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[2020] HCA 16
appellant. First respondent's application for leave to file a notice of contention refused. Appeal allowed. Orders 1 and 2(a) of the Full Court set aside and, in their place, order that the appeal to the Full...
The High Court held that requiring a company's chief pilot to answer questions at a coronial inquest into a workplace death did not unfairly force the company itself to help prove criminal safety charges against it. Even though the pilot's answers could later be used in court as the company's own admissions under evidence rules, this did not breach the basic principle that an accused does not have to assist the prosecution. The Court stressed that the duty to testify was the employee's alone, the company had no ownership over its witnesses, and long-standing rules allow questioning of witnesses before trial. The criminal case had ended with the company's acquittal, so arguments about contempt of court were too late and too hypothetical to decide.
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2,835 words · generated 24/04/2026
In January 2016 Captain David Wood, a pilot employed by Helicopter Resources Pty Ltd, landed a helicopter on the West Ice Shelf in the Australian Antarctic Territory. Unbeknownst to him a crevasse lay beneath snow. After completing ground work he fell into the crevasse while reboarding and died the next day from hypothermia. Because s 6 of the Australian Antarctic Territory Act 1954 (Cth) applied ACT law to the Territory, the Chief Coroner commenced an inquest under the Coroners Act 1997 (ACT) on 19 September 2017 into the manner and cause of death. A statement prepared by Helicopter Resources' Chief Pilot, Captain David Lomas, formed part of the evidence.
5 cited instruments linked from this judgment.
Separately, on 20 December 2017 Comcare caused the Commonwealth Director of Public Prosecutions to charge both the Commonwealth (through the Department of the Environment and Energy) and Helicopter Resources with three summary offences under s 32 of the Work Health and Safety Act 2011 (Cth). The third charge related directly to the circumstances of Captain Wood's death. The Commonwealth and Helicopter Resources occupied different safety roles in the Territory and were therefore likely to adopt different positions at both the inquest and the criminal trial.
On 31 January 2018 the Commonwealth wrote to the Coroner requesting that Captain Lomas be made available for cross-examination on topics including the division of responsibility between Helicopter Resources and the Commonwealth for risk identification and management. Helicopter Resources applied for an adjournment of the inquest under s 36 or s 58(6) of the Coroners Act pending conclusion of the criminal proceedings. The Coroner refused and issued a subpoena under s 43 requiring Captain Lomas to attend. A further application for a direction limiting the scope of examination to exclude matters relevant to the criminal charges was also refused.
Helicopter Resources then commenced judicial review proceedings in the Federal Court contending that the subpoena would prejudice its defence in the criminal proceedings in two principal ways: first, by giving the Commonwealth (as co-accused) an impermissible forensic advantage in exploring Captain Lomas' anticipated evidence; and secondly, by generating evidence that, by operation of s 87(1)(b) of the Evidence Act 2011 (ACT), would be admissible against Helicopter Resources as its own admission. Bromwich J dismissed the application on 29 June 2018, holding that Captain Lomas was in no different position from any other witness and that any interference with the criminal process was not of the character required by authority. In the alternative his Honour considered the application premature.
The Full Court of the Federal Court (Rares, McKerracher and Robertson JJ) allowed the appeal. Their Honours rejected the broad submission that any compulsory pre-trial examination of a potential witness was inconsistent with the accusatorial system. They accepted that the so-called companion rule was not engaged because the prosecution was not compelling the accused itself. However they concluded that s 87(1)(b) produced a different result: as a matter of practical reality Captain Lomas' evidence would be admissible not merely as the evidence of a witness of fact but as an admission by Helicopter Resources itself, thereby fundamentally altering the company's position as an accused corporation.
Special leave to appeal was granted to the Commonwealth on amended grounds directed to the proper construction of s 87(1)(b) and its interaction with the accusatorial principle. The grant was conditioned on the Commonwealth paying Helicopter Resources' costs on a solicitor/client basis. By the time the appeal was heard the coronial inquest had concluded without Captain Lomas being cross-examined and the criminal proceedings had also concluded, with Helicopter Resources acquitted. Helicopter Resources opposed the utility of the appeal and later sought leave out of time to file a notice of contention that the subpoena had created a real risk of contempt of court. The High Court refused that leave and allowed the Commonwealth's appeal, setting aside orders 1 and 2(a) made by the Full Court and ordering instead that the appeal to the Full Court be dismissed.
The joint judgment (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) began by confirming two propositions on which the Full Court had been correct. First, compulsory pre-trial examination of potential witnesses has been a feature of English and Australian criminal procedure since the sixteenth century and was retained by the nineteenth-century reforms that otherwise entrenched the accusatorial system. Secondly, the companion rule—that an accused cannot be required to testify or to assist the Crown in discharging its onus—is engaged only where the accused personally is compelled. Examination of a third party, even one whose evidence may later be attributed to the accused, does not engage that rule.
The joint judgment then held that the Full Court had misapplied those principles to s 87(1)(b). The provision departs from the common law by extending the class of employee statements that may be received as admissions against the employer. At common law only statements made by an agent with actual or apparent authority to speak on the principal's behalf were admissible. Section 87(1)(b) broadens this to any representation by an employee that relates to a matter within the scope of employment, whether or not the employee had authority to make admissions. The Australian Law Reform Commission had recommended the change on the basis that it improved the fairness of the adversary process by holding a party responsible for assertions made by agents acting within areas of personal responsibility.
Crucially, however, s 87(1)(b) is a rule of attribution and admissibility, not a rule of compulsion. It does not require the employer to produce the employee, to authorise the employee to speak on its behalf, or to do anything at all. The obligation to obey the coronial subpoena remained personal to Captain Lomas. The fact that the employer had voluntarily entered into an employment relationship in which the employee had responsibility for the relevant matters did not convert the employee's evidence into the employer's evidence for the purpose of the companion rule. An accused has no property in a witness, even a guiding mind or one whose answers may be attributed to it. Public policy strongly favours the freedom of citizens to assist criminal investigations.
The joint judgment distinguished Strickland (a pseudonym) v Director of Public Prosecutions (Cth). That case concerned the grossly unlawful compulsory examination of persons who were known to be about to be charged. The widespread dissemination of the examination product created incurable prejudice. The present case involved a lawful coronial subpoena directed to a third-party witness. The plurality in R v Independent Broad-Based Anti-Corruption Commissioner had made clear that a sufficiently authorised compulsory investigative procedure may be used even if, as a matter of practical reality, it alters an accused's ability to defend forthcoming charges.
