oR 2S) 157% OE N44 Weg CATCUWORDS Trade Practices - Practice and Proccdure ~- Statutory notice requiring the giving of information ani the precucticon of documents to Trade Practices Commission ~ Applicability, scope and abrogation oF common lav pravilege apaanst sell incrimination - Statutory condition precedent to 1rosuing of notice by Commission Chairman -— Recipient's right to interrogate and obtain discovery to establish existence 2.4 adequacy of Chaarman''s reason to believe - Validity of requirenent that recipient produce cccunznts away frov their usual location to persons other then the Ccomriss.icon Chairman, Trade Practices Act 1974 ss. 4(1), 45, 75, 7155(7),(2), (5), (6), (7), 159(1) and (2), 163A. MELBOURNE HOME OF FORD P/L & ORS. wu TRATED PLCiTCr Ss Cotieosr AND AUOR. No. V.G. 54 of 1978, CORAM: Smithers, Franki and Northrop JJ. Melbourne 28 Harch 1979. /. in IN THE FEDERAL COURT CF AUSTRALIA "+ * VICTORIA DISTRICT RUGISTRY VG No. \n i of 1978 GENERAL DTVISION IN THE M'TTER of the trade Practices Act 1974, ss.155 and 163A. BETWREN: MELPOURS Hore ar Popp Pry. Uen, PTy. LID., cho. Pry. Di., Wu. ts ; Witroin. ree. Lou, ALA COE = to.3 3 FORD Bir, Tan BAYSORL O70" ay pry, Por, , Bws. BETHERIT yy rO2D £3 Pry, Lie, Coon HORLEY ecw !iY, Lol IFoo a LYOw FROG, vidls Te. Lid, ~ Applicants AND: TRANS PRACTICrS COMMISSION and PCY LD "copr 3eNN An Respondents ORDER JUDGES MAKING GRD=R: Smithers, Frank. end Northrop JJ DATE OF ORDER: WHERE MADE: 28 March 1979 Melbourne THE COURT ORDERS AND DCCL. RIS TUAT: 1. The answers to questions (i) - (ix) are as follovws:- (i) (ii) (i4i) (iv) (v) (vi) Yes. Yes Yes, Not answered. Yes. 2. (vii) Not answered. (viii) Not answered. (ix) Not answered, The proceedings stand over for argumert on the question of costs, IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRIC! REGISYRY VG No. 54 of 1978 GENERAL DIVISION TIT MATT R of the Trade a Prz ce. fou 1974, 89.155 and 1 63 A BETWHRHEN: MELBOURNE #OVR OF FORD PY, Pry, LtD., Shei PIY Lie tie Ts CWICHORTA) Piv. LID. ALAN COFFEY ; o@0"S (RLGs COFFEY IidiOns (b tos. MOYORS PiY, Lill,, = Foclin PLY. LD. eed 7 Torn be PAT... eScil Glens Pas. oD. FRAUZ DinD FOR) Fst. cil. Ply. Ito. LTD., To Applicants AND: TRADE eRe CTICES COMITSSICN and RezID MOOPL Respondents SMITHERS J. 28 March 1979 REASONS FOR TUDGENT REASONS FOR JUDGENT SMITHERS J. I have had the advantage of reading the joint reasons for judgment herein of my brothers Franki and Nortnrop. I am in agreement with the answers to questions nos. (1), (i1) (i414), (iv), (v) and (vi) proposed in those reasons, Whether questions (vii) and (vi2i) and (ix) should be answerec at all must be considered an the light of the possibility, hich however would seem remote, that additional relevart mater.al may be placed before the Court at the hearing of this epplaicavion. However, as the matter has been fully argucd before this Court by reference to the materials in the cpecial case it vould aypecr useful and I thank proper that the result of consideration of the questions should be stated. ry Before turning to deal with those lastthree questions I desire to make some observations on the matters that have influenced me in deciding questions (2) and (111). These two questions require consi cration of the principle of the common law expressed in the maxim nemo tenetur seivsum accusare which I refer to in these reasons as the pravilerfe against self incrimination. It aprears to me that these questions are best apnroached or the fcoting trict s.155 of the Trade Practicrs Act 1974 (tne Act) proceeds on the basis that but for that suction the common law pravilcge agairs*? self incrimination would be available to a party to who under s.155 a notice is given to furnish information or produce cocunints. So approached the section may be scen to take up the subject Matter of that party's obligations to give answers and produce documents notwithstanding their possible incriminating nature, expressly i> abolish the privilege on that account, but to restrict the eviGen wary use which pay be made of such answers and cocurents. It is of course quite competent for Parliaznent under a valid head of power to require persons to answer questions put by an administrative body although those answers may expose the person answering to conviction fora crime or the imposition of a penalty or forfeiture. The question is whether Parliament has done that with respect to ccnpliance with the notice which may be served.under s.155 of the Act. One turns then to s.155(7) which is in the following terms:- "(7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the anformation or docunent may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any inforration in pursuance of such a notice, or any docurent produced in pursuance of sucn a notice or made available to an autnerized crfticer for inspection, 15 not aduissible in evidence against the person - (a) (d) One finds in the opening sentence of this sub-section, either in the case of a person not being @ body corporate -—- 1n