Case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [1999] FCA 672 ; (1999) 163 ALR 465
Outcome: distinguished
Ms Baird accepted that the respondent, being a corporation, cannot invoke the privilege against self-incrimination: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477. Thus she accepted that Order 2 could not be set aside on the ground that an order requiring a respondent in criminal or civil penalty proceedings to file and serve evidence prior to the hearing could detract from the privilege against self-incrimination: cf Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [1999] FCA 672 ; (1999) 163 ALR 465 ; Australian Competition and Consumer Commission v FFE Building Services Pty Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37. 16 Ms Baird acknowledged that she had found no authority holding that it was inappropriate, in the circumstances of the present case, to direct that the respondent contemnor file in advance of the hearing any affidavits on which it intends to rely. However, she cited ACCC v Amcor , a decision of mine, in support of her contention. 17 In ACCC v Amcor , the issue was whether, in civil penalty proceedings brought by the ACCC, the Court should order the individual respondents to file and serve their statements of evidence prior to trial. I held that such orders were consistent with the rationale underlying the privilege available to the respondents to refuse to provide information that might expose them to a civil penalty. However, I relied (at 470-471 [20]-[22]) on an alternative ground, as follows: 'If, contrary to my views, the issue is one to be determined in the exercise of the Court's discretion, I would not be prepared to make the orders sought by the ACCC. In my opinion, it would be unfair, in the circumstances of the present case, to require the individual respondents to file statements of evidence in advance of the trial. As I have said, the ACCC alleges that each of the individual respondents was knowingly involved in a contravention by one of the corporate respondents. Having regard to the fact that the ACCC seeks substantial pecuniary penalties against each of them, I think that they should have the opportunity not only of examining, but testing the evidence against them, before having to decide whether or not to give evidence. For reasons I have explained, there is a real risk that, if the individual respondents file statements explaining the extent of their knowledge of their participation in relevant events, the ACCC is likely to be able to bolster the case against them. ... In my view, there is no convincing reason why the ACCC should have such a forensic advantage in a case in which, after all, it seeks to recover penalties against individual respondents for alleged contraventions of Commonwealth law. The only disadvantage to the ACCC in the course that I think should be followed, is that the cross-examiner will not have the respondents' statements of evidence in advance of the opening of their respective cases. Each individual respondent is content to provide a written statement of evidence on the opening of his case, should he decide to give evidence. If any individual respondent does give evidence, the ACCC of course will be entitled to cross-examine him and, if appropriate, to tender evidence in reply. Since the statements of evidence to be relied on by Amcor and Visy are to be filed before the hearing and since they are to provide discovery (the privilege against exposure to a penalty not applying to a corporation ...), any disadvantage to the ACCC is very likely to be minimal. Should the statements of any of the individual respondents raise important matters that could not reasonably have been anticipated by the ACCC, an appropriate application could be made and would be dealt with on its merits.' 18 Initially, I was attracted to the submission that ACCC v Amcor lends support to the respondent's contention that it ought not to be directed to put on its affidavit evidence prior to the hearing of the contempt charge. However, on reflection, it is clear that the decision in ACCC v Amcor was based on considerations that do not apply in the present case: &#8226; the issue in ACCC v Amcor concerned the position of individual respondents, not corporate respondents; &#8226; there was no dispute in ACCC v Amcor that the corporate respondents were not entitled to invoke the privilege against self-incrimination and that they should be directed to put on their affidavit evidence in advance of the hearing; &#8226; by contrast, the individual respondents were entitled to rely on the privilege against self-incrimination, including the privilege against being required to make discovery of real evidence of an incriminating character; and &#8226; a finding was made in ACCC v Amcor that the filing of statements by the individual respondents was likely to bolster the case against them. 19 In the present case, the respondent, unlike the individual respondents in ACCC v Amcor , is not entitled to invoke the privilege against self-incrimination in any of its manifestations. Like the corporate respondents in ACCC v Amcor , the respondent in the present case can be compelled to provide discovery of documents relevant to the issues in the proceedings. It is to be borne in mind that one reason for not extending the privilege to corporations is because: '[i]t has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence: EPA v Caltex , at 504, per Mason CJ and Toohey J. 20 Moreover, it has not been suggested in this case that a direction requiring the respondent to file any evidence on which it intends to rely in advance of the hearing would be likely to bolster the case against it. Nor has it been suggested by Ms Baird that any particular evidence that might be filed by the respondent is likely to put it at any disadvantage in making a no-case submission at the conclusion of the applicant's case. In ACCC v Amcor , counsel for the ACCC frankly conceded that the object of seeking orders requiring the individual respondents to file their affidavits in advance of the hearing was to make it easier for the ACCC to establish the case against them. No such concession has been sought or obtained in the present case. 21 In these circumstances, I do not think that the respondent has made out its contention that I should, on discretionary grounds, vacate Order 2 made on 27 March 2008. In my opinion, the order creates neither injustice to the respondent nor any significant risk of injustice to it. On the contrary, the order will assist in the orderly conduct of the proceedings and eliminate, or at least substantially reduce, the chances of the hearing being disrupted or delayed because of the need for the applicant to be given time to investigate or assess evidence it sees for the first time during the trial. 22 I therefore do not propose to vacate Order 2. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 5 June 2008 Counsel for the Applicant: Mr D Kell Solicitor for the Applicant: Gilbert and Tobin Counsel for the Respondent: Ms J Baird Solicitor for the Respondent: Deacons Date of Hearing: 29 May 2008 Date of Judgment: 5 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/846.html