Edelman J, while expressing hesitation about the utility of deciding a moot question, agreed that the Full Court had ultimately rested its decision on the effect of s 87(1)(b) alone. He reached the same conclusion that the provision does not equate to compulsion of the corporation. He emphasised that previous representations attributed under s 87(1)(b) remain the evidence of the employee; they do not become the evidence of the company in the sense of compelling the company to testify. Accordingly the subpoena did not create a real risk of improper interference with the administration of justice by reason of s 87(1)(b) alone.
Because the criminal proceedings had concluded with Helicopter Resources' acquittal, the Court refused leave to file the notice of contention out of time. Any decision on contempt would turn on fact and degree in all the circumstances and would therefore provide little guidance for future cases. It was inappropriate to express views on hypothetical scenarios.
Before the decision the law contained two overlapping but distinct strands. The first was the long-recognised companion rule, repeatedly affirmed by the High Court as a necessary incident of the accusatorial system and the presumption of innocence. It prevented the prosecution from compelling an accused to assist in proving its own case. The second strand concerned the attribution of employee statements. At common law only admissions made by an agent with authority to speak on the principal's behalf were receivable. The strictness of that rule had been criticised by Wigmore and others as artificial. The uniform Evidence Acts responded by enacting s 87(1)(b), which the ALRC intended to expand the category of admissible admissions to any statement relating to a matter within the scope of employment. There remained uncertainty, however, about whether attribution under that provision could convert the compulsory examination of an employee into the compulsory examination of the employer corporation for the purposes of the companion rule or contempt doctrine.
The High Court has now authoritatively separated the two strands. Section 87(1)(b) remains a powerful tool for prosecutors and co-accused seeking to tender out-of-court statements by employees. Such statements, if adverse to the employer's interest in the outcome of the proceeding, are taken as admissions without the need to prove actual or apparent authority to speak. That expansion of admissibility survives. What has been clarified is that the provision does not engage the companion rule. The obligation to give evidence remains personal to the employee. A corporate accused therefore cannot prevent its employees from being examined in coronial, royal commission or other compulsory processes simply because the evidence may later be attributed to it under s 87(1)(b).
The decision also confirms that contempt by interference with the administration of justice continues to be assessed by reference to all the circumstances, including purpose, timing and degree of risk. The mere fact that a witness central to an accused's defence is examined does not, without more, create a real risk of improper interference. The "locking in" of a witness's account or the revelation of the defence case through cross-examination by a co-accused are matters that may be taken into account but do not automatically constitute contempt. After the decision, litigants and coroners can proceed on the basis that a subpoena to an employee of a corporate accused will not, merely by reason of s 87(1)(b), be stayed or set aside on accusatorial grounds.
The joint judgment contains several passages that will be cited for decades. At the heart of the reasoning is the statement that "the compulsory examination of a potential witness other than the accused does not in itself involve any compulsion of the accused to give evidence or otherwise to assist the Crown in proof of its case." In plain English the Court is saying the companion rule protects only the person on trial; it does not create a shield that employees can hide behind simply because their employer happens to be that person.
Equally important is the explanation of s 87(1)(b): "Section 87(1)(b) does not require the employer to make the employee available on behalf of the employer or to authorise him or her to make admissions on the employer's behalf. Essentially, it does no more than create a rule that an employee's representations as to matters within the scope of the employee's employment may be treated as admissions against the employer." Translation: the statute tells courts how to treat the evidence once it exists; it does not force the company to create the evidence or to speak through its employee.
On public policy the Court repeated Mason J's observation in A v Hayden that "the interest in the enforcement of the criminal law is a fundamental head of public policy" implying "a powerful public interest in promoting and preserving the citizen's freedom to assist and co-operate with the authorities". In everyday language, employees cannot be gagged by their employment contracts when the criminal justice system needs their evidence.
Finally, on the notice of contention the Court stated that "whether an exercise of compulsory investigative powers creates a real risk of improper interference with criminal proceedings, and thus amounts to a contempt of court, turns on questions of fact and degree dependent on all the circumstances of the case." This is a reminder that contempt analysis is intensely contextual; blanket rules are inappropriate.
The precedent will be triggered whenever a corporate accused faces criminal charges and a compulsory investigative or inquisitorial process (coronial inquest, royal commission, ASIC or ACCC examination, work health and safety inquiry) seeks evidence from an employee on matters within the scope of that employee's duties. The decision makes clear that the existence of parallel criminal proceedings does not, of itself, prevent the employee being examined even if the evidence may later be tendered as an admission under s 87(1)(b) or its Commonwealth equivalent.
Particular triggers include: (1) a subpoena or notice to produce directed to an employee rather than the corporation; (2) the employee holding a position such that statements about the relevant events fall within the scope of employment (for example, a chief pilot speaking about flight safety protocols); (3) the corporation arguing that the examination will "lock in" the witness, give a forensic advantage to a co-accused, or generate admissible admissions; and (4) an application for a stay or setting aside of the process on the basis that it interferes with the accusatorial nature of the criminal trial.
The decision does not however give carte blanche. A subpoena issued for an improper purpose—solely to obtain evidence for use in the criminal proceeding rather than for the legitimate purpose of the inquest—might still be set aside. Similarly, if the examination were accompanied by other factors creating a real and substantial risk of interference (for example, widespread dissemination of the examination product to prosecutors in circumstances of unlawfulness as in Strickland), contempt might still be established. The fact-sensitive nature of contempt is expressly preserved.
Although the judgment is recent, it has already been cited with approval in several intermediate appellate and first-instance decisions. In proceedings involving ASIC examinations of officers of companies under investigation, courts have relied on the distinction between compulsion of the corporation and compulsion of the individual employee to refuse applications for permanent stays. The proposition that s 87(1)(b) (or its Commonwealth counterpart s 87(1)(b) of the Evidence Act 1995 (Cth)) does not engage the companion rule has been treated as authoritative.
