Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE AND NETTLE JJ

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPELLANT

AND

BORAL RESOURCES (VIC) PTY LTD & ORS RESPONDENTS

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21 17 June 2015 M18/2015

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

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)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.

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. 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. But because the appellant is a corporation, it is unable at common law to invoke this privilege or the privilege against self‑exposure to a penalty, 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." In Environment Protection Authority v Caltex Refining Co Pty Ltd, 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 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. 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." 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." In this case, the contempt proceeding was commenced by summons in accordance with r 75.06(2). 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 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). 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. 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. 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." 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". 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. In relation to the Boral parties' first contention, his Honour held, relying on this Court's decision in Hinch v Attorney‑General (Vict), 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. In relation to the second contention, Digby J held 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 that the privileges against self‑incrimination and self‑exposure to a penalty were not available to the appellant as a corporation. 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. 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 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. As to the latter point, the Court of Appeal held that the relevant question was whether it would be unjust to allow the Boral parties to gain access to the documents they sought, and that this would not be unjust because the "documents in question could have been obtained by the simple device of issuing one or more subpoenas for production." The Court of Appeal said this conclusion was sufficient to dispose of the appellant's application for leave to appeal, but nonetheless proceeded to express its view as to the merits of the appellant's arguments. The appellant's first argument was that r 29.07(2) did not apply to the contempt proceeding because it was a "criminal proceeding". The Court of Appeal rejected the premise on which this argument proceeded, namely, that a contempt proceeding may be characterised, "for all purposes, as a criminal proceeding." The Court of Appeal held that a contempt proceeding takes its "character from [its] surrounding circumstances, and the context within which the analysis proceeds." It held that the contempt proceeding in the present case is "governed by the civil jurisdiction, and the rules ordinarily applicable in that jurisdiction." The appellant's second argument was that the contempt proceeding was an "accusatorial proceeding", which meant that the Boral parties were required to prove the charge of contempt without any assistance from the appellant (including by way of discovery under the Rules), and that the Rules should be construed so as to conform with this fundamental principle. In this regard, the appellant relied on observations made by members of this Court in X7 v Australian Crime Commission and Lee v The Queen. The Court of Appeal rejected this argument on the basis that it was foreclosed against the appellant by the decision of this Court in Caltex. The appeal to this Court The appellant appealed to this Court pursuant to special leave granted by Hayne and Kiefel JJ on 13 February 2015. The appellant's arguments In relation to the basis on which the Court of Appeal formally refused leave to appeal, the appellant argued that the Court of Appeal erred in proceeding on the footing that the possibility that the relevant documents could be obtained by subpoena meant the appellant would not suffer substantial injustice if the discovery order were sustained. Given that the appellant's principal argument should be rejected and the appeal dismissed for that reason, it is not necessary to resolve this argument. The appellant's principal argument began with the contention that it must now be taken to be established that in all proceedings for contempt of court the applicable standard of proof is proof beyond reasonable doubt. It was said that inherent in this standard of proof is a requirement that the moving party cannot compel the party charged with contempt to testify or produce documents to assist it in making its case. This requirement was referred to as "the companion principle". The companion principle was said to be distinct from the privileges against self‑incrimination and self‑exposure to a penalty so that even where, as here, these privileges are not available, the companion principle continues to operate in favour of the party charged. The appellant then argued that the application of the companion principle meant that r 29.07(2) must be construed so as not to apply to undermine the appellant's position as the party charged. The appellant argued that this Court's decision in Caltex, properly