[1981] FCA 119; (1981) 55 FLR 77

Trade Practices - Section 155 notice - Proceedings pending between recipients of s.155 notice and third party - Section 155 notice relating to alleged activities in issue in pending proceedings - Notices issued after commencement of proceedings - Whether service of s.155 notice constitutes a contempt of court - Whether service of s.155 notice an attempt to exercise judicial power - Melbourne Steamship Co. Ltd. v. Moorehead [1912] HCA 69; (1912) 15 C.L.R. 333 considered.

Trade Practices Act 1974 (Cth), ss.45, 80, 155.

Trade Practices - Statutory notice issued by Commission requiring recipient to furnish information - Existing proceedings by third party - Validity of notice - Contempt of court - Whether service of notice an attempt to exercise judicial power - Trade Practices Act 1974 (Cth), ss. 45, 80, 155. On 13th December, 1978, Ro-Mix Concrete Pty. Ltd. commenced proceedings in the Federal Court against five respondents claiming contraventions of s. 45 of the Trade Practices Act 1974 (the Act). On or about 5th June, 1980, notices signed by the Acting Chairman of the Trade Practices Commission (the Commission) and purportedly issued under s. 155 of the Act were served upon two corporations and three individuals (the respondents) requiring them to give information and produce documents about alleged contraventions of the Act by the five respondents in the Ro-Mix proceedings who included the two corporate respondents who had received the notices. Upon application by the recipients of the notices it was held that the notices were ultra vires and that their service constituted a contempt of court.

Held: Per curiam (1) The Commission's power under s. 155 of the Act is executive or non-judicial.

Per Deane J. Section 155 enables preliminary administrative inquiry to determine whether proceedings should be instituted either by the Minister or the Commission.

(2) The commencement of proceedings under the Act by a stranger did not exhaust the Commission's power under s. 155.

Per Sheppard J. In this respect the Commission's position was no different to other law enforcement agencies.

Huddart, Parker & Co. Pty. Ltd. v. Moorehead [1909] HCA 36; (1909), 8 CLR 330; Melbourne Steamship Co. Ltd. v. Moorehead [1912] HCA 69; (1912), 15 CLR 333, discussed and explained.

(3) The present exercise of the Commission's power under s. 155 of the Act did not constitute an interference with the judicial proceedings, although in a particular case such exercise could.

Per Bowen C.J. So long as the investigation of the Commission is conducted in such a way that it does not interfere with the witnesses or parties before the court, and it is not publicized there would appear to be no objection.

Liyanage v. The Queen, (1967) 1 AC 259; Johns & Waygood Ltd. v. Utah Australia Ltd., [1963] VicRp 11; (1963) VR 70; Lane v. Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981), 55 ALJR 529, referred to.

Sydney, 1981, March 19; April 22; August 17. 17:8:1981

Appeal from a judgment of a single judge of the Federal Court of Australia.

L. J. Priestly Q.C. and J. C. Campbell, for the appellants.

A. M. Gleeson Q.C. and J. A. Farmer, for the respondents.

Cur. adv. vult.

Solicitor for the appellants: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondents: Allen Allen & Hemsley.

T. J. GINNANE

2. The judgment of Lockhart J. that the s.155 notices issued by the appellants were invalid and that their service constituted contempt of court be set aside.

3. The order as to costs made by Lockhart J. be set aside.

4. The question of whether the s.155 notices were, in whole or in part, invalid by reason of defects in their form be remitted to Lockhart J. or any other Judge of this Court.

5. Costs of the proceedings at first instance be reserved for determination by Lockhart J. or such other Judge.

6. The respondents pay the appellants' costs of the proceedings in this Court.

This is an appeal from a decision of a Judge of this Court that certain notices issued and served by the Trade Practices Commission ("Commission") upon the applicant companies pursuant to s.155 of the Trade Practices Act 1974 were void and that service of them upon the companies constituted a contempt of court.

The course of the proceedings and the facts are set forth in the reasons for judgment of Deane J. I shall not repeat them.

In reaching his decision the learned trial Judge considered he was bound by Melbourne Steamship Co. Limited v. Moorehead [1912] HCA 69; (1912) 15 C.L.R. 333 and that the reasoning of the majority in that case dictated his conclusion.

When the matter first came before this Court, we formed the view that determination of the limits of the investigatory power conferred on the Commission by s.155 of the Trade Practices Act would involve the interpretation of the Constitution, specifically consideration of the nature and extent of the judicial power of the Commonwealth. Notices pursuant to s.78B of the Judiciary Act 1903 were served on the Attorneys-General for the Commonwealth and New South Wales. On a later date further argument was heard between Counsel who then appeared both for the appellants and the Commonwealth Attorney-General ("Counsel for the Crown") and Counsel for the respondents. The New South Wales Attorney-General did not wish to intervene.

