Re Trade Practices Commission and Ronald Solley Gilbert v Pioneer Concrete

Re Trade Practices Commission and Ronald Solley Gilbert v Pioneer Concrete - [1981] FCA 119 - FCA 1981 case summary — Zoe

[83]

The argument advanced on behalf of the respondents to the effect that there was no power to give the notices and that their service constituted contempt of court possessed a protean illusiveness. At times, the argument took the form that the issue and service of the notices constituted, in the context of the provisions of s.155 and of the Ro-Mix proceedings, a purported exercise of part of the judicial power of the Commonwealth which, according to well-established authority, can only properly be exercised by a court within the meaning of Chapter III of the Constitution. At times, the argument seemed to be to the effect that the whole question of whether the companies named as respondents in the Ro-Mix proceedings had been involved in contraventions of s.45 of the Act had, to quote words used by Griffith C.J. in Melbourne Steamship Co. Ltd. v. Moorehead ((1912) [1912] HCA 69; 15 C.L.R. 333 at p. 341), become "subject to the judicial power, or, to adapt a familiar phrase, transit in litem pendentem" and had, thereby, as a matter of general principle, passed beyond the range of administrative action and constraints, such as the service of a notice under s.155 and the consequences thereof. At times, the argument was to the effect that the issue and service of the notice amounted to an interference with the ordinary judicial process in relation to the pending Ro-Mix proceedings and that such an interference not only constituted contempt of court but was beyond what lay within the legislative competence of the Commonwealth Parliament to authorize. Underlying each of the various forms which the respondents' argument took there lay, however, a plain and easily understood proposition. That proposition was that this Court is bound to hold the notices invalid by reason of the decisions of the High Court of Australia in Appleton v. Moorehead ((1908) 3 C.L.R. 330) and the Melbourne Steamship Co. Ltd. v. Moorehead (supra). Upon analysis, the various forms which the respondents' argument assumed were related to particular comments made in judgments in those cases. I have experienced unusual difficulty in appreciating the implications of some of those comments and it is with diffidence that I differ from conclusions expressed by Lockhart J., sitting at first instance, as to their effect. I turn to a consideration of the two cases.

[100]

On the other hand, there is plainly force in the narrower proposition which would preclude interference by the Parliament or the Executive with judicial proceedings if such interference be of a kind which would prejudice the due performance of its functions by the judicial arm of government. Such a proposition derives support from the passage in the judgment of O'Connor J. in Appleton's Case (supra, at pp. 384-385) to which I have already referred and with which Barton J. expressed agreement in the Melbourne Steamship Co. Ltd. Case (supra, at p. 346). For myself, I would, as at present advised, be disposed to go further and accept the more radicial proposition that not only are the Parliament and the Executive bereft of any constitutional power or authority which would authorize legislative or executive action which would preclude the due performance of judicial functions by a federal court but that the Parliament and the Executive are under a positive constitutional duty to make available to a federal court exercising federal jurisdiction the means, facilities and assistance which, with due regard to what is reasonable in the relevant place at the relevant time, can properly be regarded as necessary for the due and proper performance of such judicial functions. The combination of such a proposition and the basic constitutional principle that certain functions are inalienably part of the judicial power of the Commonwealth vested in Chapter III Courts, provides, in my view, a fundamental constitutional safeguard against the tyranny of arbitrary judgment and punishment. These are, however, questions which await resolution in the High Court of Australia and in respect of which it suffices, for present purposes, to say that I am not persuaded that Melbourne Steamship Co. Ltd. v. Moorehead (supra), authoritatively establishes the narrower proposition to which I have referred and that, for reasons which will subsequently appear, it is unnecessary that I indicate any final view in relation to it.

[101]

All that Melbourne Steamship Co. Ltd. v. Moorehead (supra), decided, as I read the judgments, was that the power to require information pursuant to s.15B was a power to be exercised for the purpose of ascertaining whether criminal proceedings for an offence should be instituted by the Attorney-General or whether the Attorney-General should give his written consent to civil proceedings being instituted. In this regard, it is relevant to bear in mind that, under the Australian Industries Preservation Act, 1906 (s.14), in contrast to the position under the Act, no proceedings could be instituted other than by, or with the written consent of the Attorney-General. Once such proceedings were instituted and the matter had passed beyond the stage of preliminary administrative inquiry into pending judicial proceedings, the power was, so far as the alleged offence the subject of the proceedings was concerned, spent or exhausted. It is plain from the majority judgments that the case does not establish that the mere fact that there were pending judicial proceedings which related to a particular suggested offence precluded the use of the procedure under s.15B for the purposes of a proper collateral preliminary inquiry such as whether another person was a party to the alleged combination or whether another person should be added as a party to the existing proceedings. The evidence that, in that case, the s.15B power was being purportedly used in aid of the pending proceedings precluded that question from arising for decision (see, ibid, per Griffith C.J. at p. 343 and per Barton J. at p. 346). A fortiori, the case is not authority for the proposition that, if it had been possible for private civil proceedings to be instituted under the Australian Industries Preservation Act, 1906 without the written consent of the Attorney-General, the institution of such private proceedings would have precluded the Comptroller-General from using, or continuing to use, the powers conferred by s.15B for the purposes of a preliminary administrative inquiry as to whether the Attorney-General should either institute, or give his written consent to the institution of, independent proceedings.

[111]

The respondents' submission should, in my opinion, be rejected because it confuses the overall jurisdiction which the Court has with respect to a matter - "the subject matter for determination in a legal proceeding", cf. Philip Morris Inc. v. Adam P. Brown Male Fashions Limited (1981) 33 A.L.R. 465 at p.502 - with the particular jurisdiction which the Court, in the instant case, is exercising as the result of a proceeding instituted by a party other than the Commission. The section ought not to be construed as necessarily limiting the Commission's powers just because its notices are concerned with the same question as arises in a proceeding instituted by another party, provided, of course, the Commission is not itself a party to that or any other proceeding involving it. So to construe it would severely hamper the Commission, charged as it is with the important public function of administering the Act, in the discharge of its duties thereunder. There is no indication in the legislation that Parliament intended the section to be so limited. In this respect I cannot detect any intention on the part of the legislature to distinguish the position of the Commission from that of other law enforcement agencies in the community. The power of the police to investigate the question of whether a crime has been committed is not circumscribed by the fact that there may be in existence a pending proceeding between private litigants in which a question of breach of the criminal law will arise. Nor is the power of various Attorneys-General under the Uniform Companies Legislation to appoint inspectors to investigate the affairs of a company; cf. Part VIA of the Companies Act 1961 (N.S.W.). Counsel for the respondents sought to distinguish the situations I have mentioned upon the basis that persons interviewed or examined were not bound to answer questions. But in relation to the Companies legislation that is not so - see s.176; the only exception being that provided in s.176(3). And if one turns to the Bankruptcy Act 1966 a bankrupt is bound at his public examination to answer all questions allowed to be put to him and is not excused from answering any such question by reason only of the fact that the answer to it may tend to incriminate him; s.69(12). See also s.82(17).

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Re Trade Practices Commission and Ronald Solley Gilbert v Pioneer Concrete (Vic) Pty Limited, Apex Quarries Limited, Barry Montgomery, William Roderick Parr and Alan George Rasmussen [1981] FCA 119; (1981) 55 FLR 77 NSW (17 August 1981)

Parties

Legislation Cited (8)

Cases Cited (1)