Australia: Corporations beware! The High Court delivers - Contempt 101

The High Court's 17 June 2015 decision in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd¹ (CFMEU v Boral) serves as a timely warning to corporations not to breach the terms of injunctions or orders made against them in civil proceedings. Breaching such terms may result in contempt proceedings being initiated by another party to civil proceedings.

In such circumstances, a court may compel the corporate respondent to give discovery of documents, howsoever incriminating, without the corporation being able to rely upon protections afforded to natural persons who are similarly charged and who can rely on the privilege against self-incrimination and self-exposure to penalty as a basis to resist discovery and giving evidence.

FACTUAL BACKGROUND

In August 2013 Boral and other parties (the Boral Parties) commenced proceedings in the Supreme Court of Victoria for contempt of court by the Construction, Forestry, Mining and Energy Union (CFMEU).

The nature of the charge for contempt of court was criminal rather than civil on the basis of allegations that CFMEU wilfully and contumaciously disobeyed orders made by Hollingworth J on 5 April 2013 by establishing a blockade of a construction site in respect of which Boral supplied concrete.

The Boral Parties filed a summons seeking discovery from CFMEU of certain specific documents relevant to the question of whether CFMEU had authorised one of its employees to organise and implement the blockade.

Daly AsJ dismissed the Boral Parties' summons on the basis that the rules of civil procedure do not apply in contempt proceedings because contempt proceedings are criminal in nature.²

The Boral Parties appealed to Digby J, a judge of the Trial Division of the Supreme Court of Victoria, who upheld the Boral Parties' contentions that Daly AsJ had erred in two respects: a) in holding that the rules of civil procedure do not apply to contempt proceedings; and b) in holding that even if the rules of civil procedure do apply, discovery was inappropriate as a matter of discretion.

Digby J clarified that: a) contempt proceedings are civil proceedings³ even though they can be described as "criminal in nature" and that, accordingly, the rules of civil procedure applied to contempt proceedings; and b) an order for discovery was appropriate because it would not infringe any of CFMEU's rights or interests.

The CFMEU applied to the Court of Appeal of the Supreme Court of Victoria for leave to appeal. Ashley, Redlich and Weinberg JJA refused leave to appeal in a joint judgment.

The CFMEU subsequently sought special leave to appeal to the High Court, which leave was granted by Hayne and Keifel JJ on 13 February 2015.

CONTEMPT 101 - KEY TAKEAWAYS

The key takeaways from the High Court's decision in CFMEU v Boral for corporations charged with contempt of court are as follows:

1. The court's power to punish a party for contempt is an exercise of judicial power by the court to protect the due administration of justice.⁴
2. Contempt proceedings are criminal in nature⁵ but not all contempts are criminal.
3. Where contempt proceedings appear to be remedial or coercive in nature as opposed to punitive, they are not proceedings for criminal contempt.
4. In contrast, where the failure to obey an injunction is defiant and contumacious, it is a criminal offence⁶, and is regarded as a criminal contempt. The relief sought in a criminal contempt is punitive, rather than remedial or coercive and the proceeding is a penal proceeding.
5. The standard of proof for contempt proceedings is beyond reasonable doubt.⁷ Notwithstanding the more onerous burden of proof, proceedings for contempt of court are civil proceedings and not in the nature of a criminal trial.⁸ This includes proceedings for criminal contempt.⁹

6. The High Court elucidated the reasons for the distinction between civil proceedings for contempt and criminal proceedings. First, contempt proceedings are not heard before a jury. Secondly, contempt proceedings are not brought by the executive arm of the government but by private litigants in a civil context and the "spectre of oppression by the executive government" does not arise.¹⁰ This is based on the fact that a private litigant is not in the same position as a prosecuting authority, which can gather evidence by compulsory processes of search and seizure.

   As such, contempt proceedings are subject to the rules of civil procedure and are not, as submitted by CFMEU, 'quarantined' from the application of other rules, including rules as to discovery.¹¹

6. Whereas it is open for a natural person charged with contempt of court to rely on the privilege against self-incrimination and the privilege against self-exposure to penalty¹² as a basis for not giving evidence and giving discovery, corporations are not afforded similar entitlements.

7. The High Court's decision in Environment Protection Authority v Caltex Refining Co Pty Ltd (Caltex) made clear that a corporation is not entitled to rely on the privilege against self-incrimination¹³ even if it is charged with criminal offences.

   The High Court's decision in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission¹⁴ made clear that the privilege against self-exposure to penalty is similarly not available to a corporation.

   The CFMEU did not dispute the ratio in Caltex and subsequent cases, but argued that the High Court's decision in Caltex was not inconsistent with the argument that the 'companion principle' (to the effect that the prosecution cannot compel the accused to assist it to discharge its onus) was a "corollary of the criminal standard of proof" and that contempt proceedings were accusatorial in nature.¹⁵

   In reliance upon the 'companion principle', the CFMEU argued that it was inconsistent with the accusatorial nature of the proceeding to require CFMEU to assist in proof of the alleged contempt by discovery of particular documents.¹⁶

   In their joint judgment, French CJ, Kiefel, Bell, Gageler and Keane JJ referred to Lee v The Queen¹⁷ and clarified that the 'companion principle' was not a 'companion' to the standard of proof applicable in such trials. Rather, the principle was an "adjunct to criminal proceedings",¹⁸ an aspect of the accusatorial nature of a criminal trial and a 'companion' to criminal trials.¹⁹

   Nettle J, in a separate judgment, referred to the differences between a contempt proceeding commenced by a private litigant and a criminal trial, which concerned a contest between the state and an individual. His Honour also referred to the comments of Mason CJ and Toohey J in Caltex.²⁰

   Accordingly, CFMEU could not rely upon the 'companion principle' and the fact that Boral was required to prove the charges 'beyond reasonable doubt' as a basis for objecting to an order to give discovery.