Counsel for the Crown argued that the Melbourne Steamship decision was not binding on this Court or on the Judge below, being a decision on s.15B of the Australian Industries Preservation Act 1906. There are, it was argued, significant differences between ss.15B and 155 and between the context of each section in its respective Act. In addition it was argued, the ratio decidendi of the Melbourne Steamship Case, if one could be extracted, was not that the purported exercise of compulsory investigation under s.15B was an attempted exercise of the judicial power of the Commonwealth and so an interference with judicial power, but that upon the proper construction of s.15B there was no statutory authority within the section itself to investigate a matter once proceedings had been begun by the Attorney-General in relation to that matter. It was further argued that Parliament had the power to authorise, as it had done in s.155, the investigation of any matter whether or not it was the subject of pending judicial proceedings and the mere exercise of such investigatory powers, if authorised by statute, could be neither the exercise of judicial power of the Commonwealth nor an interference with judicial proceedings. Counsel referred to Lockwood v. Commonwealth [1954] HCA 31; (1954) 90 C.L.R. 177 and Johns & Waygood Limited v. Utah Australia Limited [1963] VicRp 11; (1963) V.R. 70.

Counsel for the respondents argued that, once a matter whether in the form of an action begun by the Commission or by someone on behalf of the Commission or in the form of civil proceedings was before the Court, any powers of compulsory investigation in relation to the matter would be either an incident of and therefore an attempted exercise of the judicial power of the Commonwealth or an interference with judicial proceedings. These principles primarily arose, it was argued, from the necessary application to s.155 in its context in the Act of the principles of law laid down in the Melbourne Steamships Case in relation to s.15B of the Australian Industries Preservation Act, there being no relevant distinction to be made between the powers vested in the Comptroller-General by s.15B and the Commission by s.155. Further it was argued that, independently of the doctrine of the separation of powers in the Constitution, though bolstered by that doctrine, Parliament did not have power to authorise the investigation of the very subject matter of proceedings before a court. Counsel referred to Liyanage v. The Queen (1967) A.C. 259; McGuinness v. Attorney-General of Victoria [1940] HCA 6; (1940) 63 C.L.R. 73; Lockwood's Case, supra; and, Johns & Waygood's Case, supra.

It is convenient to consider first the effect of the decision in the Melbourne Steamships Case. The background necessary to an understanding of the Melbourne Steamships Case is the earlier case of Huddart Parker & Company Pty. Limited v. Moorehead [1909] HCA 36; (1909) 8 C.L.R. 330. In that case the compulsory powers of interrogation vested in the Comptroller-General in s.15B of the Australian Industries Preservation Act were challenged as being an attempted exercise of the judicial power of the Commonwealth. The whole Court (Griffith C.J., Barton, O'Connor, Isaacs and Higgins JJ.) found the exercise of these powers to be an executive or administrative function, rather than the exercise of judicial power of the Commonwealth. The analogy between the Comptroller-General's powers and the powers of examining Magistrates was drawn (at pp.355, 366, and 378; cf. p.418). It must be noted that the challenge to this legislation was not in the context of any particular matter, penal or otherwise, pending before the courts. O'Connor and Isaacs JJ. were the only Justices to deal specifically with the case of proceedings pending before a court at the time an inquiry pursuant to s.15B was attempted.

O'Connor J. (at pp.379-380), in answer to Counsel's argument that the power in s.15B was one in aid of judicial proceedings rather than executive administration and that the making of inquiries was analogous to the taking of evidence and so the power exercised in aid of prosecutions or civil proceedings was an exercise of judicial power under s.71 of the Constitution, said:

"The obvious answer is that there is an essential difference between the two proceedings. When a Judge orders the examination of a witness by commission the evidence is taken on behalf of the Court by its representative, under its order, in a cause pending, and is clearly part of the procedure in that cause. When the Comptroller makes his requirement under 15B there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognizance of the Court. The power to prevent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in this court by the Constitution. I take it therefore as clear that, at the stage when the Comptroller-General is authorised to apply the provisions of the section, the suspected or alleged offence is no more within the cognizance of a Court than if it were under preliminary consideration by the Police Department."

It was argued by Counsel for the respondents that O'Connor J. was saying that when the Comptroller-General exercises his powers under s.15B once a proceeding or offence is before the Court he is invalidly attempting to exercise judicial power of the Commonwealth. I am not persuaded that this is the effect of what O'Connor J. said. If the Court has power, as O'Connor J. indicates, to prevent interference by the Executive with a case before the courts it does not necessarily mean that the act of interference was not an otherwise valid exercise of administrative power. The exercise of judicial power of the Commonwealth and an interference with judicial proceedings are not necessarily one and the same thing. These statements of O'Connor J. are not authority for the bald proposition that once there is an offence or matter before the Court any exercise of compulsory powers of interrogation in regard to the matter before the Court has necessarily become an incident of the exercise of judicial power of the Commonwealth. His words seem primarily to cover the notion of an interference with judicial proceedings.

Isaacs J. (at pp.384-385) stresses the validity of the power of interrogation when used for the purpose of investigating whether an offence has been committed and whether a charge should be laid. He does not deal expressly with the position after a charge is laid or state any basis for invalidity of the power at that stage.

In the Melbourne Steamships Case [1912] HCA 69; (1912) 15 C.L.R. 333 the Attorney-General had formally instituted a prosecution in respect of an alleged offence under the Australian Industries Preservation Act against certain defendants. The Comptroller-General, pursuant to s.15B, put certain questions to the appellants, who were not defendants or parties to the proceedings, as to whether they had been involved in activities clearly relevant to the questions and issues alleged in the prosecution against the defendants. When the questions had been put to the appellants it had been indicated that the questions were in connection with the proceedings pending for the purpose of obtaining information for the use of the Crown in the action.

