Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd [1993] QSC 244 [1994] 2 Qd R 6

State Reporting Bureau . .Se ";'.3/Cl. Cf'(f-. TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION REVISED COPIES ISSUED State Reporting Bureau Dale/ I ?i ~ 0 AMBROSE J 0 0 0 ./ No 1504 of 1992 EXAGYM PTY LTDACN 010 378 194 and PROFESSIONAL GYMNASIUM EQUIPMENT COMPANY PTY LTD and MICHAEL QUINN and IMAGINATIVE PRODUCTS PROMOTIONS PTY LTD ACN 883 438 591 and LYNCO PROMOTIONS (A FIRM) and LYN DINES BRISBANE •• DATE 22/07/93 ORDER 1 Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant 4t1z Floor. The Law Courts, Geor~e Street, Brisbane, 0. 4000 Televhone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 18 -- 220793 .. HIS HONOUR: This is an application for further and better answers to interrogatories delivered by the plaintiff in contempt proceedings taken against the defend~mts, or some of them, for breach of an interlocutory injunction. The point is an interesting but short one and it is unnecessary for me, I think, to go into the factual matters giving rise to the action. Suffice it to say that on 18 May 1993, on the return date of the notice of motion .·, seeking relief with respect to the defendants' alleged contempt which was made pursuant ·to Order 84 rule 2, directions were given for the- further hearing· of the contempt proceedings, an order for- speedy trial was given, and, inter alia, it was ordered that the plaintiff deliver interrogatories for examination of the defendants, and that the defendants answer the interrogatories saving all just exceptions within the time specified.-· Interrogatories were del~vered and various objections were taken to answering them'and a common objection taken by various defendants to all interrogatories is as follows: "Any answer given relevant to the action or to the notice of motion filed 18 May 1993 might tend toincriminate or to render the appropriate company liable ·to charge ·or prosecution ·or .expose -that company to the risk of punishment by way of penalty, forfeiture and 10 20 30 40 sequestration." so This is-an application today upon summons for further and better answers. and· the first point, argued at some lengtb, is whether the defendants may object to answer the interrogatories delivered on the grounds that their answers 60 2 ORDER ·~. 0 () CJ 0 -- 2 of 18 -- . ' 0 0 0 220793 may tend to incriminate them. Stated shortly, it is the case for the plaintiff that at common law where a contempt of this sort is complained of, and steps are taken to have it punished, the person alleged to have committed contempt must answer questions when he is examined by the Court on the contempt issue. That is, he may not claim privilege. This contention involves consideration of the Rules of Court and the Evidence Act. The contempt under consideration is one comprised within Order 84 rule 2~- It 'is· provided that in such a case application for punishment of contempt is to be made by motion upon notice _for an order that the person concerned be committed to prison for his contempt. Order 84 rule· 3 requires that the notice commencing the proceedings ·, specify the . nature of the contempt of which. the "accused person" is alleged to be guilty. Under Order . 84 rule 5, which has no direct application in this case but which demonstrates the scheme of proceedings to be taken in Court 0 under Order 84 £:or contempt, it is provided, inter alia, that when a notice of motion for committal for contempt is filed, theri if it 'is made to appear to a Judge that the "accused person" is -: likely to abscond, · the Judge may by warrant direct that the accused person be, arrested and detained in custody until he gives such security as may be directed to answer the charge. The charge is that which is set forth in the notice of motion. 3 ORDER 10 20 30 40 50 60 -- 3 of 18 -- . 220793 I now come to the rule which is really the basis of the whole contest which has lasted for some hours. It provides: "6. On the hearing of the motion the Court may order the accused person to answer on oath within four days interrogatories to be exhibited to him touching his contempt." One of the matters t!lat has crossed my mind is whether, by its terms, the rule contemplates the Court actually having before. it the interrogatory. w.hich the accused· may be requi:~;ed .to answer. . The point was not . argued and I will ~ • l • proceed on the basis that on the hearing of the motion the Court may make an order .that interrogatories yet to be given to the .al~eged contemnor touching .the contempt must be ans~e~ed on oath. Order .. 