2 The second-named plaintiff is a plumbing contractor and the first-named plaintiff its managing director. The defendants were at all material times members of the Consumer Affairs Council appointed under the provisions of the Consumer Affairs Act 1970 ("the Act"). By the statement of claim the plaintiffs allege that they were defamed by the publication of a report made by the defendants to the Minister pursuant to the provisions of s6B of the Act. Paragraph 6 of the statement of claim alleges that:-

"In publishing the said words as aforesaid, the defendants were not acting for the purpose of the carrying out of any functions under the said Act."

3 The defendants, by the defence join issue with this allegation, claim protection by virtue of the provisions of s10A of the Act and plead other defences in accordance with the provisions of the Defamation Act. In their list of documents the defendants discovered (inter alia) the following concerning the operations of the plaintiffs:-

1 Bundle of complaint files opened by the defendants.

3 Minutes of meetings of the Consumer Affairs Council.

4 With respect to the production and inspection of those documents the plaintiffs claim privilege by virtue of the provisions of the Consumer Affairs Act. The basis of that claim is s10 of the Act which provides:-

"Except in the course of his duties under this Act no person shall disclose any information obtained by him in the exercise of any powers conferred on him by, or by virtue of his office or employment under, or for the purposes of, this Act."

5 The question therefore is whether the provisions of s10 operate to prevent the court ordering production and inspection of those documents. It is common ground that, except in the case of the minutes of the meetings of Council, the documents contain information obtained by the defendants or their officers in the exercise of powers conferred upon them or by virtue of their office or employment under or for the purposes of the Act.

6 In Rowell v Pratt [1938] AC 101 at 104 Lord Wright said of a statutory provision prohibiting disclosure of information:-

"It is inevitable that a court of law should approach in a critical spirit any legislation which is calculated to impede the court in the discharge of its duty to administer justice by preventing it from obtaining any material evidence of a nature likely to assist it to ascertain the truth. Hence a court will be disposed, as was the majority of the Court of Appeal, to construe the section if possible, so as to avoid that result."

7 Notwithstanding that undoubtedly proper observation this disputed claim for privilege calls for an interpretation of s10 of the Act unfettered by any presumption that, in the absence of express words, Parliament did not intend to prohibit the production of material which comes within the ambit of the section in a court. See Rowell v Pratt (supra) at pp106 and 113; Irvin v Whitrod [1978] Qd R 137.

8 Section 3 of the Act constitutes the Council and s6 describes its functions. Section 6A sets out the manner in which those functions are to be carried out and, in so far as consumer complaints are concerned, provides that the Council shall investigate a matter referred to them by the Minister and may investigate a matter referred to them by or on behalf of any person. Section 6B makes provision for annual and other reports to the Minister and s7 incorporates the provisions of Division 2 Part II of the Evidence Act where the Council has proceeded to investigate any matter.

9 Section 8 is important. It empowers the Minister to authorise an officer of the Council to make enquiries, require production of, search for and seize documents. Subsection (5) requires a person to produce a document even though it may criminate him. Section 9 makes it an offence not to produce such a document. Together, ss8 and 9 represent a very substantial inroad into the principle which became entrenched in the common law with the abolition of the Star Chamber and subsequently received widespread statutory recognition, that no person is obliged to criminate himself. Its effect is mitigated by s8(6) which provides that information and documents so obtained are not admissible "against any person in any civil or criminal proceedings, except in proceedings against him for an offence under this Act".

10 Section 9A is also important. It empowers the chairman of the Council, by notice in writing, to require a person to furnish information. Subsection (4) makes it an offence to fail to comply with such written requirement and although there is no express statutory provision directing compliance notwithstanding that to do so may result in self crimination, subs (5) sets out the defences available upon a complaint of failing to furnish the required information and avoidance of incrimination is not one of those defences. Subsection (6) is in the same terms as s7(6) which leads to the tentative view that information required to be supplied in accordance with s9A has to be supplied even at the cost of self crimination. The provisions just referred to are supported by the somewhat Draconian terms of s9A(11) which provide that in proceedings for an offence of failing to supply required information:-

"An averment in a complaint that the Chairman of the Council is satisfied as mentioned in subsection (1) shall be received in evidence as prima facie proof of the matters so averred."

On this aspect of the matter the evidentiary burden of proof is reversed.

11 Counsel for the defendants contended that s10 was absolute in its terms and amounted to a total prohibition of disclosure of the information referred to in that section except in the course of performance of duties under the Act. There are a number of cases concerning similar sections prohibiting disclosure "to any person". See Parkes Management Limited v Perpetual Trustee Co Limited [1979] 1 NSWLR 274; Canadian Pacific Tobacco Co Limited v Stapleton [1952] HCA 32; (1952) 86 CLR 1; Cowan v Stanhill Estates Pty Ltd [1966] VicRp 82; [1966] VR 604; Whipman v Whipman [1951] 2 All ER 228. In each case it was held that the word "person" was not intended to include a court and the sections under consideration did not therefore operate to prevent disclosure to a court. Cf Neill v Glacier Metal Co Ltd [1965] 1 QB 16.

