Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2015] HCATrans 23 (13 February 2015)

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Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2015] HCATrans 23 (13 February 2015)

Last Updated: 7 July 2015

[2015] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M117 of 2014

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

and

BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731)

First Respondent

ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999)

Second Respondent

BORAL BRICKS PTY LTD (ACN 082 448 342)

Third Respondent

BORAL MASONRY LTD (ACN 000 223 718)

Fourth Respondent

BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976)

Fifth Respondent

BORAL WINDOW SYSTEMS LTD (ACN 004 069 523)

Sixth Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

Seventh Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 10.17 AM

Copyright in the High Court of Australia

____________________

MR P.J. MORRISSEY, SC: May it please the Court, I appear for the applicant, and I appear with MR G.J. BOAS and MS J.D. WATSON. (instructed by Slater & Gordon Lawyers)

MR S.J. WOOD, QC: May it please the Court, I appear for the first to sixth respondents with my learned friends, MR J.L. SNADEN and MR D. TERNOVSKI. (instructed by Fisher Cartwright Berriman)

MR J.B. DAVIS: May it please the Court, I appear for the Attorney-General with MS R.W. SWEET for the seventh respondent. (instructed by Victorian Government Solicitor)

HAYNE J: Yes. Subject to anything that counsel may say, it may be more convenient, I think, if we take the applications one at a time. Mr Morrissey, we might deal first with the Boral matters.

MR MORRISSEY: If the Court pleases.

HAYNE J: Yes.

MR MORRISSEY: Your Honours, this application arises because of an unprecedented decision to grant discovery in a criminal matter. That arises in turn because since the decision of this Court in Caltex, the privilege against self-incrimination is unequivocally abolished. It is upon that basis that the application was made before the trial judge, Justice Digby, and the proceedings went on.

The application arises against a background where several decisions of the court have an impact now upon the fundamental procedures that are appropriate to a contempt proceeding. The Court will have seen in our submissions that we rely upon terms, the content of which may not be always entirely firm and certain, and we will address those throughout the submissions. Terms such as “offence” and “conviction” do not have a fixed certain meaning in the realm of contempt proceedings, which is a sui generis concept. Nevertheless, they have their part to play, in our submission.

What I would put at the forefront of the submissions, both in this matter and that to come, is the standard of proof that is applicable to contempt proceedings. Whatever be made, and whatever doubts there be on the margins of the terms that we use – “offence”, “conviction”, “criminal in nature” or “quasi criminal” – we were relying on the last analysis at all times upon the burden and standard of proof, which, in Witham v Holloway, it was made clear applied to contempt proceedings, whether they are conceived of as a civil contempt or a criminal contempt arising from the breach of court orders.

HAYNE J: Well, now, is the hinge about which this branch of the argument turns identified at page 378 of the application book, paragraph 22:

Discovery is a mechanism inconsistent with accusatorial proceedings - - -

MR MORRISSEY: That is correct.

HAYNE J: There are no doubt a couple of elements in that - accusatorial proceedings, whether these are properly so described, and then whether discovery is a mechanism inconsistent with that, but is that the essence of the point that is sought to be made?

MR MORRISSEY: That is the essence of it.

HAYNE J: Now, the answers that are made to it at least include, do they not, will the rules provide otherwise?

MR MORRISSEY: That is said, and we seek to meet it.

HAYNE J: What is the answer to that?

MR MORRISSEY: The rule does not provide otherwise, and the other rules that are said to provide otherwise do not in fact do so, properly construed. Our submission is that Order 75 does not provide otherwise - that is where I would seek to start, and then to seek to construe that against the background of Witham v Holloway and the more recent cases to which we have referred.

HAYNE J: I think another strand perhaps as important, perhaps more important, in the answer is in the face of Caltex and the decision in Caltex, what answer can you have to the engagement of processes of discovery? You cannot say this will incriminate the company. Why then should discovery not run?

