No. V.G. 54 of 1978, CORAM: Smithers, Franki and Northrop JJ. Melbourne

IN THE M'TTER of the trade Practices Act 1974, ss.155 and 163A.

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ORDER JUDGES MAKING GRD=R: Smithers, Frank. end Northrop JJ

1. The answers to questions (i) - (ix) are as follovws:-

The proceedings stand over for argumert on the question

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRIC! REGISYRY VG No. 54 of 1978 GENERAL DIVISION

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I have had the advantage of reading the joint reasons for judgment herein of my brothers Franki and Nortnrop. I am in agreement with the answers to questions nos. (1), (i1) (i414), (iv), (v) and (vi) proposed in those reasons, Whether questions (vii) and (vi2i) and (ix) should be answerec at all must be considered an the light of the possibility, hich however would seem remote, that additional relevart mater.al may be placed before the Court at the hearing of this epplaicavion. However, as the matter has been fully argucd before this Court by reference to the materials in the cpecial case it vould aypecr useful and I thank proper that the result of consideration of

ry Before turning to deal with those lastthree questions

I desire to make some observations on the matters that have

influenced me in deciding questions (2) and (111). These

of the common law expressed in the maxim nemo tenetur seivsum

accusare which I refer to in these reasons as the pravilerfe against self incrimination. It aprears to me that these questions are best apnroached or the fcoting trict

s.155 of the Trade Practicrs Act 1974 (tne Act) proceeds on the

basis that but for that suction the common law pravilcge agairs*? self incrimination would be available to a party to who under s.155 a notice is given to furnish information or produce cocunints. So approached the section may be scen to take up the subject

Matter of that party's obligations to give answers and produce documents notwithstanding their possible incriminating nature,

expressly i> abolish the privilege on that account, but to restrict

the eviGen wary use which pay be made of such answers and cocurents.

It is of course quite competent for Parliaznent under a

valid head of power to require persons to answer questions

put by an administrative body although those answers may

expose the person answering to conviction fora crime or the

imposition of a penalty or forfeiture. The question is whether

notice which may be served.under s.155 of the Act. One turns

information or producing or permitting the inspection of a document in pursuance of this section on the ground that the anformation

or docunent may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the

furnishing by a person of any inforration in pursuance of such a notice, or any docurent produced in pursuance of sucn a notice or

inspection, 15 not aduissible in evidence against the person -

One finds in the opening sentence of this sub-section, either

in the case of a person not being @ body corporate - - - 1n any criminal proceedings other than procecdings under this section; or

in the case of a body corporate ~ in any criminal proceedings other than proceedings under this Act,"

way of introduction, exegesis or direct enactment, express

provision on the subject of excuses from the furniching of

information and production of documents pursuant to s.155.

is that a person is not excused from so furnishing producing documents on the ground that the

Vat provision it ts quate clear tact, to the crtent

mee UV LLL

that sub-section (7) speaks, the privilege against self incrimination which might othorwise have applicd has been

It is to be observed that s.155(5) provides inter alia that a person shall not refuse or fail to comply with a notice under s.155 "to the extent tnat the person is capahle of complying with it", A penalty of $1000 or z™prisonment for three months is provided for a breach of this sub-ccction. There much to be said for the view that tnis sub-section standing alone abolishes the privilege against self iuncriaminatron un.ch

might otherwise apply. It 1s not specifically directs

compliance with a notice which muy tend toincrivin.te but the cifence

created by s -155(5) would extend to corpizance wath the notice

in all respects including corpliance which may incriminate

Its terms are clear, mandatory and the obligation created thereby is to comply to the limit of the recipicnt's capability But the contention is that neither s.155(5)(a) nor s.155(7) do, on their proper construction, abrogate the privilege where the

furnishing of the information would tend to expose the person

not to conviction for a crime but to liability for a conlrayention

of a statutory provision such as s,45 of the Trace Practices Act

1974 which is not a crime, and in respect of which, the statutory sanction is a pecuniary penalty irposed pursurnt to

It would of course be surprising that Prrliament should compel a person to furnish anformation which might

expose him *- a convaction for a crime but exes him fron aoing

so where wisi is involves fs but a contravention cr the Act

involving a pecuniary penalty, The argument that it does so depends upon reading the expression "may tend to incriminete the person" where it appears in s.155(7) as referring only to disclosures exposing a person to liability for a crime.

It is of course arguable that "incriminate" is a word which

primarily denotes a connection with crime bub not bre¢ches o

the lew which are not crimes. And ain certain contexts the expression mignt well be construed cs referring only to crinincl charges. However, the dictronery meanings of the «ord "inciminare™ indicate thet it has a natural meening which extends to charg so

of crime or fault. Thus according to the Shorter Ovfera Doct mary

"to ancriminate" 1s "to charge with a crime" or "to anvelive in

an accusation or charge". According to Webster's "ew Internet crel

Dictionary the expression means "to charge with a crime or fauit"

or "to accuse", Also according to the Imrernel Dictionary the

expression means "to charge with a crime or fault",

It is to be noted that discussion in text beexs of the common law privilege from answering questions whether tending to expose a witness to risk of prosecution fora crane or to 4 forfeiture or to 2a pecuniary penalty are Ciscussed in terms reflecting the view that immunity on any of such grounds eryists if at all as part of the common lay privilege against incrsvirsticn. According to Halsburv's Lavs of Fuglend 3rd Pd. Vol. 15 para. Thy av p.422 where under the heading "ancrimination of wivr.e5.¢5" the subject is discussed with reference to the "aw as it stood prior to the statutory provisions dealt with in Lhe current 4th eaitien, the

"A wit 3 is entitled to refuse to ansver a auceticn

on 4! sund that tre answer wry ancrisipate arc, whet

S8, Woy cond to expose the witness, ... to 4 cririnel

• • • ee en ee | a. .

A statement in substantially similar terms appears in Archbold's

Criminal Pleading, Evidence and Pracizce(39th Ed.1975) Chap.12 p.706,5%

1304 under the heading "Incraminating Cuestions." in Cross

on Evidence (2nd Australian Edition 1978) at p.264 under the heading "the privilege against self-incrimination" the learned authors set out Lord Goddard's classic statement of the

common law rule to be found in Blur.t v, Park Lene Hotel Lte

",..The rule is that no one is bound to answer any question if the ans.erc thereto would,

in the opinion cf the jgudre, have a tindcney to expose the deponcnt ts any criminal charge, penalty, or forfciture waich the

Judge regards as reasenably lixely to be preferred or sued for."