In coronial matters, magistrates and coroners have cited the decision when refusing applications to adjourn inquests pending the determination of parallel work health and safety prosecutions. The emphasis on the personal nature of the witness's obligation has been applied to reject arguments that a company can prevent its employees from being called. Appellate courts have also used the decision to distinguish Strickland, confirming that the remedy of a permanent stay remains exceptional and requires gross unlawfulness or incurable prejudice.
Legal commentators have noted that the decision restores symmetry between corporate and natural-person accused in one important respect: neither can prevent third parties from being examined. At the same time it has sharpened the focus on the precise purpose of any compulsory process. Where that purpose is shown to be to circumvent ordinary criminal disclosure rules rather than to fulfil the statutory objects of the inquisitorial process, different outcomes may follow. Overall the decision has been treated as a strong reaffirmation of the limits of the companion rule and a practical clarification of the operation of the uniform evidence legislation.
Several important questions remain unresolved. First, the Court expressly declined to decide whether the compulsory examination of a potential witness other than an accused can ever amount to contempt of court. That fundamental issue is left for another day and will turn on the particular facts. Practitioners must therefore continue to undertake a full contextual analysis rather than assuming immunity.
Secondly, the interaction between s 87(1)(b) and use-immunity or derivative-use-immunity provisions in other statutes was not before the Court. Where an employee is compelled to give evidence under a statute that confers immunity, but that evidence is later attributed to the employer under s 87(1)(b), difficult questions may arise about whether the employer can obtain the benefit of the immunity. The present decision does not address that intersection.
Thirdly, the position of an employee who is also a defendant in separate proceedings, or who faces personal exposure under the WHS Act, was not considered. In such cases the companion rule may protect the employee personally even though it does not protect the employer.
Finally, the decision leaves open the possibility that a combination of factors—timing of the examination at the "heel of the hunt", the centrality of the witness to the defence, the identity of the party seeking the examination (here a co-accused with aligned interests against the employee’s employer), and the absence of any immunity—might in a future case tip the balance toward a finding of contempt. The High Court has signalled that such an outcome cannot be ruled out but has declined to hypothesise. Lower courts will therefore continue to grapple with fine-grained assessments of risk in the shadow of this authoritative but narrowly reasoned judgment.
S P Donaghue QC, Solicitor-General of the Commonwealth, with T M Begbie and J D Watson for the appellant (instructed by Australian Government Solicitor)
J T Gleeson SC with T J Brennan and K I H Lindeman for the first respondent (instructed by Norton White)
Submitting appearances for the second and third respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Commonwealth of Australia v Helicopter Resources Pty Ltd
Criminal practice - Accusatorial system of criminal justice - Companion rule - Where subpoena issued for employee to attend to give evidence at coronial inquest into manner and cause of another employee's death - Where employer and Commonwealth of Australia prosecuted for alleged failures to comply with duty to ensure worker health and safety - Where s 87(1)(b) of Evidence Act 2011 (ACT) relevantly entailed that representation by employee of party relating to matter within scope of employment taken as admission by that party - Whether invocation of investigative power to compel employee to give evidence about matter with respect to which employer stands charged amounts to compelling employer to give evidence contrary to rule that accused not required to assist Crown in proving its case.
High Court - Appellate jurisdiction - Practice - Extension of time - Where first respondent sought leave to file notice of contention out of time alleging that compulsion of its employee to give evidence at coronial inquest would constitute contempt of court in parallel criminal proceedings by creating real risk of interference with justice according to law - Where criminal proceedings concluded and first respondent acquitted of offences - Whether extension of time should be granted to resolve question of whether compulsory examination of potential witness other than accused can amount to contempt of court.
Words and phrases - "accusatorial system of criminal justice", "admissions made with authority", "attribution", "companion rule", "compulsory investigative powers", "compulsory pre-trial examination", "contempt of court", "coronial inquest", "extension of time", "hypothetical circumstances", "practical reality", "real risk of improper interference with criminal proceedings".
Coroners Act 1997 (ACT), ss 36, 43, 58(6). Evidence Act 2011 (ACT), s 87(1)(b).
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ. This is an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s 87(1)(b) of the Evidence Act 2011 (ACT). That provision relevantly entails that a representation by an employee of a party may be taken as an admission by the party if the representation relates to a matter within the scope of the employee's employment. The principal question is whether the provision has the effect that invocation of an investigative power to compel an employee to give evidence about a matter with respect to which his or her employer stands charged with a criminal offence amounts to compelling the employer to give evidence contrary to the rule that an accused cannot be required to assist the Crown in proving its case. For the reasons which follow, it does not. Thus, it is unnecessary to address the appellant's other appeal grounds. Section 87(1)(b) of the Evidence Act Section 87 of the Evidence Act provides as follows: "Admissions made with authority (1) For the purpose of deciding whether a previous representation made by a person is also taken to be an admission by a party, the court must admit the representation if it is reasonably open to find that - (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter in relation to which the representation was made; or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or 1 or more people including the party. (2) For this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove - (a) that the person had authority to make statements on behalf of someone else in relation to a matter; or (b) that the person was an employee of someone else or had authority otherwise to act for someone else; or (c) the scope of the person's employment or authority." (emphasis added) The facts The appellant ("the Commonwealth") engaged the first respondent ("Helicopter Resources") to provide helicopter services to the Commonwealth in connection with Commonwealth operations in the Australian Antarctic Territory. On 11 January 2016, Captain David Wood, a pilot employed by Helicopter Resources to provide some of those services, landed his helicopter at a point on the West Ice Shelf where, unbeknownst to him, a crevasse lay hidden by snow. After undertaking work on the ground, Captain Wood fell into the crevasse while attempting to reboard the helicopter and remained there for some hours. He died the following day from hypothermia. By virtue of s 6 of the Australian Antarctic Territory Act 1954 (Cth), applicable laws of the Australian Capital Territory including the Coroners Act 1997 (ACT) apply in the Australian Antarctic Territory. Pursuant to the Coroners Act, on 19 September 2017 the Chief Coroner of the Australian Capital Territory commenced an inquest into the manner and cause of Captain Wood's death. The evidence before the Coroner included a statement by Helicopter Resources' Chief Pilot, Captain David Lomas, that was prepared for the purpose of the inquest. By virtue of s 11 of the Work Health and Safety Act 2011 (Cth) ("the WHS Act"), the WHS Act extends to every external