The High Court found by majority that under these circumstances the Comptroller-General could not exercise his powers of interrogation. It is of importance in the case before us to determine the reasons of Griffiths C.J. and Barton J., for so finding.

The crucial passage from the judgment of Griffith C.J. relied upon by Counsel for the respondents is as follows at p.341:

"In my opinion, when the Attorney-General has formally instituted a prosecution in this Court in respect of an alleged offence, the power as well as the purpose of section 15B is exhausted so far as regards the persons whom the Attorney-General alleges to have committed the offence for which he prosecutes, whether they are made parties to the suit or not. From that time the matter becomes subject to the judicial power, or, to adapt a similar phrase, transit in litem pendentem. The section cannot, therefore as contended by Mr. Starke, be used for the purpose of collecting evidence in a pending suit. It is true that the words 'if the Comptroller believes' may be literally capable of including cases where he bases his belief on the fact that the Attorney-General has brought a suit, but they are so inapt to express that meaning that such a construction should be rejected."

Read alone this passage, especially the reference to judicial power, lends weight to the view that the Chief Justice held that once a prosecution was before the Court the power of the Comptroller-General to pursue the investigatory function in s.15B was exhausted because those functions had become transformed into incidents of judicial power of the Commonwealth. However, this passage must be read in its context. In the immediately preceding paragraph (on pp.340-341) Griffith C.J., after indicating that the "nature and object" of the powers in s.15B were the subject of full discussion in the Huddart Parker Case, supra, said:

"The cases in which they (the powers in s.15B) may be exercised are two - (1) if the Comptroller-General believes that an offence has been committed and (2) if a complaint in writing has been made to him that an offence has been committed. The questions are to be put to persons whom the Comptroller-General believes to be capable of giving information as to the 'alleged' offence, i.e. the offence which he believes to have been committed or of which complaint has been made to him. The object of the inquiry is to ascertain whether the belief or complaint is well founded. The only result that can follow from it is a prosecution, which must be instituted by the Attorney-General or some person authorised by him (section 14)."

Later in his judgment the Chief Justice indicates (at pp.343-344) that any attempt to use powers in s.15B outside the purpose for which they were given would be an "abuse of the power - in civil cases it is called a fraud on the power" (p.344). These phrases suggest that his view was that there is the possibility of abuse of an existing power rather than the purported use of a power without foundation.

Further, in the first passage I have quoted, upon which chief reliance is placed by Counsel for the respondents, the final sentence suggests that the Chief Justice is limiting the powers in s.15B by the construction of the section itself rather than by discerning any limitation imposed by the doctrine of separation of powers.

I am of opinion that the judgment of Griffiths C.J. in Melbourne Steamships Case is authority for no more than the proposition that the purpose of the power in s.15B of the Australian Industries Preservation Act is pre-prosecution investigation and that once that purpose is no longer at hand, because a prosecution had been instituted, "the power as well as the purpose of s.15B is exhausted".

Barton J. (at p.346) agreed with the views expressed by O'Connor J. in the Huddart Parker Case, supra. I have already indicated my view that O'Connor J. is not to be understood as saying that the exercise of powers in s.15B in regard to a matter before the Court is necessarily an exercise of a judicial power. However, Barton J. then says:

"If section 15B were read as an interference with judicial proceedings, it would be an exercise by the legislature of a power vested by the Constitution in the judiciary. It cannot, therefore, be so read if it is, as without a doubt it is, open to interpretation consistent with the Constitution. Such interpretation removes it altogether from the area of judicial proceedings."

I find the first sentence of this passage, which equates interference with judicial proceedings with the exercise of the judicial power of the Commonwealth, difficult to accept. The two concepts are quite distinct. One can understand that where a power was conferred by statute and the power was clearly directed to authorising action which would constitute an interference with judicial proceedings, the enactment would be in conflict with Chapter III of the Constitution and beyond the power of the legislature. Where a power was conferred by statute and the power, while it was directed generally to purposes which were unexceptionable, might in accordance with its literal terms in some circumstances be used in such a way as to produce an interference with judicial proceedings, it is by no means clear that the enactment conferring the power would be wholly invalid. It would seem rather to be a case where the operation of the statute might be read down. Indeed, this seems to be the point which Barton J. is making in relation to s.15B.

Isaacs J. was in dissent as to the validity of the exercise of the power in s.15B in the circumstances of the case. The limitation on s.15B he saw was one of construction of the section, how far it should be read as intended to extend. Isaacs J. (p.349) rejected any suggestion that this particular statutory procedure was ever an exercise of judicial power. He also rejected the idea of the transformation of executive or administrative inquiry into the exercise of judicial power of the Commonwealth because of the existence of legal proceedings:

"The institution of process cannot change the nature of the procedure under the section; that which it is today, it remains to-morrow. Discovery of facts may be attached also to judicial procedure, and so made part of it, but it is not an exclusive or even an inherent attribute of that procedure."

"The true ground is that, reading s.15B with the rest of the Act, I gather the limit of the power to be where the matter has reached the stage when the Crown has definitely arraigned before a court a particular person on a particular charge. As to him, in relation to that charge, the language of the power is, on the face of it, then inapplicable."