Similarly in Phipson on Evidence (12th Ed, 1976)p.256 para. 612

under the heading "criminating questions" the learned suthors! text procceds:-

"At common law the principle nemo 2 prodere @insun ultimately came to accepted, so that a witness was entitled to claim privilege in respect of any evidence which might lead to his being exposed to the risk

of either a criminal ccnviction, the iumpositio of a penalty or liabiiity to forfeiture

It thus appears that in the languace ef the law, as used in relation to the subject of the privilege of witnesses

from answering questions where such answers mzy tena to expose the

witnesses to risk of conviction for crime or to a penalty or to a forfeiture, that privilege in each of such manifestetions

is comprehended within the scope of the expression "the privilege

against self incrimination". Accordingly 1t 1s my vicw that

s.155(7) of the Act on its proper construction effectively declares that the privilege of refusing to answer questions, the answers to which may expose the person concerned to conxiction for crimes or the imposition of a pecuniary penalty, 16 abolished in relation to the furnishing of inforzation or production of documents in response to a notice uncer $.155(1) of the Act,

.1 ted to covpliince with a notice under s.155(1) una

(ob), It is also directed to the situetion which arises un s.155(2) an relation to the inspection of documents which ray

tend to incriminate, As to the situation \hich arises when in accordance with a notice unger Sgnnp els? individual appears before the Trade Practices Commission/in accordance with s.155(1)(c) to give evidence and is asked questions the answers to which may tend

to incriminate him or required to produce documents which would

so tend, s.159(1) and (2) are applicable and make provisicn with respect to the answers given and docuvents produced vhich are generally in harmony with those provisions of s.155(7) in

relation to information furnisned and documents produced in accordance with s.155(1)(a) and (b) or s.155(2). The provision

an s.155(7) declaring that tne person served witn a notice unser s.155 18 not excused frou answering eny question asked in thot notice would appear to te d:rectedc to a case in which the terms

of the notice may be expressed in an interrogative form rather

than as a demand that certain specif2cue information be sun slied,

The tenor of the Act 1s clear, navrely, the privilege against self ancriminalion is exciudrd, but the disclecures which are made in consequence of such exclusion al*thcupn genereily admissible against the person concerned are not admissible in any criminal proceedings other than under the Act. The above

reasoning also governs the answer to question (iii).

In relation to questions (ii), (v) and (vi) I refer to and adopt what is said with respect to those questions in the reasons

Questions (vii) to (ax) are in the following terms:-

(vii) May the Court, in the present application, enquire anto and exa.aine ~

(a) the question whother the secondnamed Nesperdens nad reason to believe the mitters attributeu to him an the notice a covy of wnich 1s annexed

(b) the question whether, 1f the secondnimed Respondent had reason to believe the matters attiibuted to him in the said notice, the grounas upon waich such reason to believe is founded are lawfully sufficient to entitle him to serve the said Notice?

(viii) Is to open, in the circumstances of the present Application, to order that the Respondents or either of them answer interrosatories relating to the questions

(a) and (b) referred to 1n question (vi1) or either of them?

(ix) Is it open, in the circuystances of the pres Applacation, to order that the Respondents or of them make discovery of documents relating t questions (a) and (b) referred to in question (vii) or either of them?

In my opinion the answer to part (a) of question (vi1) as that the question whethcr the Commission, Chaiviran or Deputy Chairman (herein collectively referred to as the Cnairran) nad the reasscn

examine whether the Chairman had reason to belleve the relevant matter depends upon the intention of Parliament as appearir

from the terms of Part XII of the trade Practices fect 1974,

It is clear that in construing this Part 1ts purpose 15 of the utmost significance, Part XII takes its place in an Act which

is designed to introduce practices in trade and commerce wnich accord in matters of competition, prices, commercial morality

and otherwise with standards prescribed by Parliament. By subgect- ing persons who contravene the provisions of the Act to remedial action at the hands of private persons and to proceecirge Tor

penalties end al*ied acticns uf considerable severityby the Corss

and other persons, Parliament has indicated an intention to ensure, so far as possible, that the Act 18 obeyed. Part XII

is obviously designed by Parliament to confer upon the Commission the authority to seek and obtain information from ccrporutions

and others for the purpose of facilitating the enforcement cf the Act by legal process, So important did Parliament consider

this function that it authorised the Commission to se.k and cbtain

such information even from those suspected of contraventions

fo} baa ct ty ®

a ct i) Ss fod o applicant is in the position of a i1rtigant seexing to launch a

procceding upon allegetions in a statement of clei Ler2 2c

ryi BS)

is clear that the action is speculative and h> hus no evidence to support his allezations, In such 4 case +n application to strike out such a procecding vould nortelly succeed, Reference may be made to the judgricnt of Dixon J.,

as he then was, in Cox v. Journeauy (No. 2) (1935) 52

C.L.R. 713, especially at p.720. ee also Lucas v. O'Reully

Accordingly un a proceeding pursuant to 5,163A(1), certainly in the absence of satisfactory evidence that the

believe, the applicants are faced with the prima facie validity of the notice. In the absence of such eviderce the proceedin is essentially speculative in nature. In such circurstarces for the Court to assist the applicants by mating avirlavle to them the processes of interrogatories and discovery weuld be to assist them in an essentially fashing exercise ind fren % the Court on established principles should refrezn., Guestions (viii) and (1x) must be answered accordingly.

It is to be noted thet nowuere in the sprcial case ner in the arguments addressed to the Court 1s thcre any suggest that the case sought to be made by the applicents goes to

The special case states that the applicant,» have siorn and filed affidavits deposing that included in "the grounds"

4 Si bu Tel Trade Pra es Commis32 on or the beputy Chairnen oa ne reason (or alte ernatavely, any ler ally sufficzer.t reason) to kelieve ary o or. the m-tters cet

It was accordingly argucd an sapport of this grour.d whet the relevant notice issued to cach applicant was 1ssuec without

the Trade Practices Commission, the Chairman or the Deputy Chairman having reason (or alternatively, any legally sufficient reason) to belicve any of the matters

set out an s.155(1) of the Trade Practices Act 1974, But

there is no suggestion that there 1s any evidence available

to the applicants of such absence of reason to believe, In

the situation dasciosed by the special case therefore an order permitting the applicants to interrogate the respondents or that the respondents make discovery would ke to authorise a procedure of an essentially fishing nature, Accordingly in the circumstances appearing according to the materials in the special case an order for interrogatories

or for discovery would be an abuse of the process of the

Norwest Holst Ltd, v. Secretary of State for Trade / 1973 _/

Ch, 201 the Court of Appeal dealt with a situstion ariseng upon the appointment of inspectors pursuant to authcsracy in the Secretary of State under 9.165 of the Cot venies Act

1948 (U.K.)to make such an appointment "if it appears to the Board that there are circumstances suggesting" certain misconduct, The appointment was crallenged by proccedirgs for declarations and ingunctions in the Chancery Division of the High Court on the ground that natural gustice had nov

been accorded and that the appointment was not a bons: fide

exercise of the statutory power. The defendant succes

moved to have these proceedings struck out as cisclosir

reasonable cause of action, The defendant deposed that the

nature of the information in his possession derived fren a previous inspection as well as information from an informant and added that disclosures of that information might reveal the informant's adentity. The Court accordangly struck out the plaintiff's action. The Court of Appeal diswicsed ihe

plaintiff's appeal from this order on the following creunds :-

to investigate a company's affairs and report to it

was exercised ata preliminary cee for the yurbose of good administration, and c7rricd th it uo amplicetion that there was any case acinst the compen; acecrainsly the rules of natural jut tice were at that steso ins applicable, so weet the apnount mene of incnectore eculd not be challen where the Sesretery of Slate nad

the exercise of that discretion vnere tay Coden 7d mot

discharged the onus on 11 of shoving: that "here uv lack of good faith on the pert of the departrent."