MR MORRISSEY: Because it is inconsistent with the fundamental process. If we are correct in saying that contempt proceedings of this type ought to be characterised as accusatorial – we have an argument to develop as to why that is – then it is inconsistent with that, notwithstanding that the privilege against self-incrimination is no shield for this individual respondent.

We say that it is inconsistent with the fundamental process that is engaged. There is different work for the privilege to do than the companion principle on which we rely that is said to arise through X7 and Lee v The Queen governing the processes. Of course, we need to make good the claim that this is an accusatorial process first, but we seek to do that.

May I take the Court, to commence with – your Honours have been provided, I believe, administratively with a bundle of statutory provisions, and it is likely I should go, at least in the primary submissions, chiefly to the section itself. It is rule 75.06 that provides the procedure in contempts of this type. We could point out that it relates, under subsection (1), to an –

Application for punishment –

In subsection (3), reference is made to “the respondent”, and it is the respondent who is required to attend before the court. Subsection (4) provides that –

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

That has relevance in the other proceeding as well, but it places, one might say, a disclosure onus upon the moving party to specify the contempt, and the term “specify” will have its specific meaning in the other matter. Subsection (5) requires that –

The summons or originating motion and a copy of every affidavit shall be served personally on the respondent –

For the purpose of this application, what is of significance is that there is no reference to the providing of any affidavits by the respondent, no sense of - - -

KIEFEL J: You are saying that this reflects something in the nature of a criminal process where the prosecution is required to provide their evidence, but there is no obligation upon the accused to respond?

MR MORRISSEY: Yes, we say it reflects such a process. We do bear in mind the comments that have been made by your Honour Justice Hayne, among others, that it is not appropriate to equate completely contempt proceedings to criminal proceedings. They are different in nature; the power that is being protected by contempt is different - - -

HAYNE J: But also, any division between civil and criminal, that is, dividing the whole of the legal universe between civil and criminal has, at least, got a blurred section in the middle.

MR MORRISSEY: It does, your Honour. Historically, though, we are compelled to deal with civil and criminal contempts. Our contention is that they could now be correctly categorised as differing offences, one being a lesser version of the other. That again will be developed in the other submissions but, your Honour, that difficulty is recognised.

However, it seems uncontroversial to proceed on the basis that these matters are contempts - what were traditionally called civil or contempts in procedure and criminal contempts which involved an element of contumacy, to characterise those as offences and to look to the elements of those offences when seeking to see whether they have been proved. As we will say in the other proceeding as well that arises because once “beyond reasonable doubt” be imposed as a fundamental standard that must operate upon something, and it dictates conceiving an individual charge of contempt as an offence, albeit we recognise that the concept has its difficulties at the margins. Nevertheless, it is traditionally done, and there is no difficulty with it. Furthermore, it connotes an offence containing elements because it is elements that must be proved when one looks at what is meant by “beyond reasonable doubt”. It has to work on something in a proceeding - - -

HAYNE J: Assuming all that to be so, at least for the purposes of argument, could the moving parties in these proceedings have obtained the information which was sought by discovery by process of subpoena?

MR MORRISSEY: Our submission is that no, they could not, categorically. In the alternative to that, there is no evidence that they could in this case, and that it was an unsafe basis for the Court of Appeal to find that no substantial injustice was occasioned.

KIEFEL J: Why could they not obtain the evidence by subpoena?

MR MORRISSEY: To take that step by step, a subpoena directed at the respondent would meet the same objections, if they be meritorious - - -

KIEFEL J: But that is not what was suggested. I thought it was suggested that the subpoenas could be directed to the individual witnesses who could give the information about their contact numbers, et cetera.

MR MORRISSEY: Your Honour, at a level of principle, that is unlikely to be the case, and at a level of evidence, there was no evidence that that could be done. At a level of principle, a subpoena issued upon the corporate entity might be met with the objection, as I submit. If it were issued upon an individual officer, then the capacity in which that officer was seeking to respond would be in issue, and it is not plain by any means that simply because a private individual, Smith, was subpoenaed, that he would then be authorised to produce those documents or able to do so. At a level of principle, we would say that is sustainable, and there was no evidence in this case that, in fact, there was such a person available who, either by status or in reality, was able to do so.