In my opinion the Melbourne Steamships Case is authority for the proposition that when the Attorney-General had instituted a prosecution in respect of an alleged offence the power as well as the purpose of s.15B of the Australian Industries Preservation Act was, as a matter of interpretation, exhausted so far as regards the persons alleged to have committed the offence, whether or not they were made parties to the proceedings. I do not read it as authority for the proposition that once a matter under the Australian Industries Preservation Act was before the Court (whether the proceedings were brought by the Crown or a third party) either, the Comptroller-General's act of interrogating pursuant to s.15B in relation to the matter or the legislative authorisation contained in s.15B was necessarily an exercise of judicial power of the Commonwealth.

I turn now to the construction of s.155 of the Trade Practices Act. I have set out my views on the general purpose of the powers in s.155 in Riley McKay v. Bannerman (1977) 15 A.L.R. 561 and will not repeat them here. The variety of functions performed by the Commission may be compared with the comparatively limited role of the Comptroller-General under the former Act. However, the general thrust of s.155(1) (apart from its reference to s.93(3)) is very similar to that of s.15B(1). One of the Commission's functions is to determine for itself whether proceedings, be they civil, criminal or penal, should be brought. For such purposes s.155 is an essential tool. The grant of the power is a grant of executive or non-judicial power on the Commission. The fact that a Court in proceedings before it may also have powers of interrogation which are clearly judicial does not necessarily mean the Commission's powers are invalidly conferred (R. v. Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 C.L.R. 1).

However, two questions remain. In this case A had commenced proceedings against C, D, E, F and G alleging a contravention of s.45 of the Trade Practices Act. The Commission was not a party to those proceedings, but the notices issued pursuant to s.155 were directed to C, D, E, F and G and related to the same alleged contravention of s.45. The questions which remain are, first, whether s.155 should be construed as exhausted and therefore as not extending to empower the Commission to interrogate in these circumstances; and, secondly, whether such an exercise of the power conferred by s.155 constitutes an interference with judicial proceedings. I would answer both of these questions in the negative.

I say nothing as to the operation of s.155 where the Commission is a party to the proceedings. But where the Commission is not a party, I see nothing in the wording of s.155 or its context, or in the purposes for which the power is given, which would require it to be interpreted as ceasing to apply when a stranger institutes proceedings. Indeed, if it were otherwise there would exist a simple way of stultifying the Commission's powers under s.155. Nor do I consider that there is any constitutional limitation which requires the section to be read down so as to produce that result. In particular, it does not appear to me that once a stranger commences proceedings any action under s.155 becomes an exercise of judicial power.

Is there any interference with judicial proceedings? In my opinion, the mere exercise of the power is not necessarily an interference with judicial proceedings. In a particular case it might be; it would depend on the circumstances. Speaking generally, administrative investigation of a matter which is before a court will not constitute a contempt, though it may do so if the results are published (Johns and Waygood Limited v. Utah Australia Limited, supra, at pp.79-80) or if the investigation is conducted in such a way as to interfere with the court itself or the conduct of the proceedings.

An example of a private enquiry by a public authority is a police investigation of a matter, the subject of a civil proceeding, with a view to possible prosecution. This is no contempt. Similarly it is not contempt for the Commission to institute its own investigation. One of the means at its disposal for its investigation is s.155. So long as the investigation is conducted in such a way that it does not interfere with the witnesses or parties before the Court, and is not publicised, there would appear to be no objection. Contempt occurs where there is interference with the due administration of the law (Lane v. Registrar of the Supreme Court of New South Wales (Equity Division), High Court, 27 July 1981, unreported).

There is no reason to expect the results of the Commission's enquiry will be made public. The investigation is conducted to enable the Commission to form its own opinion as to whether it should initiate a prosecution. That is a legitimate use of s.155, whenever it may be done. It could well be that, should the Commission purport to use this power to circumvent restrictions on its rights to discovery and interrogatories when it is a party to proceedings, the Court would consider that to be an improper use of the power and a contempt of court. However, that is not this case.

It was also argued for the respondents that the documents received by the Commission following its inquiry could be subject to a subpoena by the applicant in the Ro-Mix proceedings. It is argued that the Commission would thus be enabling that party to gain information to which it would not have access following normal court processes. If that is so, it follows from the use of the processes of the Court itself, not the institution of an investigation by the Commission. It is not a ground for holding the Commission does not have or should not exercise the power.

In the result I am of opinion the appeal should be allowed.

Section 45(2) of the Trade Practices Act, 1974 ("the Act") provides, inter alia, that a corporation shall not make, arrive at, or give effect to a provision of, a contract, arrangement or understanding of which a provision has the purpose, effect, or likely effect, of substantially lessening competition. Contravention of s.45(2) does not constitute a criminal offence (s.78(a)) but renders the contravenor and any accessory liable to a pecuniary penalty not exceeding $50,000 in the case of a person or $250,000 in the case of a corporation (s.76). Civil proceedings for the recovery of the penalty may be instituted only by the Minister or the Trade Practices Commission ("the Commission") (s.77). A person who suffers loss or damage by reason of such a contravention may recover the amount of the loss or damage by action in the Federal Court against the contravenor or any person involved in the contravention (s.82). Proceedings for an injunction restraining a contravention of s.45(2) may be brought by the Minister, the Commission or "any other person" (s.80).

Section 155(1) of the Act provides, for present purposes, that where the Commission, the Chairman or the Deputy Chairman (of the Commission) has reason to believe that a person is capable of furnishing information, producing documents, or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act, a member of the Commission may, by notice in writing served on that person, require that person:

"(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;

(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents".