"Al] we are concerned with 1s section 165. As to it, I would say that, so Jong as tne Minister acts in good faitn, at is not anciu Eent upon him to disclose the material he has b 2 him, or the reason for tne inauary."

(see also per Ormrod L.J. at p.227 and per Geoffrey Lanz L.d. at p.230)

It will be apparent fron the discussion acccmpanying my answer to question (v2i)(a) that I would alse ansver guection

An affirmative ans.er to question (v1i1)(b) would enable the applicants to ranse far beyond esteblaciins wiether the Chairmen hes a 'reason to believe! to a con.idcretion of whether the Chairman had a particulier type of reason to believe

Lloyd v. Wallach (supra) at p.304 and of Starke J, an Pouce ut

Bay Co. Ltd. (in Liquidation) v. The Conmom.calth (s supre) at p.101

are of course most persuasive. But there are additional naticrs

pointing to *he same conclusion. To enadle or pernz

of Taxation \Q7i) 45 ALLIS.P. 249, vrders) Corer seierer of

examination of the adequacy of the Chairman's reasons vould

not only do violence to the language of s.155(1) but defe:t tne object of that sub-section. That object is to enable a public administrator charged with administering purts cf the éct to further his investigations and obtain additional airformation

so that he may assess whether in fulfilling the ecuty ampcecd

upon him by those parts of the Act he should anitiate legal proceedings. The applicants' submission suggests that at such a preliminary stage it should be possible to call a halt to proceedings to ascertain what evidence the Chairman has

The nature of the procecdings involved suygests that tnis submission must be rejected. No legal right of an andividcual depending upon existing facts is affected by the activities

the Chaarran may pursue under s.155(7), although the rotace gives rise to a duty to conuply with it. The Courts heve elways shoan reluctance to interfere witn an investizatory proccediag the conclusion of which cannot itself affect rights, The juiuments

in Norvest Holst Ltd, v. Secretarv of Stete for Tr:de (supre)

When and if an applacant in a procecding under 5,.163A(1)

establishes a basis for investigation by this Court of whethe

; exist conditions precedent to the validity of a notice under 5.155(4) /Annth full range of procedural rules may wcll be available to it. This is the situation in the tax cases cited by the applicants.

Those cases include Garis Pty. Ltd. v. Federal Commissioner

of Taxation (1969) 119 C.L.R. 365, Frew v. Federal Comriccsener

Taxation v. Brian Hatch Tirber Co. (fales)Pty. Lte. (1972)

128 C.L.R. 28; LiEstranre v. Federal Cennissioner of Sevation

£1973 7 A.T.C. 4061; Kolotex 'Iosicry CGuctalia) Fiv. Lte. vy.

Federal Commissioner of Tatzavien (1975) 4132 C.L.R. 530.

The significance of those canes is explained in the gsucgient of

the High Court in EBailev v. Federal Cormissioncr of Tayvazion

(1977) 136 C.L.R. 214. It as a different matter in the present case where no action affecting lepal rights of the nature of the

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or altemnab very byectsur ie upon Sci.e or such @reuncs;

(v) The said notice canrot lavwfuily require delivery to any person other than the c21ed Cormassion or alternatively a romber of the Said Commission;

(vi) The requiremerts of the said notice (or some of them) exceed the anbit of and pewer conferrcd by 5.155 of the said Act;

(vi1) The said notice inquires as to anformaticn the cor.fsdential property of others;

(vii1)The said notice? was issued witnout the Tride re Clitu. Comezssicn, the Charrnnetn cr oun? Vepaty Chasm an having Trees son (or alvernatively, any Lem) Ly surficient reason} to believe any ot the matters set out in s.150(%7) cf the said Act;

(ix) etron 155(1) of the said fet Fe beyond the y. 2m. of the

Parlianent of tne Commonwealth of Australia ans void and of no

"163A, (1) Subject to this section, a person may 1unslitute a proceeding in the Court seeking, in relation to a mattcr arising under this Act, the making of -

(a) a declaration in relation ... to the validity of any act or thing done, proposcd to be done or purporting to have been done under this Act;

and the Court has jurisdiction to hear and determine the procecding."

The nature of the jurisdiction conferred py "het section

was considecrec by the Full Court of the Pecural Court

in Re an 'nplicetion by Teeth & Co. Ltd. (No.1) (1978)

19 A.L.LR. 191 and Re en Anplrcation Ly Tooth & Co, Lid.

(No.2), 20 September 1978, [1976] A.T.P.R. 40,084. In

the first of those judg~ents, consideration was fiven

also to the nature of the discretion in the Court to

grant a declaration under s.163A of the Act, pencrally d

"455.(1) Where the Commission, the Chazrnan or the ocputy Charrnan has reason to believe that a person 1s capable of furnishing anfornation, producing documents er plividg evidence relating to a matter that constitutes, or may constitute, a contravention

(2), the Conmassien ray, by notice in writing served on that person, require

(a) to furnigh to the Co nmas320n, by writing signed b ae person or, in the case of a body corpora te, by a competent officer of. the body corporate, within the time and ian the manner specified in the notice, an; such information;

(b) to produce to the Conmission, or to a person specified in the notice acting on its behulf, in accordance with the notice, any such decuments or

(c) to appear before the Commission at @ time and place spcesificd in the notice to give any ench eavidercea, either orally or an writing, and produce any gucn a@teaments.

(2) Where t or the leputy C believe that CNngesiug am cen

at for the purrose of asceri2irin y ir examination of docupencs an Vie posses cion or control of the person wneties tre person has engaged or 18 eng.ging an tnav ceniuct, authorize, by writings c1g ned by the ver,

r a member of the staff assisting che Corm2zcsicn (an this section referred 1o as an 'aulnovized officer') to enter any premises, and to inspect any docurents in the possession or under the control or the person and ma'te copies of, or take extracts from, those documents,

(a) refuse or fail to comyly with a notice under this section to the cxtcrt that the person is capaLle of coppiyiug with it;

(b) in purported compliance with such a notice, knowingly fusniseh information o1 gave evadence that is false or mislcading; or

(c) obstruct or hinder an authorizcd officer acting in pursuance of sub-section (2).

