be satisfied that there is no risk the documents could be used to aid the case as against the first or second respondents. The applicant has offered undertakings designed to avoid or diminish the likelihood of any such risk. I am mindful, however, of what was said in FFE at [13] (above) and again at [27]: 'However, the Commission points to the undertaking that it has proffered and says that the consequence of the undertaking is that it would not be able to make any use of statements filed that would be inconsistent with the rationale for the privilege. However, the existence of the undertaking cannot be determinative of the question. Either the privilege is infringed by the proposed direction or it is not. If the privilege is infringed, then the undertaking does not justify infringement. The respondent cannot be required to surrender a privilege in return for protection different from that which the law provides.' 11 As was said by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204, a case approved in a number of cases in this Court, at 207-208: 'It is a well-established principle that a defendant in proceedings which are solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents which may assist in establishing his liability to the penalty … [A] court should, in the absence of statutory provision to the contrary, refuse to make any order at all against the defendant for discovery or production of documents or provision of information for the reason that the whole and avowed object of the proceedings being the imposition and the recovery of a penalty, an order for the production of documents or provision of information against the defendant can, so far as the prosecutor of the action is concerned, properly have no other intended consequence…' 12 While, in the present case, another 'consequence' is put forward, that is, the case against the third respondent, the principle as stated by Deane J argues against granting access, particularly where the actions of the first and second respondent are, by reason of s 298B(2), taken to be the actions of the third respondent. The real risk must be that, in perusing the documents for the purpose of determining their relevance to the case against the third respondent, it is highly likely (and the contrary has not been argued or established) that the applicant will obtain information relating to the first and second respondents or open up a line of inquiry in the case against them. If such information were present, despite the best intentions on the part of the applicant and his legal advisers, the benefit of the privilege would have lessened and the possibility may arise that indirect or derivative use would be made of that information as against the first and second respondent. 13 In Alfred v Walter Construction Group Ltd [2003] FCA 993, Gyles J considered a motion that respondents not be required to plead a defence to all or part of a statement of claim on the basis that they ought not to be compelled to provide information or produce documents if the result would be to provide evidence against that person which may be used to establish liability to a penalty. The proceedings did not include a claim for a penalty and, at [13], his Honour made it clear that cases which did include such a claim 'can be put to one side'. It is in that context that his Honour's comment that the possibility of indirect use being made of a defence was 'speculative and entirely hypothetical' should be understood, as is apparent from [9] of the reasons. 14 The privilege against self-incrimination attaches to the documents produced under paragraphs 1, 2 and 4 of the notices to produce. The applicant should not be permitted to have access to those documents. At the hearing of the motion, I declined to grant access, pending these reasons. The application for access should now be refused. Orders 15 I make the following orders: 1. The applicant's request for access to the documents produced by the first and second respondents under paragraphs 1, 2 and 4 of notices to produce filed 26 August 2003 is refused. 2. The notices to produce are otherwise stood over to 20 October 2003. 3. The documents produced under the notices to produce are to remain with the Court until further notice. I certify that the preceding sixteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 9 October 2003 Counsel for the Applicant: Mr J Fernon Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr I Latham Solicitor for the Respondents: Taylor & Scott Date of Hearing: 25 September 2003 Date of Judgment: 9 October 2003