understood, was not inconsistent with this argument. The appellant did not seek to argue that Caltex was wrongly decided; rather, it sought to confine the authority of Caltex so as to leave room for it to invoke the companion principle. The appellant also argued that the references in O 75 to "guilt", "punishment" and "charge" indicated that proceedings for contempt of court under O 75 are quarantined from the application of r 29.07(2) of the Rules. The appellant argued further that the Act affected the operation of the Rules in a way which meant that the rules relating to discovery do not apply to proceedings for contempt. It was said that the Act, while not seeking generally to override the Rules, had the effect that the Rules do not operate in relation to quasi‑criminal proceedings such as contempt proceedings. In this regard, it was said that the Act makes provision in relation to discovery in Pt 4.3; and that this provision is so comprehensive as to indicate that discovery is available only in "civil proceedings" as defined in the Act. It is convenient to consider the arguments relating to the Rules and the Act before turning to the appellant's principal argument. The Rules and the Act The provisions of O 75 are not quarantined from the other provisions of the Rules. In the first place, a proceeding under r 75.06(2) is within the literal scope of r 29.07(2) because it is a proceeding not commenced by writ. Secondly, the provisions of O 75 are not self‑contained: they expressly assume the application of other rules, including those related to summonses (O 46) and affidavits (O 43). It is not the case that r 29.07(2) has no application to proceedings under O 75 because r 29.07(2) is confined to proceedings in which each party is required by the Rules to deliver a pleading setting out its case whereas O 75 contemplates that a respondent has no such obligation. Rule 29.07(2) is not confined to proceedings involving the delivery of pleadings. The language of r 29.07(2) makes no such qualification. In truth, it proceeds on the express footing that it applies to proceedings that do not involve the delivery of pleadings, namely, proceedings not commenced by writ. The circumstances, in O 75, that the term "respondent" means a "person guilty or alleged to be guilty of contempt of court", and that the summons by which the application is to be made "shall specify the contempt with which the respondent is charged", do not warrant the conclusion that O 75 is intended to stand outside the Rules. In this regard, r 4.03(2) expressly acknowledges that proceedings against a "respondent" are within the ordinary application of the Rules. It provides: "A person who commences a proceeding under Rule 32.03, 32.05, 37.02 or 75.06(3) shall be called an applicant and the person against whom the proceeding is commenced shall be called a respondent." Further, while r 75.06(5) requires that "[t]he summons … and a copy of every affidavit" be served personally on the respondent, this cannot be taken to preclude an applicant from supplementing affidavit evidence relied on at the outset of the contempt proceeding with further evidence. That is because r 75.06(5) is not an exhaustive statement of the procedure applicable to an application for contempt: it is expressly directed at the requirements for the initiation of an application. It is important to appreciate that the respondent can be protected from oppressive conduct by the applicant by the exercise of the judicial discretion conferred by r 29.07(2). The appellant's argument that the Act so confines the operation of the Rules, insofar as they facilitate discovery, that they do not apply to contempt proceedings must also be rejected. The Act does not purport to define civil proceedings for the purposes of the Rules. More importantly, the Act expressly contemplates the untrammelled operation of the Rules in relation to discovery. Thus, s 59 of the Act, which appears in Pt 4.3, provides that the powers conferred under Pt 4.3 "are in addition to, and do not derogate from, any powers a court has under rules of court in relation to discovery or disclosure of documents." If r 29.07(2) is given its literal operation, its terms are sufficiently clear to authorise the order for discovery that was made in this case. The effect of an order under r 29.07(2) is plainly to override the right of the party against whom it is made to keep its papers private, as well as any entitlement that party might otherwise have to refrain from assisting the other party in the proceedings against it. The companion principle The appellant's principal argument regarding the companion principle must be rejected because the companion principle is an adjunct to criminal proceedings; and the contempt proceeding is not a criminal proceeding. It is well established that the accusatorial nature of a criminal trial means that, under the common law, the onus of proof is upon the prosecution to prove its case. As a corollary, under the common law, the prosecution cannot compel the accused to assist it to discharge its onus. In Lee v The Queen, this Court said: "Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that 'no attempt to whittle it down can be entertained' albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self‑incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice. The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived." (footnotes omitted) Two points may be made here. First, the companion principle described in Lee v The Queen is not, as the appellant argued, a corollary of the criminal