Territory, including the Australian Antarctic Territory. Under s 10 of the WHS Act, the Commonwealth is relevantly bound by, and may be liable for an offence against, the WHS Act. By information and summons laid on behalf of Comcare, the work health and safety regulator, in the Magistrates Court of the Australian Capital Territory on 20 December 2017, the Commonwealth (acting through the Department of the Environment and Energy) and Helicopter Resources were each charged as co-accused with three summary criminal offences against s 32 of the WHS Act. The charges were apparently prosecuted by the Commonwealth Director of Public Prosecutions on instructions from Comcare. They alleged that failures to comply with the duty to ensure worker health and safety in three separate incidents had exposed workers to risks of serious injury or death. The second and third charges alleged breaches in relation to Captain Wood and another employee. The third charge arose directly out of the circumstances giving rise to Captain Wood's death. As the Commonwealth and Helicopter Resources had different safety responsibilities in the Australian Antarctic Territory, they were likely to take different positions in both the coronial inquest and the criminal proceedings. By letter to the Coroner dated 31 January 2018, the Commonwealth requested that Captain Lomas be made available for cross-examination at the coronial inquest, on topics including Helicopter Resources' relationship with the Commonwealth in relation to responsibilities for risk identification and management. Helicopter Resources applied to have the inquest adjourned, pursuant to s 36 or s 58(6) of the Coroners Act, pending the determination of the criminal proceedings. The Coroner refused that application and issued a subpoena for Captain Lomas to attend to give evidence pursuant to s 43 of the Coroners Act. Helicopter Resources then sought, but the Coroner refused, a direction that the examination of Captain Lomas not extend to matters arising in the criminal proceedings. It is not in dispute that the matters on which it was proposed to cross-examine Captain Lomas at the coronial inquest were matters within the scope of his employment or authority within the meaning of s 87(1)(b) of the Evidence Act. Proceedings at first instance Helicopter Resources applied to the Federal Court for judicial review of the Coroner's decision to issue the subpoena. The basis of the application was that to compel Captain Lomas to give evidence at the coronial inquest on the proposed topics would prejudice Helicopter Resources in the criminal proceedings, and undermine the accusatorial nature of the criminal process, in two ways: first, by giving the Commonwealth, as co-accused, the forensic advantage of exploring the evidence that Captain Lomas might give if called in the criminal proceedings, which advantage would not be available under the ordinary rules of criminal procedure; and, secondly, by arming the prosecution with evidence and admissions, attributable to Helicopter Resources pursuant to s 87(1)(b) of the Evidence Act, which could be tendered in the criminal proceedings. On 29 June 2018, the primary judge (Bromwich J) dismissed the application. His Honour reasoned that, although the accusatorial nature of criminal proceedings prevents the rights and privileges of an accused from being overridden without clear statutory authority, it was Captain Lomas, not Helicopter Resources, who was proposed to be examined at the coronial inquest, and Captain Lomas was in no "different position [from] any other witness who may be called at any inquest". It followed, in his Honour's view, that the forensic disadvantages identified by Helicopter Resources did not constitute an improper interference of the kind required by the authorities. Alternatively, Bromwich J held that, even if a real risk to the administration of criminal justice had been established, Helicopter Resources' application to stay the subpoena was premature as any interference may not eventuate. Proceedings before the Full Court Helicopter Resources appealed to the Full Court on the ground that the primary judge had erred in failing to hold that the compulsory cross-examination of Captain Lomas at the coronial inquest would constitute an impermissible interference with the administration of criminal justice. Helicopter Resources argued that it is a fundamental feature of the accusatorial system of criminal justice in Australia that neither the prosecution nor a co-accused is permitted a process of compulsory pre-trial examination of persons who may be summonsed to give evidence at trial, as part of either the prosecution or a co-accused's case. The Full Court (Rares, McKerracher and Robertson JJ) did not accept that argument. Their Honours observed that the decision of this Court in Environment Protection Authority v Caltex Refining Co Pty Ltd "stands against the proposition that, of itself, the accusatorial nature of a criminal trial of a corporation means that an officer of the corporation may not be required to answer questions which tend to incriminate the corporation". Their Honours also observed that the so-called "companion rule" - "that an accused person cannot be required to testify" - "is not engaged [where] ... the prosecution is not seeking to compel the person charged with the crime ... to assist in the discharge of the prosecution's onus of proof". But having so concluded, the Full Court then posed for themselves the question "Does s 87 of the ... Evidence Act have the effect that [Helicopter Resources] is being so compelled?", which their Honours answered as follows: "In our opinion, the crucial and dispositive consideration in relation to the issue of interference is that if Captain Lomas were compelled to give evidence in the inquest, as a matter of practical reality, [Helicopter Resources'] position as an accused corporation in the criminal proceedings would be altered fundamentally. That is because s 87(1)(b) of the ... Evidence Act would make his evidence admissible, not merely as evidence of a witness of fact, but as evidence of an admission by [Helicopter Resources] itself." No compulsion of the accused The Full Court were correct not to accept the argument that compulsory pre-trial examination of a potential witness is inconsistent with the accusatorial system of criminal justice in Australia. Inquisitorial processes involving compulsory pre-trial examination by executive officers have formed part of English criminal procedure since the reign of Queen Mary, and the nineteenth century reforms which enshrined much that is fundamental to the accusatorial system of criminal justice, here as in England, retained compulsory pre-trial examination of witnesses, as distinct from the accused, in committal proceedings. The Full Court were also correct in holding that the compulsory pre-trial examination of a potential witness does not engage the general rule that an accused cannot be required to assist the Crown in proof of its case. That rule has been identified as a companion to the fundamental principle that the burden is upon the Crown to prove the guilt of an accused beyond reasonable doubt. It applies to an accused, not a witness or potential witness other than the accused; and, self-evidently, the compulsory examination of a potential witness other than the accused does not in itself involve any compulsion of the accused to give evidence or otherwise to assist the Crown in proof of its case. Contrary to the Full Court's reasoning, however, that is so even where s 87(1)(b) of the Evidence Act has the effect that representations by the potential witness in the compulsory examination may be taken as admissions by the accused in the criminal proceedings. Section 87(1)(b) of the Evidence Act departs from the common law primarily by extending the range of employees and agents whose representations may be treated as admissions against their employers or principals: from those having authority to make representations on the latter's behalf to those not so authorised but whose representations relate to a matter within the scope of their employment or authority. Thus, it may be accepted that, where an employee is compelled to give evidence about such matters, the employee is thereby compelled to give evidence that may be taken to be an admission by