Federal Court of Australia|1977-12-13|Before: Northrop JJ

R v Trade Practices Tribunal; Ex Parte Tooheys Ltd [1977] FCA 22; (1977) 31 FLR 1 (13 December 1977)

THE QUEEN v. TRADE PRACTICES TRIBUNAL; Ex Parte TOOHEYS LTD. [1977] FCA 22; (1977) 31 FLR 1

Trade Practices - Power to exclude party from private hearing - Power to prohibit publication of evidence - Whether tribunal can prohibit legal representatives from disclosing evidence to their clients - Principles applicable to exercise of discretion to exclude party and prohibit publication of evidence - Natural justice - , (2) (a), (b). In the course of proceedings before the Trade Practices Tribunal, a witness called by the Trade Practices Commission gave certain evidence in a private session. Application was made by counsel to permit disclosure of that evidence by him to his clients, who were excluded from the private session. The application was refused and orders of prohibition and mandamus were sought from the Federal Court of Australia.

Section 106 of the Trade Practices Act 1974 provides in part as follows:

"(1) Subject to this section, the hearing of proceedings before the Tribunal shall be in public.

(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may -

(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents filed or lodged with the Registrar, received in evidence by the Tribunal or placed in the records of the Tribunal".

Held, by Franki and Northrop JJ.: (1) Section 106 (2) (a) deals with the question of who may be present at a hearing and s. 106 (2) (b) deals with the question of to whom the evidence given in a public or private hearing may be published.

(2) The word "or" appearing between s. 106 (2) (a) and (b) should be read as "and" to make the section intelligible, and does not prevent an order being made under both parts (a) and (b) of the subsection.

Re Mills; Ex parte Bankrupt v. Official Receiver, (1967) 1 WLR 580, referred to.

(3) In the absence of any express order under s. 106 (2) (b) restricting the publication of evidence, a general order under s. 106 (2) (a) that proceedings be in private, and that only certain people may be present, does not automatically restrict the publication of evidence given in private to those people.

Scott v. Scott, (1913) AC 417, applied.

(4) The word "or" appearing between the words "in private" and "of matters" in s. 106 (2) (b) should be read as "and", because it is clear that if an order has been made prohibiting the publication of documents filed or lodged with the registrar, or placed in the records of the tribunal, it may also be necessary for the tribunal to have power to prohibit the publication of evidence received by it in private session.

(5) The words "or in private" appearing in s. 106 (2) (b) indicate that there may be cases where the tribunal has received evidence in private and yet prohibition or restriction of the publication of that evidence may not be appropriate.

(6) The power given in s. 106 (2) (b) enables the tribunal to prohibit publication of evidence, given in private session, to a party, at least where the legal representative of that party has heard the evidence.

(7) The tribunal has power under s. 106 to prohibit a solicitor acting for a party to proceedings in the tribunal, from disclosing to his client evidence given in his presence in the proceedings, notwithstanding that the solicitor is of the opinion that such disclosure is necessary for him to obtain proper instructions.

(8) In appropriate cases, the restriction of material in legal proceedings to the legal adviser of a party, and the exclusion of the party from receiving that information, does not involve a denial of natural justice.

Per Nimmo J. - (1) The tribunal has power under s. 106, to exclude any person, including a party, from hearing the evidence or part of the evidence to be given before it, or from acquiring the knowledge of it from anyone who was permitted to hear it.

(2) The tribunal is bound by the principles of natural justice when exercising its powers under s. 106.

Sydney, 1977, October 25, 26; December 13. 13:12:1977

RULE NISI.

A party to proceedings before the Trade Practices Tribunal sought: (1) (a)

an order prohibiting the tribunal from continuing with the hearing and determination of certain applications pending before it, or (b) such an order, except upon terms that the legal representatives appearing in the proceedings on behalf of the applicant be at liberty to disclose to it evidence given in private session. (2) An order commanding the tribunal to hear and determine the application according to law.

T.R. Morling Q.C. and B.A. Beaumont, for the applicant, Tooheys Ltd.