standard of proof. Rather, it is an "aspect of the accusatorial nature of a criminal trial in our system of criminal justice" whereby an accused person cannot be compelled to assist the prosecution to make its case. The companion principle is a "companion" of criminal trials, not of the standard of proof ordinarily applicable in such trials. Secondly, no question arises under r 29.07(2) of the Rules as to the appellant being required to give evidence against itself as a witness for the prosecution. The documents required to be discovered speak for themselves. In the nature of things, such documents have been brought into existence in the course of the conduct of the corporation's affairs by or through other (natural) persons acting in the service of the corporation. In such a case, the concerns that testimonial admissions may be extracted by oppressive conduct and that confessions of dubious reliability will be adduced do not arise. If such concerns were to arise in different circumstances, they would fall to be considered as part of the discretion conferred by the rule. There is no issue on this appeal as to the correctness of the exercise of the discretion by Digby J to order discovery. This is not surprising, given the nature and content of the documents sought. The companion principle and the contempt of court proceeding To describe the contempt proceeding as "accusatory", in the sense that it charged the appellant with conduct warranting punishment, is not to take the proceedings out of the civil jurisdiction and the purview of the Rules. As Hayne J observed in Re Colina; Ex parte Torney, in Hinch Mason CJ, Wilson, Deane, Toohey and Gaudron JJ said: "Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction". In Re Colina; Ex parte Torney, Hayne J described "the cardinal feature of the power to punish for contempt" as being that it "is an exercise of judicial power by the courts, to protect the due administration of justice." In this case, the contempt proceeding arose in the course of the civil proceeding between the Boral parties and the appellant. The contempt proceeding was commenced and pursued under the Rules, which apply according to their tenor in relation to proceedings in the civil jurisdiction. In Witham v Holloway, Brennan, Deane, Toohey and Gaudron JJ considered the distinction made in the authorities between civil and criminal contempt, and concluded that the punitive effect of the usual sanctions for contempt meant the "differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory", and an insufficient justification for the allocation of different standards of proof for civil and criminal contempt. Their Honours went on to say: "[T]he illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt 'must realistically be seen as criminal in nature'. The consequence is that all charges of contempt must be proved beyond reasonable doubt." Their Honours were at pains to make it clear that this statement did not include the proposition that proceedings on a charge of contempt are, or are to be regarded as the equivalent of, a criminal trial. As their Honours said: "[T]o say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not." There are other differences in addition to those referred to by their Honours, not the least important of which is that contempt proceedings are initiated, not by the executive government, but by private parties to an indisputably civil proceeding. A party to a civil proceeding who wishes to complain that the other party has breached an order of the court is not in the same position as a prosecuting authority, which can gather evidence by compulsory processes of search and seizure before making a decision to charge the defaulting party with contempt. Further, in the contempt proceeding, the spectre of oppression by the executive government in requiring the accused to assist it in the prosecution of a criminal charge against the accused, especially one launched without adequate investigation by the agents of the state, does not arise. In any case, where an application for discovery in contempt proceedings did give rise to such a concern, the more fundamental concern for the liberty of the subject would be a powerful consideration in the exercise of the discretion whether or not to make an order for discovery. In Witham v Holloway, the plurality expressly noted that the process whereby a contempt proceeding is resolved is a civil "hearing" not a criminal "trial". McHugh J also expressed the view that proceedings for contempt of court to punish a respondent are "civil and not criminal proceedings". These observations point to a significant deficit in the arguments advanced for the appellant: those arguments do not explain how the contempt proceeding has proceeded as a criminal proceeding without the engagement of any rules of criminal procedure. The progression of the matter through the various levels in the hierarchy of courts was at all times regulated by the laws relating to the civil jurisdiction including the Rules. The companion principle cannot be applied to usurp the authority of the Rules in this regard. In summary then, it may be accepted that the companion principle is a fundamental aspect of a criminal trial, which is not to be "whittled down" by an expansive interpretation of legislation that is not clear in its intention. But no criminal trial is in prospect here, and so there is no reason why the language of r 29.07(2) should not be applied according to its tenor in the contempt proceeding. Conclusion and orders The appeal should be dismissed with costs.