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  • A corporate defendant is amenable to an order under r 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) to make discovery of documents in proceedings brought to punish it for contempt of court.
  • The ‘companion principle’ is not merely an adjunct to the criminal standard of proof, but a fundamental aspect of a criminal trial.
  • Contempt proceedings are criminal in nature and subject to the criminal standard of proof yet if they are commenced within civil jurisdiction without prospect of a criminal trial, they are civil proceedings subject to the rules of civil procedure.

The decision of Construction, Forestry and Mining Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21 builds on the law concerning the nature of contempt proceedings and the procedural protections which are (and are not) afforded to corporate defendants in punitive proceedings.

One important procedural protection afforded to defendants during the criminal process is a higher standard of proof. A plaintiff in civil proceedings must prove its case on the ‘balance of probabilities’ but the prosecution in criminal proceedings must meet the far more exacting onus of proof ‘beyond reasonable doubt’.  It is a fundamental principle of criminal justice that it is the Crown who bears the onus of proof (X7 v Australian Crime Commission (2013) 248 CLR 92 at [101]-[102]). The ‘companion rule’ to this principle is that an accused cannot be compelled to testify to the commission of the alleged offence (Lee v The Queen (2014) 308 ALR 525 at [33]).

Like criminal proceedings, contempt proceedings expose a defendant to punishment. Allegations of contempt must therefore be proved to the criminal standard (Witham v Holloway (1995) 183 CLR 525 at 534). In CFMEU v Boral, the High Court was asked to consider whether the companion rule therefore also applies to contempt proceedings brought under Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘Rules’).

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