Category Archives: s. 187

Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580 (12 November 2014)

ADMINISTRATIVE LAW – declaratory relief – proper construction of the Work Health and Safety Act 2011 (NSW) – order sought restraining inspectors appointed under the Mine Health and Safety Act 2004 (NSW) and/or Work Health and Safety (Mines) Act 2013 (NSW) from obtaining information by exercise of powers granted under s 171 of the Work Health and Safety Act – competing constructions of the Work Health and Safety Act – how s 155 and s 171 of the Work Health and Safety Act must be constructed – relevant rules of statutory construction – relief sought not granted – summons dismissed

Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2014] VSCA 261 (24 October 2014)

CONTEMPT OF COURT – Industrial dispute – Preventing access to building sites – Restraining orders made – Alleged breaches of restraining orders – Proceeding alleging contempt of court initiated under Supreme Court (General Civil Procedure) Rules 2005 (r 75.06(2)) – Whether civil or criminal proceeding in circumstances of case.

CONTEMPT OF COURT – Finding made of breaches of restraining orders – Finding of criminal contempt – Criminal convictions recorded and fines imposed – Whether finding of criminal contempt available when charges did not plead contumacious conduct – Whether contumacy an element of criminal contempt or an aggravating circumstance – Nature of contempt – Effect of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen (2014) 88 ALJR 656 – Whether contumacy must be pleaded in order that contempt for breach of Court orders be treated as criminal – Contumacy need not be pleaded – Sufficient that alleged contemnor put on notice that allegation of contumacy is made.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether trial judge erred in finding applicant had breached restraining orders – Terms of orders – Whether particulars of charges satisfied – Significance of redeployment of workers before relevant blockading conduct commenced – Not reasonably arguable that trial judge erred in findings of contempt.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether evidence to support findings of breaches to criminal standard – Not reasonably arguable that trial judge erred in so finding.

CRIMINAL LAW – Breaches of restraining orders – Finding of criminal contempt – Fine imposed – Whether fine in respect of breach disproportionate to fines imposed for other breaches – Not reasonably arguable that fine disproportionate.

Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (S APCI 2014 0040)

PRACTICE AND PROCEDURE – Discovery – Whether procedure under r 29.07 available against alleged contemnor in contempt proceedings brought under Supreme Court General Civil Procedure) Rules 2005 (r 75.06)(2)) – Proceeding alleging breaches of court orders – Nature of contempt alleged – Relevant evidentiary/procedural regime – Corporate defendant – Whether discovery unavailable by reason of contempt proceeding ‘criminal’ and ‘accusatorial’ – Leave to appeal against order for discovery refused.

Boral Resources (Vic) Pty Ltd & Ors v CFMEU & Anor [2014] VSC 120 (25 March 2014)

DISCOVERY – Applicability of Chapter I of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and r 29.07 – Proceeding under r 75.06 – Civil contempt – Whether discovery available in proceeding of a criminal and/or quasi-criminal nature to penalise for contempt of Court – Significance of alleged contemnor being a corporation rather than an individual – Privilege against self-incrimination – s 187 Evidence Act 2008 (Vic).

HRF Nominees Pty Ltd (In Liq) & Ors v Man Civil Constructions Pty Ltd & Ors [2014] VSC 93 (14 March 2014)

PRACTICE AND PROCEDURE — Application that an affidavit and exhibits be taken off the court file — Supreme Court (General Civil Procedure) Rules 2005, r 1.14(2) and r 27.07(b) — Affidavit and exhibits tending to incriminate third defendant or expose him to a civil penalty — Whether affidavit and exhibits filed by plaintiffs which reveal documents that may tend to incriminate a defendant or expose him to a penalty is scandalous.

PRACTICE AND PROCEDURE — Discovery — Privilege against self-incrimination or self-exposure to a penalty —Proceeding against director of first plaintiff for breach of fiduciary duties and directors duties under ss 180, 181 and 182 of the Corporations Act 2001 (Cth) —First plaintiff’s business ‘phoenixed’ into the first defendant — facts pleaded may also constitute offences —Documents obtained from former employee or consultant to first plaintiff — plaintiffs seek discovery and inspection by individual who is first plaintiff’s only director and secretary — Some documents already in possession of first plaintiff — whether individual excused from giving discovery or inspection on ground that giving discovery or inspection would involve individual incriminating himself —No additional jeopardy by reason of an order for inspection of documents already in possession of plaintiffs – Other discovered documents not in possession of plaintiffs are subject to the privileges.

Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034 (11 October 2013)

INDUSTRIAL LAW – contraventions of ss 340 and 343 of Fair Work Act 2009 (Cth) – adverse action – coercion – civil pecuniary penalties – whether a pecuniary penalty may be imposed on a respondent where the applicant does not press its claim for a penalty – whether the Crown is amenable to the imposition of a pecuniary penalty for a breach of a civil remedy provision – discussion of presumption in Cain v Doyle that absent a clear indication to the contrary, Parliament did not intend that a sanction of a criminal nature should be imposed on the Crown by an enactment – whether presumption in Cain v Doyle has application to an enactment providing for civil pecuniary penalties – purposes underlying the imposition of pecuniary penalties under the Fair Work Act –considerations relevant to the imposition of a pecuniary penalty under the Fair Work Act – whether the State of Victoria is a “body corporate” within the meaning of s 546(2) of the Fair Work Act – whether it is necessary to impose a penalty on the Crown – extent of penalty to be imposed – whether and the extent to which a prior or contemporaneous contravention not recorded at the time that the contravening conduct at issue occurred may be taken into account – whether pecuniary penalties imposed ought be paid to the applicant – stay of orders pending appeal.

Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 (16 May 2013)

PRACTICE AND PROCEDURE – application for leave to appeal, and appeal, from interlocutory order of Federal Magistrate (now a Federal Circuit Court Judge) for discovery – whether order for discovery made upon declaration that such an order was “appropriate, in the interests of the administration of justice” pursuant to s 45 of the Federal Magistrates Act 1999 (Cth) – whether order for discovery fair in circumstances where costs of making discovery not recoverable – discussion of discovery in proceedings generally – whether application for leave to appeal, and appeal, within no-costs Fair Work Division

PRIVILEGE – application of privilege from self-incrimination in proceeding for civil penalty – whether “proper officer” available to swear affidavit of documents pursuant to discovery order

Re Australian Property Holdings Limited (in liq) (recs & mgrs apptd) (No 2) [2012] VSC 576 (4 December 2012)

CORPORATIONS – Application for a stay of civil redress proceedings – Concurrently civil penalty proceedings on foot challenging the same alleged conduct – Relevant principles to be applied – McMahon v Gould applied – Stay refused.

CORPORATIONS – Application to file limited defences on grounds of exercising privilege against exposure to penalty and self-incrimination – Discussion of principles applicable to non penalty proceedings – Ruling that defendants to civil penalty proceedings entitled to rely on privilege in limine – Balance of defendants required to deliver defence – Ruling that the balance of the defendants may seek to take privilege if the claim to privilege is bona fide and reasonably claimed – Onus on balance of defendants to establish penalty privilege bona fide and reasonably pleaded.

Alpha Energy Pty Ltd v Violi [2010] FCA 1210 (5 November 2010)

CONTEMPT OF COURT – whether contempt by applicant company, a director and employee by breach of Harman obligation – whether used respondents’ discovered documents for collateral purpose of soliciting business from respondents’ customers – whether the applicant should be compelled to produce further documents and swear affidavit in relation to contempt – discussion of nature of contempt proceedings and standard of proof – evidence insufficient to satisfy relevant standard of proof – notice of motion dismissed

Evidence Act 1995 (Cth), ss 128, 187

Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 (8 January 2002)

PRACTICE AND PROCEDURE – privilege against self-incrimination – proceeding for infringement of copyright and of registered trade mark – facts pleaded also constitute offences – Australian Federal Police seized documents in execution of search warrants in relation to suspected commission of the offences – applicants seek discovery by corporate respondent and by individual who is its only director and secretary – applicants serve notice to produce on the company and the individual calling for production of any record of the documents seized by the Australian Federal Police – whether individual and company excused from giving discovery and complying with the notice to produce on ground that giving discovery and complying with notice would involve individual incriminating himself

R v Ronen & Ors [2004] NSWCCA 67 (22 March 2004)

[2004] NSWCCA 67

Whether the proper officer of a company can claim privilege against self-incrimination where a subpoena duces tecum is served on the corporation

meaning of “proper officer”

whether the “proper office” requires the express authority of the company to answer the subpoena

whether it is oppressive on the accused or an abuse of process for a corporation to comply with a subpoena where the accused is the sole director and secretary of the corporation

whether the accused is being asked to assist in the preparation of the Crown case

whether the process of gathering documents is an exercise of executive or judicial power.

Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 (24 December 1993)

[1993] HCA 74

Evidence – Privilege – Self-incrimination – Self-exposure to penalty – Whether privilege against self-incrimination applies to corporations Statutory power to require production of documents – Whether available after commencement of proceedings – Notice to produce pursuant to rules of court served on corporation after issue of statutory notice – Whether abuse of process – Whether corporation obliged to produce – Clean Waters Act 1970 (N.S.W.), s. 29(2)(a).