A. M. Gleeson Q.C. and B. T. Sully, for the Trade Practices Commission.

G. G. Masterman Q.C., G. A. Crawford and J. O. North, for a second company.

W. R. McComas, for a third company.

Cur. adv. vult.

Solicitors for the applicant: Freehill, Hollingdale & Page.

Solicitor for the Trade Practices Commission: A. R. Neaves (Commonwealth

Solicitors for a second company: Smithers, Warren & Tobias.

The following judgments were delivered.

NIMMO J. This is the return of an order nisi obtained by Tooheys Ltd.

(Tooheys) for an order by way of, or in the nature of, prohibition and mandamus directed to a division of the Trade Practices Tribunal constituted pursuant to s. 37 of the Trade Practices Act 1974 (the Tribunal). (at p3)

2. Because of the nature of the evidence before the court in these proceedings I am satisfied that in order to prevent prejudice to the administration of justice the identity of the companies concerned other than Tooheys should not be revealed. I shall therefore refer to them in this judgment as Company X and Company Y respectively. (at p3)

3. There is pending before the Tribunal an application under s. 101 of the Act by Tooheys for a review of a determination of the Trade Practices Commission (the Commission) refusing and dismissing an application for authorization under Divn 1 of Pt VII of the Act. There is also pending before the Tribunal a similar application by Company X. The applications by the two companies are being heard together. (at p3)

4. Since it commenced to hear the applications on 23rd August, 1977, the Tribunal, pursuant to the powers conferred upon it by s. 106 of the Act, has heard some of the evidence adduced in public and the rest of it, which it had reason to believe would be of a confidential nature, in private. (at p3)

5. At the commencement of the Tribunal's afternoon sitting of 12th September, counsel for the Commission announced that he proposed to call to give evidence a director of Company Y. He indicated that, after he had taken his witness through the formalities in public, he would request the Tribunal to go into private session because, he said, some of the evidence he would be leading could only be given in such a session. At the conclusion of the formal evidence the chairman of the Tribunal announced that the Tribunal would sit in private session until further notice. The only persons representing Tooheys who were permitted to remain for the private session were counsel appearing for the company and his instructing solicitor. The Tribunal made no formal order but having regard to the procedures which were adopted in relation to earlier witnesses it was clearly understood by all concerned that the Tribunal by its announcement intended to direct under par. (a) of s. 106 (2) that only the persons it specified were permitted to be present during the private session and under par. (b) of the subsection that those persons were prohibited from publishing to anyone who was not permitted to be present any of the evidence given during the session. In his evidence the director of Company Y disclosed information which the Tribunal later described as being of a nature commonly and properly regarded as highly sensitive. His evidence also included a statement that the legal adviser of Company Y had disclosed that information to two officers of the Commission after first obtaining from them an assurance that the information would only be disclosed by them to members of the Commission. (at p4)

6. At the commencement of proceedings on the following morning, 13th September, counsel for Tooheys in another private session applied for leave for him and his instructing solicitor to communicate to both the managing director and the financial manager of his client the evidence given by the director of Company Y. The basis of the application was that unless the leave sought was granted Tooheys' legal representatives could not obtain instructions from their client on what in their opinion were relevant and important aspects of its case. It was submitted by counsel for Tooheys that s. 106 (2) did not as a matter of law empower the Tribunal to prohibit communication to a party to proceedings before it of material that could be used against it, alternatively, if it did then as a matter of discretion the Tribunal should not impose a prohibition on communication of the kind in question. In refusing the application the Tribunal, contrary to counsel's first submission, decided that the section did empower it to impose the prohibition it had imposed and cited Re Frozen Vegetables Marketing Agreement (1971) 18 FLR 196 in support of its decision. It rejected counsel's second and alternative submission indicating that in its view the disclosure sought would be of minimal value, if indeed it would be of any value at all to Tooheys but could be very harmful to Company X and Company Y. (at p4)

