United States Tobacco Company v Minister of Consumer Affairs & Anor[1988] FCA 391

Federal Court of Australia|1988-07-14|Before: Einfeld J, Foster J

The applicant further stated that AFCO had no special statutory or other role allowing it to describe itself as the 'premier person or body concerned with consumer protection'. Rather, the applicant stated, the Minister as the person responsible for the administration of Division 1A of Part V of the Act, is appropriately so described. Assuming that both arms of this point of view were wrong, and that the claim by AFCO was correct, this would not provide a basis for joinder. Every case involving fish would potentially attract the Fishmongers Association. A building case would be susceptible to a wide range of applications for joinder. In a democratic community, almost every subject matter 1s the concern of one society or another. The involvement of a public body in the general subject matter of a suit can hardly be a significant criterion for becoming a party. This is not a 'floodgates' argument. It is merely that our adversarial system of litigation is not intended

The applicant submitted that this 1s a case where the approach used in

followed because the ACF was a body like AFCO seeking standing in a case against a person seeking substantive relief. In that case it was said by Gibbs J at 530-1 (to which remarks I also referred in Abdul Quiddus

Ebrahim1i v The Minister for Immigration & Ethnic Affairs unreported 23

"I would not deny that a person might have a special interest in the preservation of a particular environment However, an interest, for present purposes, does not mean a mere intellectual or emotional concern A person 1s not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction

of righting a wrong, upholding a principle or winning a contest, 1f his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi If that were not so, the rule requiring special interest would be meaningless Any plaintiff who felt strongly enough to bring an action could maintain it "

Gibbs J concluded that the Foundation had no special interest as did

Stephen J for substantially the same reasons. Stephen J stated at 539:

"An individual does not suffer such damage as to give rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concer "

In Onus {fabovel Brennan J, with whom Gibbs CJ, Mason, Murphy, Aicken and

"A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show the plaintiff is uniquely affected; there may be some others whose interests might be affected 1n like manner Whether a plaintiff has shown a sufficient interest in a particular

case must be a question of degree, but not a question of discussion "

AFCO submitted that being a 'person interested' has a wider meaning than the expression ' person aggrieved' as appears in section 5 (1) of

the Judicial Review Act. Lockhart J in Ogle v Strickland [1987] 71 ALR

" 'the words 'a person who is aggrieved' do not mean the same as 'any person' "

"I do not say that, 1f anybody at all has standing to bring applications under the Judicial Review Act, the 'floodgates' will open and the court will be swamped with cases. This argument has been advanced on numerous occasions and rejected: see, for example, Dyson v Attorney-General [1911] 1 KB 410 per Farwell LJ at 423; Colonial Sugar Refining Co Ltd _v Attorney-General(Cth) [1912] 15 CLR 182, per Griffith CJ at 189-191 and Barton J at 202-4; and Phelps v Western Mining Corp Ltd [1978] 20 AIR 183; 33 FIR 327 per Deane J at 333-4. It 1s an argument without substance and reality There are real constraints which would discourage people from instituting proceedings whose only interest 1s strong views or feelings. The burden of costs, including the risk of orders for costs being made against them 1f they lose, and the power of courts to control their own proceedings, including the power to dismiss proceeedings or strike out pleadings if they are vexatious, frivolous or an abuse of process are examples of some constraints."

