Practice and procedure – claim of privilege against self-exposure to penalty in civil penalty proceedings

In Australian Building and Construction Commissioner v O’Halloran [2020] FCA 1291 (7 Sep 2020) the Australian Building and Construction Commissioner (ABCC) commenced proceedings seeking declarations and civil penalties against the respondent in relation to unlawful industrial action.

The individual respondents filed a defence in which they denied all allegations pleaded by the ABCC and reserved their right to claim the privilege against self-exposure to civil penalties.

At the commencement of the hearing, it became apparent that the ABCC anticipated objecting to any questions in cross-examination posed by either counsel for the individual respondents which introduced material going beyond their response to the case pleaded by the ABCC and towards the establishment of a positive defence. The ABCC also submitted that any positive defences should have been pleaded prior to the opening of the ABCC’s case.

No interlocutory application came before the court. Rather, the court took the view that the parties were seeking different case management orders and invited submissions to advance the competing positions.

On the second day of the trial, Collier J acceded to the position advanced by the individual respondents and ordered that if, at the conclusion of the ABBC’s case, the individual respondents elected to waive the privilege and advance a positive defence, they were at liberty to file and serve amended defences, affidavits and any outline of submissions immediately following the close of the applicant’s case.

In so ruling, her Honour considered and reviewed the relevant authorities in relation to the privilege against self-exposure to penalties in civil penalty proceedings (see [15] ff).


In particular, her Honour found that Finkelstein J’s reasoning in ASIC v Mining Projects [2007] FCA 1620; (2007) 164 FCR 32 at [13] (to the effect that a defendant may deliver an amended defence at the close of the plaintiff’s case and the plaintiff will only to be granted a short adjournment to respond in an exceptional case) remained good law (at [39]).

Anthony Lo Surdo SC is a barrister, arbitrator and mediator at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne, and Outer Temple Chambers, London, Abu Dhabi and Dubai. Theresa Power is a barrister at 12 Wentworth Selborne Chambers, Sydney. The full version of these judgments can be found at

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