7. The relief sought by Tooheys in these proceedings is: (1) An order prohibiting the Tribunal from continuing with the hearing and determination of the applications pending before it or for such an order except upon terms that the legal representatives appearing in the proceedings on behalf of Tooheys be at liberty to disclose to their client the evidence in question. (2) An order commanding the Tribunal to hear and determine the applications according to law. (at p4)

8. The grounds relied on by Tooheys were expressed by its senior counsel in the following submissions he made to the court: (1) The Tribunal does not have any power under s. 106 (2) (a) to give a direction against the will of a party that a part of the hearing of a matter shall take place in the absence of a party. (2) The Tribunal does not have any power under s. 106 (2) (b) to give a direction against the will of a party that evidence given before it be prohibited from being disclosed to that party. (3) Should the court hold, contrary to submissions (1) and (2) that the Tribunal has power to give the directions referred to in those submissions, it was a denial of natural justice to exercise the power on the facts of this case. (at p5)

9. In support of his first two submissions, counsel advanced two arguments, first, that s. 106 (2) does nothing more than empower the Tribunal to limit the right conferred on the public by sub-s. (1) to hear proceedings before the Tribunal or to have communicated to them any documents or evidence of a particular kind; secondly, that since s. 110 (b) of the Act provides that, "In proceedings before the Tribunal, a body corporate may be represented by an employee or director or other officer of the body corporate approved by the Tribunal", it would be a very strange result if the position of a company by electing to be represented by solicitor and counsel under s. 110 (d) were to be worsened by depriving it of knowledge it would obtain if it elected to be represented by an employee, director or officer of the company. (at p5)

10. Subsections (1) and (2) of s. 106 read as follows:

"(1) Subject to this section, the hearing of proceedings before

the Tribunal shall be in public.

(2) Where the Tribunal is satisfied that it is desirable to do so

by reason of the confidential nature of any evidence or matter or

for any other reason, the Tribunal may -

(a) direct that a hearing or part of a hearing shall take place in

private and give directions as to the persons who may be present;

or

(b) give directions prohibiting or restricting the publication of

evidence given before the Tribunal, whether in public or in

private, or of matters contained in documents filed or lodged with

the Registrar, received in evidence by the Tribunal or placed in

the records of the Tribunal." (at p5)

11. In rejecting counsel's first two submissions, I am satisfied that the legislature when it enacted Pt IX of the Act, which provides for review by the Tribunal of determinations of the Commission, foresaw that the Tribunal would from time to time have before it a proceeding in which there would be evidence or matter of a confidential nature and that it would be harmful to the business interests of a party if that evidence were disclosed to the public at large or to a competitor of that party who in many cases would also be a party to the proceedings. It realized that in a proceeding where business competitors were parties each party would be opposed to disclosure to the other of its trade secrets and methods of trading, notwithstanding that the parties had entered into limited anti-competitive arrangements for their mutual benefit. In order that the Tribunal in such a situation be not hampered by procedures and rules which could operate to deprive it of relevant information and in order that it be at the same time in a position to safeguard the business interests of the parties before it, the legislature in Divn 2 of Pt IX gave the Tribunal very wide powers, powers which in important respects are much wider than those which a court may exercise. (at p6)

12. In s. 103 it provided that proceedings before the Tribunal shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of matters before the Tribunal permit and that the Tribunal is not bound by the rules of evidence. In s. 106 it provided that where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason (the emphasis is mine) the Tribunal may conduct a hearing or part of a hearing in private and give directions as to who may be present and prohibit or restrict the publication of evidence given before it or otherwise obtained from the sources specified. By reason of the wide terms in which the section is couched, the setting in which it is found and the nature of the Act itself, I am satisfied that the legislature intended the Tribunal to have power if and when it saw fit to exclude any person including a party from hearing the evidence or part of the evidence to be given before it or from acquiring the knowledge of it from anyone who was permitted to hear it. (at p6)

13. If the foregoing construction of s. 106 is correct, I do not think that s. 110 (d) makes any difference, for an employee, director or other officer of a body corporate appointed to represent it at a hearing of proceedings before the Tribunal may be prohibited or restricted from publishing evidence or matter of a confidential nature in the same way as legal representatives of a party may be. (at p6)