These strong words warrant universal attention and application. But AFCO stated that 1n determining the question of sufficiency of interest, I should have regard to the purpose of Division 1 Part VA of the Act, which itself 1s concerned with the protection of the members of the

public. Phelps v Western Mining Corporation Ltd, referred to by

Lockhart J, 1s often and rightly quoted to illustrate that by section 80 of the Act, Parliament intended to involve interested members of the public in the enforcement and effective operation of the Act. On this subject Deane J, then sitting as a member of the Full Court of this

Court, said [FLR at 333] with quintessential descriptive prowess:

"The argument that to give the words which the Parliament has used their ordinary meaning would, to use a popular phrase, 'open the flood-gates of litigation' strikes me as irrelevant and somewhat unreal Irrelevant, 1n that I can see neither warrant for concluding that the Parliament did not intend that flood-gates be opened on practices which contravene the provisions of the Act nor reason for viewlng that prospect, 1f 1t were a realistic one, with other than equanimty Unreal, in that the argument not only assumes the existence of a shoal of officious busybodies agitatedly waiting, behind the 'flood-gates', for the opportunity to institute costly litigation 1n which they have no legitumate

interest but treats as novel and revolutionary an approach to the enforcement of laws which has long been established in the ordinary administration of the criminal law. "

It must be borne in mind that leave will not be granted to intervene

"... to a mere busybody who was interfering in things which did not

concern him": R_v Paddington Valuation Officer [19661] 1 QB 380 at 401.

But Deane J's exemplar of literary skill enables us ordinary folk to understand the gravamen of the scope of the Act which the essence of those observations prescribed. AFCO is no busybody but, in my opinion, 1t fails to establish the requirements which rule 8 prescribes. It

simply does not have the requisite involvement in the substance and

AFCO submitted alternatively that it can and should be joined as a party to these proceedings under what it described as the 'inherent jurisdiction' of this Court. It was again put that a_ restrictive approach should not be taken to this question. Reference was made to

dicta in Rushby v Roberts (above) per Street CJ at 354; Shales v

Lieschke (above) per Kirby P; and Hughes Motor Services Ltd v Wang_

Computer Pty Ltd [19781 35 FLR 346 at 351 per Bowen CJ.

Conjointly with its calling in aid the Court's inherent jurisdiction, AFCO further submitted that a third source of power for joinder was to

be found in section 23 of the Federal Court Act 1976. This provides:

"23. The Court has power, in relation to matters in which 1t has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or

direct the issue of, writs of such kinds, as the Court thinks appropriate "

In this connection reliance was placed on the remarks of

Jackson v Sterling Industries Ltd [1987] 71 ALR 457 at 462-3:

the result of the case but on this matter aroused no

"Section 23 of the Federal Court of Australia Act 1976 (Cth) confers upon the Federal Court a broad power to make orders of such kinds, including interlocutory orders, as it 'thinks appropriate' Wade though that power 1s, 1t 1s subject to both jurisdictional and other limits It exists only 'in relation to matters' 1n respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power 1s restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction "

gained apparent assent from the other members of the Court:

"The Federal Court was established by the Federal Court of Australia Act 1976 (Cth). In Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] 148 CIR 150; 37 AIR 66, Gibbs CJ, Stephen, Mason and Wilson JJ said (CIR at 161; AIR at 73):

'The Federal Court of Australia Act sets up the Federal Court and arms it with certaln powers, eg ss 22 and 23. But generally speaking, and apart from s 32, the Act does not invest the Court with jurisdiction It leaves 1t with the Parliament to do so by other statutes (s 19). This the Parliament has done by other statutes, such as the Trade Practices Act '

It follows that to determine the jurisdiction of the court in a particular matter, regard must generally be had to some statute other than the Federal Court of Australia Act In

the present case jurisdiction to entertain the claim under the Trade Practices Act derives from that Act Jurisdiction to deal with the common law claims made by the respondent depends upon the considerations mentioned in Fencott v Muller [1983] 152 CIR 570; 46 AIR 41 and Stack v Coast Securities (No 9) Pty Ltd [1983] 154 CLR 261; 49 ALR 193

An Act conferring jurisdiction on the Federal Court may of

course confer particular powers on the court in respect of the subject matter of jurisdiction.

