Case: Refrigerated Express Lines (A/sia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204
Outcome: followed
Counsel acknowledged that the circumstances in which an in limine objection to making an affidavit of documents, in a case such as the present, might be upheld are extremely rare. He contended that the circumstances of the present case brought it within the rare exception, the existence of which was recognised by Deane J in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live Stock Corporation (1979) 42 FLR 204. In Refrigerated Express Deane J held that, in a criminal proceeding or a proceeding in which the imposition of a pecuniary penalty was sought, a Court should not order a respondent to give discovery or produce documents for inspection. In other forms of proceeding his Honour recognised that the general rule was that a party ought not to be excused, in limine , from giving discovery on the ground that production might tend to expose him to a penalty. His Honour held that there might exist "exceptional" cases in which "the only means of protecting the right against self incrimination ... [would be] to excuse a party in limine from discovery ..." (at 211) (Emphasis added). His Honour said that such cases would be "rare indeed." He said (at 211) that: "The cases where the making of an order for discovery or interrogatories will, in itself, involve exposing a party to self incrimination ... must, however, be rare indeed in view of the fact that the party will remain entitled to refuse to answer questions asked or produce documents discovered if the answers or production might tend to incriminate him or expose him to a penalty." Deane J's judgment was referred to in the joint judgment of Mason A.C.J., Wilson and Dawson JJ in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. Their Honours noted that: "There [in Refrigerated Express] his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings (50). In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action ... But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty." 17 In Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 Lindgren J reviewed a series of cases in which Deane J's decision in Refrigerated Express had been applied or followed. He summarised his conclusions as follows (at 388): "Although the course of authority since Refrigerated Express is not all one way, there has been a strong disposition in a proceeding not itself concerned with the imposition of a penalty for an offence or a civil penalty, in favour of ordering discovery, reserving the issue of self incrimination to the stage of production for inspection, and also reserving liberty to apply in relation to the degree of specificity with which a document is to be described in the individual's list of documents." 19 As already noted counsel for the respondent sought to argue that the circumstances which confronted the respondent in this case were such as to bring it within the exceptional category which Deane J referred to in Refrigerated Express. I invited counsel to articulate with precision the rare and exceptional circumstances which rendered the present case one which fell within the exception to the ordinary rule. He submitted that his client had been found, in Siminton (No 6) , to have contravened ss 7 and 66 of the Banking Act . These findings had been made on the civil standard. His client apprehended that he might, at some time in the future, be charged with having committed criminal offences by contravening those provisions. He contended that the mere acknowledgement by the respondent that he had in his possession, custody or control documents of the character referred to in the proposed order could be used in evidence against him in such a criminal proceeding.