Let’s just say that you and your neighbour really don’t get along. No-one can remember how the dispute started, but you’ve both done things you (sort of) regret. Towards the end, your neighbour even convinced a court to order you to not block her driveway. The sniping only ended when she moved away.

But that was when the real battle began. Your neighbour is back in court asking a judge to punish you for flouting its order. She has photos of a green Corolla parked across her driveway a few evenings before she moved. It’s not your car, but she’s pretty sure you must have put someone up to it and she wants you to be taught a lesson in civility. To prove her case, she asks the court to order you to provide your phone contacts, so she can check whether anyone you know owned or had access to a green Corolla.

Let’s just say that you’d really rather not hand over those contacts. Can a court make you help your neighbour prove that you should be punished for contempt? The High Court looked at this question in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21. Its unanimous answer: it depends on who you and your neighbour are.

‘we’ve lost our keys’

In the High Court case, ‘you’ are the CFMEU, a trade union with over 120,000 members, especially builders, and a flashpoint in Australian workplace relations. Your ‘neighbour’ is Boral, a multinational founded in Australia with over $5 billion in annual revenue, specialising in construction materials.The ‘court order’ was rulings made by Hollingworth J in early 2013 barring the CFMEU from stopping Boral from supplying goods or services to any construction site in Victoria.

Your neighbour’s ‘driveway’ is a riverside site in Footscray used during 2013 to build the CBD segment of Victoria’s Regional Rail Link, where Boral was to supply 130 litres of concrete for a deflection wall. The ‘green Corolla’ is several cars, plus a group of 15 to 20 people, that blocked Joseph Rd on a Thursday over two years ago, preventing most of Boral’s delivery that day.

Who was behind the blockade? According to Dennis Summerfield, the site superintendent, one of the men was Joe Myles, who had previously approached him requesting a CFMEU delegate at the Footscray site. Although Myles initially quipped that ‘we’ve lost our keys and are waiting for the RACV’, he later told Summerfield ‘I haven’t got a delegate on site to protect our members so I’m blocking the road’. Two police officers, directed to Myles as the ‘main man’ in charge, were told ‘I am just doing what I am told and following directions’. The officers asked Myles to let worshippers attend the nearby Heavenly Queen Temple, prompting him to call someone on his mobile and then wave the worshippers through. Two or so hours after they arrived, Myles’s men shook hands and posed for a photo in front of a CFMEU banner before leaving with their vehicles.

‘organiser and field officer’

This non-mysterious blockade was obviously in support of the CFMEU. Indeed, Myles allegedly warned Summerfield ‘You won’t pour again until you put a delegate on and Ralph Edwards is happy’. But, to succeed in proving a breach of Hollingworth J’s order, Boral had to prove that the CFMEU’s ‘directing mind and will’ – a quaint common law term for its management team (e.g. its Victorian branch president Ralph Edwards) – was involved in the blockage. If the blockaders acted independently of the CFMEU, then the union was off the hook.

So, five months after issuing its summons alleging that the CFMEU committed contempt of court at Footscray, Boral asked the Supreme Court to order the union to provide copies of the business cards of Myles and six union executives. Boral told the court it would use these details to subpoena various phone companies for call records to determine who Myles phoned about the worshippers. Boral also sought Myles’s employment contract to determine his precise role within the CFMEU (whose website vaguely describes him as an ‘organiser and field officer’).

The legal process Boral relied upon was ‘discovery’, which is how parties involved in negligence actions or contract disputes can force each other to share relevant documents ahead of a trial. Had Boral been suing the CFMEU in a civil action (e.g. for concrete ‘wasted’ during the blockade), then both sides would almost certainly have been obliged to provide relevant phone lists, contracts, invoices, internal emails and the like to the other side. Victoria’s new Civil Procedure Act imposes a mandatory ‘overarching purpose’ on everyone involved in a civil dispute ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues’, including more specific obligations such as to strive to reach a speedy settlement, minimise costs and disclose relevant documents to each other in a timely way. By contrast, if Boral had been prosecuting the CFMEU for a criminal charge (e.g. the crime of besetting premises), then the CFMEU (like any criminal defendant) could keep nearly all of its evidence to itself (apart from expert reports and the like), while Boral would be required to provide all relevant material in its possession to the union (pursuant to the requirement of prosecutorial disclosure).