14. I turn now to counsel's final submission that it was a denial of natural justice by the Tribunal to exercise the power conferred on it by s. 106 on the facts of this case. Senior counsel for the commission contended that there being no limitation placed by the legislature on the power given to the Tribunal by the section the principles of natural justice had no application to the exercise of that power. The correctness or otherwise of this contention depends on what is the true construction to be placed on the legislation conferring the power. In construing that legislation a court may have regard not only to the language employed but also to what is implicit in the legislation itself: Salemi v. Minister for Immigration and Ethnic Affairs (Cth) [1977] HCA 26; (1977) 51 ALJR 538 ; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 51 ALJR 703 . I can find nothing expressed in or to be implied from the legislation under consideration that it was the intention of the legislature that when the Tribunal exercised the power conferred upon it the principles of natural justice were to have no application. On the contrary I think it is to be implied from the very nature and extent of the power that the Tribunal in exercising it is obliged to take care that natural justice is assured to all concerned. For example, I do not think that the legislature intended the power to be so unqualified as to authorize the Tribunal to exclude from a private hearing not only a party but its legal representatives as well when as in this case the evidence to be given to the Tribunal might contain information adverse to that party. Such a course would not only deny to the party concerned knowledge of information which might influence the tribunal's decision but also any opportunity for its counsel to argue the relevance and value of such information. (at p7)

15. It is implicit in counsel for Tooheys final submission that the Tribunal had both a discretion whether to exercise the power and a discretion in the manner of exercising it. It is to the first discretion that his challenge is directed. It is trite law that a court is unable to substitute its own discretion for that of the authority to which the discretion has been given. It is equally true that a court will interfere if the discretion has not been exercised according to law and that the court will itself determine what is lawful. (at p7)

16. The written reasons given by the Tribunal for its refusal to permit counsel and his instructing solicitor to disclose to a director or other officer of Tooheys the evidence they heard during the private session in which the director of Company Y gave evidence satisfy me that in giving the directions it gave in exercise of the power it possessed under s. 106 (2) (a) and (b) it acted according to law. It had the power to do what it did, it exercised that power properly and reasonably, and I believe, fairly, in keeping with the principles of natural justice. (at p7)

17. The evidence which was private to Company X and Company Y had been brought before the Tribunal by counsel for the Commission following upon what the Tribunal considered to be a breach of the confidential disclosure by the legal adviser of Company Y to two officers of the Commission. After consideration of that evidence the Tribunal was satisfied on the one hand that the disclosure of it would be of little, if any, value to Tooheys. On the other hand, it foresaw the dangers to which Company X and Company Y would be exposed if the disclosure were permitted. It concluded that there were no compelling reasons provided by Tooheys that would justify disturbance of the prima-facie right that information which was private to Company X and Company Y would not be disclosed to a competitor. Having weighed the interests of all concerned it refused the application for disclosure. (at p7)

18. As I am satisfied that the tribunal exercised its power lawfully, I would discharge the order nisi, with costs, other than those of the intervenor. (at p7)

FRANKI J. The applicant, Tooheys Ltd., seeks orders of, or in the nature of, prohibition directed to the Trade Practices Tribunal (the tribunal), prohibiting it from continuing with the hearing and determination of an application under s. 101 of the Trade Practices Act 1974 (the Act), for the review of a determination by the Trade Practices Commission (the commission) refusing certain authorizations. Alternatively a prohibition is sought prohibiting the tribunal from continuing with the hearing and determination except upon terms that certain evidence may be disclosed to one of the parties before the tribunal. Alternatively, an order by way of mandamus is sought that the tribunal hear and determine the proceedings according to law. The application is made under s. 163A of the Act. (at p8)

19. The tribunal was hearing two applications (which were being heard together) one by the applicant and the other by another company. Whilst it is necessary to disclose to some extent the nature of the proceedings in this judgment, I will endeavour to restrict that disclosure as much as is appropriate because in the proceedings before us, we made orders under ss. 17 and 50 of the Federal Court of Australia Act 1976. (at p8)