KIEFEL J: You would say in any event that is a different process and here what is at issue is whether or not they can avail themselves of a court-assisted process to compel an accused? That is a different question.

MR MORRISSEY: Yes, that is correct. That is the third limb of our response to that. Against that background, the matter arose – there is some controversy between the parties here as to how to characterise the debate that took place. We are content to proceed on the basis the matter was raised in court and somewhat scantily addressed, but the court was not furnished with the basis for making the findings that it did, in my submission, and that would not be a basis for refusing special leave here. There is a substantive objection – I am sorry, your Honour, is that a responsive answer, whether satisfactory or not?

KIEFEL J: Yes.

MR MORRISSEY: Thank you.

HAYNE J: We will tell you later, Mr Morrissey, whether it was.

MR MORRISSEY: Your Honour, I am turning to the issue of Caltex, though. The Court of Appeal frankly stated the implications of Caltex are yet to be fully appreciated and there will need to be some thought put into it, and such thought, if we are able to, we will include in the submissions here. What is at issue between the parties about Caltex here may be phrased inelegantly as “Who owns Caltex?” There is a clear majority to the effect that the privilege against self-incrimination is denied to corporations.

KIEFEL J: Is that necessarily correct? Justice Brennan may have agreed with that proposition, but I think on one view, his Honour had already determined the matter on the basis that a statute needs clearly to abrogate it. It might be arguable that his Honour, when agreeing on that proposition, it was obiter.

MR MORRISSEY: Your Honour, we do not deny that in formulating the arguments, we have not sought to advance that. That may well be so - - -

KIEFEL J: But your point is that Caltex does not conclude the question in this case?

MR MORRISSEY: That is correct. What Justices Deane, Dawson and Gaudron said was that – and something that was picked up by this Court by your Honour and others in the two Lee Cases and in X7 – and that was an uncontroversial part of their judgment, is that there is something left, even though the privilege be removed, of the accusatorial system. Perhaps we phrased it less elegantly than the Court did – I am not sure how that happens, your Honour, but it did occur – that the Court posed the difference as being that the privilege is a personal right, whereas the attributes to the accusatorial system are systemic, in effect.

We probably used the phraseology of an individual shield, but in any event, the point is clear that a corporation, subject to the reservation your Honour just made, cannot avail itself of that privilege. But the system itself, if we be correct in our submissions – and it is at least strongly arguable that contempt proceedings are to be seen as accusatorial in nature, and it is our contention that they should always be seen, certainly this nature of contempt by breach of court order, should be conceived in that way and in such a situation, there may be room for debate at the margins what that requires in a given case.

It is conceded by us that not every aspect of criminal procedure is applicable or is dictated by the conclusion that it is an accusatorial system. There are some on the margins that uncontroversially do not – trial by jury, for example, and some of the procedures that are quaintly still available, such as committal proceedings - - -

KIEFEL J: I think X7 and Lee, they were all concerned with fundamental aspects, not those aspects.

MR MORRISSEY: Yes. I think it be the case of our friends that the fundamental aspects are chiselled down to one, and that is the onus of standard of proof, and nothing more. What we are saying is it does extend further than that. We are submitting that, if you like, the minimum content of an accusatorial hearing goes as far as what the Court stated in that trio of cases, which is the onus of standard of proof and the companion principle.

The companion principle continues to apply, as, we submit, Justice Spigelman said in Nutricia, notwithstanding the loss of the privilege. If you like, it is a fundamental system of justice. The accusatorial system is the way of delivering justice, controlling how a court satisfies itself of the facts and the way in which it conceives those facts. It governs all aspects of, using old terminology, practice and procedure, if evidence be included into that category; it governs all.

Our submission is that an accused, whether corporate or not – and for these purposes, it does not matter to exempt a corporation or to take a separate view of the corporation – looking at the attributes of the accusatorial system, a defendant/respondent/accused cannot be compelled to assist in constructing the case against them. The corporation may lose the privilege, may well lose it if it be summonsed, if it be subject to a subpoena, it may not assert the privilege.

