Construction, Foresty and Minining Union v Boral Resources (Vic) Pty Ltd
In this case the Court was asked to consider whether contempt proceedings initiated in the civil courts:
- Firstly, created a standard of proof for the party bringing the proceedings which was higher than the civil standard of proof (i.e. did the party bringing the proceedings have to prove the contempt on the balance of probabilities or beyond all reasonable doubt as in the Criminal law context);
- Secondly, if the answer to (1) was yes then did defendant in the contempt proceedings have a right to defend himself or itself from self-incrimination;
The matter concerned an order by a judge for production of discovery documents. The defendant to the contempt proceedings (CFM Union) refused to produce certain documents ordered to be produced in the contempt proceedings on grounds that given the contempt proceedings were criminal in nature, and given the documents ordered to be produced were incriminating, the CFM Union did not have to produce them by virtue of the companion rule, (a principle at common law that one does not have to give evidence in their case as it is to the prosecutor to prove the case without forcing the defendant to provide evidence)
It was held by the High Court that, even if a party to civil proceedings is required to produce evidence by oppressive conduct (give evidence against itself) the court has appropriate discretion to exclude certain evidence if there are issues of procedural fairness relating to the evidence given.
It was held that the criminal standard of proof applies in contempt proceedings.