But the actual action Boral took against the CFMEU – contempt of court – falls awkwardly across the civil and criminal divide. Contempt of court can be a purely civil matter (e.g. when one party wants to make the other obey a court order right now), but it can also be a criminal one (e.g. when one party mainly wants the other to be punished for disobedience, as Boral openly admitted was its goal in this case). The High Court has long recognised that contempt is ‘essentially criminal in nature’ and required that it be proved beyond reasonable doubt, while Victoria’s parliament has exempted ‘quasi-criminal’ proceedings like contempt from its Civil Procedure Act. However, Victoria’s courts, keen to continue their practice of speedily punishing people for contempt without the niceties of jury trials and the like, have long treated these matters as otherwise governed by the flexible laws of civil procedure.

In particular, Victoria’s court rules – which its judges make themselves – blandly provide for contempt trials alongside such civil process minutiae as costs proceedings, seizure warrants, attachment of debts and sequestration. The CFMEU, pointing out that no Victorian court had ever ordered discovery against a contempt defendant before, argued that civil-style processes nevertheless couldn’t apply to criminal-style contempt, but every judge who heard the case, including the High Court, rejected that argument out of hand. The rules the judges wrote, the judges said, should be given their ‘literal operation’, which was ‘sufficiently clear to authorise the order for discovery’ the judges upheld.

‘a monstrous thing’

Two hundred years ago, an English parish seeking to fine the owner of a suspected gambling den asked a court to order him to hand over his account books. The Court of Exchequer was shocked. Sir William Garrow, said to have coined the phrase ‘presumed innocent until proven guilty’, observed that the order may unmask gamblers ‘with honourable titles’ and deemed it ‘a monstrous thing if we were obliged to give an informer the advantages of such discovery in aid of an action for such penalties’.

The High Court’s recent ruling doesn’t introduce this ‘monstrous’ procedure for most Australians.  For example, if a court told Joe Myles to reveal who he rang on his mobile, he could simply refuse on the ground that the answer might expose him to a criminal charge (e.g. of conspiracy to breach the road rules) or a civil penalty (e.g. for coercing others to engage in industrial activity). (As it happens, both Myles and the CFMEU are presently facing just such a penalty proceeding over the Footscray incident.) The reason why Myles can ignore a court order without being charged with contempt himself is because Australian courts read all Australian statutes as implicitly preserving all traditional common law rights unless the statutes say otherwise. Those rights include the common law’s (relatively modern) privileges against self-incrimination and self-exposure to penalties, which Victoria’s judges opted to leave untouched when they wrote the state’s civil process rules.

However, the CFMEU has fewer rights than Myles. In 1993, the High Court narrowly ruled that only humans – and, specifically, not corporations (in that case, Caltex) – can claim the privilege against self-incrimination. Thirteen years later, Victoria’s parliament, when it enacted a landmark statutory human rights Charter, broke ranks with similar overseas provisions by limiting its protection to human beings. Both the High Court majority and the Charter’s founders claimed that powerful corporations might abuse such rights in order to avoid government regulation. Although invariably directed at multinationals (like Boral), these pronouncements nevertheless leave every Australian organisation – media groups, political parties, sporting clubs, advocacy groups, small businesses and unions (like the CFMEU) – lacking the same rights.

The High Court’s 1993 ruling was over a year in the making and quite complex. In a separate ruling (which didn’t affect the result in that case), a different majority of the High Court ruled that corporations still possess the privilege against self-exposure to penalties. That meant that a court couldn’t force Caltex to hand over its documents during punitive proceedings, even if an environment protection officer empowered by a statute could. However, a year later, a majority of the Federal Court (including Gummow J, just ahead of his appointment to the High Court), rejected this seriously considered dicta uttered by a majority of the High Court. Eight years later, a new majority of the High Court (including Gummow J) endorsed the Federal Court majority’s ruling in passing in a case upholding a corporate claim for legal professional privilege. And that is how every Australian organisation (big and small) became subject to the  thing Sir William Garrow decried as ‘monstrous’ two centuries ago.

‘the spectre of oppression’

The majority of the High Court in CFMEU v Boral didn’t address the correctness of any of these earlier rulings, although Nettle J was willing to simply declare that ‘the extent of corporate crime and misfeasance in contemporary society is such that the considerations’ behind the earlier decisions ‘are at least as compelling today as they were’ in 1993 or 2002. Anyway, this particular ship has long sailed. Most Australian parliaments have now enacted their own bars on corporations using rights against self-incrimination or self-exposure to penalties, as part of the uniform evidence law.

But more recent High Court judgments had given some hope to the CFMEU and others in its position. As discussed by Anna Dziedzic (here, here and here), the Court has ruled lately ruled that crime commissioners with statutory licence to compel people to reveal incriminatory information need separate statutory permission to use those powers on people facing criminal charges or to pass  their answers over to their future prosecutors. Last year, the Court explained that this ‘companion principle’ applies even when the common law rule against self-incrimination has been overturned by statute:

Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person…  The principle is so fundamental that ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

The CFMEU’s argument in the High Court was that the companion principle also protects defendants facing contempt actions, corporate or otherwise, from compelled incrimination via discovery.