But as an accused, or as a respondent, there is no reason why it should not be entitled to rely upon the protections – perhaps not even protections – the attributes of the system. The attributes of the system require that – this is entirely consistent with rule 75.06 – the moving party prove its case before anything need be done. They cannot move for judgment, for example, before filing their affidavit material or their evidence. They must prove what is to be done. It is inelegant for us to phrase it as a right, because we are trying to avoid that, but the ability of a

respondent to make a “no case” submission, or to point to the difficulties, is central.

HAYNE J: The point, I think, might be capable of articulation thus, that the question is whether the Rules of Court sufficiently clearly permit the process of discovery of documents in circumstances such as this, accusatorial proceedings leading to punishment where the systemic requirement would ordinarily be, at least, prove the case without resort to the accused.

MR MORRISSEY: Yes. Your Honour, we would – sorry, your Honour.

HAYNE J: It is a question of the sufficiency of the rules to overturn a principle of that kind.

MR MORRISSEY: Yes, that is so, your Honour. As you will see from our submissions, the way in which we responded to that was to say Order 75 in terms itself, we submit, is sufficient. But we would also say that there are other signs within the rules and in extraneous materials, particularly the Civil Procedure Act. It is not clear that we can rely upon trailing the horror before the Court of discovery becoming a part of the contempt landscape, generally speaking, but we have endeavoured to raise that issue through pointing to the summary nature of proceedings.

What we do say is that discovery needs regulation. The Civil Procedure Act in Victoria, in all events, has sought to do that. Discovery is heavily regulated by a number of overarching obligations and other provisions within that Act. That Act explicitly does not apply to quasi criminal proceedings, and there can be no doubt, at the very least, that this is such a proceeding. That is an extrinsic matter. The rules themselves simply do not tell the story that needs to be told of overriding explicitly an important common law principle. That is the response we make to that.

HAYNE J: Yes.

MR MORRISSEY: Those are the submissions.

HAYNE J: Yes, thank you, Mr Morrissey. Yes, Mr Wood. You, as I understand it, accept that there is a point of general importance. Your answer is the Court of Appeal is plainly right?

MR WOOD: Yes, your Honour. We accept that the question is as you have just put it, your Honour, that whether the Rules of Court do sufficiently clearly permit the process of discovery of documents in accusatorial proceedings leading to punishment, and our answer is in relation to a natural person they do not clearly permit the process of discovery for the reasons that have been advanced in argument. The answer is to the contrary in relation to a corporation because of Caltex and that is not - - -

HAYNE J: Well, let me understand that a little better than I do. Why do the rules have that differential operation about the availability of discovery?

MR WOOD: Because of the underlying principle, that is, the scope of the principle - - -

HAYNE J: Because we need to distinguish sharply, do we not, between providing discovery of documents and then providing inspection of that which is discovered. A party may be bound to discover all manner of documents but claim privilege from production as, for example, on grounds of incrimination. You say do you, that the rules are to be read as bifurcated, permitting discovery against corporations but not as against individuals, do you?

MR WOOD: Even more broadly - permitting the use of court processes to compel production of real evidence, that is, documentary evidence, from a corporate defendant - that is, whether it is a subpoena, a notice to produce or, in this case, an application for specific discovery. The situation might be different in relation to general discovery, it might be different in relation to the administration of interrogatories, but at least in relation to the production of real documents belonging to the corporation, the principle, the underlying principle that my learned friend refers to, the so-called “companion principle”, part of the accusatorial process, is not engaged in relation to a corporation.

KIEFEL J: Why do you draw a distinction between process of discovery of documents and interrogation? They are both methods of discovery.

MR WOOD: Because the High Court did in Caltex. That was the distinction that was drawn by Chief Justice Mason and Justice Toohey, where they said - - -

KIEFEL J: That is two members of the Court.

