Case: Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1
Outcome: cited
In relation to that privilege against self-incrimination, the High Court, Toohey, Gaudron, McHugh, and Gummow JJ, said in Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1 at p 12: 'The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without "real exception."' And at p 14: 'There is simply no scope for an exception to the privilege, other than by statute.' 23 It was suggested by counsel on behalf of the applicant in the principal proceedings that there had been a waiver of the privilege against self-incrimination by Mr Wallader in answers that had been made by him or on his behalf concerning his assets and transactions involving those assets. In my opinion, none of that material indicates that the privilege against self-incrimination, in respect of answering the obligations imposed by par 7 of Greenwood Js orders, has been waived. 24 I note further that in Reid v Howard , their Honours said at p 14: '...notwithstanding its importance as a fundamental right, there has been criticism in the United Kingdom of the availability of the privilege against self-incrimination in civil proceedings, particularly when availed of to defeat a plaintiff's rights. Thus, in Istel Ltd v Tully [1993] AC 45 at 53, 55, Lord Templeman described the privilege exercisable in civil proceedings as "an archaic and unjustifiable survival from the past" and concluded that "[t]here is no reason why the privilege should be blatantly exploited to deprive ... plaintiffs of their civil rights and remedies if the privilege is not necessary to protect [the defendant]".' 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).'