Section 155(3) provides that the Commission may require the evidence referred to in paragraph (1)(c) to be given on oath or affirmation and that, for that purpose, any member of the Commission may administer an oath or affirmation. Section 155(5) prohibits a person from refusing or failing to comply with a notice under the Section to the extent that the person is capable of complying with it or from, in purported compliance with such a notice, knowingly furnishing information or giving evidence that is false or misleading. The maximum penalty for contravention of s.155(5) is a fine of $1000 or imprisonment for three months.

On or about 5 June, 1980, there was served upon each of Pioneer Concrete (Vic.) Pty. Limited, Apex Quarries Limited, Barry Montgomery, William Roderick Parr and Allan George Rusmussen ("the respondents") a notice directed to it or him which was dated 3 June, 1980, and purported to be given pursuant to s.155 of the Act. Each notice was signed by Mr. Ronald Solley Gilbert who was, at relevant times, the Acting Chairman and a member of the Commission. In substance, the notices were, so far as is material to these proceedings, identical. In each of them, Mr. Gilbert asserted that he had reason to believe that the relevant company or person was capable of furnishing information and producing documents relating to matters that constitute or may constitute, contraventions of s.45 of the Act, namely:

"that during and since 1978, PIONEER CONCRETE (VIC) PTY LTD. (hereinafter referred to as "the company"), THE READYMIX GROUP LIMITED, APEX QUARRIES LIMITED, BARRO GROUP PTY. LIMITED and BORAL RESOURCES (VIC.) PTY. LTD, have -

(a) made contracts or arrangements or arrived at understandings, provisions of which had the purpose, or would have had or be likely to have had the effect of substantially lessening competition; and

(b) given effect to the provisions referred to in (a) above,

in that those provisions had the purpose, or would have had or be likely to have had the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of -

(i) the price for pre-mixed concrete supplied and delivered in Melbourne; or

(ii) the shares of the market in Melbourne for the supply and delivery of pre-mixed concrete held,

by the corporations named above, (or by bodies corporate related to them), in competition with each other,".

Each notice went on to require the relevant company or person to furnish to nominated members of the Commission's staff the information set out in a Schedule to the notice and to produce to the same members of the Commission's staff the documents specified in another Schedule to the notice.

Mr. Gilbert subsequently purported to vary the abovementioned notices by signing, and serving upon each of the respondents, documents described as "Variation To Notice Under s.155" or "Further Variation To Notice Under s.155" being dated 1, 4, 25 and 31 July and 28 August, 1980 respectively. It would appear to be common ground between the parties that these amending notices, which were neither reproduced in the appeal papers nor referred to in argument, are not relevant for the purposes of the present appeal and may be disregarded.

On 4 July, 1980, the respondents instituted the proceedings in the present matter by Application and accompanying Statement of Claim filed in the New South Wales Registry of the Court. In the proceedings, which were heard by Lockhart J., the respondents sought, against the Commission and Mr. Gilbert, a declaration that the notices which had been served upon them were not authorized by s.155 of the Act and were wholly, or alternatively partly, void. Before Lockhart J., the respondents attacked the notices on two separate grounds, one going to the power to issue them and the other to their form. It was also argued that service of the notices constituted contempt of court. The argument that there was no power to issue the notices and that their service upon the respondents constituted contempt of court by the appellants was based upon the existence of pending proceedings in the Federal Court which had been instituted by Ro-Mix Concrete Pty. Limited against the two corporate respondents and the three other companies mentioned in the notices. I shall refer to these proceedings, to which more detailed reference will subsequently be made, as "the Ro-Mix proceedings".

Lockhart J. upheld the submission that, in the context of the pending Ro-Mix proceedings, Mr. Gilbert lacked power to issue the notices which were served upon the respondents and that service of the notices upon the respondents constituted contempt of court by the Commission and Mr. Gilbert ("the appellants"). His Honour found that the appellants acted throughout in good faith and concluded that he should do no more than order that they pay the costs of the proceedings as between solicitor and client. It was, in the event, unnecessary for his Honour to deal with the attack upon the notices based upon their form.

The appellants appeal to this Court against Lockhart J's findings that the relevant notices were void and that service of the notices upon the respondents constituted contempt of court on the part of the appellants. It was agreed between the parties on the hearing of the appeal that, in the event that this Court should uphold the appeal from his Honour's decision that Mr. Gilbert lacked power to issue and serve the notices, the matter should be remitted to Lockhart J. to deal with the attack based on their form.

The Ro-Mix proceedings were instituted on 13 December, 1978, in the Victorian Registry of the Court. The respondents were, as has been mentioned, the five companies mentioned in the notices served upon the respondents. In its Statement of Claim, Ro-Mix alleged that these five companies (which include the two corporate respondents) had contravened s.45 of the Act in terms which are identical in substance to the description of the "matters that constitute, or may constitute, contraventions of s.45 of the Act" which appear in the notices served upon the respondents. Issue has been joined in the Ro-Mix proceedings. The period of time which has elapsed since the initiation of them would indicate that none of the parties to them is exhibiting any particular enthusiasm for bringing them on for hearing since, subject to the effect of interlocutory appeals, a party to proceedings in this Court can, if he wishes, ordinarily ensure that they are brought on for hearing within months, rather than years, of the time of their institution.