84 rule. 7 p+ovides .. that when. the "accu~ed person" is ordf?red to answer interrogatories the hearing of the motion shall be adjourn~d for sufficient time to allow answers to be .made and filed •... Again, the wording of the rule seems to contemplate the interrogatory being·in ·existence.at the time the order is made, and four days being allowed to answer it. Order, 84 rule 8 provides, inter alia: "Upon.the hearing of the motion the Court may impose a ·fine .instead , of ordering ·the accused person to be committed to prison or impose . a fine in addition to ordering ·his committal." · It is the ·case for the plaintiff/applicant that at common law the.procedure for,contempt in.cases of this kind, which ' ~ : . would probably then have been categorised as a civil ORDER ' .• ' . 10 20 0 0 30 0 40 0 50 60 -- 4 of 18 -- 0 0 0 0 220793 · .... = .... contempt as distinct from a criminal contempt, was such as to bring before the Court involved the person alleged to be in contempt and to then examine him requiring him to make answer. If he made .answer ··truthfully, he· would be discharged. If it were thought that the answer was untruthful, apparently he would not be dealt with for contempt, but would be dealt.with for perjury. The whole matter is dealt with at some length·· in Blackstone's commentaries. I have been handed an extract from Chapter 20 of Blackstone's Book 4 which has observations, - particularly at pp 283,- · 284 ·. and 285. · · I have·· also .been provided with an 1890 . edition of his commentaries' under the hand of Hammond in the United States of America. · It . is the 8th edition, and contains in Volume 4 what purports to 'be an updated ·· ve~sion or commentary· on Blacks tone' s earlier works. Passages :.at p 362 through to · 363, 364, 366, 367 and 368, to my mind, support the general proposition contended fo:r; by the plaintiff as to what the" common law was understood to be at that time. At p 363 it is said: "Indeed, the attachment for most of this species of·contempts, and especially for non-payment of. costs and non-performance ·of awards, is to be looked upon 'rather 10 20 30 40 as a civil execution. for the benefit of the. i~j ured 50 party·, though· carried •· on ln the shape of a criminal process for a contempt of the authority of the Court. .. ~· . ' And, therefore, it hath been held that such contemptsand the process thereon be properly the civil remedy of individuals for a private injury are not released or affected by a- general act .-of Parliament. And upon a similar principle, obedience to any rule of . Court may also by a' statute specify and be· enforced against any person having privileges .. " . 5 ORDER 60 -- 5 of 18 -- . 220793 At p 364, ·the following observation is made, which seems apposite to the present issue: "The process of attachment for these and like attempts must necessarily be as antient as the laws themselves for laws without a competent authority to secure their admin~stration from disobedience and contempt would·be vain and nugatory." At p 366 it deals :with a contempt proceedings against a person who has failed to comply with an order. of the Court, and th,e authorproceeds as follows: "But in matters-that arise at a distance (that is with respect to.an order made by the Court) and of which the Court cannot have so perfect a knowledge (that is, as it has of contempt in the face of Court) unless by the confession of the party or the testimony of others, · if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either ·· make a rule on the suspected party . to show cause why . an ·· attachment should not issue against him, or in very flagrant instances of contempt the attachment issues in the ·first · instance as it also does if no sufficient cause be shown to discharge. This process of attachment is merely intended to= bring_ ·the <party into Court and when there he must either stand committed or put in bail in order to answer upon oath to such interrogatories as shall be administered to him for the better information of the Court in respect of the circumstances of the contempt. These interrogatories are in the nature of a . charge or accusation and must, by the course of tl;le Court, be exhibited within the first .four days, and if any of· the interrogatories. is improper the defendant may refuse to answer it and may move the-Court to have it struck out. If the party can clear himself upon oath he is discharged, but if perjury may be prosecuted for the perjury. If he confesses the contempt the Court will proceed to correct him by fine or imprisonment or both." He continues: '. <.."But if he ·wilfully and obstinately refuses to answer, or answers in an evasive manner, he is then guilty of a high and repeated contempt to be punished at the discretion of the Court." On a fair reading of that, Blackstone, at least, expressed the view in the 18th century that a person could be 6 ORDER ' . 