Reardon v Magistrates' Court of Victoria [2018] VSCA 76

CRIMINAL LAW - Applicants charged with blackmail - Whether applicants immune from prosecution on basis that the conduct alleged would if proved constitute an ancillary contravention of pt IV of Competition and Consumer Act 2010 (Cth) - Whether judge erred in refusing to restrain Magistrates' Court from conducting committal hearing for blackmail charges - Application for leave to appeal granted - Appeal dismissed.

ADMINISTRATIVE LAW - Judge relied on documents obtained after hearing concluded without informing parties - Whether applicants denied procedural fairness - Whether outcome would have been different in absence of denial of procedural fairness.

WORDS AND PHRASES - 'Criminal proceedings do not lie against a person by reason only' - Competition and Consumer Act 2010 (Cth) s 78.

1 These are two applications for leave to appeal against orders made by a judge of the Trial Division dismissing applications for judicial review of a decision of the Magistrates' Court.[1] That decision rejected the applicants' contention that a committal proceeding should not be conducted in relation to charges of blackmail separately brought against each of them.

2 John Setka and Shaun Reardon are the Secretary and Assistant Secretary, respectively, of the Victorian-Tasmanian Divisional Branch of the Construction and General Division of the Construction, Forestry, Mining and Energy Union ('CFMEU').

3 The CFMEU represents employees in various industries including the construction industry. Boral Resources (Vic) Pty Ltd ('Boral') manufactures and supplies concrete for use in the construction industry. Grocon Pty Ltd ('Grocon') is a construction company. In 2013, Boral was the exclusive supplier of concrete to Grocon in the Melbourne metropolitan area.

4 On 6 December 2016, the applicants were charged with blackmail. Detective Acting Sergeant Rodney Andrew is the informant. The charges arose from a meeting held on 23 April 2013 between the applicants and two employees of Boral. They were Paul Dalton, the Executive General Manager, Southern Region of Boral and Peter Head, the General Manager of the same region. Each charge was in the following terms:

The accused at North Melbourne in the State of Victoria, on Tuesday 23rd day of April 2013, with an intent to cause a loss to another, namely Grocon Pty Ltd, made an unwarranted demand with menaces of Paul Dalton and Peter Head.

5 Blackmail is an offence under s 87 of the Crimes Act 1958. That section relevantly provides as follows:

87 Blackmail

(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief -

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is proper means of reinforcing the demand.

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.

6 Before the Magistrates' Court, the applicants contended that it should not conduct a committal hearing and should strike out the blackmail charges on the basis that s 78 of the Competition and Consumer Act 2010 (Cth) ('CCA') rendered them invalid.[2] That section is in pt VI of the CCA which is headed 'Enforcement and remedies'. It relevantly provides:

1. Criminal proceedings not to be brought for contraventions of Part IV

Criminal proceedings do not lie against a person by reason only that the person:

(a) has contravened a provision of Part IV (other than section 44ZZRF or 44ZZRG); or

(b) has attempted to contravene such a provision;

(c) has aided, abetted, counselled or procured a person to contravene such a provision;

(d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;

(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) has conspired with others to contravene such a provision.

7 Section 78 of the CCA must be read together with s 76, which is also in pt VI, and ss 45D and 45E, which are in pt IV, headed 'Restrictive trade practices'. Section 45D and 45E are set out at [32] and s 76 is set out at [33] below. At this stage, it is sufficient to note the following about those sections:

(a) Section 45D prohibits conduct that amounts to a secondary boycott.

(b) Section 45E prohibits certain arrangements, one of whose purposes is to bring about a secondary boycott.

(c) Section 76 deals with the imposition of pecuniary penalties for a contravention of, among others, a provision of pt IV. Section 76(1)(d) provides that a pecuniary penalty may be imposed upon a person who 'has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision'.

8 The applicants' contention before the Magistrates' Court that the blackmail charges were invalid was based on the proposition that s 78(d) of the CCA conferred an immunity upon them in respect of criminal prosecution for blackmail. This was said to be because the conduct which is the subject of the blackmail charges, if established, would render the applicants liable for a pecuniary penalty under s 76(1)(d). Therefore, by virtue of s 78(d), no criminal proceeding could be brought against them 'by reason only' that they engaged in the conduct referred to in that section. On this basis, the applicants sought an order that the Magistrates' Court not conduct a committal proceeding in relation to the blackmail charges.

9 The Magistrates' Court refused to make the order sought by the applicants and instead scheduled a hearing for the committal proceeding. In their judicial review proceedings in the Trial Division, in which the Magistrates' Court was the first defendant and the informant was the second defendant, the applicants sought an order restraining the Magistrates' Court from proceeding with that hearing. The informant resisted the making of such an order. The Magistrates' Court did not take any part in the judicial review proceedings in accordance with the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman.[3] The judge refused to make the order sought by the applicants and dismissed the judicial review proceedings.

10 In their applications for leave to appeal against the judge's decision, the applicants rely on five grounds. The main grounds are that the judge misconstrued s 78 of the CCA, and that he denied the applicants procedural fairness by relying on documents which had not been tendered at the hearing and about which the applicants had not been given an opportunity to make submissions.

11 For the reasons that follow, the applications for leave to appeal will be granted but the appeals will be dismissed.

Brief of evidence and particulars regarding blackmail charges

12 On 2 February 2016, the informant served a brief of evidence on each applicant which included a document titled 'Statement of Material Facts Relevant to Charge/s' ('Alleged Facts'). The Alleged Facts state:

(a) On 14 February 2013, CFMEU shop stewards were instructed to prevent Boral from supplying concrete to construction sites controlled by the CFMEU.

(b) On 26 February 2013, Boral and a subsidiary, Alsafe Premix Concrete Pty Ltd ('Alsafe'), commenced a proceeding in the Trial Division ('Boral proceeding') in which Boral and Alsafe sought injunctions and damages against the CFMEU.

(c) On 28 February 2013, Hollingworth J granted an injunction restraining the CFMEU, until 7 March 2013, from procuring, advising, persuading, encouraging, inciting or counselling any person who was employed or engaged to perform work at six specified construction sites from failing or refusing to perform work in respect of concrete supplied by Boral.[4]

(d) On 7 March 2013, Hollingworth J extended the injunction until the trial of the Boral proceeding or further order.

(e) On 5 April 2013, Hollingworth J extended the injunction to all products and services supplied by Boral.

(f) Despite the injunctions, the CFMEU prevented Boral from supplying concrete to construction sites controlled by the CFMEU.

(g) On 23 April 2013, the applicants met with Mr Dalton and Mr Head at Auction Rooms, a café in North Melbourne ('Auction Rooms meeting'). At that meeting:

(i) Mr Setka, in the presence of Mr Reardon, said to Mr Dalton and Mr Head words to the effect that:

(A) the CFMEU was 'at war with Grocon', and wanted to cut off Grocon's concrete supply;

(B) the CFMEU wanted Boral to stop supplying concrete to Grocon for 'a couple of weeks';

(C) the CFMEU would be prepared to facilitate this by blockading Boral's concrete plants; and

(D) if Boral did not cooperate, the CFMEU would target Boral's concrete delivery trucks and target Boral's concrete batchers for membership;

(ii) Mr Reardon, in the presence of Mr Setka, said to Mr Dalton and Mr Head words to the effect that:

(A) the CFMEU was going to target Boral trucks; and

(B) all Boral had to do was to stop supply to Grocon for two weeks;

(iii) Mr Dalton said to the applicants words to the effect that Boral would continue to supply concrete to Grocon.

(h) Boral suffered financial loss as a result of the CFMEU's activities.

13 On 7 July 2016, the informant provided the following particulars as to how the alleged demands were said to be unwarranted for the purposes of s 87(1) of the Crimes Act 1958:

Such demands (and intended industrial action, namely to engage in a secondary boycott) against a third party (Boral) were illegal. (See s 45D [CCA]). Hollingworth J had in the preceding months (28/2/13, 7/3/13 & 5/4/13) made orders in the nature of injunctions against the CFMEU in favour of Boral ... It is to be inferred that the accused as senior office holders of the CFMEU would have been aware of such proceedings. We refer also to the test under s 87(1) Crimes Act 1958. Further, the nature of the demand is immaterial. (s 87(2)).

14 On 31 October 2016, the informant served amended further and better particulars. The amended particulars as to how the alleged demands were said to be unwarranted were as follows:

The demands with menaces, described above, were not warranted as the accused knew or believed: (per s 87(1) Crimes Act 1958)

(a) they had no reasonable grounds for making the demand; or

(b) that the use of menaces was an improper way of reinforcing the demand.

The prosecution relies on the following evidence in support of the element of the offence that the demands were unwarranted:

(i) On 28 February 2013, Hollingworth J made an order in the nature of an injunction in favour of Boral against the CFMEU. That order prohibited the CFMEU (its officers, employees, agents or otherwise) from interfering with the customary supply by Boral of concrete to Boral's customers;

(ii) On 4 March 2013, Cavanough J made an order in the nature of an injunction in favour of Boral[[5]] against the CFMEU (and its officers) in similar terms to the orders made by Hollingworth J. Clause 2(a) of Cavanough J's order directed that a duly authorised officer direct in writing that the accused (who were named) must not prevent, hinder or interfere or attempt to prevent, hinder or attempt to interfere with the supply by Boral (and others) to named customers of Boral. Clause 2(b) directed that details of the order made be published on the Victorian and Tasmanian Branch of the CFMEU's homepage;

(iii) On 7 March 2013, Hollingworth J made orders in the nature of an injunction against the CFMEU (and its officers) etc in favour of Boral in similar terms to the order of 28 February 2013;

(iv) On 5 April 2013, Hollingworth J made an order in the nature of an injunction in favour of Boral and [Alsafe] against the CFMEU. That order was in like terms to the previous orders made by Hollingworth J;

(v) In each case, the summons relating to the seeking of injunctive relief, as well as supporting affidavits, were served on the appropriate officer of the CFMEU;

(vi) In each case, the orders made in favour of Boral and [Alsafe] were served on the appropriate officer of the CFMEU;

(vii) The accused, as senior office holders of the CFMEU, knew about the orders made, or, it is to be inferred they knew about the orders made;

(viii) The demands made sought, in their terms, to interfere with the lawful carrying out of Boral's business and contractual obligations.