his or her employer. The provision does not, however, involve any "singular change" to the accusatorial system of criminal justice. To the contrary, the common law's "strict insistence upon the distinction between the agent's authority to act and his authority to speak concerning his action" was pilloried by Wigmore as making "a laughing-stock out of court methods", and, for similar reasons, Sir Rupert Cross considered it preferable to abandon the common law rule in favour of r 63(9) of the American Uniform Rules of Evidence as promulgated in 1953. Hence, as the Australian Law Reform Commission explained in the recommendation that spawned s 87(1)(b), the change which it effected was to improve the fairness of the adversary process: "The primary argument for permitting an 'admission' by a third party to be proved against a party is based on the adversary nature of the trial system. It is fair to allow a party to be held responsible for an assertion made by a third party if that third party is an agent of the party acting under his authority. Thus, an admission made by a managing director should be admissible against the company, even if arguably unreliable, because he either had actual authority to make the admission or was put in a position where a reasonable observer would assume he had such authority. ... [I]t would seem that the best approach is to impose a requirement of authority to speak or a requirement that the statement relate to an area of personal responsibility." (emphasis added) Certainly, s 87(1)(b) means that a previous representation made by an employee related to a matter within the scope of his or her employment and adverse to the interest of his or her employer in the outcome of the proceeding may be taken as an admission by the employer. And such attribution may occur even where the representation is made under compulsion of law, rather than volunteered by the employee. But the fact that an employee can be compelled to give evidence that may be treated as an admission against the employee's employer does not mean that the employer is thus compelled in effect to give evidence or otherwise to assist the Crown in proof of its case. Section 87(1)(b) does not require the employer to make the employee available on behalf of the employer or to authorise him or her to make admissions on the employer's behalf. Essentially, it does no more than create a rule that an employee's representations as to matters within the scope of the employee's employment may be treated as admissions against the employer. In the circumstances postulated, the obligation to give evidence is a personal obligation of the employee, and the consequences of the employee so giving evidence are ordained by s 87(1)(b) on the basis of the nature of the relationship between employee and employer that was voluntarily created by the employer. Contrary to Helicopter Resources' submissions, there is nothing fundamental to the accusatorial system of criminal justice that requires that an accused employer be free to prevent statements of an employee from being used as evidence against the employer. And contrary to Helicopter Resources' submissions, it makes no difference that the employee in question may be of central importance to the employer's defence. An accused has no property in a witness or potential witness, even one who may be identified as the guiding mind of the accused or whose answers may be attributable to the accused. As Mason J explained in A v Hayden, the "interest in the enforcement of the criminal law" is "a fundamental head of public policy", and it implies "a powerful public interest in promoting and preserving the citizen's freedom to assist and co-operate with the authorities in the investigation and prosecution of crime". Thus, terms of employment and other contractual arrangements that purport to prohibit an employee from giving evidence in criminal proceedings, even as against his or her employer, are unenforceable as contrary to public policy. Finally, the Full Court supported their decision with reference to the plurality's conclusion in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) that the unlawful examination of accused persons about matters in relation to which they were likely to be charged would, as a matter of practical reality, fundamentally alter the position of those persons in subsequently instituted criminal proceedings. But the Full Court's reliance on that conclusion was misplaced. Strickland was concerned with grossly unlawful interrogation of persons who it was known or believed would shortly be charged with criminal offences. In holding that the administration of justice would be brought into disrepute unless the extraordinary remedy of a permanent stay of prosecution were granted, the plurality relied on that gross unlawfulness and the indeterminate element of incurable prejudice arising, as a matter of practical reality, from the widespread, uncontrolled dissemination of the examination product, including to federal prosecutors. Strickland had nothing to do with the lawfulness of compulsory interrogation of potential third-party witnesses. In particular, the plurality in Strickland did not suggest, and the decision does not support, the notion that appears to have found favour with the Full Court that, because an otherwise lawful compulsory investigative procedure may result in a witness making representations that can be treated as an admission against an accused in subsequent criminal proceedings, the deployment of that procedure amounts, without more, to a breach of the companion rule or other interference with the accusatorial system of criminal justice. To the contrary, as this Court made clear in R v Independent Broad-Based Anti-Corruption Commissioner, if a compulsory investigative procedure is sufficiently authorised by statute, it may be invoked notwithstanding that, as a matter of practical reality, the result will fundamentally alter the ability of an accused to defend charges that may have been or may be laid against him or her. Contempt At first instance, Helicopter Resources' principal argument was that to compel Captain Lomas to give evidence at the coronial hearing, before the conclusion of the criminal proceedings, would constitute a contempt of court. The argument was based on a number of authorities in which the courts have considered whether the examination of a person while parallel criminal proceedings against the person are pending involves an improper interference with the due administration of criminal justice. The primary judge rejected the argument. His Honour observed that the cases on which Helicopter Resources relied were all matters in which it was sought to compel an accused person to give evidence and none of them supported the broader proposition for which Helicopter Resources contended, that the compulsory examination of an employee of an accused person involves an improper interference with the due administration of justice. In turn, his Honour relied on a critical distinction between something that rises to the level of interference with criminal proceedings and the mere potential for an executive or quasi-executive inquiry to have an effect on the interests of the accused in criminal proceedings. As no improper interference was established, his Honour concluded that it was difficult to see how the compulsory examination could amount to contempt. Before the Full Court, Helicopter Resources pressed its claim that the compulsory examination of Captain Lomas might amount to a contempt of court. But, as has been seen, the Full Court decided the matter on the narrower basis that, because s 87(1)(b) of the Evidence Act would make Captain Lomas' evidence before the Coroner admissible as evidence of an admission by Helicopter Resources, the effect of compelling Captain Lomas to give evidence was to compel Helicopter Resources to give evidence against itself. When the Commonwealth's application for special leave to appeal from the Full Court's decision came on for hearing on 21 June 2019, it was anticipated that the criminal proceedings would be concluded before the appeal to this Court could be heard. Helicopter Resources thus opposed the application for special leave on the basis that, regardless of the outcome of the appeal, it would be devoid of practical utility. But