In the Ro-Mix proceedings, Ro-Mix seeks injunctions restraining the five named companies from giving effect to the contract, arrangment or understanding which is said to contravene s.45 of the Act, and damages. It is common ground that the appellants were, at relevant times, aware of the Ro-Mix proceedings and of the allegations made therein. It was not, however, suggested that they were attempting to use the powers conferred by s.155 of the Act as an aid to, or for the purposes of, the Ro-Mix proceedings. Nor is it suggested that the Ro-Mix proceedings are other than genuine proceedings between parties at arms length.

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.

In Appleton v. Moorehead (supra), the High Court was concerned to consider the general validity of the provisions of s.15B of the Australian Industries Preservation Act, 1906-1907. Section 15B was in Part II of that Act and provided:

"15B. (1) If the Comptroller-General believes that an offence has been committed against this Part of this Act, or if a complaint has been made in writing to the Comptroller-General that an offence has been committed against this Part of this Act and the Comptroller-General believes that the offence has been committed, he may be writing under his hand require any person whom he believes to be capable of giving any information in relation to the alleged offence to answer questions and to produce documents to him or to some person named by him in relation to the alleged offence.

(2) No person shall refuse or fail to answer questions or produce documents when required to do so in pursuance of this section.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ".

Section 14 of the Australian Industries Preservation Act, 1906-1907 provided that criminal proceedings under Part II could only be instituted by the Attorney-General or some person authorized by him and that civil proceedings under Part II could only be instituted with the written consent of the Attorney-General.

The s.15B notice in Appleton v. Moorehead (supra) was not served at a time when judicial proceedings had actually been commenced. The submission was that, regardless of whether judicial proceedings had been instituted, the provisions of s.15B were invalid for the reason that the power which they purported to confer upon the Comptroller-General was "part of the judicial power of the Commonwealth which must be exercised by the High Court or some other federal Court: Sec. 71 of the Constitution" (ibid, at p. 334). This general submission was rejected by all members of the High Court (ibid, at pp. 355-358, 366, 378-381, 381-384, 418). More important, for present purposes, than this outright rejection of the general submission however, is the express statement in the judgment of O'Connor J. and the clear inference in the judgment of Isaacs J. to the effect that the powers conferred upon the Comptroller-General by s.15B did not survive the institution of legal proceedings in respect of the relevant suggested contravention of the provisions of Part II. O'Connor J's view that the powers conferred by s.15B did not survive the institution of legal proceedings in respect of the particular alleged contravention was, as I read his Honour's judgment, based on two interwoven concepts, namely, that the service of a s.15B notice in the context of pending judicial proceedings may involve an exercise of the judicial power of the Commonwealth and that such service, in that context, may involve an impermissible interference with the due functioning of the judicial arm of Government (see ibid at pp. 379-380). On the other hand, Isaacs J's view to that effect was, as I read his judgment, the result of his construction of the words of the section rather than the result of any restriction of the scope of the section to be derived from considerations of constitutional power (see ibid at pp. 384-5).

Subject to one qualification, the other members of the Court in Appleton v. Moorehead (supra) (Griffith C.J., Barton and Higgins JJ.) did not indicate any view as to the duration of the powers conferred upon the Comptroller-General by s.15B. The qualification is that Griffith C.J. (with whom Barton J. agreed on this aspect of the case) stated that he was "disposed to accept the argument of analogy between the powers conferred on the Comptroller-General and those exercised by examining justices" which, as the Chief Justice pointed out, are of a preliminary character (see, ibid, at pp.335-337; 366).

In Melbourne Steamship Co. Ltd. v. Moorehead (supra), the validity of a s.15B notice arose for consideration in a context where proceedings to recover penalties for alleged contravention of Part II of the Australian Industries Preservation Act, 1906-1909 had been instituted by the King and the Attorney-General against a number of companies. The s.15B notice was directed to the Melbourne Steamship Co. Limited which was not a defendant in the proceedings which had been instituted but which was named as a member of one of two alleged combinations in respect of which the proceedings were brought. The evidence was to the effect that the s.15B notice was issued and served neither in the course of some preliminary inquiry as to whether further proceedings should be instituted nor in the course of considering whether the appellant should be added as a defendant to the existing proceedings but "in aid of the then pending proceedings" (ibid, at pp. 338-339, 343 and 346). It was held by the High Court (Griffith C.J., Barton J; Isaacs J. dissenting) that s.15B did not, upon its proper construction, authorise the giving of the notice.

In his judgment in Melbourne Steamship Co. Ltd. v. Moorehead (supra), Griffith C.J. expressed the view that the object of an inquiry pursuant to s.15B was to ascertain whether the belief or complaint to which the section refers was well-founded and that the "only result" which could flow from such an inquiry was a prosecution. The Chief Justice went on to say (ibid, at p. 341):

"In my opinion, when the Attorney-General has formally instituted a prosecution in this Court in respect of an alleged offence, the power as well as the purpose of sec.15B is exhausted so far as regards the persons whom the Attorney-General alleges to have committed the offence for which he prosecutes, whether they are made parties to the suit or not. From that time the matter becomes subject to the judicial power, or, to adapt a familiar phrase, transit in litem pendentem. The section cannot, therefore, as contended by Mr. Starke, be used for the purpose of collecting evidence in a pending suit. It is true that the words "if the Comptroller believes" may be literally capable of including cases where he bases his belief on the fact that the Attorney-General has brought a suit, but they are so inapt to express that meaning that such a construction should be rejected".