20. During the course of the proceedings before the tribunal certain evidence was given by a witness called by the commission, in part during a session which I will loosely call a private session. I will call that evidence "the relevant evidence". On the next day, counsel for the applicant made an application to the tribunal to permit the disclosure of the relevant evidence to the managing director and general manager, finance, of the applicant. (at p8)

21. The tribunal refused the application and the proceedings before this Court are designed to seek an order which would produce the result that the solicitor for the applicant be entitled to disclose the relevant evidence, at least to the managing director and the general manager, finance, of that company. There was evidence from the solicitor for the applicant that he considered that he was unable to adequately present the applicant's case to the tribunal unless he was able to discuss the relevant evidence with officers of the applicant and take specific instructions in relation to the relevant evidence. (at p8)

22. The relevant evidence came to be given in the following way. A certain disclosure was made by the legal adviser of a third company to two senior officers of the commission upon an assurance by those officers that the information would only be disclosed to members of the commission. However the chairman of the commission decided that counsel for the commission should be made aware of the disclosure. When counsel was made aware of it he considered that it was necessary to bring the disclosure to the notice of the tribunal, and a witness was called for the purpose of informing the tribunal upon the matter the subject of the disclosure. (at p8)

23. The real question which I consider these proceedings poses is whether the tribunal has any power under s. 106 of the Act to prohibit a solicitor, acting for a company, which is a party to proceedings in the tribunal, from disclosing to the managing director or other senior officers of that company evidence given in the proceedings and in the presence of the company's legal advisers, where that solicitor is of the opinion that such disclosure is necessary for him to obtain proper instructions. (at p9)

24. Before us some argument was directed to the question of whether a party could be excluded from the proceedings before the tribunal and to the various problems which could arise where the party concerned was a company. However I do not consider this question, which involves a construction of s. 110 of the Act, arises because no objection was taken to the exclusion of the applicant. The question before us is whether an order can be made that evidence given in the presence of the legal advisers of a company shall not be conveyed to senior officers of that company. (at p9)

25. Before dealing with the facts any further, it is appropriate to examine the relevant law concerning the power of the tribunal to hear proceedings in private and to restrict the publication of evidence. (at p9)

"(1) Subject to this section, the hearing of proceedings before

the Tribunal shall be in public.

(2) Where the Tribunal is satisfied that it is desirable to do so

by reason of the confidential nature of any evidence or matter or

for any other reason, the Tribunal may -

(a) direct that a hearing or part of a hearing shall take place in

private and give directions as to the persons who may be present;

or

(b) give directions prohibiting or restricting the publication of

evidence given before the Tribunal, whether in public or in

private, or of matters contained in documents filed or lodged with

the Registrar, received in evidence by the Tribunal or placed in

the records of the Tribunal.

(3) . . ." (at p9)

27. The words "or in private" appearing in s. 106 (2) (b) are troublesome as is the word "or" between s. 106 (2) (a) and (b). The words "in private" appearing in s. 106 (2) (b) indicate that there may be cases where the tribunal has received evidence in private and yet prohibition or restriction of the publication of that evidence may not be appropriate. There may be cases where, although the tribunal has heard evidence in private, it may come to the conclusion that the publication of the evidence given in private should not be prohibited, or that limited publication of that evidence should be allowed to certain persons, not necessarily those whom the tribunal had allowed to be present when the evidence was given. (at p9)

