CFMEU v Boral Resources (Vic) Pty Ltd [2015] HCA 21: Contempt and Discovery
Wednesday 17 June 2015 @ 11.55 a.m. | Crime | Industrial Law
In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2015] HCA 21 (17 June 2015), the High Court of Australia has, in a unanimous decision, dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria (see 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)). The High Court has held that the CFMEU (the appellant) was open to an order under Rule 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the Rules) to make discovery of particular documents in the proceedings brought to punish it for contempt of court.
Background
The trial matters go back to 5 April 2013 where Hollingworth J, in the Supreme Court of Victoria (see Energy Australia v CFMEU [2013] VSC 105 (13 March 2013)) made orders restraining the appellant from, among other matters, preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, the supply or possible supply of goods or services by Boral (the respondents) to any building or construction site in Victoria.
Following from these proceedings on 22 August 2013, the respondents filed a summons seeking that the appellant be punished for contempt of court for allegedly establishing and maintaining, through the actions of its official Mr Myles, a blockade of a construction site in Footscray on 16 May 2013, thereby preventing the supply of concrete to that site by the respondent. In those proceedings, the respondent needed to establish either that the appellant had authorised Mr Myles to engage in the alleged conduct, or that it failed to take appropriate steps to prevent it. As a result, the respondent sought sought discovery of documents going to the issue of Mr Myles’ authority to act as he did on 16 May 2013. The respondent’s application was dismissed by Daly AsJ on the grounds that proceedings for punishment for contempt were criminal in nature and discovery was not available or appropriate in criminal proceedings.
The respondent was successful in an appeal and on 25 March 2014, Digby J ordered specific discovery as sought by the respondent. Digby J holding that while Daly AsJ had been correct in characterising the proceeding as a criminal contempt, her Honour had not been correct in characterising them as criminal proceedings, to which the rules of civil procedure did not apply. (see Boral Resources (Vic) Pty Ltd & Ors v CFMEU & Anor [2014] VSC 120 (25 March 2014) and Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134 (31 March 2014)) .
In the Victorian Court of Appeal ([2014] VSCA 261 (24 October 2014) decision of Ashley, Redlich and Weinberg JJA), the appellant argued that an alleged contemnor was not obliged to give discovery in proceedings brought against them (see X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v The Queen (2014) 308 ALR 252). However, while the Victorian Court of Appeal noted the law regarding civil contempt was unsettled and uncertain and that each side was able to call in aid a significant body of authority in support of its contention, none of the authorities was directly on point. It therefore found that the problem with the appellant’s submissions was that a contempt proceeding cannot simply be characterised, for all purposes, as a criminal proceeding. The Court found no error in the conclusion of Digby J’s that Daly AsJ was wrong to refuse specific discovery simply on the basis that the matter was a criminal proceeding and therefore the Supreme Court Rules had no application.
The High Court
The appellant sought leave to appeal on the grounds (among others) that the Victorian Court of Appeal was in error in deciding that discovery may be ordered under Order 29 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in contempt proceedings (which are criminal in nature) brought against a corporation under Order 75 of those Rules.
In the High Court, the appellant contended that it could not be ordered to make discovery under Rule 29.07(2) because to do so would conflict with the principle that a defendant to an accusatorial proceeding cannot be required to assist the prosecution to prove its case (that is, the concept of protection against self-incrimination). The Court accepted that this principle applies to criminal proceedings but held that the contempt proceeding was a civil proceeding. Rule 29.07(2) applied to the contempt proceeding according to its tenor enabling an order for discovery to be made.
The main judgment of French CJ, Kiefel J, Bell J, Gageler J, Keane J makes the following points regarding why the proceedings could not be viewed as criminal and why discovery was open:
[40] 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. . .
[46] 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.
[47] 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.
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Sources:
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2015] HCA 21 (17 June 2015)
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)
Energy Australia v CFMEU [2013] VSC 105 (13 March 2013)
Boral Resources (Vic) Pty Ltd & Ors v CFMEU & Anor [2014] VSC 120 (25 March 2014) and Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134 (31 March 2014)