The Federal Court 1s a creature of statute, but so too are the superior courts and other courts of this country The High Court itself has the jurisdiction conferred upon 1t by the Constitution and Acts of the Parliament. Though it 1s common to speak of the inherent jurisdiction possessed by superior courts of unlimited jurisdiction, in truth there 1s within the federal system of this country no court of unlimited jurisdiction. The notion of inherent jurisdiction 18 1n any event capable of misleading for, when examined, 1t is invariably concerned with the power of a particular court to act in a particular way: see for instance the analysis of judicial decisions in Riley McKay Pty Ltd v McKay [1982] 1 NSWIR 264. In R v Forbes; ex parte Bevan [1972] 127 CIR 1 at 7 Menzies J said of inherent jurisdiction that 1t 1s 'the power which a court has simply because it 1s a court of a

particular description'. A Full Court of the Federal Court commented in Parsons v Martin (19841 5 FOR 235 at 241; 58 AIR 395 at 401:

'In our opinion a court exercising jurisdiction conferred by a statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter for statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred

In view of the way in which the phrase 'inherent jurisdiction' 1s used in many of the cases, 1t seems advisable generally to avoid the use of 1t to refer to this incidental and necessary power of a statutory court ' "

"However, the declaration of the Federal Court as a superior court 1s to be given effect as far as it can be and, as Aicken J remarked in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] 148 CLR 457 at 535, the vesting of Judicial power in the specific matters permitted by the Constitution (see ss 75, 76, 77) carries with it such

implied power as 1s necessarily inherent 1n the nature of the Judicial power itself Having regard to the declaration of the Federal Court as a superior court and a court of law and equity, the implied power should be construed as being no less in relation to the jurisdiction vested in it than

the inherent power of a court of unlimited, or general, jurisdiction.

Be that as 1t may, 1t cannot be suggested that either the power to grant relief under s 23 or an implied power to prevent an abuse of process extends to the creation and enforcement of rights in addition to those for the protection or enforcement of which the jurisdiction of the court is invoked The power given by s 23 1s expressly limited to the making of orders in relation to matters in which the court has jurisdiction and it does not extend the jurisdiction of the Federal Court Nor could that court's umplied power be employed to create and enforce new rights Whilst the implied power carries with it all that is necessary for the proper functioning of that court, 1t does

not extend its jurisdiction beyond that which is vested in 1t."

there is no independent jurisdiction inherently available, in the sense of historically or necessarily accruing, to the Court

the Court has power to make orders which are incidental or

necessary to the exercise of jurisdiction elsewhere derived;

section 23 does not confer any jurisdiction on this Court but

merely provides it with necessary incidental powers to give

This means that the fate of AFCO's application depends upon jurisdiction

"12(1) A person interested in a decision, in conduct that has been, 1s being, or 1s proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Court under this Act, May apply to the Court to be made a party to the application.

(a) grant the application either unconditionally or subject to such conditions as it thinks fit; or

The applicant submitted that AFCO is not 'a person interested' in any

decision which is the subject of the application for review, within the

The applicant further submitted that in exercising the discretion provided by the section, I should consider the fact that AFCO has no financial interests at stake and therefore that it would not suffer any detriment by not being joined. It further stated that 'person interested' should be given a legal interpretation as opposed to its ordinary meaning, that is, that AFCO would not have any rights or

liabilities affected by not being joined as a party.

In Fordham v Evans [1986-87] 14 FCR 474, 1t was held that a person who has legal rights against another may be affected by a decision and is thus a person interested within section 12 (1) of the Judicial Review

Act. The applicant submitted that emphasis 1s to be placed on a person

being affected or being more concerned by the outcome of a decision than someone who is not 'interested'. At 476 Jenkinson J said of 'a person

"As Young CJ pointed out in Australian Conservation Foundation v Environment Protection Appeal Board [1983] VR 385 at 393, the expression 'person interested' has been used in many statutes The subject matter of the interest has a substantial influence on the detemmnation of the meaning to be assigned to the expression in any particular statutory context: cf Roehampton Swimming Pool Ltd [1968] 1 WIR 1693 at 1696-1699 In respect of the expression 'person who 18s aggrieved by a decision', Ellicott J observed in

Tooheys Ltd v Minister For Business and Consumer Affairs [1981] 54 FIR 421 at 437:

'I am satisfied from the broad nature of the decisions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex

prerogative writ procedures that a narrow meaning was not intended '

The same considerations suggest the same conclusion concerning the phrase 'person interested in a decision' in s 12(1)."