MR WOOD: That is right. The case involved the production of documents pursuant to a notice to produce, that Chief Justice Gleeson in the Court of Criminal Appeal below said is on all fours with the subpoena for production. This very argument that is run by my learned friend was run in the Court of Criminal Appeal and run in the High Court, that is, that the companion principle did not allow the court to aid the attempt by a prosecutor to obtain real evidence from a defendant in a true criminal proceeding.

That argument was bundled up with two other arguments - the so-called argument based on the dignity of the respondent, and also an argument based on the so-called fair balance between the prosecutor and the defendant. Those three arguments in combination, that is, the very argument my learned friend makes today in combination with an argument based on individual dignity and in combination with an argument based on a fair balance between prosecutor and defendant, was not sufficient to deny the availability of, under statute and court rules, access to documents of a corporation.

KIEFEL J: But Lee, which is a judgment of the whole Court, does not talk about a fair balance. It talks about fundamentals in a process of what are criminal proceedings, and as Justice McHugh pointed out in Caltex, there is nothing like a process of discovery permitted and allowed in proceedings of a criminal nature.

MR WOOD: Against a natural person; we accept that principle fully.

KIEFEL J: No, proceedings of a criminal nature.

MR WOOD: Against a natural person, your Honour. We do not accept - - -

KIEFEL J: Are you saying we have a bifurcated set of criminal proceedings now? If there is a corporation, there are different rules where there are individuals?

MR WOOD: That is exactly what we are saying.

KIEFEL J: That surely cannot follow from Caltex?

HAYNE J: Indeed, that may be the very proposition that warrants the grant of leave, I would have thought, Mr Wood, if you - - -

KIEFEL J: Yes, we are getting very interested now.

HAYNE J: We are suddenly fascinated by this case. Do go on.

MR WOOD: I am waiting for the red light to come on.

HAYNE J: No, just the floor to open, Mr Wood.

MR WOOD: That is the point of distinction we make. We make two distinctions about the fundamental principle, the two aspects of it. It does apply to natural persons. It does not apply in criminal proceedings to body corporates, at least in relation to real evidence. It may apply in true criminal proceedings to corporations in relation to testimonial evidence - answers to interrogatories, general discovery, the sort of issue that you raised with my learned friend, Justice Kiefel, about the requirement to put on evidence in advance of a trial.

It might protect any order ordering a defence in a proceeding of this nature. But, what it does not protect – and this is what the decision in Caltex stands for – it does not protect a corporation in a true criminal proceeding from being prevented, from being forced, with the assistance of a court, to hand over documents of it in its possession.

KIEFEL J: Do you suggest that nothing said in X7 and Lee, if not casting a doubt upon the extent to which Caltex should be read, at least requires consideration of how Caltex should be understood and the limits, if any, of the boundaries in which Caltex might operate?

MR WOOD: X7 and Lee relied upon Caltex - - -

KIEFEL J: In a very narrow respect.

MR WOOD: One of the three pillars said to justify the privilege – that is, the accusatorial system – was insufficient in combination with the other two pillars of the argument to deny the operation of the statute or the Rules of Court. This Court in X7 and Lee referred to the very decisions by Chief Justice Mason and Justice Toohey and Justice McHugh in saying that it is a fundamental aspect of the accusatorial system that the defendant shall not be required to assist the prosecution, relied upon the very passages where Chief Justice Mason and Justice Toohey and Justice McHugh said that that principle does not apply to a corporation. Far from casting any doubt upon Caltex, it reaffirmed, by the very passages that were referred to by this Court in X7 and Lee, the distinction that had been drawn in Caltex.

KIEFEL J: You say that the majority in Caltex went further than to hold that the privilege against self-incrimination does not apply to corporations. You take their Honours to say that the whole notion of the fundamental nature of criminal proceedings is different where corporations are involved.

MR WOOD: Because that was the main argument in support of the privilege against self-incrimination. There were three arguments put in support of it - - -

KIEFEL J: No, but you say that is what their Honours actually say in the ratio.