Further, the nature of the demand is immaterial. (s 87(2)).

Injunctions granted by Hollingworth J and Cavanough J

15 The Boral proceeding was commenced on 26 February 2013 by the filing of a generally indorsed writ. The indorsement of claim alleged that the CFMEU had threatened to engage in unlawful conduct. The conduct was said to be unlawful because 'it would constitute an inducement for employees and contractors of [clients of Boral and Alsafe] whose work at [various construction sites] involves, or would normally involve, the use of concrete supplied by either [Boral or Alsafe] to breach the contracts pursuant to which they would, or would normally, perform that work'. The indorsement of claim did not refer to any provision of the CCA.

16 Boral and Alsafe filed affidavits in support of their application for an injunction.

17 On 28 February 2013, Hollingworth J granted an interim injunction, until 7 March 2013, against the CFMEU in the Boral proceeding. The injunction relevantly provided as follows:

Until 4:15 pm on 7 March 2013, the [CFMEU] (whether by itself, its officers, employees, agents or howsoever otherwise) be restrained from procuring, advising, persuading, encouraging, inciting or counselling - or threatening to so procure, advise, persuade, encourage or counsel - any person who is employed or engaged to perform work at [certain construction sites] that involves, or would normally involve, working with concrete supplied by either [Boral or Alsafe] to fail or refuse to perform that work, or to perform it otherwise than in the manner in which it would customarily be performed.

18 Hollingworth J adjourned the Boral proceeding until 7 March 2013.

19 In the meantime, in 2012, Grocon and two of its subsidiaries had commenced a separate proceeding against the CFMEU in the Trial Division seeking an injunction. On 4 March 2013, Cavanough J granted an interlocutory injunction in the following terms:

Until the trial of this proceeding or further order, the CFMEU (whether by itself, its officers, servants, agents or howsoever otherwise) is restrained from:

(a) preventing, hindering, or interfering with, or attempting to prevent, hinder, or interfere with, the supply or possible supply of goods or services by any person (including, without limitation ... and Boral ... to any of the plaintiffs at: [certain building sites]; and

(b) causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraph 1(a) of this Order.

20 Paragraph 2 of the injunction granted by Cavanough J required the CFMEU to direct the applicants, among others, that they must not engage in any of the conduct set out in para 1 of the injunction.

21 On 7 March 2013, Hollingworth J granted an interlocutory injunction to replace the interim injunction dated 28 February 2013. The interlocutory injunction was in the same terms as the interim injunction save that the former was expressed to subsist '[u]ntil the trial of this proceeding or further order' and was not confined to any specific construction sites.

22 On 26 March 2013, Boral and Alsafe filed a statement of claim in the Boral proceeding. Consistently with the indorsement of claim, the statement of claim pleaded that the CFMEU's threatened conduct would constitute the tort of inducing breach of contract. However, the statement of claim also alleged that the CFMEU's conduct would constitute a contravention of s 45D of the CCA.[6]

23 On 5 April 2013, Hollingworth J made an order which added further subsidiaries of Boral as plaintiffs to the Boral proceeding, and granted a further interlocutory injunction. That injunction was in the same terms as the interlocutory injunction dated 7 March 2013 save that, relevantly:

(a) it was expressed to be for the benefit of the existing plaintiffs (Boral and Alsafe) as well as the new plaintiffs; and

(b) the CFMEU was additionally restrained - whether by itself, its officers, employees, agents or howsoever otherwise - 'from preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, the supply or possible supply of goods or services by the plaintiffs (or any of them) at any building or construction site in Victoria'.

24 On 19 April 2013, Boral and Alsafe filed an amended writ and statement of claim in the Boral proceeding, pursuant to leave granted by Hollingworth J on 5 April 2013. The amendments to the writ added further Boral subsidiaries as plaintiffs and deleted the indorsement of claim. The amended statement of claim did not alter the substance of the causes of action set out in the statement of claim.

ACCC's Federal Court pecuniary penalty proceeding against CFMEU and applicants

25 On 19 November 2014, the Australian Competition and Consumer Commission ('ACCC') commenced a proceeding in the Federal Court of Australia seeking pecuniary penalties and other remedies against the CFMEU and the applicants ('pecuniary penalty proceeding').

26 In its statement of claim, the ACCC alleged (among other things) that the applicants, by reason of their conduct at the Auction Rooms meeting, had attempted to induce Boral to enter into a contract, arrangement or understanding affecting the supply or acquisition of goods or services, contrary to s 45E(2) of the CCA.[7]

27 On 3 February 2016, that part of the pecuniary penalty proceeding that related to the conduct at the Auction Rooms meeting was stayed until further order. The hearing of the remainder of the pecuniary penalty proceeding commenced on 3 October 2016 and concluded on 26 October 2016.

28 On 4 November 2016, Middleton J made an order dismissing the pecuniary penalty proceeding as against the applicants in its entirety, without adjudication on the merits.

29 Prior to the commencement of the committal hearing in relation to the blackmail charges, the applicants objected to the jurisdiction of the Magistrates' Court to conduct the committal. They submitted that the Court should strike out the charges as invalid because s 78 of the CCA conferred immunity from criminal prosecution in respect of the very conduct that was the subject of the charges.

30 On 9 November 2016, the Magistrates' Court rejected the applicants' contention and decided to proceed with the committal hearing.

Judicial review proceedings in the Trial Division

31 The decision of the Magistrates' Court dated 9 November 2016 was the subject matter of the applicants' judicial review proceedings. Those proceedings, which were commenced on 29 November 2016, are discussed in detail later in these reasons.

32 We have already set out s 87 of the Crimes Act 1958. Sections 45D and s 45E - which, as we have said, are in pt IV of the CCA - relevantly provide as follows:

45D Secondary boycotts for the purpose of causing substantial loss or damage

(1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:

(a) that hinders or prevents:

(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or

(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

...

(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.

(3) Subsection (1) applies if the fourth person is a corporation.

(4) Subsection (1) also applies if:

(a) the third person is a corporation and the fourth person is not a corporation; and

(b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.

...

45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services

Situations to which section applies

(1) This section applies in the following situations:

(a) a supply situation - in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or

(b) ...

Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations.

...

Prohibition in a supply situation

(2) In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:

(a) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or

(b) preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:

(i) that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and

(ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

33 Sections 76, 76B and 77 are in pt VI which, as we have already stated, is titled 'Enforcement and remedies'. They provide as follows:

76 Pecuniary penalties[[8]]

(1) If the Court is satisfied that a person:

(a) has contravened any of the following provisions:

(i) a provision of Part IV (other than section 44ZZRF or 44ZZRG);

(ii) section 60C;

(iia) section 60K;

(iii) section 95AZN;

(iv) a civil penalty provision of an industry code; or

(b) has attempted to contravene such a provision; or

(c) has aided, abetted, counselled or procured a person to contravene such a provision; or

(d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or

(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) has conspired with others to contravene such a provision;

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct.

...

(2) Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA.

...

76B What happens if substantially the same conduct is a contravention of Part IV or section 95AZN and an offence?

(1) In this section:

contravention, in relation to a section or Part, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section or Part.

pecuniary penalty order means an order under section 76 for the payment of a pecuniary penalty.

(2) The Court must not make a pecuniary penalty order against a person in relation to a contravention of Part IV or section 95AZN if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

(3) Proceedings for a pecuniary penalty order against a person in relation to a contravention of Part IV or section 95AZN are stayed if:

(a) criminal proceedings are started or have already been started against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

The proceedings for the pecuniary penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.

(4) Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of Part IV or section 95AZN regardless of whether a pecuniary penalty order has been made against the person in respect of the contravention.

...

1. Civil action for recovery of pecuniary penalties

(1) The [ACCC] may institute a proceeding in the Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 76.

(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention.

34 Part VI of the CCA contains further provisions dealing with enforcement and remedies. They include:

(a) section 79, which provides that a person commits a criminal offence if the person contravenes the cartel provisions in ss 44ZZRF or 44ZZRG;

(b) section 80, which empowers the Court to grant an injunction to restrain a person from engaging 'in conduct that constitutes or would constitute' a contravention of pt IV;

(c) section 82, which empowers the Court to award damages to a person who suffers loss from a contravention of a provision of pt IV; and

(d) section 87, which empowers the Court to make other orders against a person who has contravened a provision of pt IV.

35 It will be noted that para (a) of s 76(1) of the CCA provides that a person can be liable for a pecuniary penalty if the person contravenes a relevant provision of pt IV. Paragraphs (b)-(f) provide that such a liability can arise if the person engages in the conduct referred to in those paragraphs. At trial and before this Court, the parties described the conduct referred to in paras (b)-(f) as giving rise to an 'ancillary contravention' of a relevant provision of pt IV. The judge adopted that terminology and we will do likewise.

36 As we have already indicated, the ancillary contravention provision which was the focus of the current proceeding was s 76(1)(d), particularly the words 'a person ... has ... attempted to induce ... a person ... by threats ... to contravene ... a provision [of pt IV]', read together with the provisions of s 45E(2)(a). As further explained below, the applicants relied on the asserted similarity between these words, and the following words in s 87 of the Crimes Act 1958: 'A person is guilty of blackmail if ... with intent to cause loss to another, he makes an unwarranted demand with menaces.'