"It is sufficient for present purposes to say that in my opinion a person whose legal rights against another may be affected by a decision 1s a person interested in the decision, within s 12(1), 1f the possibility 1s a real, and not a remote, fanciful possibility

To go so far 1s to go no further, 1n enlargement of the class comprehended by the phrase 'a person interested in a decision', than Ellicott J went in enlargement of the class comprehended by the expression 'person who 1S aggrieved by a decision' Indeed, 1t 1s to go not so far, for Ellicott J and the members of the Full Court in Ricegrowers Co rative Mills Ltd v Bannerman [1981] 56 FIR 443 declared that the latter expression comprehended any person who can show a grievance which will be suffered as a result of the decision beyond that which he or she has as an ordinary member of the public It might be thought that the draftsman of s 12(1) would not have wished to offer to every person able to show a grievance which will be suffered as result of the decision or as the result of the quashing or setting aside of the decision, beyond that which an ordinary member of the public will have, an opportunity to

be made a party to the proceedings for review of the decision The question whether or not the draftsman did

confer the opportunity on a class so widely defined need not be answered on this occasion, I think "

In Ebrahimi [above] I drew attention to the views expressed in Onus and

Ogle v Strickland {both above], with which I respectfully agree, that

there should be no artificial or narrow limitation on the expression 'aggrieved'. The same applies to 'interested'. But the applicant's assertion here was that AFCO would be no more affected than any other

member of the public. It therefore submitted that there 1s no question

On the question of discretion, Jenkinson J in Fordham stated at 477:

"The structure and verbiage of s 12(2) makes 1t clear that membership of the class defined in s 12(1) confers no right to joinder in a proceeding for an order of review under the Act, but merely a right to have exercised the Court's discretionary judgment whether to make the applicant under s 12 a party. The Act contains no statement of any criterion by reference to which the discretion 1s to be guided The applicant's interest in the decision, by reason of which he or she gained entitlement to make the application under s 12, will no doubt afford a consideration in favour of granting the application. But the weight of that

consideration may be great or small, according to the nature of the interest."

There again seems little doubt that AFCO has not established the

AFCO alternatively sought to be allowed to intervene in_ these

proceedings. I take this application to be primarily to lead evidence,

state a point of view and assist the court to understand, in the context of the litigation, the interests of the consumers whom AFCO is established to protect. Of interventions generally, Hutley JA in

Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 said at 396:

"A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party Thus he can appeal, tender evidence and participate fully in all

aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal Thus the Attorney-General of the Commonwealth appealed to the Privy Council in Attorney General of the Commonwealth of Australia v The Queen (the Boilermakers' case) [1957] 95 CLR 529, though he was only an intervener in Rv Kirby; Ex parte Boilermakers' Society of Australia [1956] 94 CIR 254 1n the High Court See also Attorney-General for Ontarlo v Winner [1954] 2 WIR 418 "

Whatever else can be said about that judgment in general and that passage in particular, it seems to me that this definition and distinction cannot be exhaustive, especially for non-statutory interveners. Even before the enactment of section 78A of the Judiciary Act 1903, the Federal Attorney General had long been regarded as occupying a special position in this regard, especially in constitutional matters. If based on the interventions cited by him, Hutley JA's dictum cannot therefore be of general application. A person may, for example, be allowed to intervene on conditions, or on limited issues, or to argue a particular interest. Such an intervener will, amongst other things, not normally be subject to orders in the proceedings, including for the full taxed costs of the parties to the action. This type of intervention 1s akin to the amicus curiae

procedure and is quite different to joinder as a party.