12 However, s10 of the Act does not use the phrase "to any person". It simply directs that "no person shall disclose any information obtained by him ........"

13 References to cases which interpret similar but different provisions in other enactments are useful but ultimately, the question has to be determined by ascertaining the true meaning of s10 of the Act. In the discharge of this task it is appropriate to refer to the words of Lord Diplock in Fothergill v Monarch Airlines [1980] UKHL 6; [1981] AC 251 at 279:-

"The constitutional function performed by a court of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining 'the intention of Parliament'; but what this metaphor, though convenient, omits to take into account, is that the court, when acting in its interpretive role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the State in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the State ......... The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions."

14 Regard may be had to the whole of the provisions of the Act. The Act is obviously designed principally to deal with disputes between suppliers such as the second-named plaintiff, and consumers. It contemplates, particularly by s6A, that complaints will be made to the Council either directly or indirectly by consumers and that the Council will thereupon make enquiries, gather documents and information, if necessary by compulsion and in some cases investigate the matter of complaint as provided by s7. There might be something to be said for the argument that those investigations are no business of the general public and persons should be able to give information to the Council secure in the knowledge that s10 will prohibit indiscriminate dissemination of the information given. It is however, clear that no proper investigation into a complaint against a supplier could take place unless that supplier was informed, at least in general terms, of the information gathered with respect to the matter of complaint.

15 In these proceedings the plaintiffs allege that the Council, in the publication to the Minister, did not act for the purposes of carrying out any functions of the Act. By paragraph 11 of the defence the defendants assert that the publication referred to "was a statement made and its delivery an act done in good faith for the purpose of carrying out their functions under s6B(2) of the Act"

16 This is a direct reference to s10A of the Act which provides:-

"A member of the Council, the Secretary of the Council, any officer appointed under section 5, and any authorised officer is not personally liable, and the Crown is not liable, in respect of any statement made or issued, or any act done in good faith for the purpose of the carrying out of any functions under this Act."

17 To construe s10 in absolute terms would effectively deny the court access to material which would assist in arriving at a determination of this dispute which involves the substantial question of whether the defendants allegedly tortious behaviour was rendered immune from legal sanction by virtue of compliance with the provisions of the Act. If s10 operated as a total bar to access by the courts of the material referred to, the lawfulness of the activities of the Council would, in every practical sense, be removed from scrutiny by the judiciary. No proper judicial enquiry by way of prerogative writ for example, into the exercise of power by the Council could properly be conducted if the court was denied access to information which fell within the scope of s10.

18 I am of the view that the prohibition against disclosure of information provided by s10 does not extend to include the court when the performance of duties or the exercise of powers referred to in the Act is the subject matter of litigation. The disclosure prohibited by s10 is governed by the opening words of that section, "except in the course of his duties under this Act ...". Those words should be given a broad interpretation. It was the duty of the defendants to act in accordance with the provisions of the Act. It was and is equally part of their duty to submit their actions to judicial scrutiny when properly called upon to do so.

19 In this case it is not necessary for me to consider the effect of s10 where disclosure of information is sought in circumstances where the judicial inquiry does not touch or concern the exercise of the powers or performance of duties under the Act.

20 It was argued in the alternative that the production and inspection of the documents should not be ordered upon the grounds that to do so would be contrary to public interest. That such an argument is open even though the privilege is not claimed by an arm of the executive government now seems clear. See Conway v Rimmer [1968] UKHL 2; [1968] AC 910, approved in Sankey & Whitlam (1978) 142 CLR 1. There are two issues involved; the first is the existence of a confidential relationship, a breach of which involves public interest and the second involves the exercise of a discretion balancing the interest of the public in prohibiting disclosure against the interest of the public in disclosure for the purpose of a curial enquiry. See D v NSPCC [1979] AC 171; Neilson v Laugharne [1948] 1 All ER 829.

21 No evidentiary material upon this issue was adduced. In the absence of evidence I have no hesitation in holding that the public interest is as declared by the legislature in s10 of the Act. Even if the question of privilege upon the general grounds of public policy arises other than by way of the section for the reasons earlier expressed I would not exercise my discretion to exclude production and inspection of the documents in these proceedings.

22 I am accordingly prepared to make an order that the defendants produce and give inspection of the documents referred to in paragraphs 3, 4, 5 and 6 of Part II of the first Schedule of their list of documents. Before any final or consequential orders are made I will hear counsel.