The reference in the above extract from the Chief Justices' judgment to "the matter" becoming "subject to the judicial power or . . . transit in litem pendentem" was suggested, on behalf of the respondents, to convey the view that, once a prosecution had been instituted, the service of a s.15B notice by the Comptroller-General would involve a purported exercise of part of the judicial power of the Commonwealth. In my respectful view, Griffith C.J. was indicating no such thing. As I read the above extract from his Honour's judgment, the point that was being made was that, as a matter of construction, the power conferred by s.15B was a power to be exercised on the occasion of a preliminary inquiry for the purpose of determining whether a prosecution should be instituted. Once such a prosecution had been instituted, the occasion for, and the purpose of, the exercise of the power had passed: the question or matter of suggested contravention had passed from the stage of preliminary inquiry and been absorbed in the subject of the judicial proceedings in much the same way as a right is absorbed by the judgment which vindicates it ("transit in rem judicatam"). This view of his Honour's comments is, as I see the matter, confirmed by his Honour's subsequent reference to a power which is intended to be used for a particular purpose being used for another and unauthorized purpose (see, ibid, pp. 343-344).

On the other hand, Barton J., in the course of his judgment in Melbourne Steamship Co. Ltd. v. Moorehead (supra, at p. 346), expressed the view that if "Sec. 15B were read as an interference with judicial proceedings, it would be an exercise by the legislature of a power vested by the Constitution in the judiciary". His Honour went on to conclude that the section "cannot, therefore, be so read if it is, as without doubt it is, open to an interpretation consistent with the Constitution". "Such interpretation" his Honour added "removes it altogether from the area of judicial proceedings. It cannot therefore be used as an aid to such proceedings . . . ".

I have difficulty in understanding how the Comptroller-General's asking of questions and requiring production of documents under the provisions of s.15B could, even in a situation where "an interference with judicial proceedings might be involved", properly be seen as "an exercise by the legislature of a power vested by the Constitution in the judiciary" in the sense of being an "exercise" of the judicial power of the Commonwealth. It would, with due respect, seem to me that the considerations which led to the conclusion, in Appleton v. Moorehead (supra), that the functions of the Comptroller-General under s.15B were not an exercise of the judicial power of the Commonwealth would apply regardless of whether judicial proceedings had been instituted. The function which is primarily distinctive of judicial power - the power to decide or determine - was completely absent from the procedure under s.15B (see, generally, McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940) 63 C.L.R. 73 at p. 98; Lockwood v. The Commonwealth [1954] HCA 31; (1954) 90 C.L.R. 177 at p. 181). As Isaacs J. commented in his judgment in Melbourne Steamship Co. Ltd. v. Moorehead (supra, at p. 349):

"Indeed, I see no foundation for the suggestion that this particular statutory procedure is ever an exercise of judicial power, . . . The institution of process cannot change the nature of the procedure under the section; that which it is to-day, it remains to-morrow. Discovery of facts may be attached also to judicial procedure, and so made part of it, but it is not an exclusive or even an inherent attribute of that procedure".

While Isaacs J's judgment was a dissenting one, he does not appear to me to be in dissent on this point for the reason that, as I have indicated, I do not read the judgment of Griffith C.J. as indicating the view that the issue and service of a notice under s.15B in the context of pending proceedings involved an exercise of the judicial power of the Commonwealth. It follows that I do not accept the contention that the Melbourne Steamship Co. Ltd. Case (supra) is authority for the proposition that the service of a s.15B notice, in the context of, or even in aid of, pending judicial proceedings, constituted a purported exercise of the judicial power of the Commonwealth. Nor, in my view, is that proposition a tenable one.

I am also unable to accept the proposition, which I understood to be advanced on behalf of the respondents, to the effect that once a "matter" comes before a federal court - "transit in litem pendentem" - it possesses, as a matter of general principle, an immunity from being affected by legislative or administrative action. I deliberately state the proposition in those very broad terms to distinguish it from the narrower proposition which would preclude interference by the Parliament or the Executive with the due performance of its functions by a federal court. There is one sentence in the judgment of Barton J. in Melbourne Steamship Co. Ltd. v. Moorehouse (supra), which can be read as lending support for that broad proposition, namely: "That subject matter has passed into the hands of the Courts alone". In my view however, this statement of Barton J. stands alone and the decision in the Melbourne Steamship Co. Ltd. Case (supra) does not establish any such general doctrine of separation or immunity of subject matters as a consequence of appropriation by the federal judiciary. Nor, in my view, can any such general doctrine properly be derived either from the Constitution itself or from authority.

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.

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.

The reasoning underlying the decision in Melbourne Steamship Co. Ltd. v. Moorehead (supra), as to the proper interpretation of s.15B of the Australian Industries Preservation Act, 1906-1909, is, in my view, applicable to the provisions of s.155 of the Act. It follows that this Court is constrained to hold that, upon the proper construction of s.155 of the Act, the powers conferred upon the Commission and its members are to be used only for the purposes of the performance by the Commission of the administrative function of determining whether proceedings should be instituted by the Commission or the Minister and are not to be used, as they were, for example, purportedly used in Brambles Holdings Ltd. v. Trade Practices Commission ((1980) [1980] FCA 120; 32 A.L.R. 328), as an aid to judicial proceedings which have already been instituted either by the Minister, the Commission or a third party.