MR WOOD: That is indeed what they say. That is what Chief Justice Mason and Justice Toohey say. That is what Justice McHugh says and that is what Justice Brennan says, albeit implicitly, not explicitly, that that is what the majority say. It is made even more clear by the decision of this Court in Daniels in saying that the privilege against self-exposure to a penalty is now no longer available to a corporation because that must cast doubt on the second limb of Justice Brennan’s decision, that is, that the Rules of Court, picking up Justice Hayne’s point, must be read down.

HAYNE J: But Daniels was a question of construction of what was then 155 of the TPA, was it not?

MR WOOD: Indeed, your Honour.

HAYNE J: Not a consideration of the position of the criminal justice system generally?

MR WOOD: No, that is true, your Honour, but in the majority judgment, the Court says, referring to Caltex, that:

the privilege against self-incrimination is not available –

It then goes on, referring to the decision of the Full Federal Court in Abbco, to say that –

the privilege against [self] exposure to penalties is, similarly, not available –

It was that privilege that Justice Brennan relied upon in Caltex to deny the rules-based notice its full effect. That would have been, in 1993, an answer to the question that Justice Hayne posed just before my learned friend sat down. That privilege against self-exposure to a penalty is no longer available to a corporation, the privilege against self-incrimination is not, and Caltex decided, because the main argument in support of the privilege against self-incrimination was the accusatorial nature of a criminal proceeding, that that argument did not, in combination with other arguments - - -

KIEFEL J: Did not overcome the effect on the privilege.

MR WOOD: - - - did not give the corporation a reason to refuse production of the documents. I know my learned friend, Mr Davis, wants to address – I should not say “wants to address”. I know he dealt with – he says if I leave it to him. I know you had a question, your Honour, about the efficacy of a subpoena and whether the case could be determined on the

basis that the Court of Appeal did, the other basis – that is, not the basis of principle with which we are now concerned, but the discretionary basis – that was an argument the Attorney developed and ran below, and I would be content - - -

KIEFEL J: That there was no injustice in the circumstances.

MR WOOD: That there was no injustice, and I would be content for my learned friend to answer your Honour’s question about that point. I was really directing my submissions to the question as formulated by Justice Hayne at the end of my learned friend’s submissions. I do not think I have got much else to say on that point.

HAYNE J: Thank you, Mr Wood. Yes, Mr Davis.

MR DAVIS: Thank you, your Honour.

HAYNE J: Perhaps if you would be good enough to come to the lectern, Mr Davis. It just helps the transcribers.

MR DAVIS: Yes, certainly. Would your Honour give me a minute to reorganise myself?

KIEFEL J: All your papers.

HAYNE J: Yes, Mr Davis.

MR DAVIS: Thank you, your Honours. We adopt what the Boral parties have submitted. Fundamentally, our submission with respect to substantial injustice is as follows. There is no substantial injustice because one of three different types of subpoenas could have been issued in substitution of the discovery order producing the same information. The first type of subpoena is a subpoena to the applicant, to the Union itself; the second type of subpoena is a subpoena to produce, directed to individual officers of the applicant; and the third type - - -

HAYNE J: To produce personal documents or corporate documents?

MR DAVIS: Well, your Honour - - -

HAYNE J: There would be a difficulty about the latter, surely?

MR DAVIS: No, in my respectful submission. I see the sharp intake of breath, your Honour, but the submission is this - - -

HAYNE J: Well, the notion that individuals have custody of corporate documents is, at least, an interesting idea, yes.

MR DAVIS: Your Honour, if we go to the order that is in issue in the case, and to the precise type of documents that were sought – so may I invite your Honours’ attention to the application book at page 195 to 197.

HAYNE J: Yes, we are familiar with those.

MR DAVIS: Thank you, your Honour. Your Honour will see there is a formula - for example, the phone numbers of each of the individuals sought, in my respectful submission – or documents, one document containing those phone numbers – would be amenable to production. To diffuse the question asked of me by your Honour, if the document was not a corporate document, that is, if there were a document which recorded the telephone number but it was a private document, which I would invite your Honours to infer as likely in the case of a telephone number, that would obviate the need to make the inquiry.