7. A party alleging contempt of court is not precluded from relying on affidavit evidence that supplements the original summons and affidavit evidence in support.²¹
8. The High Court left open the possibility of a court exercising its discretion not to order that a corporate respondent charged with contempt give discovery.²²

9. In this instance, there was no question on appeal as to the correctness of the exercise of discretion by Digby J to order discovery.The nature and content of the documents sought in this particular case were such that they spoke for themselves and were 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.

   Accordingly, no concerns arose as to the "testimonial admissions that may be extracted by oppressive conduct [or] confessions of dubious reliability" being adduced.²³

The CFMEU's submissions and reliance upon the 'fundamental principle' and the 'companion rule' as a basis upon which corporations may resist production of documents was an unsuccessful attempt at trying to create a loophole to the well established rule that corporate respondents are not entitled to rely upon the privilege against self-incrimination and the privilege against self-exposure to penalty, notwithstanding the fact that they are charged with criminal offences.

Whilst such corporate respondents may still be able to rely on a small discretionary window in which a court may refuse to order discovery at all, the High Court's judgment serves as a timely warning to corporations who have been restrained from engaging in certain conduct to adhere to the terms of such orders.

Failure to adhere to the terms may result in contempt proceedings and an order requiring the corporate respondent to hand over documents, howsoever incriminating, with the potential result of the corporation's documents assisting the party bringing the charges in meeting the higher burden of proof.

Footnotes

¹ [2015] HCA 21.

²[2015] HCA 21 at [12]

³ Referring to Hinch v Attorney-General (Vict) (1987) 164 CLR 15

⁴ Re Colina; Ex parte Torney (1999) 200 CLR 386; cited by French CJ, Kiefel, Bell, Gageler and Keane JJ at [41]

⁵ Per Nettle J at [65] citing Witham v Holloway (1995) 183 CLR 525 at 534 per Brennan, Deane, Toohey and Gaudron JJ, quoting Hinch v Attorney- Generaly (Vict) (1987) 164 CLR 15 at 49 per Deane J.

⁶ Per Nettle J at [65] citing Doyle v The Commonwealth (1985) 156 CLR 510 at 516 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ.

⁷ In Witham v Holloway (1987) 164 CLR 15 at 49; Brennan, Deane, Toohey and Gaudron JJ considered the distinction between civil and criminal contempt and held that "all charges of contempt must be proved beyond reasonable doubt"; cited by French CJ, Kiefel, Bell, Gageler and Keane JJ at [42].

⁸ Per French CJ, Kiefel, Bell, Gageler and Keane JJ at [45] referring to the plurality in Witham v Holloway (1995) 183 CLR 525.

⁹ Per Nettle J at [65] citing Hinch v Attorney- Generaly (Vict) (1987) 164 CLR 15 at 89 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ and Re Colina; Ex parte Torney (1999) 200 CLR 386

¹⁰ Per French CJ, Kiefel, Bell, Gageler and Keane JJ at [44]

¹¹ French CJ, Kiefel, Bell, Gageler and Keane JJ at [28].

¹² Per Nettle J at [67] citing R v Associated Northern Collieries (1910) 11 CLR 738 at 744-745 per Isaacs J; Clarkson v Director of Public Proseuctions [1990] VR 745 at 759 per Murphy J; and Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 142 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

¹³ (1993) 178 CLR 477 where the High Court held that "a corporation charged with an offence may not resist a lawful command to produce documents to a prosecuting authority...even though the corporation has been charged with criminal offences"; cited by French CJ, Kiefel, Bell, Gageler and Keane JJ in CFMEU v Boral at [3].

¹⁴ (2002) 213 CLR 543 cited by Nettle J at [51]. Nettle J also referred to the Full Court of the Federal Court of Australia's earlier decision in Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) FCR 96.

¹⁵ Referred to by French CJ, Kiefel, Bell, Gageler and Keane JJ at [20] and [25].

¹⁶ The CFMEU's arguments in this regard are fleshed out in further detail by Nettle J at [52] and [58]

¹⁷ (2014) 88 ALJR 656 at 662

¹⁸ French CJ, Kiefel, Bell, Gageler and Keane JJ at [35]. The High Court in Lee v The Queen referred to the 'companion principle' as follows: there was a fundamental principle of the common law to the effect that "the prosecution is to prove the guilt of an accused person." The "companion rule to the fundamental principle is that an accused person cannot be required to testify [and][t]he prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof;" (2014) 88 ALJR 656 at 662

¹⁹ [2015] HCA 21 at [37]

²⁰ To the effect that the privilege against self-incrimination is not available to a corporation in a prosecution for a criminal offence because it would have a "disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence"; (1993) 178 CLR 477 at 504; cited by Nettle J at [70]

²¹ French CJ, Kiefel, Bell, Gageler and Keane JJ at [31]

²² See for example the comments of French CJ, Kiefel, Bell, Gageler and Keane JJ at [44]

²³ French CJ, Kiefel, Bell, Gageler and Keane JJ at [38]

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