FEDERAL COURT OF AUSTRALIA

Hepburn v Teplitzky [2010] FCA 801

THE COURT ORDERS THAT:

1.         The applicants’ notice of motion dated 27 November 2009 is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

1                          The applicants have commenced in this Court an application for contempt of court against the respondent.  In that proceeding, the applicants have alleged that the respondent did not fully comply with a subpoena issued to him during the course of another proceeding in this Court brought by a company, Hydrocool Pty Ltd, with which the applicants and the respondent were all associated.  Among other things, it is alleged in the contempt proceeding, that the respondent made false statements in a letter to the Court of 6 May 2008, written in response to the subpoena, to the effect that he had purged all Hydrocool documents from his computer, with the consequence that he no longer had any company documents in his possession.

2                          On 27 November 2009, the applicants filed a notice of motion seeking an order that the respondent produce for inspection by an expert nominated by the applicants, the computer hard drive or hard drives from which the respondent purged the files described by him in the letter of 6 May 2008.  The relief sought by the applicants in this motion, is said to be in aid of their application against the respondent for contempt of court.

3                          Counsel for the applicants said that the relief sought was based on O 17 of the Federal Court Rules.  This rule permits the Court to require a party to produce an item for inspection.  Further, the applicants contended in their written submissions that the respondent had waived his privilege against self‑incrimination.

4                          The applicants’ application is for contempt in a penal proceeding.

5                          In the case of Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 (Rich), the High Court recently confirmed that it is inappropriate to order that a party to penal proceedings make discovery.  In that case, the respondent brought proceedings seeking orders that each of the appellants be disqualified from acting as a director.  The appellants were ordered to give discovery of documents on affidavit.

6                          At 147-148, at [39] in Rich, the majority comprising Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, observed as follows:

The primary judge ordered that the appellants make discovery of documents by verified list.  That order would permit the appellants to object to production of any document on a ground of privilege.  At first sight, that might suggest that the appellants’ challenge to the order for provision of a verified list of documents is premature.  That is, it might suggest that any question of privilege is one about privilege from production rather than privilege from making discovery.  That is not so.  As Isaacs J pointed out in R v Associated Northern Collieries, once it is determined that the proceedings expose a person to penalty, the proper course is to refuse any order for discovery.  As Isaacs J said, to leave the party at risk of penalty to object to production of documents, having first listed them, may lead to the very mischief which the privilege is designed to prevent.  In the words of Lord Coleridge CJ in Jones v Jones, to which Isaacs J referred:

The whole case for the plaintiff may depend upon his power to trace a particular document into the possession of the defendant, and, upon its non-production, to prove its contents by secondary evidence.

That being so, the proper course in this matter was to refuse the application for discovery.  (Footnotes omitted.)

7                          Those observations are germane to this application.  The Rich case was concerned with a discovery affidavit, but the principle applies equally to an order for production, it being an aspect of discovery.  Further, the question of whether the privilege of self‑incrimination was waived does not arise, because, as appears from the observations in Rich, the rationale for not ordering discovery is that the party to the penal proceeding is not to be put in the position of having to object to the production.

8                          Accordingly, I refuse the motion which is brought by the applicants for the production of the computer hard drive or hard drives.

Associate:

Dated:         29 July 2010