No cases were cited by AFCO to support this alternate request. In

Australian Railways Union v Victorian Railways Commissioners [19301] 44

CLR 319 at 331 Dixon J, as he then was, commented on the question of

intervention by States and the Commonwealth as 'persons interested':

"I think we should he careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening Normally parties, and parties alone, appear in litigation But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been pemmitted by the discretion of the Court 1n matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise 1t by allowing only those to be heard who wish to maintain some particular right, power or immunity 1n which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise."

The concept of intervention in court proceedings in Australia by right or title, while rare, 1s well established. The most well known example is the right of intervention bestowed by the Judiciary Act (section 78A) on the Attorneys-General of the Commonwealth, of each of the States and of the Northern Territory when a court proceeding involves a matter arising under the Constitution or involving its interpretation. Attorneys General do not have to be granted leave to intervene: State

Bank of New South Wales v Commonwealth Savings Bank of Australia (High

Court) {19861 65 ALR 74; (Court of Appeal) [1986] 4 NSWLR 549.

Another example is the statutory power of intervention conferred upon the Director of Public Prosecutions by the Director of Public Prosecutions Act 1983. Section 15(a)(ii1) declares the power of intervention, and section 6(1)(k) confers the function of appearing in extradition proceedings. In Hempel v Moore [1987] 70 ALR 714, the Director applied to be joined as a party in appeal proceedings arising

out of an application by Israel for the extradition of a person from

Australia. The Director had appeared in the magistrate's court proceedings to conduct the matter on behalf of Israel. The extradition

"The requested State shall arrange for the representation of the requesting State in any legal proceedings relating to the extradition of the person whose extradition 1s requested and shall otherwise represent the interests of the requesting State "

". the appearance of the Director of Public Prosecutions in such proceedings is one way in which Australia my discharge its treaty obligation It does not mean that he necessarily acts as counsel or solicitor for the requesting state. Such a role is only appropriate where the requesting party is a party to the proceedings "

Section 11(1)(o0) of the Human Rights and Equal Opportunity Act 1986, section 20(1)(e) of the Racial Discrimination Act 1975, and section 48(1)(gb) of the Sex Discrimination Act 1984, confer upon the Human Rights and Equal Opportunity Commission the function of intervening, with the leave of the particular court, 1n cases involving human rights issues, including matters of sex and race discrimination. These interventions, which may be granted on conditions, appear to indicate a legislative intention that the Courts pay specific regard, in defining the common law, interpreting statutory law and exercising discretions, to Australia's international treaty obligations in relation to human rights. Leave has been sought and granted in two decided cases thus

far: Tarumi Pty Ltd v Bankstown City Council, [1987] EOC 92-214 and

Aldridge v Booth, Federal Court of Australia, Spender J, unreported, 30

May 1988. In both cases, the leave was sought and granted on certain

These statutory rights or obligations to intervene contain within the relevant statutes or by clear implication, the interests which the interveners are intended to advance or defend. A voluntary highly reputable but non statutory public body like AFCO, seeking to represent a general consumer interest in product safety, or like the ACF, seeking to advocate and ensure environmental protection, will not normally be an intervener in this category. Its role in the legal proceedings of others could only be to assist the court to understand the matter from a public standpoint, to provide any relevant expertise, and to describe as necessary any breadth of general effect 1f available discretions were exercised or decisions made one way or the other. This raises' the

The origins of the amicus curlae are somewhat mysterious, although there are cases reported as early as the beginning of the 14th century. The device was known in Roman law. Instances are noted in the Yearbooks of 1353 (25 Edw III 65) and of 1486 (7 Edw IV 16). It was also found in the early French courts in limited form. The original "friend of the court" appears to have been a disinterested bystander who interposed and volunteered information on a matter of law which the Judge was overlooking or about which the Judge was apparently mistaken or

doubtful: Fort Worth & Denver City Railway Co v Greathouse and Ors,

Court of Civil Appeals of Texas [1931] 41 SW 2nd 418 at 422.