28. I consider, in the absence of an order under s. 106 (2) (b), that it is not appropriate to read into the words of s. 106 (2) (a) a provision automatically restricting the publication of evidence, given in private, only to the persons named as those entitled to be present when the evidence was given. I am therefore of the opinion that s. 106 (2) (a) deals with the question of who may be present at the hearing and s. 106 (2) (b) deals with the question of to whom the evidence given in the private hearing (or indeed a public hearing) may be published. This opinion involves reading the word "or" between s. 106 (2) (a) and (b) as not excluding an order being made under both parts of the subsection. In my view this is the correct way to read the section. I also consider that the word "or" appearing between the words "in private" and "of matters" in s. 106 (2) (b) should be read in the same way, because it is clear that if an order has been made prohibiting the publication of documents filed or lodged with the registrar, or placed in the records of the tribunal, it may also be necessary for the tribunal to have power to prohibit the publication of evidence received by it in private session. An example of where the word "or" was read in this way is to be found in Re Mills; Ex parte Bankrupt v. Official Receiver (1967) 1 WLR 580 where it was held that to say a court must impose one or other of certain enumerated conditions did not mean that it cannot also impose any other of those conditions. An example of where the word "and" was read as "or" because a literal construction produced an unintelligible result is in Reg. v. Oakes (1959) 2 QB 350 . (at p10)

29. In the same way I am satisfied that it is necessary to read the word "or" appearing between s. 106 (1) (a) and (b) as "and" to make the section intelligible. See Maxwell The Interpretation of Statutes, 12th ed., pp. 233-234. (at p10)

30. The effect of an order that "I do further order that this cause be heard in camera" standing alone, upon the publication of evidence was considered by the House of Lords in Scott v. Scott (1913) AC 417 . That case involved nullity proceedings and at the conclusion one party, apparently being concerned to protect her reputation, sent copies of the transcript to three persons, two of whom were relations. The House held that the order that the proceedings be heard in camera was made without jurisdiction and the view was also expressed by way of dicta, that assuming there was jurisdiction to make the order, it did not prevent all subsequent publication of the proceedings. In the circumstances of Scott v. Scott (1913) AC 417 no statutory power existed to make the order which was made. However that case seems very helpful upon the question of how far, if at all, an order that a case be heard "in camera" operates to prohibit the publication of evidence given "in camera". I can see no relevant difference between an order that proceedings be "in camera" and an order that they be "in private" or "in confidential session". (at p11)

31. Scott v. Scott is an authority for the proposition that such an order is not equivalent to an injunction of perpetual secrecy (see Lord Halsbury (1913) AC, at p 443 , Lord Loreburn (1913) AC, at pp 447-449 , and Lord Atkinson (1913) AC, at pp 449-450 . Lord Atkinson said: "I think the order in its true interpretation means what on its face it plainly says, and nothing more, namely, this, that the place where the case is to be heard shall be a private chamber, not a public court" (1913) AC, at p 453 . (at p11)

32. I take from that case the proposition that an order that a matter be heard in camera does not, of itself, absolutely prohibit all publication, without further order, of the evidence given in camera. (at p11)

33. Applying the principles of Scott v. Scott, I consider that if the tribunal makes an order only that the proceedings be in private and enumerates the persons entitled to be present, there is no absolute prohibition on the publication of evidence given in the private session, certainly if this be only for the purpose of a legal adviser who was present and not excluded, obtaining appropriate instructions from his client. (at p11)

34. The express power which the tribunal has under s. 106 (2) (b) to restrict the publication of evidence also points to the conclusion that, in the absence of any express order under that power, the general order that proceedings be in private and that only certain people may be present, does not restrict all publication of that evidence. (at p11)

35. It was argued that the principles of natural justice required that the solicitor for the applicant should be able to disclose the evidence given in private, at least to the extent of getting appropriate instructions from his client. (at p11)

36. It is clear that the principles of natural justice are not rigid (Salemi v. Minister for Immigration and Ethnic Affairs (Cth) [1977] HCA 26; (1977) 51 ALJR 538, at p 557 ). I consider that the express statutory power given in s. 106 (2) (b) enables the tribunal to prohibit publication of evidence given in private session to a party, at least where the legal representative of that party has heard the evidence. (at p11)

37. It is very natural that such a power should be vested in the tribunal because in view of the particular nature of the duties entrusted to the tribunal, circumstances must often arise where confidential evidence is given to the tribunal of a nature similar to that which arises where a case involving some secret process of manufacture is being considered by a court. Members of the House of Lords discussed such cases in Scott v. Scott, where it was said that, even in the absence of any statutory provision, perpetual silence concerning the proceedings might be justified in special cases where disclosure would destroy the very thing which the litigation was intended to protect (1913) AC, at pp 443, 445, 447-448, 450, 483 . (at p12)

