CFMEU v Boral: Order for discovery of CFMEU officials’ details upheld.

On 17 June 2015, the High Court of Australia dismissed an appeal by the CFMEU against a decision of the Victorian Court of Appeal (which in turn upheld an earlier decision of the Victorian Supreme Court) that the CFMEU must make available to Boral documents containing certain details about Victorian CFMEU officials. FCB Workplace Law represented Boral in this matter.

The background

Boral alleged that Joseph Myles, a CFMEU organiser ordered a blockade of the Regional Rail Link construction project in Footscray, Victoria on 16 May 2013. As a result of this blockade, Boral Concrete trucks were prevented from delivering concrete to the site, in contravention of an injunction issued by the Supreme Court in April 2013 ordering the CFMEU to not prevent or interfere with Boral’s delivery of its products to construction sites in Victoria.

On 22 August 2013, Boral filed a summons in the Supreme Court that the CFMEU be punished for contempt of Court in relation to the blockade in contravention of the injunction.

On 22 October 2013, Boral sought a discovery order that the CFMEU provide Boral with specific documents relating to the issue of whether or not the blockade was authorised by the CFMEU – in particular, details of the telephone records of Mr. Myles and other members of the CFMEU Executive in Victoria.

When Boral’s discovery order was initially refused, Boral successfully appealed that decision in the Supreme Court. The CFMEU then appealed the making of the discovery order to the Victorian Court of Appeal, and when the Court of Appeal upheld the making of the discovery order, the CFMEU appealed the decision to the High Court of Australia.

The arguments

Essentially, the CFMEU argued that it could not lawfully be directed to hand over the documents and records sought by Boral under the Victorian Supreme Court’s Rules, as by doing so it would effectively be assisting Boral in establishing its claims against the CFMEU. The CFMEU asserted that the nature of contempt proceedings which are ‘quasi-criminal’ in nature meant that the usual rules of civil procedure did not apply.

The CFMEU’s argument was based on the fundamental principle in a criminal trial (known as the ‘companion principle’) that as the onus of proof is borne by the prosecution, it must prove its case without the assistance of the defendant, and a defendant cannot be compelled to do anything that would effectively result in self-incrimination.

Boral (and the Victorian Attorney-General who joined Boral’s contempt application) relied on the argument that as the contempt proceeding was a process brought in accordance with the Victorian Supreme Court’s Rules, there was no justification, either in the Rules or generally at common law, to suggest that the Rules did not permit discovery in a contempt proceeding.
In relation to the ‘companion principle’ question, Boral relied on a line of authority originating from the 1993 High Court decision of Environment Protection Authority v Caltex that a corporation (as distinct from an individual defendant) does not enjoy any privilege against self-incrimination or the privilege against self-exposure to a penalty.

The decision

In dismissing the CFMEU’s appeal, the High Court unanimously confirmed that the contempt proceeding is not a criminal proceeding, therefore the ‘companion principle’ does not apply.

The High Court also dismissed the CFMEU’s argument about the non-applicability of the Supreme Court’s Rules, agreeing with Boral that there were no grounds to limit or restrict the operation of the Rules, specifically in this instance, rules providing for discovery in a civil proceeding.

It was also noted that in any event, recent statutory developments from uniform evidence law (such as in this case s 187 of the Evidence Act 2008 (Vic)) further confirmed that a corporation cannot refuse to produce a document, or do any other act on the ground that doing so might tend to incriminate it or make it liable to a penalty.

Nettle J (in a separate judgment agreeing with the majority) also observed that there was no justification to revisit the issue of the non-availability of privilege to corporations, noting that the ‘the extent of corporate crime and misfeasance in contemporary society is such that the considerations which informed the result in Caltex are at least as compelling today as they were then.’

The outcome

This decision is important in that not only does it provide that the CFMEU cannot resist producing documents sought by Boral which are clearly relevant to the proceedings, thus facilitating the resolution of the substantive contempt proceedings, it also clarifies a previously ‘grey area’ in the law regarding the status of contempt proceedings and the applicability of Court Rules and processes to contempt proceedings.