Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd

The High Court has unanimously dismissed an appeal from the Victorian Court of Appeal against its decision to order a coercive process of ‘civil discovery’ in a contempt of court proceeding.The alleged contempt related to the CFMEU’s refusal to comply with an order barring it from blockading several building sites operated by the respondents. The Court of Appeal upheld a civil discovery order sought by the respondents to force the CFMEU to provide details about people seen at the site who were allegedly its officials. Before the High Court the CFMEU argued that the Court of Appeal erred in doing so on the basis that discovery is inconsistent with accusatorial proceedings, that recent abolition of the privilege against self-incrimination for corporations does not change that, that the Supreme Court Rules do not allow it, and that the Court of Appeal should not have disposed of the matter by referring to hypothetically available subpoenas.

Five members of the Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) held that the CFMEU’s argument failed because contempt proceedings do not involve a criminal trial ([37] and [43]), the discovery order was aimed at existing documents ([38]), and the proceedings were brought by a private party (Boral), not the executive government ([44]). The Court noted that the discovery may not have been available in a criminal trial (because of the principle against defendants assisting in their own prosecution) or if the contempt proceedings had been brought by the executive government (because the liberty interests at stake may be a discretionary factor against ordering discovery: [44].) Justice Nettle’s concurrence was made for similar reasons, but also emphasised that CFMEU was an organisation ([73]) and reaffirmed past holdings that the privileges against self-incrimination and exposure to penalty are limited to natural persons ([57].)

High Court Judgment [2015] HCA 21 17 June 2015
Result Appeal dismissed
High Court Documents CFMEU v Boral
Full Court Hearing [2015] HCATrans 75  8 April 2015
Special Leave Hearing [2015] HCATrans 23 13 February 2015
Appeal from VSCA [2014] VSCA 261 24 October 2014
Judgment, VSC
[2014] VSC 120 25 March 2014
This entry was posted in Case Pages, Decided Cases, Opinions by Martin Clark. Bookmark the permalink.

About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.