Legislative history and relevant extrinsic material

37 The CCA is the successor to the Trade Practices Act 1974 (Cth) ('TPA'). When the TPA was enacted, it did not contain ss 45D or 45E; they were inserted on 1 July 1977 and 29 May 1980 by the Trade Practices Amendment Act 1977 (Cth) and Trade Practices (Boycotts) Amendment Act 1980 (Cth) respectively. Part VI of the TPA, as originally enacted, contained ss 76-87. As the differences between ss 76-79 as originally enacted in the TPA and in their current form in the CCA[9] were the subject of submissions on behalf of the informant, we next describe some of the central features of the TPA at the time that Act first came into force.

38 In their original form, the provisions of pt IV of the TPA prohibited certain restrictive trade practices, such as monopolisation, exclusive dealing, resale price maintenance and price discrimination. Part V provided for various consumer protections. Part VI - which was headed 'Enforcement and Remedies' - provided for the consequences of a contravention of a provision of pt IV or pt V. Section 76 was headed 'Pecuniary penalties'. It provided that the Court may order a person to pay to the Commonwealth a pecuniary penalty if the Court was satisfied that the person:

(a) has contravened a provision of Part IV;

(b) has attempted to contravene such a provision;

(c) has aided, abetted, counselled or procured a person to contravene such a provision;

(d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;

(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) has conspired with others to contravene such a provision ...

39 Section 77 of the TPA empowered the Attorney-General and the Trade Practices Commission to institute a proceeding for the recovery on behalf of the Commonwealth 'of a pecuniary penalty referred to in s 76' within six years of the relevant contravention. Although the marginal note to s 77 stated, 'Civil action for recovery of pecuniary penalties', at that time, s 13(3) of the Acts Interpretation Act 1901 (Cth) provided that marginal notes did not form part of an Act.

40 Section 78 of the TPA was in its present form, save that para (a) did not contain the words '(other than section 44ZZRF or s 44ZZRG)'. Those sections had not then been enacted. Paragraphs (a)-(f) of s 78 in their original form mirrored paras (a)-(f) of s 76 in their original form.

41 Section 79 of the TPA provided that a person who contravened a provision of pt V, other than s 52, was guilty of a criminal offence.

42 Sections 80, 82 and 87 of the TPA were broadly similar to ss 80, 82 and 87 of the CCA.

43 When the Trade Practices Bill 1974 (Cth) was before the Commonwealth Parliament, there was considerable debate regarding the nature of the proceedings for recovery of pecuniary penalties for contraventions of pt IV and, in particular, the onus of proof that should apply to such proceedings. In the second reading speech, the Minister for Manufacturing Industry discussed the imposition of pecuniary penalties for contraventions of pt IV, and said the following:

Such a penalty and the proceedings to recover it will be civil in character. A breach will not constitute an offence for the purposes of the criminal law and the penalty will not be a fine.

The difference may at first appear to be only a matter of form but the important consequence is that such proceedings, involving business dealings to the extent that they do, will not find their way into a criminal court.[10]

44 In the Senate, the Opposition sought to amend cl 76 of the Bill to impose the criminal standard of proof. Senator Greenwood said that, notwithstanding that cl 77 referred to recovery of a civil penalty 'by way of civil action', the Opposition viewed pecuniary penalties 'as the imposition of a fine in the way in which any person who is charged with an offence is liable to pay a fine if he is convicted'.[11]

45 The Government opposed the amendment. The Attorney-General, Senator Murphy, stated:

There is a clear distinction between the trade practices provisions [ie pt IV] and the consumer protection provisions [ie pt V] in the Bill. For the most part, the consumer protection provisions deal with conduct which amounts to a criminal offence. ... In the trade practices area, the conduct is more commercial conduct dealing with competitors, driving them out of business and so forth. An endeavour has been made to treat this area in the civil sense. The nature of the penal provisions are such as to create what are called civil offences rather than criminal offences. This is a well known concept in the law. For example, the categorisation of such offences in this way is carried out in industrial law in relation to ordinary strikes and lockouts which are met by the imposition of monetary penalties. ...

...

We think it is important not to import into the trade practices area the notion of criminality as such. We have endeavoured to avoid doing this. ... We thought it was important not to import the atmosphere of criminality into the commercial area in which offences committed would not be criminal offences but what could be properly described as civil offences. Inevitably, if the Opposition is successful in its bid to include in the clause the phrase 'beyond reasonable doubt', businessmen who are caught up by these provisions will be treated as criminals. ... There are plenty of offences which carry with them the imposition of monetary penalties but which are not criminal offences. They are civil offences.[12]

46 Senator Greenwood described 'civil offences', to which the Attorney-General referred, as 'unknown to the law and generally unknown to those who practise'.[13]

47 Section 76B was inserted in the TPA with effect from 22 June 2000 by the A New Tax System (Trade Practices Amendment) Act 2000 (Cth). In its original form, the section dealt with the interrelationship between criminal proceedings and proceedings for a pecuniary penalty for a contravention of s 75AYA of the TPA. That section dealt with conduct which misrepresented the effect of the legislation which introduced the GST.

48 The TPA was amended in 2009 by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth) ('2009 Act'). The 2009 Act inserted in the TPA provisions which criminalised certain cartel conduct. Section 76B was amended by the 2009 Act to deal with the interrelationship between criminal proceedings and proceedings for a pecuniary penalty for a contravention of pt IV (in addition to a contravention of s 75AYA). In the second reading speech for the Bill that became the 2009 Act, the Minister for Competition Policy and Consumer Affairs stated:

Offences and civil penalties

The bill provides that a corporation commits an indictable offence if it makes, or gives effect to, an agreement that contains a cartel provision.

...

The bill also provides parallel civil penalties for cartel conduct. This will enable cartel enforcement to be carried out in a targeted way, with more serious and egregious examples of cartel conduct warranting consideration for criminal prosecution. In addition, the prohibitions enable actions for damages by private parties, under the existing mechanisms provided for under the [TPA] that apply to other breaches of part IV of the act.

To address concerns regarding double jeopardy arising from the parallel criminal and civil schemes, a number of statutory bars to proceedings have been included. This has been done by extending the existing provisions in section 76B of the act to encompass the new cartel provisions. For example, where substantially the same conduct comprises a civil contravention and an offence, the court will be prevented from making a pecuniary penalty order if the person has already been convicted of an offence.[14]

49 We interpolate to say that the informant relied to a considerable degree upon the historical background to ss 76 and 78 of the CCA, tracing these provisions back to the TPA, in support of his preferred construction of s 78. His arguments, in that regard, will be explained later in these reasons for judgment.

Judicial review proceedings in Trial Division

50 As we have already stated, the applicants' judicial review proceedings were commenced on 29 November 2016. The relief they sought included:

(a) declarations that, by reason of s 78(d) of the CCA, criminal proceedings do not lie in respect of the conduct which is the subject of the blackmail charges and that the charges do not disclose an offence known to law;

(c) an order restraining the Magistrates' Court from proceeding with a committal hearing in relation to the charges.

51 The judicial review proceedings were heard on 2 May 2017.

52 Although the amended further and better particulars of the blackmail charges referred to the injunctions granted by Hollingworth J and Cavanough J,[15] neither those injunctions, nor the originating processes for the proceedings which gave rise to the injunctions, were before the judge.

53 During the hearing, his Honour asked counsel for Mr Reardon whether Hollingworth J had granted injunctions against the CFMEU on the basis of s 45D of the CCA. Counsel stated that she was not able to answer that question and noted that the injunctions were not before the judge. She also submitted that the injunctions were not relevant to the issues in the proceeding.

54 After the hearing had concluded, and without informing the parties of his intention to do so, the judge obtained copies of the writ in the Boral proceeding, the injunctions granted by Hollingworth J and Cavanough J, and 22 affidavits that Boral and Alsafe had filed. It appears that the judge was not aware that the claim indorsed on the writ in the Boral proceeding had been superseded by a statement of claim dated 26 March 2013 and, subsequently, by an amended statement of claim dated 19 April 2013.

55 On 11 May 2017, the judge's associate sent an email to the parties which stated:

His Honour advises that he has obtained a copy of the writ dated 26 February 2013, by which Boral ... and another sought the injunction discussed at the trial of this proceeding.

A copy of the writ is attached.

56 The email did not refer to the injunctions or affidavits which the judge had obtained. It did not invite the parties to make any further submissions.

57 On 14 August 2017, the judge made orders dismissing the judicial review proceedings. His reasons are discussed below.

58 At the hearing of the judicial review proceedings, the parties advanced two competing constructions of s 78 of the CCA. The construction advanced by the informant was that s 78 merely served to characterise proceedings for a contravention or ancillary contravention of pt IV of the CCA as civil proceedings, and was not directed at immunising persons from criminal liability. The construction advanced by the applicants was that s 78 operated as a specific statutory prohibition against the bringing of criminal proceedings in respect of the conduct to which the section refers. The applicants submitted that other provisions of pt VI made it clear that proceedings for a contravention or ancillary contravention of pt IV were civil in nature. According to the applicants, the informant's preferred construction should be rejected because that construction, if adopted, would render s 78 otiose.