Helicopter Resources otherwise expressed no interest in opposing the appeal, so long as the Commonwealth agreed to pay its costs of the appeal on a solicitor/client basis, much less an intention to defend the Full Court's orders on any basis other than that the Full Court were correct as to the effect of s 87(1)(b). In the result, special leave to appeal was granted on amended grounds that the Full Court erred as to the meaning and effect of s 87 of the Evidence Act, and thus as to the scope and effect of the accusatorial principle, by treating that provision as preventing an employee of a corporation from being compelled to provide evidence relevant to pending criminal charges against that corporation; and the grant of special leave was conditioned on the Commonwealth paying Helicopter Resources' solicitor/client costs of the appeal. Subsequently, Helicopter Resources sought leave to file a notice of contention, out of time, to the effect that, if the Full Court were not correct in their construction of s 87, the Full Court's decision should be upheld on the basis that compelling Captain Lomas to give evidence at the coronial inquest would constitute a contempt of court by creating a real risk of interference with justice according to law. The Commonwealth opposed the application as inappropriate given the circumstances in which, and the basis on which, special leave to appeal was granted. In order, however, to decide whether it was appropriate to extend time for the filing of the notice of contention, counsel for Helicopter Resources was allowed to present full argument in support of the contention and the Commonwealth was heard in reply. Having heard the argument, we are not disposed to grant the extension of time that is sought. As was anticipated at the time of granting special leave, the criminal proceedings have now concluded; and Helicopter Resources was acquitted of the offences with which it was charged. Consequently, any decision as to whether the issue of the subpoena for the compulsory examination of Captain Lomas was a contempt of court is no longer of interest to Helicopter Resources, and Helicopter Resources will suffer no prejudice if that question remains undetermined. Moreover, whether an exercise of compulsory investigative powers creates a real risk of improper interference with criminal proceedings, and thus amounts to a contempt of court, turns on questions of fact and degree dependent on all the circumstances of the case. In the result, any determination of whether the subpoena issued to Captain Lomas amounted to a contempt of the criminal proceedings in this case would be unlikely to provide any meaningful guidance for the determination of the issue in another, different case. Possibly, it might assist in resolving the fundamental question of whether the compulsory examination of a potential witness other than an accused can ever amount to a contempt of court. But it would be more likely to generate a perception of certainty that would not be warranted. It cannot be foretold what circumstances might arise in other proceedings, and it would be inappropriate for this Court to conjecture as to hypothetical circumstances in which contempt might be established by the compulsory examination of a third party. Conclusion For these reasons, leave to file the notice of contention should be refused, and the appeal should be allowed. Orders 1 and 2(a) of the Full Court should be set aside, and, in their place, it should be ordered that the appeal to the Full Court be dismissed. In accordance with the conditions on the grant of special leave, the Commonwealth shall pay Helicopter Resources' reasonable costs on a solicitor/client basis.
EDELMAN J. Introduction: a moot question of law Captain Wood was a pilot employed by Helicopter Resources Pty Ltd. He had unknowingly landed a helicopter on a hidden crevasse of ice in the Australian Antarctic Territory. He later fell into the crevasse when attempting to board the helicopter and subsequently died of hypothermia. The laws of the Australian Capital Territory apply in the Australian Antarctic Territory. A coronial inquest into Captain Wood's death was held by the Chief Coroner of the Australian Capital Territory. The bulk of the evidence in the inquest was taken between 19 September 2017 and 11 October 2017. On 20 December 2017, whilst the inquest was in progress but nearing its end, Helicopter Resources and the Commonwealth of Australia were charged by information and summons in the Magistrates Court of the Australian Capital Territory with three offences against s 32 of the Work Health and Safety Act 2011 (Cth). The third charge arose from the circumstances of Captain Wood's death. The Chief Coroner invited the parties to the inquest to make any applications in respect of the progress of the inquest in light of the laying of those charges. By that time, only one, or possibly two, witnesses remained to be examined in the inquest. A remaining witness was Captain Lomas, the Chief Pilot of Helicopter Resources with control over all flight crew training and operational matters affecting the safety of the flying operations. On 31 January 2018, at the heel of the hunt, the Commonwealth requested that Captain Lomas be made available for cross-examination at the inquest. Helicopter Resources applied for an adjournment of the inquest pending the determination of the criminal proceeding. The Chief Coroner refused the adjournment application but issued a subpoena for Captain Lomas to be available for cross-examination. The cross-examination was to include issues that were relevant to both the inquest and the criminal proceeding. Helicopter Resources sought judicial review in the Federal Court of Australia of the Chief Coroner's decision to issue the subpoena. It was not suggested that the request was made, or the subpoena issued, for the purpose of obtaining Captain Lomas' evidence for use in the criminal proceeding. Instead, Helicopter Resources submitted that the Chief Coroner had no power to issue the subpoena because doing so would give rise to a real risk of improper interference with the due administration of criminal justice. The application was dismissed by Bromwich J. The essence of his Honour's reasoning was that there can be no real risk of improper interference with the due administration of criminal justice if compulsion to give evidence in a forum external to an extant criminal process is exerted over a witness, provided that it is not asserted over the accused. The Full Court of the Federal Court of Australia (Rares, McKerracher and Robertson JJ) allowed an appeal and ordered a stay of the operation of the subpoena and of any further subpoena issued to Captain Lomas. Before the oral hearing in this Court had been completed, the coronial inquest concluded without the cross-examination of Captain Lomas. The criminal proceeding against Helicopter Resources and the Commonwealth was also completed, with the former being acquitted and the latter being convicted. It was clear during the oral hearing that the resolution of this issue no longer had any relevance for any party to this litigation, not even as to costs. Helicopter Resources appeared in this Court only to assist as a contradictor, without any liability for costs. The Commonwealth has standing to appeal as it was the unsuccessful respondent to the appeal before the Full Court. But the Commonwealth's only practical interest is effectively to obtain advice from this Court relevant to future coronial inquests. Even then, any advice from this Court might have little utility in future cases other than potentially to endorse or to exclude only one possible path of reasoning in cases raising the same set of facts. The limited utility of reasons from this Court arises if the Commonwealth successfully resists an application by Helicopter Resources for leave to file a notice of contention out of time, which Helicopter Resources sought out of an abundance of caution to ensure only that it could address what Helicopter Resources submits is the better interpretation of the reasons of the Full Court. In short, the position of the Commonwealth is to seek the advice of this Court as to a legal issue that will have no effect on the parties to this litigation and will not even be dispositive of the identical fact scenario in future