10 20 0 0 30 0 40 0 50 60 -- 6 of 18 -- 220793 required to answer on oath matters concerning his alleged contempt committed from afar, perhaps prima facie established by other material and if he did not answer the questions on oath ~then he would be committed for contempt again ·for not answering them, presumably this second 10 contempt being in the face of the Court. If he did answer them on oath that· would discharge .him from further proceedings, if it was thought.he answered truthfully; if it was thought he did not answer truthfully, whatever might 0 happen with respect·to the contempt proceedings he'would be 20 charged with perjury. 0 Reference has been made to a·. decision . cited to support: part of the observations in Blackstone and that is the case of Saunders v. Melhuish, which is reported in 6 MOD, .73, 30 case 87, p 831~ 0 Just for the sake of completion, I • refer:, to the American author 1 s .. note at. pp 368 .. and 369 of Volume 4, 8th edition, American·edition of Blackstone, where of this.inquisitorial 40 () function, more consistent with the practices in Star Chamber and some Courts of Equity than ·with the common law practices, he says: "Whatever form the answer of a person charged. withcontempt may have taken at any particular period, or 50 however the process may.have been abused, it can hardly be. doubted that it was part of · 1 the law of the land 1 from.· the· earliest· period. of that law ·and coeval· with process for contempt. Without such an answer thedefendant has no opportunity of stating his own side of the case. He has not that 1 day in court 1 which isessential to due process of law in every form." Then he continues: 7 ORDER 60 -- 7 of 18 -- 220793 n Inst~ad of . an innovation borrowed from equity procedure as Blackstone thinks, it is much more probably a relic of the primitive Angle Saxon process by which a free man was entitled to meet every charge against him, civil or criminal, by his own oath along with co-purgators. That ·this took, in the case of contempt, the form of answers to interrogatories by the Court . seems due to . the fact that there was here no adverse or prosecuting party, but the Court itself, and ,.consequently .no other form in which the facts, as defendant ·was willing to admit them could be so properly stated~'' There are. other· interesting discussions and comments but it does not .seem profitable to take the matter further. ' . The other historical analysis of the common law rule cited is to be faun~ in a book, "Contempt of Courtn by Sir John Fox, which; was published in 1927. It is a ··long and very detailed analysis and I will refer, . for completion, to only a couple of passages. The relevant passages.are from pp 70, 71 and 72, where the author deals with civil contempt, as it was then popularly categorised. The author said: • 11 But where personal· liberty is concerned a deep rooted feeling· has 9lways e~isted in this country against .. examining a person accused of· a criminal offence with 'the object .. of· obtaining admissions by which he may convict himself. This practice of examination upon interrogatories derived from the Ecclesiastical courts, preyailed in· the King's Council in the 14th century, and was reproduced in the two courts of equity which were evolved from .. the . Council; the Court of . Chancery, a court of civil jurisdiction, and the Star Chamber, in ~hich · crimes .less .. than capital were punished. " At p 7;J.., . dealing ·With punishment. of. civil contempts, the authorp~oceeds.in his historical.examination: 11 0n ·a triai for contempt by examination on. oath; when that practice was establ,ished, the course of procedure was as follows: the defendant was brought into Court by a writ of attachment or by an order to show cause 8 ORDER 10 20 0 0 30 0 40 0 50 . 60 -- 8 of 18 -- 0 0 0 0 --------- ----- - 220793 why attachment. should not issue and was allowed toenter into a recognisance to attend ··and answer interrogatories with regard to the alleged-contempt." Whether they were written interrogatories of the sort that are in issue here or whether they were simply formal questions seems not· to matter very much, but the questions, whether written or oral, had to be answered on oath: "If he refused to enter into a recognisance he was committed to prison and remained there until he submitted. In the common law courts if the defendant in his examination denied the contempt he was acquitted, but he was liable to be prosecuted for · perjury.· In the Court of Chancery witnesses might be called to contradict the defendant's evidence." One further passage at p 93 may perhaps be cited where at the stage when his historical consideration· of ,the development of proceedings for · contempt · of court by examination had reached the end . 