In Grice v R [1957] 11 DLR (2nd) 699 at 1702, Ferguson J in the Supreme

"In its ordinary use the term implies friendly intervention of counsel to remind the Court of some matter of law which

has escaped its notice and in regard of which it 1s in danger of going wrong "

Holthouse's Law Dictionary described 1t in somewhat more genteel temms:

"When a judge 1s doubtful or mistaken in matter of law, a bystander may inform the court thereof as amicus curlae

Counsel in court frequently act in this capacity when they

happen to be in possession of a case which the judge has not seen or does not at the moment remember "

Professor Samuel Krislov of Michigan State University wrote 1n Volume 72 of the Yale Law Journal (No. 4 of March 1964) that "the function of amicus curiae at common law was one of oral 'Shepardizing', the bringing up of cases not known to the Judge." Krislov cited one extreme instance of a member of the House of Commons who, as he had been present at the passage by Parliament of the relevant statute, wished to inform the court as amicus curiae of Parlilament's intentions in doing so: Horton v

The Yearbooks and early reports cite instances of amici curiae being

more widely permitted - acting for infants (Beard v Travers [17491 27 ER

1052); drawing attention to manifest error (The Protector v Geering

[1656] 145 ER 394 - where 1t was said that interventions were welcome since "1t is for the honour of a court of justice to avoid error");

giving information as to the death of a party (Falmouth v Strode [1701]

88 ER 949); and calling attention to existing appropriate statutes (The

Prince's Case [1606] 77 ER 481). In the latter case at 516, the

ultimate denouement occurred when the Court assailed the two amici

"But 1n truth the serjeant and his son have not performed the office of a good friend or of a good informer, for they have omitted one clause in the same Act and have thereby endeavoured to deceive the Court "

These cases and later writings on the subject have demonstrated that the courts have always avoided a precise delimiting of the scope of the facility. This means that the judicial discretion to permit the intervention and its flexibility have been maximised. The amicus did not even have to be a lawyer. The Supreme Court of Missouri in Ex parte Brockman [1911] 233 Mo. 135 at 154; 134 SW 977 at 982 quoted this

"If such appearance was as amicus curiae and as a matter of grace, then that grace alone concerns us. Grace doth not abound through consent of one's adversary It droppeth,

withal, like mercy - as the gentle and refreshing dews of Heaven. It goeth where it listeth "

Ex parte Lloyd (Monte 69), an 1830 bankruptcy case, further 11llustrated the versatility of the amicus curiae concept. The court reporter for the case who was also a practising lawyer, had accepted retainers from both sides in the case. The Lord Chancellor, believing that in his official judicial role he could not advise the attorney which client to represent, appointed himself amicus curiae in which capacity he felt he

The practice of permitting appearances amicus curiae in the American and Canadian courts has grown in the last 100 years in particular.

Government - federal, state and local - and government agencies

Private organisations of professional or other occupational membership - employers, commercial entities, trade unions, bar

Private associations and entities, in general formally organised, which purport to speak for non-occupational broad public interests - religious bodies, specific racial and minority groups, civil libertarians, organisations of and for

extent of the right in North America has also been expanded to

"has no right to appear in a suit but is allowed to introduce argument, authority, or evidence to protect his interests": Ladue v Goodhead [1943] 44 NYS 2nd 783 at 787; 181 Misc 807

However, over 60 years ago, in Re Perry [1925] 148 NE Rep 163 at 165; 83

"Courts undoubtedly have the right to allow an attorney, or other person, to appear as a friend of the court 1n a case, to act as an adviser of the court, and to make suggestions as to matters appearing upon the record, or 1n matters of practice An amicus curiae has no rights in the matter He can file no pleadings or motions of any kind He can reserve no exception to any ruling of the court, and of course cannot prosecute an appeal It has been held in this state that an amicus curlae may, on leave, file briefs, argue the case, and introduce evidence "