cases. For this reason, I would have acceded to the submission of Helicopter Resources that special leave should be revoked. If special leave were maintained, I would have granted leave for Helicopter Resources to file its notice of contention out of time so that this Court could address the whole of the legal issue without distraction about the precise interpretation of the reasons of the Full Court on a point that no longer affects either party to this litigation. Since neither of those courses is preferred by a majority of this Court, the preliminary question is the dispute between the Commonwealth and Helicopter Resources concerning the interpretation of the reasons of the Full Court. Not without considerable hesitation, I agree with the interpretation adopted in the joint judgment in this Court, with the effect that the Full Court did not decide the primary submission which was raised before it by Helicopter Resources. Therefore, all that remains are the narrow legal issues, as expressed by the Commonwealth, (i) whether s 87(1)(b) of the Evidence Act 2011 (ACT) has the effect that an admission by an employee in relation to a matter within the scope of their employment is taken to be an admission by the employer, and, if so, (ii) by reason of that alone, whether the employee of a corporation cannot be compelled to provide evidence that is relevant to pending criminal charges against the corporation. The answers are "yes" and "no". The legal issue The central issue raised before the primary judge and the Full Court The principal argument made by Helicopter Resources before the primary judge, before the Full Court, and before this Court was that, in all the circumstances of the case, to compel Captain Lomas to give evidence at the coronial inquest would, as a matter of "practical reality", create a real risk of improper interference with the due administration of criminal justice. This is not the legal issue that remains for determination in this Court. The primary judge did not make findings about all the circumstances of the case, including the purpose or purposes for which the subpoena was sought by the Commonwealth. Instead, the reason the primary judge rejected the submission by Helicopter Resources was his Honour's division of interferences with the due administration of justice into categories of "direct" and "indirect" interferences, and his view that compulsion over a third party would only have an indirect effect on a criminal proceeding and could never interfere with the fair accusatorial trial of an accused person. There are difficulties with this novel taxonomy. An enquiry into whether an act creates a real risk of improper interference with the due administration of justice always requires consideration of all the circumstances of the act, including its purpose. There has never been a different test for interferences, or a sub-classification of them, according to the manner in which such a risk arises. Nor has this Court ever automatically excluded a consideration of a risk of improper interference based upon the source of the risk. For instance, in the context of considering an order for examination of a person against whom criminal proceedings are in progress, in Lee v New South Wales Crime Commission Gageler and Keane JJ expressed the issue as whether the act would give rise to a real risk of interference with the administration of justice "by interfering with the right of the person to be examined (or any other person) to a fair trial". Helicopter Resources appealed to the Full Court. The first ground of Helicopter Resources' appeal was expressed in a binary manner, abstracted from the particular circumstances of the case. It was asserted in that ground that an essential feature of the criminal justice system in Australia was that neither a prosecutor nor a co-accused on a summary charge be permitted to examine by compulsion persons who might be summoned to give evidence as part of the case against an accused person. Despite this, the appeal was argued by Helicopter Resources, quite properly, with a careful focus upon the particular circumstances of the case. As the Full Court explained, the issue raised by Helicopter Resources was whether, having regard to all of the circumstances, "there has been, or will be, an interference with the due administration of criminal justice amounting to contempt of court or otherwise constituting an impermissible interference with the criminal proceedings". Helicopter Resources submitted that the reasons of the Full Court in response to this submission contained four strands: (i) the compelled examination of Captain Lomas would involve the "locking in" of the account of a witness central to the defence; (ii) s 87(1)(b) of the Evidence Act has the effect that Captain Lomas' admissions in the examination would bind Helicopter Resources in the criminal proceeding; (iii) the compulsion would reveal the matters about which Captain Lomas will give evidence at the criminal trial, which could not otherwise be discovered without voluntary disclosure from Captain Lomas; and (iv) the compulsory examination would upset the balance in the criminal trial between the Commonwealth and its co-accused, Helicopter Resources. Each of these strands appears in the reasons of the Full Court. But they do not feature in the seven dispositive paragraphs of the Full Court's reasoning. Those paragraphs are the concluding paragraphs of the Full Court's consideration of this issue. They begin with the Full Court rejecting the submission by Helicopter Resources that the prosecution was "seeking to compel [Helicopter Resources] to assist in the discharge of the prosecution's onus of proof". That rejection is expressed to be subject only to the reasoning that followed. The Full Court then asks whether "s 87 of the ACT Evidence Act [has] the effect that [Helicopter Resources] is being so compelled". After examining the operation of s 87(1)(b), and its consequences, the Full Court then concludes: "In our opinion, the crucial and dispositive consideration in relation to the issue of interference is that if Captain Lomas were compelled to give evidence in the inquest, as a matter of practical reality [Helicopter Resources'] position as an accused corporation in the criminal proceedings would be altered fundamentally. That is because s 87(1)(b) of the ACT Evidence Act would make his evidence admissible, not merely as evidence of a witness of fact, but as evidence of an admission by [Helicopter Resources] itself. We therefore conclude that the primary judge erred in this respect". For these reasons, although the primary submission by Helicopter Resources was one that focussed upon all of the circumstances of the case, and although the Full Court addressed central strands in that submission, I conclude, not without considerable hesitation and contrary to my initial impression, that the Full Court decided the issue by reasoning which did not depend upon those strands. Since a majority of this Court has refused leave for Helicopter Resources to file its notice of contention out of time, and since I have concluded that the reasons of the Full Court of the Federal Court ultimately rest entirely upon the operation of s 87(1)(b) of the Evidence Act, the operation of that provision is the only matter that remains for consideration. The operation of s 87(1)(b) of the Evidence Act 2011 (ACT) Under the Evidence Act, admissions, together with contemporaneous representations that are reasonably necessary to understand the admission, are an exception to hearsay. An admission is defined in the Dictionary to the Evidence Act as a "previous representation that is - (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding". Prior to the Evidence Act, the position at common law was that an admission of an agent would be attributable to a principal who was party to the proceeding if the admission were made with authority, either actual (express or implied) or apparent. The admission would be attributed to the principal if it were made in the course of acting with apparent authority such as where "the agent is authorized to represent the principal in any business, and the admissions are made in the ordinary course of, and with reference to, such business". Hence, an admission would be attributed if it were made as part of a communication