any criminal proceedings other than procecdings under this section; or in the case of a body corporate ~ in any criminal proceedings other than proceedings under this Act," Le) ws way of introduction, exegesis or direct enactment, express provision on the subject of excuses from the furniching of information and production of documents pursuant to s.155. That provision information or information >> In the face 2. is that a person is not excused from so furnishing producing documents on the ground that the the docum:nt may tend to incriminate the person. Vat provision it ts quate clear tact, to the crtent > mee UV LLL that sub-section (7) speaks, the privilege against self incrimination which might othorwise have applicd has been abolished, It is to be observed that s.155(5) provides inter alia that a person shall not refuse or fail to comply with a notice under s.155 "to the extent tnat the person is capahle of complying with it", A penalty of $1000 or z™prisonment for three months is provided for a breach of this sub-ccction. There much to be said for the view that tnis sub-section standing alone abolishes the privilege against self iuncriaminatron un.ch might otherwise apply. It 1s not specifically directs fh + e 9° 18s compliance with a notice which muy tend toincrivin.te but the cifence 7 ok created by s -155(5) would extend to corpizance wath the notice in all respects including corpliance which may incriminate S ) Its terms are clear, mandatory and the obligation created thereby is to comply to the limit of the recipicnt's capability But the contention is that neither s.155(5)(a) nor s.155(7) do, on their proper construction, abrogate the privilege where the furnishing of the information would tend to expose the person not to conviction for a crime but to liability for a conlrayention of a statutory provision such as s,45 of the Trace Practices Act 1974 which is not a crime, and in respect of which, the statutory sanction is a pecuniary penalty irposed pursurnt to s.76 of the Act, It would of course be surprising that Prrliament should compel a person to furnish anformation which might expose him *- a convaction for a crime but exes him fron aoing so where wisi is involves fs but a contravention cr the Act involving a pecuniary penalty, The argument that it does so depends upon reading the expression "may tend to incriminete the person" where it appears in s.155(7) as referring only to disclosures exposing a person to liability for a crime. It is of course arguable that "incriminate" is a word which primarily denotes a connection with crime bub not bre¢ches o FH the lew which are not crimes. And ain certain contexts the expression mignt well be construed cs referring only to crinincl charges. However, the dictronery meanings of the «ord "inciminare™ indicate thet it has a natural meening which extends to charg so of crime or fault. Thus according to the Shorter Ovfera Doct mary "to ancriminate" 1s "to charge with a crime" or "to anvelive in an accusation or charge". According to Webster's "ew Internet crel Dictionary the expression means "to charge with a crime or fauit" or "to accuse", Also according to the Imrernel Dictionary the expression means "to charge with a crime or fault", It is to be noted that discussion in text beexs of the common law privilege from answering questions whether tending to expose a witness to risk of prosecution fora crane or to 4 forfeiture or to 2a pecuniary penalty are Ciscussed in terms reflecting the view that immunity on any of such grounds eryists if at all as part of the common lay privilege against incrsvirsticn. According to Halsburv's Lavs of Fuglend 3rd Pd. Vol. 15 para. Thy av p.422 where under the heading "ancrimination of wivr.e5.¢5" the subject is discussed with reference to the "aw as it stood prior to the statutory provisions dealt with in Lhe current 4th eaitien, the text states:- "A wit 3 is entitled to refuse to ansver a auceticn on 4! sund that tre answer wry ancrisipate arc, whet S8, Woy cond to expose the witness, ... to 4 cririnel —- - ee en ee | a. . A statement in substantially similar terms appears in Archbold's Criminal Pleading, Evidence and Pracizce(39th Ed.1975) Chap.12 p.706,5% 1304 under the heading "Incraminating Cuestions." in Cross on Evidence (2nd Australian Edition 1978) at p.264 under the heading "the privilege against self-incrimination" the learned authors set out Lord Goddard's classic statement of the common law rule to be found in Blur.t v, Park Lene Hotel Lte £19427 2 K.u, 253 at p.257, namely:- ",..The rule is that no one is bound to answer any question if the ans.erc thereto would, in the opinion cf the jgudre, have a tindcney to expose the deponcnt ts any criminal charge, penalty, or forfciture waich the Judge regards as reasenably lixely to be preferred or sued for." Similarly in Phipson on Evidence (12th Ed, 1976)p.256 para. 612 under the heading "criminating questions" the learned suthors! text procceds:- "At common law the principle nemo 2 prodere @insun ultimately came to