(6) The occuprr or person in charge of any prerises thel an auciorized officer envers in nursuance of suab- section (2) shall provide the anthoriced

the officer with 211 rea, onalle Pacslities and assistance for tne effective exorcise of his povers uncer that sub-section.

(7) A person i furnishing anforvatlon o or permittang tne 22 2pre document? an pursuar. 0 on the ground thac the anforna docunent may tend to sncrimina t person, but the answer by a person any question asved in a notice unde this section or the furnishing by a person of any informevien an purcacne of such a notice, or any document produced in pursuance of such a novice or made available to an authorized officer for inspection, 16 not admissible in evidence arainst the person - to

(a) an the case of a person nov being a bo¢y corporate - 2 ananal proceelings olher than proceedings under this section;

dy corpor.te = in any criminal preceédinws otuces than procecdanrs under this ci."

It is provosed to consider the guestiosc raasecd this case in the same order as did senior counsel for the applicants. In support of a negative answer to question (i), he relied primarily on the common law privilege

expressed an the maxim nemo tenetur seiprun accusare.

He submitted that the privilege was available to evcrycne and protected a person fron being compelled to furn2zs) evidence against himself by wey of aodeascion, orulily

or by production of docunenis, wher. tha furnichin's

of that evidonce would create a risn of exposing Lt person to a penalty. He submitceed that this privilege was not taken away or abrogated by s.155 of the Act.

He argued that the common lay privilege has four acpects entitling a person to retain silent 1f an acmissicn would provide (1) evidence of a crime in the strict sense, (2) a reasonable risk of attracting a penalty,

(3) a reasonable risk of attractang e forfeiture or

penalty, the last two categories being virtually cbhsclote He submitted that under ss.76, 77 end 78 of the Aci, a contravention ef s.45 (which 1s within Part IV) of the Act does not constitute a crame but aces the off lice liable to the 27positien cf a necauniary penalty at ine suit of the Minister or the Conmiressen., He thon autc.tre that s.155 of the Act did not abrogete tho privite,;e Ys reuain Silent insofar as the matters souchkt in the novi?

were relevant to the anposiation of @ penalty tut thar

s.155(7) did abrogate thet privilege ansofar as the rac.ecr

sought in the notices related to a crime but he noted the restrictions specified in s.155(7)({a) and (b).

The submission is founded on the conmon lav privilege against incramination and the principle has been stave?

by Lord Goddard in Blunt v. Park Lene Hotel, Limiird

"Dealing first with the general objection, shich applics both to oral evidence and

to anterro,atories, the rule is that no one 1s bound to argwer any question if the answer thereto wonld, mm tae opanaen of the judge, have a tendency to expose the denonent to any criminal charge,

privilege is traced in Virerore on Fyvidenece, Cichaushten

Revision, 1951) Vol. 8 cor™encing at p.2G67. See also

Holdsworth, A Mistary of Paclisch Li, 1944 Vol IX pp.133-

Apparently the pravilere wus limited to givin ams.eus con oath in judicial proceedings or in rrocedures relating to such proceedings, as for example, discovery. The use of the vords "in the opinion of the Judge" in the passa cited from the Jjucgront of Lord Goddard sllustrates tis lamitation. The privilege is not to be confused with the rules of evidence excluding the adnissibilivty of ertain evidence. The distinction betieen the privilese and the rule of evidence as te admissibility is clecrly

that case the Tull Court of the Supreie Court of Victoria corprising Gowers, Nel»on and Ardcrson dJ. corsidcrec the effect of certain sections of tae Vactorian Votsr Car

Act 195% requiring a person te furnish a sample of his

breath for analysis ly a breath analysis arstreent cond

an particular the provisions of s.80F(G), (2) and (11) which make it an offence 1f a driver refuses or faiss to so furnish a sample. One of the argurencs rejccleu by the Full Court in a joint Judgment concerned the application of the principle thal 2 person under arrest could not be cenpelled to furrish a cample of his

"in relation to the first argument the maxim concerned 15 nemo tenetnr se jnosum accusere, It was suouititcd that thougi1 tne authorities on the existence of the rule uniformly referrea to such a rule in relation to curial interrogaticns, the protection afforded Ly the cornon law was not linited to persons asked incriminating euesc1ons in the course of proceruings Put extended to protect & person in

in any way by act or com uct or ford to provide evidence acsunsy hawself. It was then said that tne breath analysis Leeiclation dia riot ctearly abrogate tne ravit of a perso: un custedy not to angricrate bine for, thouga s.80F(E), (S) ens arposce er ovli gation Sainj le of breeth anc a novel ty for refusing cn failing ic de go, the legislatuc: aid pot in terre or

person was arrested, and thus Parliament could not oe ta'en to

have iunterded to alrevate a nercants comron la. righe not to incrin.nate hanself in such a situation. So,

it was said, the raphe rerarved, entitling & person vo Gecline 9 furnish what mignt be an incriminating sample of his breath.

That there as a fundauwcntal principle that no man can be compelled to incriminate himself cannot, of course, be gainsaid. The maxim 215 one expression of the principle vwiich has been quoled and applied counticss tines, But as an exaninatioy of the histery

of this principle skaus, the protecticn afforded by it has always been accomicd,

of a rignt to refuse te answer incriwimMatinag questions and not tu ancrumanate h woellt, when beinre anterrofgeted in cone Porn of gudicsal anquisy. ven in tye Urtice

States where the conus Law mivinm ras been tran rated airlo conti tublonad safecuirves or stale ery protections th? principle bas net been extended berens ancraminatongs areuer. To questions,

'The history of the pravilere - especially the spirit of wach. ats eetablich crt ene erat - su, ests teat the pravil cg i ,

2 as Lweud to testar cert disclosures. It was airected at tne erpleyment of lefal precess to extract from the person's own lips an adiissien of his guilt whicn sovld thus tane lhe place of other cviduce ... In other words, 1t 1s net morely eny and cvery compulsion that is the hernel of the privilege, in hastory eid in the

constatutromal cefaniwicns, but testi n2al compulsion'; Wr ocore ch vadenee, Mevited Edition, 8.0205. Jae cporateen of the maxin has been caue tly l2rited in Australia: Horrley v, (194

1963] Vin. 579, ab n.oaT & antended ts cay soucthaneg what he hed said in tris r R. v. Que we are unablic t

Tt rf une: pursuc the conrevien between th and such statu ory Ses @8 are te te

beyond Dre riulh ntereseybeonm 2a te course of cere sl tres een rt, one Vie resent aifcuscion 32% not concer: wey that. Nor we 1 profarce) le to onariye

a rd the lirats withan vavch confess loneud statenents are ajmitted an evidence, for these concern ervra-curial svatementeo, and not only did the principle nat extend to them, but they are not an question in tho present cose. On the other hand, when the cuogect malte: exis

' state. nts, to oluer forays of conduct, the princaple pursiant to vyhich evidence as to cuen conduct may be excluded in the exercise of gedzcicl discretion has « different histery and a ciffcrent source fron the amenity agarnst self-ineriunination in curjal procecdings expressed in the maxim. Such evidence 15 exeluted on the basis of fairness and not becouse of the common law right of non-incriminction, The conmon law rignt 18, of course, based on fairness, buy 1t 15 not tne basis for excluding evidence unfairly obtained."