'of the 17th·· century, ' the author says: "In the introduction to Vidis entries in 1684 it is said that if any contemnor despise any rule of Court an attachment may issue.to arrest theoffender, who must appear personally in· Court and enter into recognisance, and be sworn · to answer to interrogatories which ' shall be exhibited against him, and must be examined by the Master· upon qath and answer if· he hath contempted in any or broken the rules of this Court; and if he acquithimself upon motion to the Court he may be discharged, but if not he is fined by the discretion of· the Court for his contempt. This statement· is not in · terms · confined . to · parties, nor · is it limited to mere disobedience to a rule of court. In ·ordinary circumstances it would be the defendant who was served who would contempt or despise a rule of Court, but a stranger might join in the active contempt. Under such circumstances · in early· days both the · party and · the stranger would be tried in the ordinary course of law. In 1684 the · parties,· certainly,· and possibly the stranger also, would have to undergo a summary trial, but this could· only be 'by an assumption of·the repealedpower of the Star Chamber. " ·. 9 ORDER 10 20 30 40 50 60 -- 9 of 18 -- ·.220793 . This is the.last of the historical analysis of the practice relating to contempt to which I propose to refer. Although there is a very interesting historical .. consideration and analysis of the development of the law of 10 contempt up until 1927, it is not profitable to devote more consideration to it. I refer to the practice only because it is the contention of the applicant in this case that the law to which I have been 20 0 referring did, and does, in fact,: apply as the common law of Queensland and Order 84 rule 6 · must . ·be construed in that 0 . light. InHarding, The Acts and Orders of the.Supreme Court of Queensland,. published in 1885, at p 215, the practice under ·.!·. section 130 of an Imperial statute referred to . there is recorded: 11 In any case ·wh~reupon the application of the plaintiff, the Court shall be ·satisfied that justice cannot be done to the plaintiff without an answer to the Bill or to the interrogatories from the defendant himsel·f, ·it shall be lawful for the Court to order the .defendant to're~ain in custody until answer or further order, but without prejudice to the plaintiff availing himself.of any of the provisions of this Act." _I • ' 30 40 It does not · . say. that . he ·. need do ·more than. lawfully and so properly make answer to the interrogatory. It does not say expressly that he must make a responsive answer in the sense of relinquishing any privilege that he may have against self-incrimination, although 'it is contended that that is 10 ORDER 60 0 0 -- 10 of 18 -- 0 0 0 0 220793 . 1 the effect that would be given to it having regard to the· principles of ·. commi tal· · for contempt. to be found in Blackstone, at least.· The· matter was considered in 19.71 by· the Court of Appeal in 10 Comet Products v. Hawkex Plastics (1971) 2 QB p 67. In that case, which dealt with a different aspect of contempt with . . which, I think, it is unnecessary to deal · in detail, Lord Denning, Master of.the Rolls, at p 73 said: "Although this is a civil contempt, it partakes of·the 20 nature of a criminal charge. The' defendant is liableto be punished for it. He may be sent to prison •. The rules as to criminal· charges · have always · been · applied to such a proceeding. " ·· : · His Honour referred to other authorities and continued: His "This was not always the law in the case of civil 30 contempt. · In the days of Sir William Blackstone, .;200 years ago, civil contempt was an exception to thegeneral principle. In those days. a plaintiff . was entitle·d to· deliver interrogatories to the defendant, which the defendant was bound to answer on· oath. "· '• Lordship then referred to various parts of The 40 Commentaries and proceeded: "I am prepared to accept.that such a rule did exist inthe days of·Sir William Blackstone. But I do not think it exists ·. any longer today. The genius of the common law has prevailed. I hold that the man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him prove his guilt. I reject the submission that thedefendant is a compellable witness in the contempt proceedings against him." At p 75, dealing with the issue there under consideration which was whether a person alleged to be guilty of contempt ;.·.,· .. 