In the present case, there is no suggestion that the appellants were using the powers conferred by s.155 either as an aid to, or for the purposes of, the independent proceedings which had been instituted by Ro-Mix against the respondents and which were the only relevant pending judicial proceedings. There is nothing to indicate that the appellants were attempting to use the power to require information and production of documents conferred by s.155 otherwise than for the purpose for which they were conferred, namely, the purpose of preliminary administrative inquiry to determine whether proceedings should be instituted either by the Minister or the Commission. Subject to objections as to the form of the notices and to the suggestion that service of the notices constituted an improper interference with the due performance of its functions by the Federal Court, there is no basis, either in the decisions of the High Court or in principle, for holding that the notices were not authorized by the provisions of s.155 of the Act.

One can readily envisage circumstances in which the service of a s.155 notice, in the context of judicial proceedings, could constitute an improper interference with the due performance of its functions by a federal court even though the notice was not being used in aid of those judicial proceedings. If, for example, such a notice were served upon a judge actually hearing a matter requiring him to produce documents which were in evidence before him, or to answer questions as to the evidence before him, there would plainly be an interference with the due administration of justice by the particular court. It is conceivable that circumstances might exist in which service of such a notice upon a party to, or a witness in, proceedings in a court would likewise constitute such an interference. It is however, in my view, plain that the mere fact that proceedings are pending in a court does not mean that any collateral or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice by that court. In particular, the existence of civil proceedings in respect of certain activities does not, in my view, preclude proper administrative inquiries as to whether penal proceedings should be instituted in respect of those activities. Thus, for example, neither police inquiries nor committal proceedings constitute, in themselves, an improper interference with the proceedings of a court hearing a civil claim based on the same subject matter.

With due respect to those who see the matter differently, it does not appear to me that the service of the s.155 notices in the present matter constituted any interference at all with the due performance of its functions by the Federal Court. It is true that the subject matter of the proceedings before the Federal Court and the matters specified in the s.155 notices as constituting or possibly constituting contraventions of s.45 of the Act corresponded. An administrative inquiry as to whether the subject matter of the civil proceedings in the Federal Court should be made the subject of penal proceedings was however completely proper and could not, in the circumstances, improperly prejudice the due performance of its functions by the Federal Court. The service of the s.155 notices constituted neither an interference with the Federal Court's performance of its functions nor a contempt of the Federal Court.

In the result, it is, as I previously indicated, unnecessary for the purposes of this case to determine the existence or extent of constitutional guarantees of the immunity of federal courts from prejudicial interference by the Parliament or Executive with the proper performance by them of their functions. The service of the s.155 notices in the present case was authorized by the provisions of s.155 of the Act and constituted no such interference. Subject to any questions as to their form which the parties are agreed should be remitted to Lockhart J., the notices are valid and effective.

I would allow the appeal. I would set aside the findings of Lockhart J. to the effect that the notices were invalid and that their service constituted contempt of court by the appellants and I would set aside the order as to costs which his Honour made. I would order that the respondents pay the appellants' costs of the proceedings in this Court. I would remit to Lockhart J. or, if he be unable to deal with the matter, any other judge of this Court the question of whether the s.155 notices were, in whole or in part, invalid by reason of defects in their form. I would reserve for the decision of Lockhart J. or such other judge the question of the costs of the proceedings at first instance.

In this matter I have had the advantage of reading the judgments to be delivered by Bowen C.J. and Deane J. I agree in their reasons and conclusions and with the orders which they propose.

For myself I would say that I do not understand how a provision such as s.155 of the Trade Practices Act 1974 could be thought to invest the Trade Practices Commission with any part of the judicial power of the Commonwealth. On the other hand I do understand why it could properly be said that in some circumstances the purported exercise of the power which is conferred upon the Commission by s.155 could be an unlawful interference with judicial proceedings. In that event the purported exercise of the power would be void and of no effect because the section should be construed so as to deny the power in cases where its exercise would interfere with such proceedings. For the Commission to attempt to exercise the power in such circumstances might amount to a contempt of court.

In my opinion the only strength which the respondents' argument had, apart from some apparent support in certain dicta in early High Court cases with which my brothers have dealt, lay in their counsel's submission that, since the question of whether the respondents were in breach of the Act was before it at the suit of Ro-Mix Concrete Pty. Limited, the Court at the time the notices were served was seized of the whole matter relating to the question of the respondents' breach of the Act. The fact that the Commission was not itself a party to those proceedings was of no relevance. Because the matter already before the Court involved the question of breach, notices directed to the respondents concerning that question were an unlawful interference with the proceeding already pending.

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).

The proper construction of the Trade Practices Act being as it is, it is most unlikely that any question of contempt of court will arise in a situation such as here exists. It might do so, however, in a case where the Commission lent itself to the assistance of a private party who had instituted proceedings and the Commission proposed to use its powers under the section to assist him. I express no concluded view on that matter nor upon the question of whether there might not be other classes of cases (in addition to those where the Commission is already a party) where the service of a notice would either be unlawful or a contempt or both. All that need be said in relation to this case is that the facts do not show that the notices were served for any improper or unlawful purpose. Subject to the outstanding questions concerning their form they were a lawful exercise of the power conferred upon the Commission by s.155 of the Act.