Pyneboard Pty Ltd v Trade Practices Commission

[1983] HCA 9
(1983) 152 CLR 328

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(Judgment by: Murphy J)

Pyneboard Pty Ltd
vTrade Practices Commission

Court:

Judges: Mason ACJ

Murphy JWilson J
Brennan J
Dawson J

Legislative References:
Trade Practices Act 1974 (Cth) - s 155
Transport Act 1930 (NSW) - s 262(6)
Purchase Tax Act 1963 (UK) - s 24(6)
Motor Car Act 1958 (Vict) - s 80F
Australian Industries Preservation Act 1906 (Cth) - s 155(7); s 15B(4)
Trade Practices Act 1974 - s 155
Finance Act 1946 (UK) - The Act
Transport Act 1930 (NSW) - The Act

Case References:
Baltimore & Ohio Railroad Co v. Interstate Commerce Commission - [1911] USSC 105; (1911) 221 US 612
Blunt v. Park Lane Hotel Ltd - (1942) 2 KB 253
Bradley v. Field - (1913) 13 SR (NSW) 451
Brambles Holdings Ltd v. Trade Practices Commission (No 2) - [1980] FCA 120; (1980) 44 FLR 182; 32 ALR 328
Campbell Painting Corp v. Reid - [1968] USSC 135; (1968) 392 US 286
Cleave v. Jones - [1852] EngR 231; (1852) 7 Exch 421
Cleland v. The Queen - [1982] HCA 67; (1982) 151 CLR 1
Commissioners of Customs and Excise v. Harz - (1967) 1 AC 760
Earl of Mexborough v. Whitwood Urban District Council - (1897) 2 QB 111
George Campbell Painting Corp v. Reid - [1968] USSC 135; (1968) 392 US 286
Hale v. Henkel - [1906] USSC 54; (1906) 201 US 43
Hammond v. The Commonwealth - [1982] HCA 42; (1983) 152 CLR 188
Heimann v. Commonwealth - [1935] HCA 73; (1935) 54 CLR 126
Kempley v. The King - (1944) ALR 249
King v. McLellan - [1974] VicRp 92; (1974) VR 773
Lamb v. Munster - (1882) 10 QBD 110
Martin v. Treacher - (1886) 16 QBD 507
McDermott v. The King - (1948) 76 CLR 501
Melbourne Home of Ford Pty Ltd v. Trade Practices Commission and Bannerman (No 1) - [1979] FCA 15; [1979] FCA 15; (1979) 36 FLR 450
Melbourne Steamship Co Ltd v. Moorehead - [1912] HCA 69; (1912) 15 CLR 333
Mexborough v. Whitwood Urban District Council - (1897) 2 QBD 111
Mitcham v. O'Toole - [1977] HCA 41; (1977) 137 CLR 150
Mortimer v. Brown - [1970] HCA 4; (1970) 122 CLR 493
Naismith v. McGovern - [1953] HCA 59; (1953) 90 CLR 336
National Association of Operative Plasteres v. Smithies - (1906) AC 434
Parry-Jones v. Law Society - (1969) 1 Ch 1
Pye v. Butterfield - (1864) 5 B & S 829; [1864] EngR 803; 122 ER 1038
R v. Associated Northern Collieries - [1910] HCA 61; (1910) 11 CLR 738
R v. Kempley - (1944) 44 SR (NSW) 416
R v. Owen - [1951] VicLawRp 57; (1951) VLR 393
Reg v. Carr - (1972) 1 NSWLR 608
R v. The Associated Northern Collieries - [1910] HCA 61; (1910) 11 CLR 738
Re Craig - (1944) 44 SR (NSW) 360
Refrigerated Express Lines (Alasia) Pty Ltd v. Australian Meat and Live-stock Corp - (1979) 42 FLR 204
Reg v. Bank of Montreal - (1962) 36 DLR (2d) 45
Klein v. Bell - (1955) 2 DLR 513
Reg v. Coote - (1873) LR 4 PC 599
Reg v. Newel - (1707) Park 269; 145 ER 777
Reg v. Sloggett - [1856] EngR 44; (1856) Dears CC656; 169 ER 885
Reg v. Scott - [1856] EngR 19; (1856) Dears & BCC 47; 169 ER 909
Reg v. Travers - (1958) SR (NSW) 85
Rio Tinto Zinc Corp v. Westinghouse Electric Corp - (1978) AC 547
Scott v. Dunstone - [1963] VicRp 77; (1963) VR 579
Smith v. Read - (1736) 1 Atk 526; [1736] EngR 59; 26 ER 332
Sorby v. The Commonwealth - [1983] HCA 10; (1983) 152 CLR 281
Triplex Safety Glass Co Ltd v. Lancegaye Safety Glass - (1939) 2 KB 395
United States v. White - [1944] USSC 109; (1944) 322 US 694
Webster v. Solloway, Mills & Co - (1931) 1 DLR 831
Wilson v. United States - [1911] USSC 98; (1911) 221 US 361

Hearing date: 1982, October 20, 21
Judgment date: 18 March 1983

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Judgment by:
Murphy J

1. The Trade Practices Act 1974 s. 155 obliges a person to comply with a notice (served on the person pursuant to the Act) to furnish information, supply documents or to appear and give evidence and produce documents to the extent that the person is capable of complying with it. A person is not excused from compliance on the ground that the information, documents or evidence may tend to incriminate him or her. However the information, documents or evidence furnished are not admissible in evidence against that person, if the person is not a body corporate, other than in proceedings under s. 155; or if a body corporate, other than in criminal proceedings under the Act. (at p345)