The application of the privilege and 1ts abrogaticn Ly

Mortimer v. PRrown (1970) 122 C.L.R. 493, Hinddart Poller & Co. Pty. Wid. ve. Moor i xd (1905) 8 C.L.R. 320, Materan v. Ciyorie (1977) 137 C.U.n. 250 aud Cer ltt ee

of Cust-s and Tresse wy. Bere (ie 77] 1 A.C, 7E0 cc L.Gls.

In the first of tnose ca.es the lingh Court held tit in

@ public exaritation ulver 8.2560 of Whe Coraayles 'ccs,

1961-1964 (2) an examinee was not entacled to ducliy: to answer a question on the grount that the ansver to 1¢ may tend to incriminate him. In that case, Walsn J.

"The contention on behalt of the applicants tnat tne deciczen of the Full Court ¥as yrone raises a

question as to tne proper construction of s.250 or the Act cnd, in particular, of sub-ss (3) and (4) tnercof. It

is desircble to quate these subsections and also sau-o.(7). Theee sunsecticrs are in the follewing terms :-

'(3) The Court may put cr aila. to be Puc such quauicns te the person oxamined «S the Court

'(4)The person examined shall be exanined en oath and shall ansi.cr all such cucstT1ons as the Court puts cr allow» to be put to him!

'(7) Notes of the \samanation - (b) shall Le read over to or by

(c) may theres fier be used in cvidence in anv lect] procccdaings against hiu; and

(d) shall be op-n to the inspection of any creeitor or contributory at all reasonable times.'

The only limit which is, in terms, placed upon the questions .o1cn may be put to a person buinz examu+d, and which he commanded by the scc..on to ans.er, is expressed in the worsc, 'such question ee. 48 the Court *hawis f1it'. The

questions wnich ans,cn chat description and by sub-i.(4) the yorsin c.amuet ac

commanded To ancwor all sucn cuesbics. The arguyenz tor tre cyplicants 1s tat the provision shoalt ul cons fiucd an

as to préecerve tie uraestlonat righe or privilege apainet cour al our 1

incrimination, whieh: it recognizes as avericxte in judicial proceedirss. It ir said that in the absence oF un abr pation in express terms of this pravilece, the provision sioule@ ue construcd as not @isclesing an anicntion to take it away froy persons Vho are requarce to submit themselves to examination."

The High Court held that the provisions of 9.250(3) and (4) of The Companies Act did abrogate the common lav privilege and that the cxanance was obliged to answer all questions which the examining Court, an its

of Victoria, (1977) 2 A.C.L.R. 471,had held that the

provisions 'of 8S. -278- and 2675 of the Companies A u

1961 (Vic.) dud not abrogate the ccmmon law privilege against self-incrimination so as to compel the ccsairince to answer questions in an exemination beang concuctca before the Supreme Court of Vacterzi. In refusing special leave to appeal froa the gucgiient of the Pull

Court, the H2¢gh Court comurvcary Stephon, Jianen, duccic,

"The Court is sacisfre > teav thee is nothoig an 6.272 0. 6.737 of the Compenice Alf 1061 (viet) whech Cetracts toon whe right of a porto under oath to decline wo ans ver a question on rhe sround that it right

Mortimer v. Brown (1970), 122 CLR. G95, vas dceide crent section of the Comme 6s 'et, ard the concétonaticn Oi Leatures in tie section there under cousideravion,

$.250, which led the Court to its conclusion in that case 1s not

resent in the secticus now undcr consideration. Tnco conelusion of the Full Court of the Supreme Court of Victoria was corrcct.

What is involved as the applicat.on of a wider priicaipic namely the right of a person to refuse to answer any

question or produce any docunents 'unless corpelled Ly law

to do so. In Huddart Parter ? Co. Prv. Lhd. ve. Hor cohena,

supra, the High Court considered crders nisi to review u

convictions for breaches of 3.198 of the Auntrel> on

arose out of refurcals to arsver certain questions pral to the appellants by the Coamptrellci -Cenucral of Custem, That seclacn provaded that af tne Co ptroller-Gererul believed that an offence hed Leen con inbiad agesnst Part II of the Act, or if a corplaint vas mide to hin in writing that sucn an offence bud been cornmnztted, ar he so bLelicved, he may, by writing under his hand, require any perocas Whom he Lalioved t2 lo caprzblic of Giving ey unforcution in relation to the alleges offences to ans.er quostsons and produce decuments in relatien

to the alleged offence, and it amposed a ponalty on

the Corptroller-Gcneral had callec upon Nuddart Parkes

answer certain qeestions. Each refused to answer ine

questizne and each was convicted of an offence unecr

S.15B. Cne of the grounds upon which the srcer mis1

to reviev was oO laincd wan inat s.15b s umegistatarcec 27 and anvalic. Tne iagh Court regesced that grovnd.

High Court was statcd by Griffith C.J. beginning at p.27o!

It was argucd that s.15B authorised conpulsory ditcou ry

in aid of criminal proceedings for offences and that

this discovery, which could te ovtauined from a person

alleged to be guilty of en offence, was inconsistent with'the right to trial Ly gury provadsa by 3.80

of the Constitution. At p.aoe tee Crire? Justice card:

"Wath regard te the arsument that compulsor, oxarinst.cn of a

suspected persen 1s ianconsasteus with the righy of treal wy gury ain the case of andictable oficntes, it i

Le sufficient to say that the doctrir¢ expressed by the mirvis. nono tenetir selpsum accusare was inlroaucea ines Englisn 1a. long afier the institution of trial ty gury; that 1ts application has frequently been cxycluded by Statutes 2n the case of iundictable offences (e.g., offences arainst tre bankruptcy Laws); ami thac the rule 1s rather one of evicence than on rolating to trial by gury."