KIEFEL J: Except that individuals do not usually have documents which show their phone number. They do not usually carry it around with them. They do not hang it on the fridge so that they can remember it.

HAYNE J: It is the only number you never use, your own number.

KIEFEL J: There is kind of an area of unreality about that, but hypothetically, sure.

MR DAVIS: Thank you, your Honour. I do not wish to butt heads with your Honour, but, in my respectful submission, for the reason articulated by Justice Hayne, it is because your own phone number is something you do not use so often, I invite the inference that there would be a document - - -

KIEFEL J: All right.

MR DAVIS: That is the submission. In circumstances where there is such a document, then it may be – and I invite the Court to infer a personal document – in the event that it were a corporate document in the nature of, say, a business card, and that is one of the species of document that is sought, in my respectful submission that would be amenable to a subpoena.

HAYNE J: But in the end is it not a rather curious argument to say that even if the court processes which have been engaged do not permit compulsion, well, other court processes could have been engaged to achieve the same effect?

MR DAVIS: In my respectful submission, your Honour, it is not a curious argument. The consequence is produced by the fact that the argument advanced by the applicant is that there is an antipathy between what they say is the accusatorial nature of the criminal justice system, assuming it applies in this area of the law, and the coercive processes of the court being used against an accused. I will come back in an endeavour to falsify that proposition by reference to Caltex. But even assuming it is truth, the individual officers of the company are not accused. No accusatorial notions can lie against them. Justice Weinberg lit upon this point in the Court of Appeal, and that is why the Court of Appeal, in part, found that there was no substantial injustice, because it is not open – and I stand to be corrected -I will take your Honours, perhaps, in a moment to the transcript - - -

KIEFEL J: But if one accepts for the moment that individuals might be subpoenaed, as may be done in the prosecution of any criminal case individuals are subpoenaed to produce their own personal records which contain something in them, that may be one thing; it may be perfectly consistent with the proper carrying out of a prosecution. But that is quite distinct, is it not, from the use of court processes to compel the accused regardless, putting aside the nature of the accused, to produce its own documents to assist the prosecution in their case. We are talking about two entirely different things.

MR DAVIS: We are. May I deal with the parties who are not accused first, and come back to the accused persons, subject to the convenience of the Court? I made the point that there were three different types of subpoena. One type of subpoena would be directed to the applicant itself, and I will address your Honours momentarily on why Caltex and Daniels, when read together, in my respectful submission, yield the conclusion that such a subpoena would be open.

But even if we are wrong, in an exchange in argument before the Court of Appeal, there was a question raised about whether an individual accused could be compelled to give evidence of the information that is the subject of the document. One of the officers, the subject to the field of – in Justice Digby’s order would be subpoenaed by way of a testamentary subpoena, a subpoena ad testificandum, to give evidence of what their phone number was at the relevant time and whether they were an employee or officer of the Union at the relevant time. I invite the Court to infer that they would know that information.

Mr Morrissey accepted that the accused could not interfere with that process, and quite rightly accepted that the person subject to the coercive power is not an accused. As Justice Weinberg lit upon, that invokes no accusatorial notions at all. To strip that bare, if - - -

KIEFEL J: That may be accepted, but that is not the area that we are in.

MR DAVIS: But, your Honour, if that is true, there is no substantial injustice - - -

KIEFEL J: How can you use one process, which is quite different in its nature, to answer whether or not the other process, which involves fundamental aspects of the criminal process, can be used? How does the question of whether there is a substantial injustice and the overall effect actually arise?

MR DAVIS: May I answer your Honour’s question - - -

KIEFEL J: How is that relevant to determining these two questions?

MR DAVIS: Because the question before the Court of Appeal was whether or not leave ought to be granted. It was an interlocutory decision; that was the decision of Justice Digby to grant discovery. Whether leave ought be granted required, as your Honours would be well and truly aware, the application of the Niemann Industries test, whether there was a substantial injustice and whether the decision was arguably wrong, read cumulatively.