59 The judge rejected the applicants' preferred construction. He noted that it was clear from s 76B(4), as set out at [33] above, that there is no immunity from criminal liability with respect to conduct 'substantially the same' as conduct constituting a 'contravention' of [16] IV.16

60 However, his Honour did not accept the informant's submission that s 78 did not confer any immunity from criminal liability. He found that the section did confer such an immunity, but that the scope of that immunity was limited by the words that immediately followed the expression '[c]riminal proceedings do not lie'. His Honour stated that the key word was 'only' which, upon its proper construction, strongly suggested that the legislature intended to confine the immunity to conduct that 'was entirely the same as, and no more than', conduct that would result in a relevant contravention, or ancillary contravention, of pt IV of the CCA.[17] His Honour added that:

only when the conduct could amount to no more than such a contravention or ancillary contravention that it could properly be said that criminal proceedings, if commenced, would lie 'by reason only' of the contravention or ancillary contravention.[18]

61 On the basis of that reasoning, the judge concluded that, ordinarily, s 78 conferred immunity from criminal prosecution in respect of an offence only where the elements of that offence were the same as the elements of a contravention or ancillary contravention of a provision of pt IV.[19] He qualified that proposition with the adverb 'ordinarily' because:

there may be an argument that [the immunity provided by s 78] would apply if a contravention or an ancillary contravention was to be relied upon as part of proving a criminal case or if as a matter of substance, rather than form, the criminal provision was the same as a provision of Part IV or an ancillary provision of Part VI.[20]

62 However, his Honour did not find it necessary to determine the scope of the qualification since, on no view, was the charge of blackmail sufficiently similar, as a matter of substance, to the various contraventions contained within pt IV to escape the limitation to the immunity created by the word 'only'.

63 In that regard, the judge noted that the elements of the offence of blackmail under s 87 of the Crimes Act 1958 were not the same as, or 'coterminous with', the elements of a contravention, or ancillary contravention, of ss 45D or 45E.[21]

64 His Honour summarised the elements of blackmail in the following manner:

[T]he elements of s 87 of the Crimes Act may include consideration of whether the person engaging in the relevant conduct:

(1) Had a view to gain for herself or himself.

(2) Had a view to gain for another.

(3) Had the 'intent' to cause loss to another.

(4) Made any unwarranted demand.

(5) Made a demand with menaces.[22]

65 The judge noted that, in accordance with s 76(d) of the CCA, a person may commit an ancillary contravention of ss 45D or 45E by conduct which 'has induced, or attempted to induce, a person, whether by threats or otherwise to contravene such a provision'. He also noted that conduct which constitutes a contravention of ss 45D or 45E by virtue of s 76(d) might infringe s 87 of the Crimes Act 1958. However, he concluded that 'the elements of the crime of blackmail are different' and that 'a contravention or an ancillary contravention of either s 45D or 45E would not necessarily give rise to an infringement of s 87'.[23]

66 The judge also found that, in accordance with the amended particulars of the charges, the prosecution would not rely on a contravention or ancillary contravention of any provision of pt IV to prove the charges. He said that this meant that the blackmail charges were not laid 'by reason only' that the applicants are alleged to have engaged in a contravention or ancillary contravention of a provision of pt IV.[24] In those circumstances, his Honour concluded that s 78 did not confer any immunity on the applicants in respect of the charges.[25]

67 Later in his reasons, after considering parliamentary debates and other extrinsic materials, the judge stated that there was nothing in those materials 'which suggests that it was intended that s 78 would decriminalise, or provide immunity for, conduct that would otherwise have been criminal conduct under Commonwealth or State legislation'.[26]

68 The judge next stated that the purpose of s 78 was to make it clear that a contravention or ancillary contravention of pt IV was civil in nature, and could not give rise to criminal liability.[27] He rejected the applicants' submission that the informant's construction of s 78 renders it otiose because other provisions of pt IV, including s 77, already make clear that such contraventions give rise solely to civil consequences.[28] He said that, at the time the TPA was enacted, there was considerable controversy in both the parliamentary debates,[29] and the case law,[30] as to whether a pecuniary penalty should be regarded as a civil or criminal sanction. He also said that, at that time, provisions such as s 79 clearly created criminal offences while provisions such as s 82 clearly created civil rights of redress. However, pecuniary penalty provisions were something of a 'hybrid', 'the exact nature of which may have been unclear without the enactment of s 78'.[31]

69 His Honour also relied on the inclusion within paras 76(1)(c)-(f) and 78(c)-(f) of the notion contained within s 76B of 'a person involved in a contravention'. In particular, he referred to Brennan J's observations in Yorke v Lucas[32] that the meaning ordinarily attributed to that phrase by the criminal law should be attributed to it in s 75B, and by extension, to paras (c)-(f) of ss 76(1) and 78.[33] The judge said that Brennan J's observation was 'another basis upon which confusion may have arisen about the nature of contraventions and ancillary contraventions of Part IV if s 78 had not been included'.[34]

70 Another reason for the judge's conclusion that s 78 was not otiose was that it made clear that the fact that a contravention of pt IV could give rise to claims for civil remedies (under ss 80, 82 and 87), and pecuniary penalties (under s 76), did not mean that the civil standard of proof was sufficient for proceedings for civil remedies while a different and higher standard of proof applied to proceedings for pecuniary penalties.[35]

By enacting s 78, Parliament was selecting a method of trial by which a pecuniary penalty could be 'recovered'. This was achieved by providing that criminal proceedings do not lie against a person by reason only of a contravention or an ancillary contravention of a provision of Part IV. Indeed, the Informant submitted the function of s 78 was to specify the method of trial and that this intended function had the effect of conferring the limited immunity created by the section. It is unnecessary to engage in this analysis beyond acknowledging that both these aspects of the provision arise from its grammatical meaning.

...

Further, and in any event, to the extent that it might be said that, if the [TPA] had been enacted without s 78, then it would have been clear that the recovery of pecuniary penalties was a civil action, there may, and probably would, have been some uncertainty surrounding the nature of any contraventions or ancillary contraventions. The inclusion of s 78 removed any doubt in that regard.[36]

72 As we have already stated, the judge's associate did not notify the parties that, after the hearing had concluded, his Honour had obtained copies of the injunctions which Hollingworth J and Cavanough J had granted. Nor did the associate inform the parties that his Honour had also obtained the 22 affidavits which Boral and Alsafe had filed in the Boral proceeding.[37] However, it was not disputed before us that the judge had relied, to some degree, upon those documents. So much is clear from the following paragraph and footnote in his reasons for judgment:

The orders made by Hollingworth J and Cavanough J in the Boral Proceeding[[38]] were based on claims of alleged threats already made and of alleged threatened future conduct. The relief sought in the writ was to prevent, and obtain compensation for, the [CFMEU] inducing employees and contractors of construction site administrators breaching contracts with Boral for the supply of concrete. In short, the claims made were common law tortious claims. No statutory-based claims were made.[[39]]

...

For completeness, having reviewed 22 affidavits filed in the Boral Proceeding, I note that in some of the affidavits there are references to the [CFMEU's] alleged attitude towards Grocon as being the reason for the alleged black ban against Boral. This evidence does not alter the fact that the causes of action relied upon, and therefore the injunctions granted, were not based on any contravention or any ancillary contravention of any provision in Part IV of the [CCA]. The Supreme Court of Victoria has no jurisdiction to hear such a claim: [CCA], s 86(1), (2) and (4).[40]

73 The applicants' proposed grounds of appeal are identical. They are in the following terms:

1. The trial judge erred by construing s 78 of the [CCA] as ordinarily conferring an immunity from criminal prosecution only where there was a precise identity between the elements that establish a contravention or ancillary contravention of a provision of Part IV of the [CCA] and the elements of the criminal offence with which the accused is charged.
2. The trial judge erred by failing to find that the conduct in respect of which the applicant was charged was the same as conduct that would result in a relevant contravention or ancillary contravention of Part IV of the [CCA], and was thus conduct in respect of which criminal proceedings did not lie by reason of s 78 of the [CCA].
3. Alternatively to grounds 1 and 2, the trial judge erred by failing to find that, by reason of s 78 of the [CCA], criminal proceedings did not lie in respect of the conduct with which the applicant was charged, because there was a close correspondence between the elements of an ancillary contravention of s 45D or s 45E (read together with s 78(d)) of the [CCA] and the elements of the offence of blackmail under s 87 of the Crimes Act 1958 (Vic).
4. The trial judge erred by having regard to, and making findings on the basis of, the writ and/or 22 affidavits filed in proceeding S CI 2013 00928 (namely, proceedings commenced in 2013 by Boral ... and Alsafe ... against the [CFMEU], referred to in the trial judge's reasons as 'the Boral Proceeding'), in circumstances where:

(a) the applicant was not a party to proceeding S CI 2013 00928;

(b) neither the applicant nor the second respondent put into evidence the writ or the 22 affidavits filed in proceeding S CI 2013 00928;

(c) the trial judge did not inform the parties about the use, if any, he proposed to make of the writ and did not invite the parties to make submissions about the writ;

(d) the trial judge did not notify the parties that he had obtained, and intended to have regard to, the 22 affidavits;

(e) the trial judge did not provide the applicant with the opportunity to make submissions about the 22 affidavits.

1. Alternatively to grounds 1, 2, 3 and 4, the trial judge erred by failing to find that, as a matter of substance, the contravention or ancillary contravention of Part IV of the [CCA] was to be relied upon by the second respondent as part of proving the criminal case, notwithstanding the amendment of the particulars of charge to remove any express reference to the [CCA].

74 In support of proposed ground 4, the applicants applied to this Court for leave to rely on 'fresh evidence', being the email from the judge's associate to the parties dated 11 May 2017[41] and the statement of claim and amended statement of claim in the Boral proceeding. The informant also applied for leave to rely on 'fresh evidence', being the injunctions granted by Hollingworth J and Cavanough J. As these applications were unopposed, and were obviously soundly based, we granted leave. We have already made reference to the documents which were the subject of the applications.

75 The principles of statutory interpretation were not in issue in this proceeding. In interpreting a statutory provision, the High Court has, in recent times, made it clear that primacy must be given to the actual language used in the text of the provision.[42]

76 The High Court has not always expressed itself in quite that way. In Project Blue Sky Inc v Australian Broadcasting Authority,[43] McHugh, Gummow, Kirby and Hayne JJ stated that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[44] They observed that the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole.[45]

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[46]

78 Their Honours also emphasised that 'a court construing a statutory provision must strive to give meaning to every word of the provision'.[47]

79 In CIC Insurance Ltd v Bankstown Football Club Ltd,[48] Brennan CJ, Dawson Toohey and Gummow JJ observed that:

... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[49]

80 In the years following Project Blue Sky and CIC Insurance, Australian courts became more readily accustomed to admitting and having regard to extrinsic materials tendered by the parties. As will be seen, s 15AB of the Acts Interpretation Act 1901 (Cth), and its equivalent State provisions, were cited in support of that approach.