"In ry opapion tne rofers to be exercissa b, boo Com iro'ler- Genera] cra tno. wocinted ty haw are Nov ygetsci. Ll pever3 an the Sense in which treat vor 1s used

they are posers mecca apaly arelus. mn the crvcoutive ianetions of Covermicnuet. Me pot. ef wut1y for the purpe.o of acranistre tor and, under Par ierci cary Gover for the purpose allo of anforiing the legacté ure, 36 or ue scortil part of th omens of Gll executive authority. In every grans of power

of the Commonwealth tiere 18 necessarily included tne raght of enacting such prov)510n3s as may be necessary to

right to ask qunstior , whith, as was pointed out by this ceurc in Clour v. Leahy 2 C.L.R., 139, the Executive jovernment has in canton with covery

other citzren, is of Little value unless it has behind 1t the authority lo cuferce

production of docim.onts. It is to nae the puwer ef anauiry efacvclrve for the purposes of Custors administiline

for instance, that sec.234 of che Or tu 4 Act 190) authorizes tne recevery ol ~~ ponaltaes acainst these vyho faz bo t : docu cos wher requested so vo a> by Cuntors officers acronis under the @aulie:itly 3, 195, 193, ana 214."

Section 155(1) postulates three categories .hich may be the subject of the "reascn to believe" cf the Commission, the Chairmen or the Deputy Cngirnan. The sora "Commission" is defined an s.4(1) of tne Act and the word has an extended meanang. In the opening words of s.155(1) lhe unclusicn of the werds "Chairman or the Deputy Chairnan" indicate a contrary intedtron

8.155(1) the word "Com Los meaning of the Trade Picectaces Ce'ocr' sion, Ina the

vo present case the notices specify Cant the Cuaireo. tas

reason to beliove, The three cate ores jietulate. are

(2) producing documcat., or (3) gaving evidence relating to a matter that constitutes, or may consviiute,

a contravention of the Act. Each of these catcsgorits

corresponds to paragraphs (a), (b) and (c) respectively

of 8.159(1). Section 155(1)(c) also refers to the production of documents, Sectzron 155(2) confers a different type of power, a power described during

argumcnt as -"* power to "raid", Section 499(2) coun

not conta the werd "matucr" and ii wee argued cr behalf of the anplacants that on rts fruc corescrusvien sub-sectrons (1) and (2) arc mut.all It was armed that the word "patbert

(1) should be construcd as being in tue ueture of a lis or a suspected lis within sub-section (2) and accordingly the pover conferred ty sub-section (1) could not be used against a person beings a suspect

In our opinion this arguicnt chould not be acceptcd., Sub-seciien (2) corfces a vover of a: Lry to be usea in extresoe case . fata cry GRLy at amposed upen the occvnter o: poise no in Churge of th premises when the entry is mde, s.4f505), ema what duty 1s acdilaonal to the cutv ropoccd by 2.75802) Cee. There 18 no warrant for gaving tie word "natter" an 8.155(1) any technical meaning. That word is tc Le construed in its ordsnary senre of an affa.r or a thang. It follows therefore thal the pever conferred by s.155(1) 1s lamited only by the "reason to believe" the existence of one or more of the threw catcpor:es postulated. It 1s beside the puant that the person vo whom notice is given 1s a suspect in tho sense of being a person who has engaged in or is engaging in conduct that constitutes or may constiltce a contraventinn of

provides that it 1s an offence to lnovwingly furnish

information or give cvadcnee thal is feise or misleading

in purported compliance wilh sucts a notice. In our opinion this clearly rexoves all yvivaiege of any Frid

and which would cr masnt otkerace on ot for refmucaing

to a proper notice under s.455. Tnat clear anrdc cosy

remove any such pravilorse is shown ty tyrbeor v. Pre

are not advicssi:tle agasnst @ peretn in certain crirany proceedins. Tnese catcgorics arc (1) the anevcr by

a person to any questicn ached an a notice urcer 8.7155;

2. the furnishing by a person of any anformacsor 1n re) J L Fe]

pursuance of such a notice, aml (3) any docusnect peewuls4

(2) producing or perestourre, tre cuss celusna at doe. in pursuance cf s.155. Ko referlnec wo made to tic third category wiica 1s later mutroncd in 5s. 155%

namely the answering of any cucct.cn ached in a notice

under s.155. Although the first thrce lanes of s.755(7)

do not contain any provision specificelly requiring the answer to any questiacn est cd an a notice we core:

it is clear that £.155 rea? as a .buls requiies, any

, such guestion to be arsverced. Jn saying Lhis we are only directing cur attention te the question of whether the tenuuncy cf an enews tu erpeue to ary cranial charge om vonally proviecs an excuse for not answering the question. Woe ava that it 15 also not clear how the mere "furnash.ns by a per.on cf any information in pursuance of such a netice" could be evidence against hir but in any ever.t the secticn

e in cervain cases, and 1t also provices that the ancwers to any questions asked in Lhe notice shali not be acuisciulie an those circumstances. Section 1959(7) prevents vie

bedy corporate and in any craminsl peocetdangn vtiuc: bs

under tne Act where tne persen ac a ted) corporate.

ay We do not conmsicer that 2.155 of the acl is ret ivane because that section 14 comcernct wien perctons

Question (i) ain the epecia: ease before the Court seeks an answer to the question of \hether under ©£.155 any of the applicants may lawiully Le required to ansvcr questions, provide anformézon or procuce docurernts which maght tend to expose it to a peraity unger 93.45 and 76 of the Act. In our opinion, for the rcasos already stated, but busivelly beceuse clear wordt in a statute may remove any privilege and hecaurc we consicer

the words 1n 5.195 clearly do that, the ans ver te this

qucutionomust be in tne aflarrative, a i be noted that this answer 1s not wnicnded to cxternd to any other defence which right be open in any

Question (ii3) asks vhether a notice pursuant to s.155 of the Act may lawlully be directed to a person suspected (by the Trace rracties 3 Comaiscion or the person giving the notice) of a contravc..tion or the Act. The noticcs given in 7huis case siate that the Chairman has reasui to Lol.eve that the

progucing docutents rela cli, fe rarvers tet Consviiabe orm nay Cereb iba a cer vowtach Uy The recipient of s.45 cf te fot Por Lhe rcasens

alread, cxprecscd, wv? are of the operizcn thal this

Questions (22), (v) end (vi) raise questions as to the form of the notices. Laci notice reyuircs the recipient to furnash the information and to produce the decuwents at tne ertice of the Cavsasticn at Melbourne on a snrcirfacd day to naved wectbirs of the staff assisting the Comusectien. These three questions razse the issue of whelher the notices lewfully can reqeire the pee gpierts to frrmae the informe tron or than the place of vusipese of the rica; ten

usual placo of cuviets of tre deel weeds (2 A por|es

not being the Commission, the Chairman or a monhionr of the Comoission. The ansvcis to these

depend upon the con: 'wucticn of 5.155(1)(a} and (1)

Under s.4(1) af the Act whe vord "Cortisseront means "the Trade Practiccos Conraoston establiched i" section 64, and ancludes a@ nenber of the Cowiltesicr or a Division of the Commission performing funclrens of the Commission", Under Part IT of the Act, the Commission is constituted a body carporate and consasts of a Chairran, and such nowber of ovher ircw7lt as are from tame to tare aposinicd, ss.€A ad 7. Seo

also s.UA4 relating to esccclave reclers of the Cocrirn:

Sectacn 155(1){%) provides that the notice me; require the person to whom 1t 3s given "to produce to the Comuission , or to a person specified in the notice acting on its behalf" the reauiretdecumenis

while s.155(1)(a) provides that the notice may require

the person" "to furnish to the Commissicn" the recuire: information, If the word "Counrtssion" steod alone in

s.155(1) it should, an cur opinion, be construed as

empowering a notice wiler 8.195(41) to Girect tit the infornatic: required be furnished ro a specsfiel Momber or to specified momLers of the steff cproiavid

to assist the Comuissr1on proviued the choice of tc Menber or mawbers was not wureasonehblic. Th no doubt that by defanition th. rotace valitiy co. 1a

direct that the anfoimation ke furnisned to a pedvoer of the Cornission including the Chairran. Scnee by defanitien the word "Coxurission"

the Ce''1assion of necessily mus members of steff appointed to assist av who are to

The dcubt, 2f any, ari6os fre tie amctucion in paragrap? (b) cf the words "or tz @ person spccuracd in

notice can reguire the Cogwcnts fo be preducca to 2 person not beans the Co. .iiasm an ite nerrov ap extondcd rxeanang endo not being a merber cf Lun cts. This view 1s supported by a reference to s.155(2). In the circumstanees therein specificd, a member of tne Conmassion may, for the spccifired purposes, authorize "a member of the staff assisting the Commissicon" to

enter any premises. Tae class of persons who co. Le

authorized officers within the meansng of ¢.195(2) is thus narrower than the class of persons who are capable of beang a person especafied an 5.195(4) (4b).

In these circursiancese there carn be no varrant to

construe the word "Cem .ipcion an s.195¢(7) (Ca) so as to cxcluce from the powers of the Ca zecson

a pover to require informivson to Le furnished to a

member of Lhe ctf of the Cormtcsgen. Under 6.4°°(2, and (3) of the Act, the Coomersic:, subject to the provisions contauned im thuse sul-cections authorized to retain porscssion of dsevrents pregucce an pursuance of a motice under 5.155, Lut under 5.457%) only a merbor of the Co wiscsion or a person authorised by a merber of the Co wission 1S c1povercd to anspect

documents so produced or to take conies er extracus

from those documents. In tne «becnee of the a authorization, it arrears thot @ rirtier of the ed.tr

acting on beralf of the Cownissison, in rece:virs . a aA f- - - docunents produced pursuant to s.10804) 0), 2c veenr ys

as a conduit only for the purpose: of recebving Vaart

the Commission docs nob have power te direct thobl ow. inforration to be furnished or the dovuramts to be produced are not to be furnishel or preduccd at the

office of lhe Commission. Tn procetding unter o.155(5)

of the Act questicius avy emcee ay to whelhor, an ine particular ciareurslances of thal case, a require one 2S reasonable er not, luc irsacsa cf Unat bard efmmat be answored in thas wpeea.nd case. Th pash ing ato is noted that ©.193(5) deca not cunt.on vores ruch an Mun}ess gust couse er oxcuse for cho mfulal (or failure to conmly) or resleuct au rio. by han", of. 8.224 Income Ter Asse. sunt tet 1256. (fe7 also Smornor v. Austratia ced Moe Poland bonlore Greve Ltd. (1976) 134 C.L.R. 475 por Stuvhen J. at po. kes~

489 and on appeal, judgeent being gen on 13 Verch 1979).

In our opipien gqae tran (; d abut be Becta Nyon, quistaon (vw) choad te cue cpa "yun! cultis (vi) should Le answered "mot,

Tuc @never to qacctlon (av) depend usecrn ea examinaron of i..c questions ale. lo an Ue notices, cf, Riley Uenay Py. Ite. ve Pevcernn C1077) 75 4 LP. 504, It 1S inappropracte that ¢: 2.8.05 OF thie hand should be decided on a statcdcase Vory prop rly U.c parties did not press for pan ansvcr to Wis qunc ele and the Court cozs not anurer questien (av).

Questions (712), (v1ai) cnd (ix) reanin for consideration. Each of these questions rolates te tne issue of whether the Chasrcan hel ro con to bela. the matters attributed lo ham ir the notices weer 5.40561) of the Act and,it so,wavcher the proaads won wah 7: reason to toVieve was sou iotalce an tu. ouebicaent ty entitle} aut toe reve, to tebe Fh

aid in attempisug to ep taliach the lace of reaion to believe or the lack uf sufficret ground. veon

sae oe : applictris, an toe sr cre ocreee ur tor gto ed th : . Act, sc.) to ambemogt C ata roar te. Chairns: @nd seul Clo ow or SC ow rin. Were

the applocation unaer s.1624 Lo suggest thet the Chairman did not uave mecso1 to bolseve or diu not have sufficient grounds uprn which to found trie reason

It is not neccessary to exmicks any ominicn on wnether, an a procecdans under 5,189(5) of the

Act, a defendant as entitied to varee a defence thet

"peason ic relawo™ ce ti. b Uiere acre me eb gets ouln Which ény fhe Peary ty Plenty coed arto Reon basec. It 28 sutf.ct ont too ocy uUbat caovisticciun uf

the statutory powe: to give a notice under £.125(7%)

consider the nature cf the power contained in s.175(b)

the Board of Tirade Lad power to appoint 1anspeciers to

investigate the affairs of &@ cotpeny and where . words "if 1t appears to tie Board" were used. The

concerned woth ite for. managerent of 265 affairs have an connection cheraath b

e ar io bee gurbiby 33 frood, maisfevsoncc or cther mine snd" as aes 3 ek . els ye towarcs it or voavarte ats meshera

"So also wath tls oprcantacnh or inspectors, under seciton 416500) (az). She arerec. uy are not to Acerde rami er ecnys. They are to paver vilete® dra report, This LNGULDY LE @ pW. ae litrative arrangev nt Por the i conducr of comanics and tn arp a2fairs. It

of r alural guctice a tTncre 1s no need for thou to gyrern netice of a charve, or a fair ovesrtunit, of meeting at,

All we are concerred with 18 section 165. As to it, r wOUL) fay nat, £6 Jong as the manister acts an goon faith, 1t is not wneisbert uyOu get

to €isciose the rareraat he hes befere har, or rhe ru .comt Par the anquiry.?