2. The appellants claim that the obligation to comply with a notice is qualified by a privilege against self-exposure to penalties derived from the common law (including equitable) privilege or privileges against self-exposure to penalty, forfeiture or ecclesiastical censure. (at p345)

3. Privilege against self-exposure to ecclesiastical censure. Any rationale for this privilege in England, where there is an established Church, does not apply to Australian circumstances. In Australia ecclesiastical censure is irrelevant to judicial procedures as well as to non-judicial procedures for obtaining information for public purposes. The privilege should not be recognized as any part of the common law in Australia. (at p345)

4. Privilege against self-exposure to forfeiture. In England, this probably arose out of the special regard for land rights originally secured by feudal tenures and later by entailing and other devices. The privilege against forfeiture seems to have been confined to forfeitures of realty, particularly leases. The recognition of such a privilege in modern Australia is, in my opinion, not justified. (at p345)

5. Privilege against self-exposure to penalties. The origin of this privilege seems to have been judicial hostility to common informers' suits for penalties; the courts would not assist any informer in any way by their procedures (see Earl of Mexborough v. Whitwood Urban District Council (1897) 2 QBD 111, at pp 114-115 ). Any general privilege against self-exposure to civil actions for penalties, especially a privilege available outside judicial proceedings, is difficult to justify. (at p346)

6. It is an absurd state of the law if a witness, in a civil or criminal trial, can lawfully refuse to answer because the answer may tend to expose him or her to some ecclesiastical censure, or to forfeiture of a lease, or to a civil action for penalties, but may not refuse if the exposure is to some other civil loss, such as an action for damages, even punitive damages. In so far as such absurdity has been introduced or maintained by judicial decision (see R. v. The Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, at p 742 ; Blunt v. Park Lane Hotel Ltd. (1942) 2 KB253, at p 257 ) it can and should be erased by judicial decision. Whatever their standing in judicial proceedings, I see no reason for recognizing such privileges outside judicial proceedings. (at p346)

7. Privilege against self-incrimination. The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society's acceptance of the inviolability of the human personality. In the widest sense it prohibits compulsory admission of criminality, that is, infamy, even where there is no prospect of punishment, because, for example, of a pardon, of the expiration of the time limited for prosecution. In a narrow sense, it is privilege against exposure to jeopardy of criminal prosecution, and is available only where there is a real danger of prosecution and conviction. The privilege developed in England out of concern for lack of due process in Star Chamber and criminal proceedings. It was introduced into the constitutions of several of the American States following the 1788 Revolution, and entrenched in the federal Bill of Rights. (See The Constitution of the United States of America - Annotated, 1106-1107.) It is referred to in the International Covenant on Civil and Political Rights, Art. 14(3)(g). (at p346)

8. The privilege is personal, so that one required to produce documents cannot resist production on the ground that this would tend to incriminate another. The history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities (see United States v. White [1944] USSC 109; (1944) 322 US 694, at p 701 (88 Law Ed 1542, at p 1547) ; Baltimore & Ohio Railroad Co. v. Interstate Commerce Commission [1911] USSC 105; ; (1911) 221 US 612, at p 622 (55 Law Ed 878, at p 884) ; Hale v. Henkel [1906] USSC 54; (1906) 201 US 43, at pp 69-70, 74-75 (50 Law Ed 652, at pp 663, 665) ; George Campbell Painting Corp. v. Reid [1968] USSC 135; (1968) 392 US 286 (20 Law Ed (2d) 1094) ). An official of a corporation or organization cannot claim the privilege on behalf of that corporation or organization (United States v. White (1944) 322 US, at pp 699-700 (88 Law Ed, at pp 1546-1547) ; Wilson v. United States [1911] USSC 98; [1911] USSC 98; (1911) 221 US 361, at pp 384-385 (5 Law Ed 771, at p 781) ). However, a different view has been taken in England (see Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. (1939) 2 KB 395 ; Rio Tinto Zinc Corp. v. Westinghouse Electric Corp. (1978) AC 547 ), which I do not find persuasive. (at p347)

9. It is undoubted that the privilege exists in judicial proceedings unless excluded by unmistakable language. No one can be compelled by a court to answer questions where the privilege is invoked Stephen, A History of the Criminal Law of England, vol. 1 (1883), Ch. XI, pp. 358-359; 365 et seq.; Lilburn's Case (1694) 4 St Tr 1269 ; Hammond v. The Commonwealth Ante, p. 188. . No one can be compelled to answer questions at the investigatory stage of the proceedings (McDermott v. The King (1948) 76 CLR 501 ; Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1 ). (at p347)

10. Apart from judicial proceedings, the question whether the privilege is available if a statutory power to require information is silent on its existence, has been the subject of judicial differences (Kempley v. The King (1944) ALR 249 ). In my opinion the privilege is available generally as part of the common law of the various States. It should also be recognized as federal common law which attaches to federal statutory powers of obtaining information whether in judicial proceedings or otherwise. It is available unless excluded by unmistakable language. (at p347)

11. Although s. 155 expressly excludes any privilege against self-incrimination, it does not recognize any privilege from exposure to ecclesiastical censure, forfeitures or civil penalties. In the light of its sub-s. (5) which provides that a person shall not refuse to fail or comply with a notice to the extent that a person is capable of complying with it, it would be wrong to adopt a federal common law rule which conferred a privilege against self-exposure to civil penalties. It would be absurd to read s. 155 as expressly denying privilege against self-incrimination but impliedly allowing privilege against self-exposure to civil penalties. (at p348)

12. It follows that the appeals should be dismissed. (at p348)