The High Court, after re-affirming that ‘the companion principle’ is ‘not to be whittled down’, proceeded to do just that. Its main argument is that the principle is limited to ‘criminal trials’ and ‘no criminal trial is in prospect here’ – contempt, while ‘criminal in nature’ and imposing criminal penalties, is nevertheless classified as a civil matter by Victoria’s judges. The Court then provided two particular reasons why there was no reason to fret about the CFMEU being made to comply with Boral’s demands. First, Boral’s request was for mere documents, rather than testimony from anyone’s mouth, so traditional concerns about ‘oppressive conduct’ and ‘dubious reliability’ don’t arise. And, second, ‘contempt proceedings are initiated, not by the executive government, but by private parties to an indisputably civil proceeding … [T]he spectre of oppression by the executive government in requiring the accused to assist in the prosecution of a criminal charge against the accused, especially one launched without adequate investigation by the agents of the state, does not arise’. Were things otherwise, the Court allowed, ‘the more fundamental concern for the liberty of the subject would be a powerful consideration in the exercise of the discretion whether or not to make the order for discovery’.

Both of the Court’s reasons are startling. Surely everyone would be baffled to learn that there is a fundamental difference between a court asking someone for a phone number and asking someone for a document containing a phone number – who remembers anyone’s phone number these days? And the CFMEU would be bemused to hear that it was merely facing a private civil action, free from ‘the spectre of oppression by the executive government’. Even if one ignores the obvious politics surrounding this contempt action (and the myriad other state agencies pursuing actions or inquiries against the CFMEU’s practices), the High Court surely couldn’t put aside the fact that Victoria’s Attorney-General, Robert Clark actually joined Boral’s contempt action as a party (over the CFMEU’s bitter opposition), a step unprecedented prior to 2013.

The Attorney-General told the judge who permitted him to join Boral’s action that his goal was to fight ‘a perception that’ court orders ‘may be disobeyed in industrial contexts, or that those who disobey them can escape sanction as part of a wider settlement of underlying industrial disputes.’ Becoming a party removed the need for him to commence his own similar action, allowed him to supplement Boral’s evidence with his own and meant that he could ensure that CFMEU was still pursued for contempt if Boral folded. The High Court’s ruling preserves all these benefits for Victoria’s first law officer, while permitting Boral to use processes that would be barred as ‘oppressive’ if requested by the state. Alas, one explanation of the Court’s ruling was that the judges were simply unaware of the Attorney-General’s actual role in the matter before them. The Court wrongly stated (at [9]) that Clark was ‘granted leave to intervene in this proceeding’, a quite different – and much more benign – role than the one Victoria’s courts allowed to Clark.

‘nobody wants a war’

Can your neighbour force you to hand over those telephone numbers? The High Court unanimously says no, unless:

• your neighbour asks for people’s business cards, your phone book, your rolodex, your phone, or your cloud password. That is, she doesn’t ask you to recite your phone list from memory; and
• you’re a multinational corporation, or a small business, or a trade union, or a club, or a political party, or some other presumptively powerful person whose ‘liberty’ is no concern of the courts. That is, you’re not a regular Joe; and
• your neighbour’s a regular Joe, or a regular multinational corporation like Boral, or some other ‘private’ person who the courts presume couldn’t oppress you. That is, your neighbour isn’t a government.

But if your neighbour asks for something in writing, you’re not human and she’s not the government – even if the government soon joins her in throwing the book at you – then you may be out of luck, just like the CFMEU.

The morning after the blockade, Joe Myles is said to have returned to Josephs Road and asked ‘Do you want a war or a delegate?’ ‘Nobody wants a war’ deadpanned Dennis Summerfield. The court documents don’t reveal whether the joint venture got a CFMEU delegate, a war or neither. The Regional Rail Link recently commenced operation. Since May 2013, both federal and state governments have changed hands, and it may well be a former High Court judge (Dyson Heydon, head of the Trade Union Royal Commission) that will decide whether and how the CFMEU is punished for its alleged shenanigans at Footscray and elsewhere. But, in addition to serving the CFMEU its second defeat in a year in the national court, the High Court also created a far-reaching precedent for all contempt of court proceedings.

AGLC3 Citation: Jeremy Gans, ’Prove Your Own Contempt: CFMEU v Boral‘ on Opinions on High (20 July 2015) <https://blogs.unimelb.edu.au/opinionsonhigh/2015/07/20/gans-boral/>.

Jeremy Gans is Professor of Law at Melbourne Law School