"But under sevtim. WU) cit rimister may do so af ut specare fe can 7 at there are cure meter oy Sag wctaryg one or eller of che vation. 17 eters set oul in raraseates (1), (23) and (113) of Auac sub-rcotLan, rout of

on, Clearly an such a cate a Lis the Wanaster who anpwigtes an in

and, inn wtp cterd, ait ne as ree ieee to do ot tng! flame 15 to set fairsy in reasiuuns hob aececcun,"

"So far as the maireter's disercticn is concesed, at as gate nhuin, cud no ene wallow 'won ab far @ monenv, that any fr

Without pregadice to their poncrs & bo Teut Torceroine

so far that he is é@écouns other than poereriay in this cacc."

is a conditaon prececent wo Ue omeves Se of tre power

appropriate cace, an cilagete Saou pr ihe comiut oa fh

been satisfied ani vwheoiner the Comusccaem, Chair en or

Deputy Chairman has ceted in g va Fcsth, bue it sls

-534- need not Le discloscd except possicly insofar as there is a basis'for the contention that the power hes been

exerciscd impropcrly. Generally see Korvest Petet Lid,

v. Secretary of State for Teale, sevra, Drow? vi Vallcoh

at p.135, Litto wy mo Cory os tes det V1, uo

• tn - - - [a

ad _\ = ee . r my Co. (Site )d Pte, Ltt. (1972) 125 Clu. PR

Court Cesling wot provisioers an an Ty Mer fats Act 19,5 urior Wuch @ Crserecior is os *L.3.e8 4 1 tte Con jiss2c..cr of Taxabion when ralores e asscf 0 a7. Cases citrd anecluded Fee Ds os! Tis ve Ba. (166 73 CLLR. 253, Carn, Pie Ta ve FC. Oty 7 CLL, Hogtery Cocticie yur,

Ply. Ltd., supre. Tn acustin referee eb me Us authorities anvolvans the pour ef the Cort cette nis of Taxation to make avonded assesemenes ur. cl tne

Incerme Taz Agsserenent Act 1935, Ib ruce be re cuscred

that these authorsutics ere an rel ot.en T) provesc.ous in an Act which provitcs far agrecoemene of Gncerw can and objections to and appeals aceite sc Uhase Gunes serts

{See generally Jartey v. P.C.T. (19/7) 136 CLLR. 214

at pp.225-252). Unler these provenuon- a Court ray consider the diserction ef tne Ces auutuner of Taration and the croind upon which a dastrevicn vas exercised and, in apprupriate cases, the burdun rects upon the taxpayer of proving to the reasonable satisfaction

of the Court the particuleor fact or facts which prevent

the Commissioner from exercisine his powers edvercely

to the interest of the toxrmayer, soe Velr dra ve. PLC T,

(1957) 98 C.L.R. 263. As an aid to proving his cctre

the tarpuyercugy be cntrrlid to ter Lene st of thie precedurss Tor aiecovery., Worcs rtar ulrea Vy tab AN an Eppreprvarce Cast @ Cour or alc otc rate when the Coriic sen, Chars 7 iur Depaut, Co nla hes the

to the exersicc of the po er couterres Ly e.79500j of the Act. It is not necessery for us to ovpretr a view on whether the authorities relive. ups ty tre

applicants are relevant where a Court undertakes such an investigation, Tne poxers confurred by s.125(4)

of tho Act are to ve cxere ced OG. a aid a. deloretnang whether tuere has becn a cernvraventiun of the Act ard in this respect are to be commarcd with savilar pe.worc

contained ian ss.223, 224, e635 wir oo of the Treas

Tax Assosount ter 1925. Generelin, occ Geos vy. Austreliag ond Mou Feat ei vor e Get Te, conrs,

See also Huddart Pavker © Co. Piy. Lid. v. Mooreheod,

supra. In the present case the Court is not concerned to consider what use the Cor cesion ray make of information furnasind by theo cpr lacaniy or of docu ents

progdecrd by, the applicatabte in con icy so with une

• rr 4 * ' t see wos . In the Lagat ef dheoe cle iicuusciag, 1t of . . a es " asses faeyn d ¢ . -, ~
  necessary to consid.: wmeeetoame (vaal Cerin) em quand

of the sprcral case. he epplicatien: pode urtor 2.4704

of the Act co not expressly state that the applicu.cs

seex declarations that the Chairnun, at the tire of

giving the notices under s.155(41) of the Act, did not

have the reguisive "reason toe believe" or that the

ted were not lawfully sufficrent to entitle him to form the requisite "reason to Felicve"

contention muce when the catter ws Eeferes the trecd

Geliver ancerrojatories and to ser Gzccorery of Cotuiims darceled to the crasteece of tae Mroci ly te bole at

by the Chaaiven aad the craunts worn ho oa he de 67:

to any S.cm "pecion ca beticvet, E-aace toweect far

the vespo. sits ar mai the ss teceut wore ance | ina fishaee c.pedutocn and tol tee Courh shorted nos

applicants to try to establish ¢€ ce 7c wmiless tucre vues Q@ reasonable factual basis to support euch a prececaing

factual basis. He relied upon the views capresscd in

Norwest Holst Lita. v. Secretary ef S'aio fer Prete, aura,

where an action comnenced by the comary challerping the

validity of the appointr, band ct Lo Fy ct rea ve Q be "9

invesvrgare the coupany woo. tlacr oat as adirciorlun uo

AS we havo salto the secn ong. BCLs oe the affidavits syvrn deposed, antes alas, that "ia the applicants or any of thom were obliged lo anseer the questions asiled in the said notre

provide the anfrmation required vy the said notices or eny

Bs eet Gato of then, or provuce Gecunente required by the card notices or any of the, eny cath an.wter or provision of information or production of docu,entls sould tone to expose the applicant ansvevairs providisg or preaucang the same (as the caso tty be} Lo a pore ty purnusal te Sectione 45 and 7E of the Jeb". Tae notice bly the Chuirrran alleses that he nacre scr to belacve tict the Perecn ta wiem the naties a3 dlliveret 1s capaluc of furnishing velevant antic occtaw. cid thc letter olorerrc ce that notice vefors, to anvicts thew a Waid have en coneuctedo ey the Coo ues ten. Gere as notsare tT. Slo leet that the Cnaarman has acted otuerwice wen an peel fail.

and we see no reas ta Gosresord tie sworn evilence by the applicants ccncerning the Likelimood thie

compliance with theo notice weulg tend to expose vein to a penalty. It as clear that so far as the stated

case 1s concerned, the Court hus before it no agreed

facts relating to these questions. all these circumstances we deciine

We Would prcprce thar liz yrecciipe be ansvores us PForlous 2 (1) Yes. (12) Yes. (ani) Yes. (iv) Not answered. (v) Yes. (vi) Ko, (v2i) Not onseercd. (vi11) Wot ansvered. (1x) Not answered. We also prepese thab the nrcleec wigs stead cvor for

arguredat com tre cuostion of cools. eee -- : a, ITcertriy te ft tpiserdtce Os pes ia MDE CMT ay yeah be ob Prec omy ot the ' nensete fer Tetlh Vtbsasim et. boner | ' br. euctice $ N '