81 More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[50] Hayne, Heydon, Crennan and Kiefel JJ stated:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[51]

82 Some commentators viewed Alcan as having significantly modified the principles set down in CIC Insurance, having moved towards what could loosely be described as a more literal approach to interpretation. Kirby J, in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council,[52] had seemingly supported that view.[53]

83 In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[54] the High Court, citing Alcan, stated:

'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[55]

84 Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

85 This section allows for the possibility of a choice between two or more interpretations, each of which would promote the Act's purpose or object, in which event the interpretation that would best achieve that purpose or object must be chosen. The section applies to legislation enacted before or after the date of its commencement, which in relation to the current s 15AA, was 2011.

86 As can be seen, the history of s 78, since its introduction in the TPA in 1974, makes it tolerably clear what both its purpose or object was, and how that happened to fit within the broader purpose or object of the statute as a whole.

87 Section 15AB of the Acts Interpretation Act 1901 (Cth), which came into force in 1984, permits extrinsic material, such as an explanatory memorandum, second reading speech or any parliamentary debates relating to a Bill, to be used to ascertain the meaning of a statutory provision.

88 Section 13(1) of the Acts Interpretation Act 1901 (Cth) has the effect that headings and sub-headings of sections in an Act are part of the Act.

89 In accordance with current High Court authority, we will approach the task of construing s 78 commencing with the text, but considering as well purpose, object and context. The task of construction may begin and end with the text but cannot be performed without significant regard to at least the history of the provision under consideration.[56]

90 Before this Court, the applicants maintained their submission - which the judge had rejected - that s 78 confers immunity from prosecution for any criminal offence in respect of conduct which falls within any of the paragraphs of that section, and by incorporation of any of the relevant contraventions of pt IV. According to the applicants, if a person's conduct falls within one of those paragraphs, no criminal proceeding for any offence arising out of that conduct can be brought against the person, irrespective of whether the elements of that offence are coterminous with the elements set out in the relevant paragraph of s 78.

91 The applicants put forward three reasons why s 78 should be construed to confer immunity from criminal prosecution for conduct which falls within any of the paragraphs of that section.

92 First, the purpose of s 78 that the judge identified, namely to clarify that proceedings for recovery of pecuniary penalties are civil in nature, is incorrect. This is because it is clear from the provisions of the CCA (and was always clear from the provisions of the TPA as originally enacted), that such proceedings are civil in nature. In that context, the applicants noted, in particular, s 77 (set out at [33] above) which provides for civil actions for recovery of pecuniary penalties.

93 Secondly, s 78 uses the phrase '[c]riminal proceedings do not lie'. Therefore, in terms, the section addresses the criminal law rather than the nature of pecuniary penalties. Such a provision is said to be substantive in nature in that it denies from the outset a cause of action. It is not procedural, which it would be if it merely governed the mode of enforcement of the cause of action.[57]

94 According to the applicants, even if s 78 has the additional effect of putting beyond doubt that proceedings to recover a pecuniary penalty are civil in nature, that would not detract from the purpose of the section being to confer immunity from criminal prosecution in respect of particular conduct.

95 Thirdly, if the purpose of s 78 were the one identified by the judge, the section would fail to achieve that purpose. That is because pecuniary penalties may be recovered under s 76 for contraventions which are not referred to in s 78, such as a contravention of an industry code under s 76(1)(a)(iv).

96 The applicants submitted that the three reasons set out above were consistent with s 76B, which applies to 'conduct that is substantially the same as conduct constituting a contravention of Part IV or section 96AZN'. That was said to be because s 76B concerns double jeopardy where a relevant contravention of the CCA has a substantial overlap with a criminal offence. However, the immunity in s 78 operates in respect of conduct constituting a criminal offence which is the same as the conduct described in s 78.

97 The applicants contended before this Court that the judge erred in confining the circumstances in which the immunity in s 78 could apply to cases where there is precise identity between the elements that establish a contravention or ancillary contravention of pt IV, and the elements of a criminal offence. The applicants put forward three arguments in support of that contention.

98 First, the judge's construction would leave s 78 with virtually no practical effect. This was said to be because neither Commonwealth nor State legislation would create an offence which had precisely the same elements as a contravention of pt IV. Accordingly, so it was submitted, s 78 should be construed in such a way as to avoid giving it no practical effect.

99 Secondly, the applicants' preferred construction of s 78 is said to be consistent with remarks made by Toohey J in Muller v Fencott (No 2),[58] and Wilcox J in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union.[59] These cases are discussed in detail at [138]-[146] below.

100 Thirdly, the judge erred in accepting the informant's submission that the applicants' preferred construction of s 78 would have the undesirable consequence that conduct which constitutes a serious criminal offence - such as a threat to cause serious injury - would be immune from criminal prosecution merely because it happened to occur in the context of a contravention or ancillary contravention of pt IV. According to the applicants, their preferred construction would only result in immunity from criminal prosecution in respect of conduct which is the same as, or coterminous with, conduct described in s 78. Beyond that, so it was said, conduct would not be protected.

101 On this basis, the applicants contended that as a threat to cause serious injury would not be conduct that was a prerequisite for a contravention or ancillary contravention of pt IV, it would not be immune from criminal liability.

102 The informant submitted that, by virtue of the heading to s 78 and the phrase 'by reason only', the literal meaning of that section is that a contravention or ancillary contravention of pt IV cannot be prosecuted by way of a criminal proceeding.

103 The informant also submitted that the judge was correct to conclude that the purpose of s 78 was to select the method of trial[60] by which a pecuniary penalty under s 76 could be recovered. By reference to the legislative history discussed at [37]-[48] above, the informant contended that s 78 clarified that proceedings for a pecuniary penalty for a contravention or ancillary contravention of pt IV were civil in nature. Pecuniary penalties have a number of the characteristics of criminal sanctions. When the TPA was enacted, there was uncertainty as to whether enforcement of such penalties would be crimin[61] or civil in nature;61 and s 78 addressed, and resolved, that ambiguity. It follows, so it was said, that s 78 was introduced to overcome that uncertainty, has essentially remained unchanged since it was enacted, and cannot be regarded as otiose.

104 The informant argued that s 78 does not confer an immunity from criminal prosecution by reference to 'conduct', as contended by the applicants, because such an immunity would be inconsistent with s 76B(4). Rather, so the informant submitted, s 78 confers immunity from criminal prosecution only where the elements of the criminal offence are either the same, or substantially the same, as the elements of a contravention or ancillary contravention of pt IV. The offence of blackmail has entirely different elements to a contravention or ancillary contravention of pt IV. Accordingly, so it was said, s 78 does not confer any immunity on the applicants in relation to the blackmail charges.

105 In accordance with the principles summarised at [75]-[88] above, the construction of s 78 of the CCA must be considered by reference to its text, context and purpose.

106 The opening words of s 78 are '[c]riminal proceedings do not lie against a person'. These mirror the words '[c]riminal proceedings not to be brought' in the heading to the section. The effect of these words is to prohibit the institution of criminal proceedings. To that extent, they confer an immunity from criminal prosecution.

107 These words do not, however, define the scope or subject matter of the immunity. That task is performed by the phrase 'by reason only that the person' and the words that follow. Of particular relevance in the present case are the words 'has contravened a provision of Part IV' in para (a), and the words 'has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision' in para (d).

108 A number of conclusions can readily be drawn from the wording of s 78 viewed in the manner set out at [106]-[107] above.

109 First, s 78 does not refer to 'conduct' and therefore does not, in terms, provide immunity in respect of any particular conduct. Had Parliament intended to confer immunity in respect of conduct, it could have used the word 'conduct', as it did in s 76B.

110 Secondly, each para of s 78 refers to a state of affairs of a mixed factual and legal nature expressed in the past tense. Thus, in relation to para (a), a person must have contravened a relevant provision of pt IV before the immunity can apply to that contravention. Whether such a contravention has occurred will depend upon whether the requirements of a relevant provision of pt IV, such as ss 45D or 45E, have been satisfied. Likewise, in relation to para (d), a person must have 'induced, or attempted to induce a person, whether by threats or promises or otherwise, to contravene' a relevant provision of pt IV before the immunity can apply.

111 Thirdly, the word 'only' appears in s 78 and must be given some meaning. That word conveys exclusivity in the sense that the immunity conferred by s 78 cannot apply unless one of the paragraphs of the section is satisfied. Thus, in the case of para (a), the immunity does not apply to a person unless the person has contravened a relevant provision of pt IV. The immunity applies by virtue of such a contravention, or because there has been such a contravention. It is confined to criminal liability for that contravention. It follows that no immunity applies in respect of an offence which does not, in substance, require proof of such a contravention. The same considerations apply to the other paragraphs of s 78.

112 Our conclusion that the immunity from criminal liability is confined to the subject matter contained within the various paragraphs of s 78 means that the immunity does not extend to a separate offence at common law, or under another statute, merely because the conduct that falls within one of the paragraphs incorporated by reference in s 78 also constitutes the commission of that offence.

113 Thus, in the case of para (a), the immunity can only extend to another offence if, in order for that offence to be made out, the prosecution must establish nothing more and nothing less than that there has been a contravention of a relevant provision of pt IV. In the case of para (d), the immunity can only extend to another offence if, in order for that offence to be made out, the prosecution must establish nothing more and nothing less than that the accused has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene a provision of pt IV.