accepted, so that a witness was entitled to claim privilege in respect of any evidence which might lead to his being exposed to the risk of either a criminal ccnviction, the iumpositio of a penalty or liabiiity to forfeiture ct t It thus appears that in the languace ef the law, as used in relation to the subject of the privilege of witnesses from answering questions where such answers mzy tena to expose the witnesses to risk of conviction for crime or to a penalty or to a forfeiture, that privilege in each of such manifestetions is comprehended within the scope of the expression "the privilege against self incrimination". Accordingly 1t 1s my vicw that s.155(7) of the Act on its proper construction effectively declares that the privilege of refusing to answer questions, the answers to which may expose the person concerned to conxiction for crimes or the imposition of a pecuniary penalty, 16 abolished in relation to the furnishing of inforzation or production of documents in response to a notice uncer $.155(1) of the Act, It is to be noted that s .1 ted to covpliince with a notice under s.155(1) una be 4% 55(7) as d c ce cordance with +,155(1)(a) and Q i) "3 (ob), It is also directed to the situetion which arises un s.155(2) an relation to the inspection of documents which ray tend to incriminate, As to the situation \hich arises when in accordance with a notice unger Sgnnp els? individual appears before the Trade Practices Commission/in accordance with s.155(1)(c) to give evidence and is asked questions the answers to which may tend to incriminate him or required to produce documents which would so tend, s.159(1) and (2) are applicable and make provisicn with respect to the answers given and docuvents produced vhich are generally in harmony with those provisions of s.155(7) in relation to information furnisned and documents produced in accordance with s.155(1)(a) and (b) or s.155(2). The provision an s.155(7) declaring that tne person served witn a notice unser s.155 18 not excused frou answering eny question asked in thot notice would appear to te d:rectedc to a case in which the terms of the notice may be expressed in an interrogative form rather than as a demand that certain specif2cue information be sun slied, The tenor of the Act 1s clear, navrely, the privilege against self ancriminalion is exciudrd, but the disclecures which are made in consequence of such exclusion al*thcupn genereily admissible against the person concerned are not admissible in any criminal proceedings other than under the Act. The above reasoning also governs the answer to question (iii). In relation to questions (ii), (v) and (vi) I refer to and adopt what is said with respect to those questions in the reasons for judgment of wy brethers Franki and Northrop. lew Questions (vii) - (ix) Questions (vii) to (ax) are in the following terms:- (vii) May the Court, in the present application, enquire anto and exa.aine ~ (a) the question whother the secondnamed Nesperdens nad reason to believe the mitters attributeu to him an the notice a covy of wnich 1s annexed DY hereto and marked 'B'? (b) the question whether, 1f the secondnimed Respondent had reason to believe the matters attiibuted to him in the said notice, the grounas upon waich such reason to believe is founded are lawfully sufficient to entitle him to serve the said Notice? (viii) Is to open, in the circumstances of the present Application, to order that the Respondents or either of them answer interrosatories relating to the questions (a) and (b) referred to 1n question (vi1) or either of them? (ix) Is it open, in the circuystances of the pres Applacation, to order that the Respondents or of them make discovery of documents relating t questions (a) and (b) referred to in question (vii) or either of them? In my opinion the answer to part (a) of question (vi1) as that the question whethcr the Commission, Chaiviran or Deputy Chairman (herein collectively referred to as the Cnairran) nad the reasscn examine whether the Chairman had reason to belleve the relevant matter depends upon the intention of Parliament as appearir from the terms of Part XII of the trade Practices fect 1974, It is clear that in construing this Part 1ts purpose 15 of the utmost significance, Part XII takes its place in an Act which is designed to introduce practices in trade and commerce wnich accord in matters of competition, prices, commercial morality and otherwise with standards prescribed by Parliament. By subgect- ing persons who contravene the provisions of the Act to remedial action at the hands of private persons and to proceecirge Tor penalties end al*ied acticns uf considerable severityby the Corss wa o re oon a. * and other persons, Parliament has indicated an intention to ensure, so far as possible, that the Act 18 obeyed. Part XII is obviously designed by Parliament to confer upon the Commission the authority to seek and obtain information from ccrporutions and others for the purpose of facilitating the enforcement cf the Act by legal process, So