11 ORDER 50 60 -- 11 of 18 -- .220793 " ' could 'be cross-examined on matters generally that might incriminate him, His Honour said: "Here we must have regard to the fact that this is in the nature qf a criminal charge. It is not. a claim to recover compensation from the defendant; it' "is a claim to enforc~ the injunction. The only _permissible object of this · application is to punish the defendant - to . impose sanctions against .him ~ for wilful disobedience of an order of the court. When the defendant is.faced with such a charge, I feel that the genius of the common law should · prevail. The common law would not wish him to be cross-examined in the way that is suggested. Such a cross-examination would range· over the .whole of .his state of mind on other .occasions and in other circumstances, whereas the one issue is whether there has been a passing off of this red carton. If this. cross-examination were to be pursued, I can see question. after question put, and objection after objection raised, extending over a long time." Lord Justice Cross · at p 77 simply asserted . that if the defendant had not sworn and filed an affidavit in answer · to the committal motion: " ••• clearly he could not have been compelled to give evidence; but having sworn and filed the affidavit he cannot withdraw it." Lord Justice McGaw at p 7~ said: "I :find it difficult to think that there are any circumstances in which. one· whose committal is i for · a breclch of an order of the court in '' proqeedings could be . compelled by the .party comml.ttal to give evidence against his will." sought civil seeking Their 'Lordships in that case have declared what the common law was in England in · 1970 wi tliout feeling in any way const~~ined by what people 'may have thought it to have been in the middle of the 17th or 18th centuries. My feeling is that the observatioris in Comet Products, ORDER .. 10 20 0 0 30 0 40 0 50 60 ------~------------------------------------------------------------------------------)-- -- 12 of 18 -- 0 0 0 .220793 having regard to the issue then before Their Lordships, were obiter, if not indeed per incuriam, and this was the view taken by Mr. Justice Wal ton in Garvin v. Dormus Publishing Limited (1989) 1 Ch p 335, and in particular at pp 343, 344, 345 and at the top of p 348. A similar view was expressed by Mr Justice Henry in The Queen v. Highbury, Corner Magistrate and Islington London Borough Council ex parte Watkins (1993) RA 300, and particularly at p 6 of the judgment where His Honour ·took·· a similar view of the historical correctness of some of the observations of Lord Justice Denning in Comet Products. In spite of those observations andcriticisms I should think that the . obiter of the members of the Court of Appeal · in Comet ought be given more weight than what were equally obiter views expressed by two single justices. The matter has been considered in Australia on a couple of occasions, but I propose .to refer only to observations made in Hinch v. Attorney General of Victoria (1987) 164 CLR 0 p 15. That was a.case involving contempt proceedings. The contempt there would have once been described as a criminal contempt because it related to activity which made it difficult for a charged person to get a fair jury trial. So, the sort of contempt dealt with there was not the sprt of contempt that is the subject of this appli9ation. However Deane J, at p 49 observed: "The classification of contempts of court as criminal or civil has, in the past, involved the anomaly that some contempts have been classed as civil .·. 13 ORDER 10 20 30 40 50 60 -- 13 of 18 -- 220793 notwithstanding that they have. been or may be visited· with a consequence of imprisonment or fine.u . . . . His Honour then referred specifically to the judgments of· Lord Justice Denning and. Lord Justice Cross in the. Comet Products case and, 11 rationalising.the anomalies 11 referred to . there, continued: 11 It should.. no longer be accepted in this country where, regardless of whether it be imposed in proceedings brought by. the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order, imprisonment or fine as a consequence of a finding ·· of cc:m1;:empt of court cannot be justified otherwise than as a punishment for past . or continuing breach of law. Proceedings seeking the imposition of such punishment upon an alleged contemnor (or an· order ·: for .~Sequestration .in the case· of a company) must realistically be seen as essentially criminal in nature." Whether the observations.of·Deane J were obiter.or not,· they amount· to a very clear pronouncement that in His Honour's 10 20 0 o· 30 view the v~ews .of. Denning LJ and Cross LJ are certainly to () be preferred to the critical observations of the two single justices in the cases to which I have referred. .:; After· this consideration of the matters that have been canvassed at length before me, the whole matter comes down to a question of construction of Order 84 rule 6. - It is the contention of the applicant that having regard to the common law demonstrated or discussed in Blackstone, and to th~ content ·. of section 130 of the Statute recorded in Harding, the rule must be read as requiring the person to 14 ORDER 40 0 50 60 -- 14 of 18 -- 0 0 0 () 220793 . 