What the court correctly found was that because the same information could be garnered by another means, a non-accusatorial means, that there was no substantial injustice faced by the applicant in this case. What that has the consequence of doing is that meaning for the purpose of this case, whatever might be a debate that might endure in another case as to whether there is an antipathy between the accusatorial nature of the criminal justice system and the deployment of a subpoena against a corporate accused, for the purposes of the instant case, the issue simply does not arise because there is no injustice, and the reason that there is no injustice is because individuals who are not accused could be subpoenaed to provide the same information.

KIEFEL J: So is there a special leave point in whether or not a substantial practical injustice can overcome a point of fundamental principle?

MR DAVIS: What did Mr Wood say about the red light? In my respectful submission, no. That type of argument was considered – I did not anticipate the question, and I do not have the authority to hand – but Justice Dodds-Streeton in our Court of Appeal faced that very question in a case – the name is just not coming to me at the moment, but her Honour was squarely faced with the question whether a matter of public importance could override the need to answer the Niemann questions cumulatively, and her Honour found, in my respectful submission to your Honours, correctly that it does not matter whether there is a question of public importance or not. In an application for leave - - -

HAYNE J: Reduced to its essentials, Mr Wood, your proposition is that at a criminal trial, you could call the accused; there is no substantial injustice because the prosecution could have proved the same point long form - - -

MR DAVIS: Exactly.

HAYNE J: That is a very large proposition.

MR DAVIS: Mr Wood is the wealthy and handsome one, your Honour. That is the proposition. The proposition is that the same result could be achieved another way. The other way that - - -

HAYNE J: Which does rather cut at the root of the notion of an accusatorial process where the party that moves frames the charge and then has to prove it.

MR DAVIS: I am sorry, your Honour?

HAYNE J: It seems to put the court in the position of determining some inquisition. Anyway, do go on, Mr Davis.

MR DAVIS: The decision of Justice Dodds-Streeton is Vellar v Spandideas [2008] VSCA 139. I cannot take further that submission, but that is another way to skin the cat. Yet another way to skin the cat which bears great similarity is that an individual could be subpoenaed to produce the documents. Then, the last issue is whether a subpoena would lie against the applicant itself.

We adopt what Mr Wood said, but with emphasis on one point, which is that the point - in Caltex the question that was decided favourably to the prosecutor by three of the five Judges, being Chief Justice Mason, Justice Toohey and Justice McHugh, was that the subpoena duces taken under the rules, the rules-based subpoena, would lie against the accused for use in the prosecution against that accused. In other words, it is the very question that what the applicant is saying remains undecided.

I can do the maths and obviously, it is only three of the five Judges – three of the seven Judges, excuse me. However, the remaining Judge who formed part of the majority on the question of whether the self-incrimination privilege should go, being Justice Brennan, decided the question of whether the rules-based subpoena should be set aside adversely to the prosecutor only by reason of the now historical penalty privilege.

The submission can rise no higher than saying in those circumstances the indication from the Court in Caltex was that when prosecuting a corporate accused, even in a truly criminal proceeding, as that was, a subpoena could lie against them under the rules by dint of the abolition of the privileges. Subject to any questions, your Honours, they are my submissions.

HAYNE J: Yes, thank you very much, Mr Davis. Mr Morrissey, we will not trouble you in reply. There will be a grant of special leave to appeal in this matter. It would appear to us that it is a day case. Do counsel wish to be heard against that estimate of time?

MR MORRISSEY: No, your Honour.

MR WOOD: No, your Honour.

MR DAVIS: No, your Honour.

HAYNE J: Yes. The solicitors’ instructing counsel will be given a copy of the directions which will govern the filing of submissions. The timetable that will be fixed is shorter than that ordinarily applicable. The timetable that is fixed is to be complied with, unless special application is made. Whether this case will be fixed in the April sittings is a matter for others to determine later, but counsel should at least proceed on the assumption that that is a lively possibility.

AT 11.06 AM THE MATTER WAS CONCLUDED