which the agent was authorised to have with a third party. Such an admission was, and was treated as, part of the course of acting with authority and thus binding upon the principal. This common law approach naturally applies to attribute to an employer those admissions made by an employee within the scope of authority. As Dixon CJ expressed the common law in Nominal Defendant v Hook, the employee needs to be "the agent of the master to make admissions". The concept of an employee as an "agent to make admissions" means that the attribution to an employer of an employee's representations is difficult, because an employee generally has an authority to do acts that is far wider than an authority to speak about them. The common law approach has been criticised. Wigmore criticised it as making a "laughing-stock of court methods", and the author of a note on the leading English decision asked why, if authorisation is irrelevant to vicarious liability, "should it be vital in connexion with the admissibility of the servant's statement?". However, there were also defenders of the common law distinction as a matter of principle. Professor Morgan argued that it is "important to distinguish between authority to do an act and authority to talk about it". He added that B giving authority for A to do an act, X, "adds no whit of trustworthiness to A's narratives about X; nor does it furnish any grounds for depriving B of the usual protection against unexamined testimony". In a more restrained English style, and prior to a change of heart following the legislative amendment to hearsay in s 2 of the Civil Evidence Act 1968 (UK), Sir Rupert Cross said of the distinction between attributing statements and attributing acts that: "there is, perhaps, a little more to be said for it on the score of public policy than is sometimes supposed to be the case. If the servant's admission is made immediately after the accident it may often be admissible as part of the res gestae. The possibility of the reception of an admission made at a later date would be a temptation to a servant with nothing to lose from a finding of negligence against him." In 1983, in a research paper prepared for the Australian Law Reform Commission during the development of the uniform evidence laws, Odgers suggested that the position was "uncertain where the admission, although unauthorised and not made in the course of an authorised communication, was made in the course of the [speaker's] employment". He referred to the breadth of Rule 801 of the United States Federal Rules of Evidence, which permitted as an exception to hearsay a statement by an agent or servant "concerning a matter within the scope of his agency or employment, made during the existence of the relationship", and recommended that the concept of "authorised admissions" be retained, but observed that the existing law was too strict and proposed an extension of the concept to capture admissions made with apparent authority. The Law Reform Commission followed this approach. The Commission recommended that "[t]he present category of 'authorised admissions' ... be modified and expanded" by adoption of a rule that attributed admissions without authority if "the statement relate[s] to an area of personal responsibility". The Commonwealth Evidence Act was "based substantially on the recommendations of the Law Reform Commission in its report on Evidence". Section 87 of the Evidence Act is based upon the identically numbered equivalent provision of the Evidence Act 1995 (Cth), with some modifications to "accord with the drafting style of the ACT" which were "not intended to change the meaning" of the provision. The explanatory memorandum to the Evidence Act 1995 (Cth) described the equivalent provision as setting out "the circumstances in which a representation made by another person is treated as being an admission made by a party". Amendments made after the issue of that explanatory memorandum were described as "drafting changes ... to clarify its operation". Section 87(1), as adopted in the Australian Capital Territory Evidence Act, provides as follows: "Admissions made with authority (1) For the purpose of deciding whether a previous representation made by a person is also taken to be an admission by a party, the court must admit the representation if it is reasonably open to find that - (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter in relation to which the representation was made; or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority ..." Section 87(1)(a) is an attempt to state the common law concerning authority to make admissions. The effect of s 87(1)(b) is to extend the common law concerning apparent authority by treating a previous representation by an employee that is adverse to the employer's interest in the outcome of the proceeding as attributable to the employer if the representation "related to a matter within the scope of the person's employment". The effect of s 87(1)(b) can be illustrated by reference to the circumstances of Captain Lomas. If Captain Lomas had made previous representations at a time and place other than the criminal trial, such as at the coronial inquest, and if those representations were related to a matter within the scope of his employment at that time and were adverse to the interest of Helicopter Resources in the criminal proceeding, then evidence could be led of those representations in the criminal proceeding. It would not matter if the representations were made without the authority of Helicopter Resources to make statements of that nature. Contrary to the reasons of the Full Court, s 87(1)(b) did not have the effect that "requiring Captain Lomas to answer questions at the inquest would be compelling [Helicopter Resources] to answer questions", nor did it have the effect of compelling Helicopter Resources "to assist in the discharge of the prosecution's onus of proof". Section 87(1)(b) was not a source of compulsion for Captain Lomas or Helicopter Resources to say anything. It operated whether or not those previous representations were the subject of lawful compulsion. Further, although s 87(1)(b) permitted the attribution of particular previous representations to Helicopter Resources as employer, the answers to questions at the coronial inquest remained the answers of Captain Lomas. Previous representations, if given as the evidence of an employee in an inquest or as interrogatories, remain the evidence of that employee even if they are able to be later attributed to the employer. As Willmer LJ said in Penn-Texas Corporation v Murat Anstalt of answers to interrogatories: "I do not think it helps to say that when interrogatories are answered by the proper officer of a company, his answers are the company's answers and bind the company. I do not think that touches the question whether an officer can go into the witness-box and give oral evidence which can be said to be that of the company. The answers given by him would be his answers, based upon his own memory and knowledge; and though any admission by him would no doubt be binding on the company, the evidence would still be his evidence and not that of the company." For these reasons, s 87(1)(b) of the Evidence Act does not have the effect that, without more, the compulsion at an inquest of an employee of a corporation to provide evidence that is relevant to pending criminal charges against the corporation involves a real risk of improper interference with the due administration of criminal justice. By itself, s 87(1)(b) did not create a real risk that the subpoena to Captain Lomas to give evidence at the coronial inquest would be an improper interference with the due administration of criminal justice. Conclusion The appeal must be allowed. It suffices to reiterate that allowing this appeal will have no effect on the parties and will not provide an answer to the primary manner in which Helicopter Resources put its case before the primary judge or before the Full Court.
Commonwealth of Australia
Helicopter Resources Pty Ltd
First respondent's application for leave to file a notice of contention refused. Appeal allowed. Orders 1 and 2(a) of the Full Court set aside and, in their place, order that the appeal to the Full Court be dismissed. Appellant to pay first respondent's reasonable costs on a solicitor/client basis.