1 answer responsively on oath an interrogatory exhibited to · him under Order 84 rule · 6. To some. extent, . of . course, by taking ·the objection the respondents answer the interrogatory on ' oath, but it is the contention of the applicant that when one looks . at the history of contempt 10 proceedings one sees that. the sort of answer that· is required by the common law is a responsive answer by the person being examined by the Court and if he does not make answer he may be . put in gaol for ·contempt in not making answer. It is said that if one simply looks at · Order . 84 20 rule 6, keeping in mind the historical development of the common law, it is clear that.· the respondents are. requi'red to. answer on oath and may not·claim privilege on.the·grounds of self~incrimination. The general rule relating to privilege against '•· self-incrimination was stated by Lord-Justice Goddard CJ in Blunt v. Park Lane Hotel Limited (1942) 2 KB p 253 and p 257. He stated in that case: " the rule is that ·no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which thejudge regards as reasonably likely to be preferred or sued for." · Cross, in one of his earlier editions, points out that the privilege against self-incrimination, in the narrow sense of the word, originated in the unpopularity of the procedure in Star Chamber, where those who were charged before that chamber were interrogated on oath; they had to answer. 15 ORDER.. , 30 40 50 60 -- 15 of 18 -- 220793 Dealing with the rationale of the rule, Cross observed: "It is important for the proper administration of justice not only. that would-be witnesses are· given privilege (against various things) but they be protected from the risk of ·any incrimination as they give their evidence. It is thought without such protection witnesses might be loath ;to come forward to give evidence and that this was probably a sufficient justification for protecting a witness from exposing himself to the perils of criminal proceedings." It might be commented of course that this rationale for the rule against self-incrimination could not explain or justify the extension of the privilege to an alleged contemnor in a case such as the present. '!'he observations of Lord Justice. Bowen in.Redfern v. Redfern were then discussed and it was said if they were right the privilege should not be extended. ('. Section 10 of the Evidence Act of 1977 is the section, no doubt, upon which the objection of the respondents is based because it purports to preserve the common law rule, whatever it is, because it says: "Nothing in this Act compellable · to · answer incriminate himself." shall render any question any person tending. to There is a proviso with respect to an accused person giving .•. evidence in criminal proceedings. Section 14 expressly abrogates certain privileges which the draughtsman apparently assumed to be were given by the common law. 16 ORDER < ' . 10 20 0 0 30 0 40 0 50 60 -- 16 of 18 -- 0· c=J 0 220793 It is the case for the applicant that on its face, Order 84 rule 6 requires a responsive answer to interrogatories delivered or exhibited, having regard to the historical development of contempt proceedings to which I have referred at some length. It is contended that at common law there is no right to refuse to answer on oath on the grounds that the answer might tend to incriminate. This basic proposition, to my mind, accepts that the common law as it applies now in Queensland is the common law as described in Blackstone and ~n Fox and is not the common law as defined in Cornet Products v. Hawkex, or as defined by Deane J in the Hinch case. In my view, upon any consideration of the common law for the purpose of construing Order 84 rule 6 I should treat it as being properly defined, by the Court of Appeal in the Cornet Products case and by Deane J in the Hinch case at the time when they defined it, and I do so on the assumption that the pronouncements in those two.courts may well have been obiter and not part of the ratio of the cases before them. Whether c=J they were obiter or not obiter, the pronouncements come from courts of high authority and in the absence of cases clearly to the contrary since those pronouncements were made, I rule that at common law now in Queensland a person in contempt proceedings is not obliged to answer questions which may tend to incriminate him. I rule that the respondents may object to answer the interrogatories in question on the ground that their answers 17 ORDER 10 20 30 40 50 60 -- 17 of 18 -- .220793 may tend to incriminate them. The application raised a novel, interesting and difficult point. It has been determined against the applicant. It seems to me the ordinary rule for costs ought apply. The applicant must pay the respondents' costs of and incidental to this application on interrogatories to be taxed. 18 ORDER 10 20 0 0 30 0 40 0 50 60 -- 18 of 18 --