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].)