38. The question of the restriction of material in legal proceedings to the legal adviser of a party and the exclusion of the party from receiving that information has been discussed in a number of cases. These cases appear to be of a special and varying nature and it does not appear that, in appropriate cases, such a course involves a denial of natural justice. Instances where information has been restricted to legal advisers are to be found, for example, in the following cases: Warner-Lambert Co. v. Glaxo Laboratories Ltd. (1975) RPC 354, at pp 356, 360-361 ; The Wellcome Foundation Ltd.'s Patent (1975) RPC 107 ; Scott v. Scott (1913) AC, at p 445 ; and R. v. Carlstrom [1977] VicRp 44; (1977) VR 366 . (at p12)

39. It is clear that in the case before us, the tribunal and all parties proceeded upon the basis that orders had been made in the tribunal which prevented the disclosure of the relevant evidence by the solicitor for the applicant, even to the managing director or general manager, finance, of the applicant. This was made clear by the application to the tribunal by the applicant to permit this disclosure and in the detailed decision of the tribunal rejecting the application. (at p12)

40. I consider that it was open to the tribunal to make an order prohibiting the disclosure of the relevant information. If it made such an order, then in my opinion, it could validly do so, but if it did not make such an order the disclosure sought to be made is not prohibited. (at p12)

41. I am by no means satisfied what orders the tribunal made, or what was the effect of those orders. (at p12)

42. I have said that I consider a valid order could have been made. If it was made no case for relief by way of, or in the nature of, prohibition or mandamus arises. If no order prohibiting the publication of the relevant evidence to the applicant was made, then likewise, no case for relief arises. It is therefore unnecessary to decide whether any order was made which had the effect of prohibiting the publication of the evidence to the applicant. (at p12)

43. It is also undesirable to decide this issue in these proceedings. The court has certain material only before it and, as I have said, it is clear that the tribunal considered that the publication to the applicant of the relevant evidence had been prohibited. (at p12)

44. If an order prohibiting the publication of the relevant evidence was made by the tribunal, then any breach of that order would appear to constitute a contempt of the tribunal, and apparently be punishable under s. 162 of the Act, and it is desirable that this Court should not make any unnecessary finding upon the material before it in these proceedings. The difficulty in deciding the effect of the orders made appears on consideration of the evidence before us. I pass now to consider some aspects of that evidence. (at p13)

45. Before the relevant evidence was given in the tribunal, counsel calling the witness requested the tribunal "to go into confidential session". The following passage then appears in the transcript, although I have excluded the names of the counsel and certain other names to preserve confidentiality. (at p13)

46. "His Honour: The tribunal will sit in private session until further notice. (at p13)

47. First counsel: Mr. - , who was the legal adviser to - is in the court and Mr. - would want him to remain during his confidential evidence. (at p13)

48. Second counsel: I do not know whether my friend has any views as to the degree of confidentiality of the information. Eggleston J., when he presided, on some occasions, drew a distinction between counsel and - and I am not casting any reflection at all on solicitors, let me hastily add - but his Honour in certain circumstances felt that the position was such that a solicitor regularly advising the client and assisting that client to make business and legal decisions should not be privy to some types of information which it was necessary to give to the tribunal. I just ask my friend, Mr. - , if he has given any thought to that issue.

His Honour: I suppose as far as Mr. - is concerned, there is no

objection?

First counsel: I would not expect so, I could confirm that.

His Honour: Maybe you have objection?

Second counsel: No, your Honour.

First counsel: I was proceeding on the usual method of

confidentiality established in this Tribunal.