In Meredith v State University Of Mississippi [19641 376 US 681, where

the United States Supreme Court rejected the contention that there was a constitutional right of trial by jury, the Federal Government was permitted to intervene in the Court of Appeals. Its purpose was to prosecute the University leadership, the Governor and other State officials for criminal contempt in defying an Appeals Court order that Meredith, a black, be admitted to the University. In an application by the defendants for a trial by jury, a question arose as to whether the Government was a party or an amicus curiae. Justice Goldberg who dissented on the principal issue, wrote of the amicus curiae at 737-8

without apparent objection from the other Justices:

"A traditional function of an amicus 1s to assert an interest of its own separate and distinct from that of the {(parties], whether that interest be private or public It 1s customary for those whose rights [depend] on the outcome of cases to file briefs, amicus curiae, in order to protect their own interests . . This Court has recognized the power of federal courts to appoint 'amici to represent the public interest in the administration of justice' . In this case the Government was serving essentially in that capacity. Its ultimate interest - securing compliance with the Court's orders requiring Meredith's admission - was identical with the interest of the private plaintiff, and it was invited by the court to render necessary aid in that direction."

The Government was thus an amicus advocating on the merits, not a mere intervener offering suggestions as to facts or law to the Court. From neutrality on the facts and assistance on the law, the amicus has become an advocate of a particular outcome of the litigation, even its initiator. (See generally Angell: The Amicus Curiae - American Development of English Institutions, 1967 International & Comparative

Australia has not seriously followed either the English common law or the developed North American practice. With rare exceptions, Australia has limited all interventions of outsiders to those prescribed or permitted by statute, those who could make out a case for joinder asa party, and those types of conditional or partial interveners of whom I wrote when earlier addressing the remarks of MHutley JA in Bradley [above]. This is quite a different procedure to the so-called "McKenzie's friend" facility which has found favour in England:

McKenzie v McKenzie [1970] 3 WLR 472; Mallock v Aberdeen Corporation

(No. 2) [19731] 1 WLR 71; Reg. v Home Secretary ex parte Tarrant [1984] 2 WLR 613. This gives an unrepresented party to litigation the right to

have a friend present in court to assist in the conduct of the hearing. This has been said in New South Wales, at least for criminal cases, to be a "matter of indulgence" by the trial Judge to be granted only "in

extraordinary circumstances": Rv E.J. Smith [1982] 2 NSWLR 608 at 614.

Other than the Australian Railways Union case {fabovel] (which was decided

more than 50 years ago and was in any event a constitutional matter not particularly requiring any outside specialist expertise), and the stout efforts of the Australian Conservation Foundation to which earlier references have been made, I have found no Australian authority which bears upon pemmissibility or desirability in this country of the amicus

curlae procedure at trial, or impedes or limits its use.

The variegated complexity of modern life and technology, increasing materialism and the possible risks to the public of otherwise lauded scientific advances, have brought consequent significant legal

challenges. These have been amplified not minimally by the burgeoning

of statutory law expressing vague general principles and requiring the

exercise of broad undefined judicial discretions. For the just resolution of these issues , the resultant mix beckons, if not requires, whatever assistance and expertise the Courts can reasonably muster. Consistent with the need for maximum possible conservation of the costs and duration of all litigation, 1t seems to me desirable that we adopt

and adapt the English or American amicus curlae procedure as appropriate

Earlier I drew a possible distinction between the interests of AFCO as an organisation and those of its constituency of consumers whose concerns it exists to protect. Of course AFCO will be answerable under 1ts constitution and derelict to its mandate if it fails to carry out 1ts obligations to this constituency. On the other hand, these consumers too have nothing directly at stake 1n an application for the judicial review of any relevant administrative decisions or conduct here being examined. This case 1s primarily about whether there were errors of law 1n or preceding the convening of the conference of the Commission. It is not an application for a determination of the merits or demerits for consumers of smokeless tobacco products. That 1s why