114 It follows from this analysis that the judge correctly concluded that the immunity in s 78 applies only to offences the elements of which are, at least in substance, the same as the elements that must be proved to establish a contravention or ancillary contravention of a relevant provision of pt IV. If a statute creates an offence, the elements of which can be satisfied without establishing the elements required to prove a contravention or ancillary contravention of a relevant provision of part IV, or an offence which requires proof of elements additional to those required to prove such a contravention, s 78 does not provide an immunity from criminal liability in respect of that offence.

115 The following two examples illustrate that there are real difficulties with the applicants' preferred construction of s 78. In each scenario the defendant is a union official, company A is a supplier of a product and company B is a customer of company A.

116 The first example is of the defendant telling the CEO of company A in a loud voice at lunchtime in Federation Square: 'Unless your company stops supplying its product to company B, I will ensure that you and your company are fucked'. This statement may constitute the offence of using obscene language in a public place contrary to s 17(1)(c) of the Summary Offences Act 1966. In making the statement, the defendant may also have 'attempted to induce ... a person ... by threats ... to contravene ... a provision [of pt IV]' within the meaning of s 78(d).

117 The second example is of the defendant telling the CEO of company A: 'Unless your company stops supplying its product to company B, I will kill you'. This statement may constitute the offence of making a threat to kill under s 20 of the Crimes Act 1958. However, it has a dual character. In making the statement, the defendant may also have 'attempted to induce ... a person ... by threats ... to contravene ... a provision [of pt IV]'.

118 The applicants say that their preferred construction of s 78 would not result in the defendant in either of the above examples being immune from prosecution under the Summary Offences Act 1966 or the Crimes Act 1958. This is because the conduct which gives rise to those offences would be the use of obscene language or the making of a threat to kill respectively, which are offences independent of any provision of pt IV.

119 In our opinion, the applicants' submission seeks artificially to divorce the use of the obscene language and the making of the threat to kill from their immediate context and involves some degree of sophistry. In the case of the first example, the impugned conduct is not only capable of constituting obscene language but also an ancillary contravention of pt IV. This is because the expletive 'fucked' is not only obscene, but its use describes the very threat which forms an essential component of the ancillary contravention of pt IV. In the case of the second example, the applicants' submission requires an artificial distinction to be drawn between an absolute threat to kill, and a threat to kill that is conditional upon company A continuing to supply its product to company B.

120 There cannot be any sound reason, whether in principle or as a matter of public policy, for conferring on the defendant immunity from prosecution in either example referred to above. An intention to bring about such a consequence should not be attributed to Parliament unless the language of the provision under consideration plainly required that conclusion. The fact that such an intention cannot be discerned from the language of s 78 strongly militates against the applicants' preferred construction.

(b) Statutory context of s 78

121 We now consider whether the statutory context in which s 78 appears requires that a meaning be given to that section, other than the one suggested by the text itself.

122 As we have already stated, s 78 is in pt VI, which is headed 'Enforcement and remedies'. That part contains ss 75B-87CA, a number of those provisions having been set out earlier in these reasons.[62]

123 Section 76 creates liability for a pecuniary penalty for, among other things, all the matters set out in paras (a)-(f) of s 78.

124 Section 76B deals with the interrelationship between liability for a pecuniary penalty and criminal liability. Section 76B(2) provides that a court must not impose a pecuniary penalty on a person for a contravention of pt IV if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention. Section 76B(3) provides that proceedings for a pecuniary penalty for a contravention of pt IV are stayed if criminal proceedings for an offence, constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention, are commenced. Section 76B(3) also provides that the pecuniary penalty proceedings may be resumed if the person is not convicted of the offence. Section 76B(4) provides that criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of pt IV 'regardless of whether a pecuniary penalty order has been made against the person in respect of the contravention'.

125 Section 77 provides for civil actions for the recovery of a pecuniary penalty.

126 Section 79 creates a criminal offence for contraventions of ss 44ZZRF or 44ZZRG which, of course, deal with cartels. Section 79A deals with recovery of fines for an offence under s 79.

127 The provisions of pt VI of the CCA to which we have referred do not in any way detract from the construction we consider to be appropriate in respect of s 78. On the contrary, those provisions, at least tacitly, support that construction. In particular, s 76B indicates that, when Parliament intends to attribute legal consequences to particular conduct, it expressly uses the word 'conduct'.

128 Parliament did not use the word 'conduct' in the case of s 78. Therefore, it would not ordinarily be taken to have intended that section to provide immunity in respect of any particular or designated conduct.

129 Perhaps more significantly, s 76B(4) makes it clear that, notwithstanding that a pecuniary penalty has been imposed on a person in respect of a contravention of pt IV, criminal proceedings may be commenced against that person 'for conduct that is substantially the same as' the conduct which constituted the contravention of pt IV. Self-evidently, where the conduct giving rise to a pecuniary penalty for a contravention of pt IV is exactly the same as the conduct constituting the elements of a criminal offence, s 76B(4) would apply. That conduct would naturally exceed the threshold of 'conduct that is substantially the same'.

(c) Purpose and legislative history of s 78

130 We now consider whether anything in the purpose of s 78, as informed by its legislative history, requires that a meaning be given to that section, other than the meaning suggested by its text.

131 If the provisions of pt VI are considered in their current form, divorced from their legislative history, there might be some force to the applicants' submission that the judge was wrong to conclude that the purpose of s 78 is to make clear that proceedings for recovery of pecuniary penalties are civil in nature. That is because s 76 imposes liability for pecuniary penalties for matters in addition to those covered by s 78. In any event, s 77 makes it clear that proceedings for a pecuniary penalty are civil in nature.

132 However, insofar as s 78 establishes beyond any doubt that proceedings for a pecuniary penalty are civil in nature, that section cannot be characterised as otiose. From time to time, Parliament includes provisions in legislation purely for the avoidance of doubt. In any event, even if it be accepted that there is some doubt about the utility of s 78 when it is considered independently of its legislative history, that does not mean that its purpose is to immunise from criminal liability conduct which falls within its terms, such as a contravention of pt IV. That is because such a purpose would be inconsistent with s 76B(4).

133 The legislative history pertaining to s 78 is set out at [37]-[48] above. When it was originally enacted in the TPA, s 78 mirrored s 76 precisely. It can therefore be inferred that the original purpose of the section was to make clear that a person who was liable to a pecuniary penalty under s 76 could not be the subject of criminal proceedings by reason only of the matters that gave rise to the liability to a pecuniary penalty under s 76.

134 It is true that s 76 has been expanded since the enactment of the TPA so that its provisions no longer mirror precisely those in s 78. However, the fact that changes have been made to s 76 cannot affect the original purpose of s 78, or its proper construction at this time.

135 The parties' submissions canvassed in some detail the legal attributes of pecuniary penalties and whether there is, or was at the time that the TPA was enacted, any doubt as to whether pecuniary penalty proceedings were civil or criminal in nature.

136 Insofar as is presently relevant, the legal attributes of pecuniary penalties may be summarised as follows:

(a) Pecuniary penalties are civil remedies which are enforceable by civil proceedings.[63]

(b) However, pecuniary penalties are not enforceable by private litigants as compensation for a wrong done to them, but are enforceable by instruments of the Crown and are payable to the Crown. They represent an exercise of state power.[64]

(c) Pecuniary penalties have a punitive element.[65] Accordingly, they may be described as 'hybrid' in nature.[66]

(d) Although pecuniary penalties are enforceable by civil proceedings, because they are partly punitive, some protective features of criminal proceedings may be applicable to pecuniary penalty proceedings.[67] For example, the normal practices relating to pleadings and discovery in civil proceedings may be modified to protect a person against whom an application for a pecuniary penalty has been brought, from self-incrimination. Likewise, although the civil standard of proof applies in proceedings for a pecuniary penalty, the principles in Briginshaw v Briginshaw[68] will ordinarily be engaged in such proceedings.[69]

137 When the TPA was enacted in 1974, the jurisprudence regarding pecuniary penalties was nowhere near as well developed as it is today. In the light of that fact and the hybrid nature of pecuniary penalties, it is not surprising that s 78 was inserted in the TPA primarily to put beyond doubt that proceedings for pecuniary penalties were civil in nature. The very fact that the attributes of pecuniary penalties, including the standard of proof to be applied, were the subject of discussion in the parliamentary debates when the TPA was enacted supports this proposition.[70]

(d) Prior judicial observations on s 78

138 We now consider whether the cases of Muller[71] and Concrete Constructions,[72] on which the applicants rely, are inconsistent with the construction we have given to s 78.

139 In Muller, claims for damages under s 82 of the TPA were made against five respondents with respect to alleged misleading or deceptive conduct, in contravention of s 52 of that Act. The first and fifth respondents were subject to claims against them as natural persons for allegedly being 'involved in a contravention' of s 52 by a corporation, pursuant to s 75B of the TPA.[73] Notwithstanding that the case was concerned only with allegations of contraventions of pt V, Toohey J made the following observations with respect to pt IV:

Section 76 [of the TPA] empowers the court to order a person who has contravened or otherwise is in breach of a provision of Pt IV to pay to the Commonwealth a pecuniary penalty. The section speaks of a person who has contravened a provision of Pt IV; has attempted to contravene such a provision or has engaged in conduct which is defined in terms virtually identical with pars (a) to (d) of s 75B. Section 78 provides that criminal proceedings do not lie against a person for contravention of a provision of Pt IV. I agree with the Attorney's submission that this would remove the prospect of criminal proceedings under the Crimes Act 1914 (Cth) for contravention of that part of the [TPA].[74]

140 The judge in the present case decided that the above passage did not provide any direct assistance to the applicants for the following reasons.