His Honour: We will proceed on that basis." (at p13)

49. At a later stage the learned deputy president presiding asked the second counsel whether he wished to cross-examine in private session and the second counsel said "Yes", and at a later stage the deputy president said, "We will continue in confidential sitting." (at p13)

50. When the first witness in the proceedings before the tribunal had been called the following passages appear in the transcript. Again the counsel's name and the name of the witness, have not been included. (at p13)

51. "Counsel: Yes, your Honour. I tender the statement of Mr. -, seeking the usual order for restriction of publication in relation to the figures in that statement which are in red. In relation to those figures the company has no objection to their being seen by officers of the Trade Practices Commission, legal representatives of any of the parties, or independent experts subject to an order that persons concerned do not disclose the information contained therein to any other person. (at p13)

52. EXHIBIT. EX. A3 . . . Statement, Mr. - (Confidential). (at p14)

53. Counsel: I apologize to your Honour for not having prepared a form of suggested order restricting publication. That will be done, and in the meantime perhaps some temporary embargo could be placed on it. (at p14)

54. His Honour: In the meantime, I direct that those parts of the statement shaded pink be not published otherwise than to officers of the Trade Practices Commission, legal representatives of parties or intervenors, or expert witnesses. Perhaps you would submit a draft form of order?" (at p14)

55. The next morning the following passage appears in the transcript: (at p14)

56. "His Honour: Before you start again, Mr. -, I spoke yesterday of an order for restriction of publication. I propose that this will be, and will be referred to as, 'the usual order'. I direct that publication of the documents be restricted to counsel and solicitors representing parties and intervenors before the tribunal and that such publication be on the express basis that such counsel and solicitors do not disclose the document or the contents thereof to their respective clients or any other person provided that counsel and solicitor appearing for the commission are at liberty to disclose the contents of the document to the officers of the commission." (at p14)

57. At a later stage in the evidence of this witness the following passage appears in the transcript and again certain names have not been included. (at p14)

58. "His Honour: Mr. -, you require a direction that further cross-examination of this witness by you be held in private. What directions do you want as to the persons who may be present? (at p14)

59. First counsel: The same persons as are entitled to see the documentary material in respect of which restriction of publication has been directed. (at p14)

60. Second counsel: Except that I would ask, any employee of . . . should be able to remain in court, but no other person. (at p14)

62. Second counsel: And it includes the expert, if that was not included in the original direction - I ask permission for (the expert), to remain in court. (at p14)

63. His Honour: We direct that the rest of Mr. -'s cross-examination of this witness be held in private, only the following persons being present: counsel and solicitors representing parties and intervenors; officers of . . . and of the Trade Practices Commission; the witness, (the expert). (at p14)

64. Second counsel: If your Honour pleases. (at p14)

65. His Honour: Would everybody else please leave the hearing room." (at p14)

66. In the proceedings before us the solicitor for the applicant was called by counsel for the commission and agreed in cross-examination that "going into confidential session" had a meaning which was known to all parties. It is not clear to me what that meaning was although I consider that the solicitor interpreted a confidential session as one where the publication of the evidence was restricted to those persons who were not excluded from being present. (at p15)

67. On one view the only relevant orders were that the relevant part of the proceedings be in private session, that the usual method of confidentiality established in the tribunal was being adopted and that the usual order, if made, operated to restrict the publication and disclosure of documents. I have not been able to discover any clear order restricting the disclosure of the relevant evidence in the material before us. (at p15)

68. As I have said, I do not consider it necessary to make any finding upon the meaning of the orders which were made. (at p15)

69. For the reasons I have set out, I would discharge the order nisi with costs other than those of the intervenor. (at p15)

NORTHROP J. I have had the advantage of reading the reasons for judgment prepared by Franki J. For the reasons so expressed I would discharge the order nisi with costs, other than those of the intervenor. (at p15)

Court of Australia Act 1976

R v Trade Practices Tribunal; Ex Parte Tooheys Ltd [1977] FCA 22;

At a glance

Court

Decision date

Before

Source

Judgment (101 paragraphs)

R v Trade Practices Tribunal; Ex Parte Tooheys Ltd [1977] FCA 22; (1977) 31 FLR 1 (13 December 1977)

Parties

Legislation Cited (8)

Cases Cited (4)