Case: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204
Outcome: cited
Notwithstanding these observations, it seems to me clear that the privilege against self-incrimination can be invoked both in civil and in criminal proceedings, as well as in claims for a civil penalty. In Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204, Deane J made the observation at p 208: '...in a case such as the present where the proceedings are not for the recovery of a penalty, there is no general rule precluding the making of an order for discovery or interrogatories, and there will ordinarily be no proper ground for objecting to an order for production of documents or provision of information being made. The party against whom such an order is made is left to object to producing particular documents or providing particular information on the ground that such production or provision may tend to expose him to a penalty (see Mayor of County Borough of Derby v Derbyshire City Council [1891] AC at p 553.)' His Honour also observed at p 211: ' ... If circumstances arose where the only means of protecting the right against self-incrimination and self-penalization were to excuse a party in limine from discovery or interrogatories, such circumstances should, in my view, be seen as exceptional and as justifying a departure from the general rule.' 27 In Australian Competition &amp; Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132 , a Full Court of the Federal Court (Emmett, Hely and Jacobson JJ) referred to the general principles in respect of self-incrimination, at pars 12 14: '12 The privilege against self-incrimination protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature: Sorby v Commonwealth of Australia [1983] HCA 10 ; (1983) 152 CLR 281 at 310. Further, a respondent in a proceeding that is solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents that may assist in establishing his or her liability to the penalty: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. 13 The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty: &#8226; is not confined to discovery and interrogatories; &#8226; is available at common law &#8226; is distinct from the privilege against exposure to conviction for a crime (Pyneboard (at 337)) The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 192 ALR 561 at 570, at [31]. The privilege can only be abrogated by statute: Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1. As the privilege is not subject to judge-made exceptions or qualifications, it cannot be abridged or undermined in consequence of a Court accepting undertakings proffered by the applicant designed to avoid or diminish the danger that provision of the information would expose the respondent to a penalty. 14 By requiring an individual respondent, prior to the closure of an applicant&#180;s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty: Reid v Howard (at 6).'