First, [Toohey J's] comments were obiter dicta. Secondly, the reference to the effect of s 78 could only be described as a passing remark, the basis of which was not explained, which Reardon's senior counsel acknowledged was a very broad statement and 'somewhat oblique'. Thirdly, it is not apparent whether there was a submission contrary to that put by the Attorney. Fourthly, although not entirely clear, the observation made is consistent with Toohey J having a provision, or provisions, of the Crimes Act 1914 (Cth) in mind; such as a provision that made it an offence to engage in conduct that was against the law of the Commonwealth.[75]

141 We agree with the judge that Toohey J's observations do not assist in the construction of s 78. Muller did not concern the contravention of that section and, consequently, Toohey J did not have the benefit of the detailed arguments that have been made in the present case on the question of construction.

142 Concrete Constructions involved eight applications for interlocutory injunctions to restrain a union and its officers from committing breaches of s 45D of the TPA. A procedural issue arose in relation to whether a subpoena issued to the general secretary of the union might tend to subject him to self-incrimination if he produced the documents the subject of the subpoena.

143 Wilcox J held that there was no question of any conduct of the general secretary in contravention of s 45D exposing him to either criminal liability or a pecuniary penalty.[76] As it had been contended that the documents identified in the subpoena might indicate that the general secretary had conspired with others to contravene a Commonwealth law, namely s 45D, Wilcox J went on to consider possible exposure to prosecution for a criminal conspiracy. He reviewed the subpoenaed documents and formed the view that there was no possibility that their production would tend to implicate the general secretary in any criminal conspiracy. He then went on to say:

As I have pointed out, the contravention of s 45D of the [TPA] is not a criminal offence. However, such conduct by a corporation does attract a civil penalty. But for one matter it might be arguable, by extension of the notion of criminality, that an agreement by an individual to act with others in contravention of s 45D is indictable as a criminal conspiracy. However, s 78(f) removes the possibility of such an argument. ... Under these circumstances I have, upon consideration, reached the view that there is no possibility that the disclosure of the content of the minute book would tend to incriminate [the general secretary] in relation to criminal conspiracy.[77]

144 The judge in the present case considered that the above passage did not address the issues he was required to resolve. His Honour explained:

Nothing is being said beyond the observation that, because of s 78(f), no criminal proceeding could lie by reason only of a conspiracy to contravene s 45D. The passage does not deal with a situation where the alleged conduct would amount to a crime (that is, each element of the crime has allegedly been committed) independent of, and regardless of whether or not that conduct would also constitute a contravention or an ancillary contravention of, s 45D (or s 45E).[78]

145 For the reasons set out at [141] above in relation to Muller, the observations of Wilcox J do not provide any assistance in resolving the question of construction in the present case.

146 It follows that there is no authority that provides any basis for us to depart from the construction we have given to s 78.

147 For all of the above reasons, proposed ground 1 must be rejected.

Proposed ground 2: Were the charged and contravening conduct the same?

148 The applicants submitted that, if the judge had properly construed s 78 and had regard to the conduct which is the subject of the blackmail charges, he would necessarily have concluded that the immunity in s 78(d) applied to those charges. This was because that conduct, if proved, would constitute no more than an attempt to induce a person, by threats, to contravene ss 45D or 45E(2), within the meaning of s 78(d). According to the applicants, the existence of the injunctions - which were granted against the CFMEU in separate proceedings to which the applicants were not parties - was irrelevant. Consequently, so it was said, the judge erred in having had regard to them.

149 The informant submitted that, as s 78 does not confer any immunity by reference to 'conduct', it follows that proposed ground 2 does not arise for consideration. In any event, so it was said, the conduct which is the subject of the blackmail charges differs significantly from any conduct that would constitute a contravention or ancillary contravention of pt IV. That conduct, as particularised, included that the demands made by the applicants on Mr Dalton and Mr Head were unwarranted because they fell within conduct that was prohibited by the injunctions granted by Hollingworth J and Cavanough J respectively. It followed, so it was said, that the existence of the injunctions meant that the conduct the subject of the blackmail charges, if proved, would constitute more than a mere attempt to induce a person, by threats, to contravene ss 45D or 45E(2).

150 As we have rejected the applicants' preferred construction of s 78, the issues on which they rely in support of proposed ground 2 do not arise for consideration. We will, however, consider the relevance of the injunctions under proposed ground 4.

Proposed ground 3: Close correspondence of elements

151 The applicants submitted that if, contrary to their preferred construction of s 78, a comparison between the elements that establish a contravention or ancillary contravention of pt IV and the elements of a criminal offence is required, what is necessary is a close, rather than precise, correspondence between the respective sets of elements. According to the applicants, the elements of an ancillary contravention of pt IV, read together with s 78(d), closely correspond to the elements of blackmail. Therefore, so it was said, the judge should have found that the immunity in that section applied to them.

152 In our opinion, proposed ground 3 cannot be sustained. That is because we reject the applicants' submission that the elements of an ancillary contravention of pt IV, read together with s 78(d), closely correspond to the elements of the offence of blackmail.

153 An ancillary contravention of pt IV can occur by 'promises or otherwise' and thus without the making of 'any unwarranted demand with menaces'. Likewise, unlike the offence of blackmail in s 87 of the Crimes Act 1958, an ancillary contravention of pt IV does not require proof of the mental element 'with a view to gain for himself or another or with intent to cause loss to another'.[79]

154 It should be noted that the expressions 'gain' and 'loss' are defined by s 71(1) of the Crimes Act 1958 in the following terms:

gain and loss are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and -

(a) gain includes a gain by keeping what one has, as well as a gain by getting what one has not; and

(b) loss includes a loss by not getting what one might get, as well as a loss by parting with what one has ...

155 Blackmail, under the provisions of the Crimes Act 1958, is an offence against property, involving gain or loss in 'money or other property'. The conduct that falls within s 45D and 45E of the CCA is in no way similarly constrained. Of course, there can be some degree of overlap between these forms of unlawful behaviour, but they are far from coterminous in nature.

156 The applicants submitted that the trial judge, by relying on the writ and the 22 affidavits in the Boral proceeding in a manner that was adverse to them, without giving them the opportunity to be heard in relation to those documents, denied them procedural fairness. They contended that, if they had been given such an opportunity, they would have adduced evidence, in the judicial review proceedings, of the statement of claim and the amended statement of claim which, unlike the indorsement of claim on the original writ, specifically relied on a contravention of s 45D.

157 According to the applicants, it could not be said that the judge's denial of procedural fairness could not have made any difference to the outcome of the proceeding.[80] This was because the judge relied, as part of his reasoning, on the erroneous conclusion that the injunctions granted by Hollingworth J and Cavanough J were not based on any contravention or ancillary contravention of pt IV.[81]

158 Although the informant did not concede that the judge had denied the applicants procedural fairness, he was not prepared positively to submit that there had not been any such denial. He contended that, even if there had been an irregularity of the kind alleged, and the applicants ought to have been told of his Honour's having obtained the documents in question, it could not have made any difference to the outcome of the proceedings.

159 This was said to be so for two reasons. First, as s 78 of the CCA does not confer any immunity from criminal prosecution in respect of conduct which constitutes the offence of blackmail - even if that conduct also constitutes a contravention or ancillary contravention of pt IV - it could not be the basis for an order restraining a committal from continuing in respect of the blackmail charges. Secondly, the judge was correct in concluding that, in establishing that the applicants' demands were unwarranted for the purposes of the blackmail charges, the prosecution does not propose to rely on any alleged contravention or ancillary contravention of pt IV. According to the informant, the prosecution need only rely on the fact that the injunctions were in force as at the time of the impugned conduct. That is so irrespective of the factual or legal basis upon which the injunctions had been granted.

160 In support of the second reason, the informant relied on Rumble v Liverpool Plains Shire Council.[82] In that case, the Land and Environment Court made orders requiring Mr and Mrs Rumble to remove used cars and car parts from a residential property. In making the orders, the Court found that the property was owned by Mr and Mrs Rumble when in fact it was solely owned by Mr Rumble. A judge of the Supreme Court of New South Wales found Mr and Mrs Rumble guilty of contempt of court for failing to comply with the orders.

161 The New South Wales Court of Appeal rejected Mrs Rumble's contention that the finding of contempt against her should be set aside because the orders of the Land and Environment Court were invalid insofar as they were directed at her. The Court of Appeal held that, as the orders had been made by a superior court of record, they had to be treated as valid and obeyed unless and until they were set aside or their operation was stayed, even if they had been infected with error.[83] Basten JA, with whom McColl JA agreed, said that once a superior court of record made an order, 'the liability of the person subject to the order depends on the judicial order and not the legal basis for the order'.[84]

162 In our opinion, proposed ground 4 is not made out.

163 The proper construction of s 78, as distinct from the question of its applicability to a specific case, does not depend on any particular factual circumstances. It follows that, even if the judge had given the applicants an opportunity to make submissions as to the relevance of the writ and affidavits in the Boral proceeding, and the injunctions granted by Hollingworth J and Cavanough J, his Honour's construction of s 78 would not have been different. Furthermore, we have had the opportunity to consider the statement of claim and the amended statement of claim in the Boral proceeding and the parties' submissions on those documents. Those documents provide no basis for departing from the construction of s 78 that we have adopted or for setting aside the judge's decision. Accordingly, even if the judge denied the applicants procedural fairness, it would be futile to set aside the judge's decision and remit the proceeding to him, or any other judge, for rehearing.[85]

164 As appears from [13]-[14] above, although the particulars of the charges of blackmail originally relied on the allegation that the applicants' conduct constituted a breach of s 45D, this allegation does not appear in the amended particulars. Instead, those particulars rely on the applicants' knowledge of the injunctions granted by Hollingworth J and Cavanough J in seeking to establish that any demands which the applicants made were 'unwarranted'. On the basis of the amended particulars, the prosecution need not rely on the legal or factual basis upon which the injunctions were granted. Those injunctions are orders of a superior court of record and must be complied with by individuals who have notice of them unless and until they are set aside or thei[86]operation is stayed.86

165 It follows that any denial of procedural fairness by the judge does not provide a basis for setting aside his decision.