On the other hand, it 1s clear that AFCO has the respect of the Minister, the Commission and significant sections of the community as a specialised body with expertise and capacity to assist 1n the due administration of consumer protection laws in Australia. Some of these laws, and some of the factual situations which attract their operation, are complex and concern considerable numbers and particular sectors of the public in particular, as well as the society as a whole. The smokeless tobacco products under discussion in this case are not widely

known and understood. Speaking for myself, I know nothing at all about

them except as evidenced in the pleadings and affidavits in these proceedings. AFCO may therefore be of considerable assistance to me in the resolution of the issues to be determined here. Its independence of commercial or government interests provides an additional dimension to

the role which AFCO might be able to play if allowed to intervene as an

AFCO has failed to establish that it ought or is 'necessary' to be joined as party. It seems to me that all the relevant evidence will be available and all the matters in dispute between the parties can be resolved without AFCO as a party. AFCO has identified no relevant interest in these proceedings or their outcome, specific or particular to AFCO, beyond the fact that it made submissions to the Minister before, and was party to, the conference. Nor has it produced any evidence which bears on the issues between the parties. It is true that the conference may be halted by orders made in these proceedings, whether permanently so as to prevent its re-instigation or re- commencement, or temporarily in the sense that it is permitted to be re - constituted. It is also true that in this event, AFCO will he 'affected' in the sense that it will not be able to be further heard in the current conference. However, 1f the conference ends, no one will be heard any more, and the Minister's actions will be nullified. Any views or desires of AFCO in relation to the use of smokeless tobacco will then be back 1n the Minister's court. If the conference continues or a new

conference convenes, nothing done in this case will bear upon AFCO's

This 1s not the 'effect' being spoken of here. Referable to this case, AFCO must show that it, aS an organisation, or even the general body of consumers whose wellbeing 1t seeks to advance, will or may suffer by an order in these proceedings, a financial or other substantive detriment.

It 1s difficult for me to predict at this early stage of the proceedings to what extent, if at all, any public interest issues will he raised in this case. But to the extent that some such public interest issues are or may become part of the proceedings, it seems to me appropriate that AFCO be permitted to participate as an amicus curiae. If no wider issues arise, AFCO may have no or few interests to advance or concerns to protect, and its role may be negligible. As the matter proceeds through the interlocutory stages, this situation should become clearer.

It will then be possible to hear argument on and define the appropriate

I see no reason, by way of either principle or authority, why this role should not embrace a consideration by the Court in due course of AFCO's presentation of evidence omitted or overlooked by the parties, which is relevant to one or more of the issues before the Court, so as to assist the Court in its resolution of those issues, and to protect AFCO's own and its constituents' interests in the process. If contrary to my earlier expressed anticipation, AFCO has or wishes to proffer any such evidence, and the other parties have declined its offer that they present the material, AFCO may apply at a directions hearing or other

I therefore give leave to AFCO to appear as an amicus curiae at and

prior to the hearing of this matter. I reserve the costs of this motion

concerning AFCO's costs as curiae, but I state my understanding that the overseas

practice is that amici curiae generally bear their own costs.

Counsel and solicitors for Mr. B.W. Walker United States Tobacco Company instructed by

Solicitors Counsel and solicitors for Mr. J. Allsop the Minister for Consumer instructed by the Affairs and Trade Practices Australian Government Solicitor Commission Counsel and solicitors for Mr. B.J. Preston Australian Federation of instructed by Consumer Organisations Inc. Slater and Gordon

Lords, 1n Vandervell Trustees Ltd v White [1971] AC 912, considered that

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