166 The applicants submitted that, although the informant has amended the particulars of the blackmail charges to remove the reference to a contravention of s 45D, the substance of what is alleged against them involves conduct which, if proved, would constitute a contravention or ancillary contravention of pt IV.

167 Likewise, so it was said, the informant's reliance on the injunctions granted by Hollingworth J and Cavanough J involves reliance on the allegation of a contravention of s 45D which, in substance, was the basis for the granting of those injunctions. In those circumstances, so the applicants submitted, the informant relies in substance upon a contravention or ancillary contravention of pt IV as part of proving the charges. Accordingly, the immunity in s 78 applies.

168 The informant submitted that the prosecution does not rely, in substance or at all, on a contravention or ancillary contravention of pt IV as part of proving the charges against the applicants. That is because no such contravention is alleged in the amended particulars. He contended that the prosecution would be able to prove that the demands made by the applicants were unwarranted by establishing that, by reason of the applicants' knowledge of the injunctions, they knew or believed that they had no reasonable grounds for making the demands or that the use of menaces was a proper way of reinforcing those demands. According to the informant, it is irrelevant that the conduct with which the applicants have been charged might also, incidentally, establish a contravention or ancillary contravention of pt IV.

169 We accept the informant's submissions. The fact that the particulars of the blackmail charges originally relied on a contravention of s 45D is not relevant to the question of the applicability of the immunity in s 78. For the reasons discussed in relation to proposed ground 1, the applicability of the immunity depends on whether proof of the offence of blackmail in substance requires nothing more and nothing less than proof of a contravention or ancillary contravention of the relevant provision of pt IV. As the informant will seek to prove the offence independently of any contravention or ancillary contravention of such a provision, the immunity does not apply. Whether the matters on which the informant proposes to rely are sufficient to prove the offence is not an issue we need consider.

170 For the above reasons, proposed ground 5 is not made out.

171 As at least some of the proposed grounds of appeal seem to us to have been arguable, we will grant leave to appeal. However, for the reasons that we have discussed, the appeal will be dismissed.

[1] Setka v Magistrates' Court of Victoria [2017] VSC 422 ('Reasons').

[2] The CCA forms part of the Competition Code text ('Competition Code') which is applied as a law of Victoria by the Competition Policy Reform (Victoria) Act 1995. As the Competition Code does not raise any issues in addition to those raised by the CCA, we will not make any further reference to the Competition Code.

[3] [1980] HCA 13; (1980) 144 CLR 13, 35-6.

[4] The terms of the injunctions are set out at [17] below.

[5] The reference to Boral is erroneous. Cavanough J granted the injunction in favour of Grocon. See [19] below.

[6] The statement of claim also pleaded a conspiracy which is not presently relevant.

[7] Section 45E of the CCA is set out at [32] below.

[8] The provisions of s 76 that follow are those in force as at 6 December 2016, the day the applicants were charged with blackmail. As at 23 April 2013, the day the offence was allegedly committed, s 76 was worded differently. In particular, s 76(1)(a) merely stated that the Court may order a pecuniary penalty if satisfied that a person had contravened a provision of pt IV (other than ss 44ZZRF or 55ZZRG) or s 95AZN.

[9] Our reference to 'current form' is to the form of the provisions as at 6 December 2016, when the applicants were charged with blackmail. See also n 8.

[10] Commonwealth, Parliamentary Debates, House of Representatives, 16 July 1974, 232 (Kep Enderby, Minister for Manufacturing Industry).

[11] Commonwealth, Parliamentary Debates, Senate, 15 August 1974, 983 (Ivor Greenwood).

[12] Commonwealth, Parliamentary Debates, Senate, 15 August 1974, 984-5 (Lionel Murphy, Attorney-General).

[13] Commonwealth, Parliamentary Debates, Senate, 15 August 1974, 989 (Ivor Greenwood).

[14] Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12311 (Chris Bowen, Minister for Competition Policy and Consumer Affairs).

[15] See [14] above.

[17] Reasons [45]. See generally D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 64 [2.27], and the cases there cited.

[22] Reasons [19] (citations omitted).

[26] Reasons [60]. See also Reasons [56].

[29] The judge referred to the statements set out at [43]-[45] above.

[30] The judge referred to Progress and Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651, 654; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466, 477-9 [19]-[28] ('CEPU'); Australian Securities and Investments Commission v Petsas [2005] FCA 88; (2005) 23 ACLC 269, 271 [1]; Australian Securities and Investments Commission v Ingleby [2013] VSCA 49; (2013) 39 VR 554, 556 [4]-[5] ('Ingleby').

[32] [1985] HCA 65; (1985) 158 CLR 661 ('Yorke').

[33] Yorke [1985] HCA 65; (1985) 158 CLR 661, 673.

[36] Reasons [69], [73] (citations omitted).

[37] See [54]-[56] above.

[38] As stated at [19] above, Cavanough J granted an injunction in a separate proceeding commenced by Grocon.

[39] Reasons [22] (citations omitted).

[41] See [55] above. The applications for leave to rely on fresh evidence extended to two other emails which are not presently relevant.

[42] Commissioner of State Revenue v EHL Burgess Properties Pty Ltd (2015) 209 LGERA 314, 330 [56] ('EHL').

[43] (1998) 194 CLR 355 ('Project Blue Sky').

[44] Project Blue Sky (1998) 194 CLR 355, 381 [69].

[45] Project Blue Sky (1998) 194 CLR 355, 381 [69]. See also EHL (2015) 209 LGERA 314, 328 [47].

[46] Project Blue Sky (1998) 194 CLR 355, 384 [78] (citations omitted).

[47] Project Blue Sky (1998) 194 CLR 355, 382 [71] (citations omitted).

[48] (1997) 187 CLR 384 ('CIC Insurance').

[49] CIC Insurance (1997) 187 CLR 384, 408 (citations omitted).

[50] [2009] HCA 41; (2009) 239 CLR 27 ('Alcan').

[51] Alcan [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (citations omitted).

[52] (2008) 237 CLR 285.

[53] Chief Justice Spigelman of the Supreme Court of New South Wales, in an extra-judicial address delivered in September 2010, set out a detailed analysis of High Court decisions. He commented that there had been a change in 'nuance and emphasis' in recent High Court cases. Although language remained the surest guide to correct interpretation, context and purpose were not to be ignored. See Chief Justice James Spigelman, 'The intolerable wrestle: Developments in statutory interpretation' (2010) 84 Australian Law Journal 822.

[54] [2012] HCA 55; (2012) 250 CLR 503 ('Consolidated Media').

[55] Consolidated Media [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (citations omitted). See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252. Statements of this character were endorsed by the High Court in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22]. In SM v The Queen [2013] VSCA 342; (2013) 46 VR 464, Weinberg JA analysed a number of then current High Court decisions regarding general principles of interpretation, describing their effect as a 'reversion to text' at 477-9 [49]-[57]. See generally DC Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 97-8, and the cases there cited.

[56] The High Court has also recognised that, in construing a statutory provision, it may be necessary for a court to give preference to a construction that avoids absurd or irrational consequences. See Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 321.

[57] The applicants relied on Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 203 CLR 136, 145 [21], 148-9 [32].

[58] [1933] ArgusLawRp 84; (1982) 57 FLR 35, 38-9 ('Muller').

[59] (1987) 15 FCR 31, 50-1 ('Concrete Constructions').

[60] See [71] above**.**

[61] The informant noted that s 44 of the Acts Interpretation Act 1901 (Cth), as in force at the time the TPA was enacted, provided that '[a]ll pecuniary penalties for any offence against any Act may, unless the contrary intention appears, be recovered in any court of summary jurisdiction'.

[62] See [33], [34] above.

[63] CEPU [2007] FCAFC 132; (2007) 162 FCR 466, 479 [28]-[29];Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, 505 [53] ('Building Industry Inspectorate').

[64] Ingleby [2013] VSCA 49; (2013) 39 VR 554, 556 [4]; Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, 505 [54].

[65] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161, 198-9 [114]; CEPU [2007] FCAFC 132; (2007) 162 FCR 466, 477 [19]; Ingleby [2013] VSCA 49; (2013) 39 VR 554, 556 [4]; Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, 520 [100].

[66] Ingleby [2013] VSCA 49; (2013) 39 VR 554, 556 [5].

[67] Cf Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482, 505 [53].

[68] [1938] HCA 34; (1938) 60 CLR 336. See now Evidence Act 1995 (Cth) s 140(2); Evidence Act 2008 s 140(2).

[69] CEPU [2007] FCAFC 132; (2007) 162 FCR 466, 479-80 [29]-[32], 482 [38].

[70] See the extracts from the parliamentary debates at [43]-[46] above.

[71] [1933] ArgusLawRp 84; (1982) 57 FLR 35.

[72] (1987) 15 FCR 31.

[73] Muller [1933] ArgusLawRp 84; (1982) 57 FLR 35, 37.

[74] Muller [1933] ArgusLawRp 84; (1982) 57 FLR 35, 38-9.

[75] Reasons [38] (citations omitted).

[76] In relation to exposure to a pecuniary penalty, Wilcox J referred to s 76(2) of the TPA.

[77] Concrete Constructions (1987) 15 FCR 31, 50-1.

[79] Section 45D(1)(b) refers to conduct 'that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person'.

[80] The applicants relied on Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 ('Stead').

[82] [2015] NSWCA 125; (2015) 90 NSWLR 506 ('Rumble').

[83] Rumble [2015] NSWCA 125; (2015) 90 NSWLR 506, 517-18 [60]-[61] [64], 519 [71], 524 [95], 528 [114]-[116].

[84] Rumble [2015] NSWCA 125; (2015) 90 NSWLR 506, 528 [116].

[85] See Stead [1986] HCA 54; (1986) 161 CLR 141, 145.

[86] Rumble [2015] NSWCA 125; (2015) 90 NSWLR 506, 528 [116].