important did Parliament consider this function that it authorised the Commission to se.k and cbtain such information even from those suspected of contraventions fo} baa ct ty ® > a ct i) Ss fod o < fo) is} Pa y @ s @ » s a £ 'g "S bet ke B =i G3 he. ct + Ss @ 'gd fo) Ht a fe)t fe is6 woire) fon may make incriminating admissions. See g¢enerally on the questicn of the statutory purposes Riley MeMay ty, Ltée, v. Pannerncn (1977) 31 F.L.R. 129 per Bowen C.J. at page 133. In this context it is reasonable to construe s.159(1) and s.15£(5)(a) AS} Xu o~ as imposing upon the person io whom a notice 1s fiven by the Chairman a duty to comply witn that notice without proof in ony form, other than the contents and apparent resularity of the notice, that the condition of the giving of the notice, navycly, the existence of a specified »eason to believe, has been satisfied. Parliament's intention would be frustrated if the obligation of the person to whom a notice is directed arose not on the receipt of the notice but only after the recipient or the Court was satisfied that the Chairman in 1ssuing the notice had the specified reason to believe. Nevertheless although Parliament has instituted a procedure under which the cuty to comply wath the netiec arises without proof of the valadity of tne notice it is consistent with this that where the citizen can show thut the Chairman did not have the specified reason to believe. and accordingly the condition precedent to the issuing of a notice under s.155(1) was not satisfied, he may obtain a declaration or other relief. What was said by Griffith C.J. in Jioyd v. Walleci: (1915) 20 C.L.R. 299 is in my opinion in point in relation to a notice under s.155(1). That was a case of a person arrested upon a warrant issued under the War Precautions Repulations 1915 which provided:- "Where the MNaunasterffor Defence? has rezson to belneve that any noturcliced disafrecteli or disloy,. under his hend, creer nim to oe an military custody in such plac fit during the continuance of th state of var." The headnote of the report convenieontly sumpurizes tho facts of the case as follows:- "To a writ of habeas corpus issued out of the Supreme Court of Victoria in respect of W. who had been naturalized and was detained in military custody,the military officer in vhose custody W. was returned a warrant under the hand of the Minister of Defence which recited that the Minister, upon anformation furnished to him, had reason to believe and did believe that W. was disaffected or disloyal. W. stated by affidavit that he was not disaffected or disloyal. The Manister being called as a witness refused on the ground of public policy to state the grounds of his belief." It was held by the High Court that the belief of the Minister was not examinable on proceedings to challenge the validity of the return, At page 2704 it vas said by Griffii Tose " "Having regard to the nature and object of the power conferred unon the Manister end tne circumstances under which it 1s to be exercised, I think that his belicf 1s the sole cornaition of h2s authority, and thet he is the seule guage of the surficiency of the r-terv2ze1s on vhocs he forms it. If this be so, the only inguiry which could possibly be inode by the Court on the return to the writ with resreckt to the sbltercuts in the warrant would be wnewier the Minisver had in fact a belnef arrawd at in tne reryer I have indicated. That belief is a matic personal to nimnself, and must be personal and ministerial respors 5 ius quite ammsterial vnether another person vould form the same belief on the sare v.terplcs, any inquiry as to the nature and curficiency of those materiais would be irrelevant. Furtner, having regard to the nature of the power ana the circumstances under yaircn 1% 18 to be exercised, 1t would, in my opinion, be contrary to public policy, and, indecdc, aunconsistcne with the character of the power itself, to allow any judicial inguiry on the subject ia these procecarings. ... It follows that for all practical purpcses the statement is not exaninable on the return of the writ (even if the case 1s within the Act 56 Geo. III ¢.100, wshach I doubt), but must be treated as conclusive. If it could be established aliunde in other proceedirc. that the statement yas not trac, that 1s tnet the Minister haa not in fact forved eny such belief, the person ayvrieved nacht verh ms have other means of redress @gaznot him," To like effect is the Hign Court gucgment in Boucut Tay ase Liquieatior.) v. The Ceocrameslth (1927) 40 C.L.R. 98, 7™n that case aproviricn in an agrecmeat concernire the supply of shipping services stipulated that the Minister for Home and Territorics might cetermine the agrecrent if at any time he should "have reason to believe" that tre agreement was not being carried out in accordance witn its terms. The Minisler did determine the agreement on the ground that he haa reason to believe that the agrecment was not being so carricd out. At first aumstance Starke J. said:~ . " The main question in this case,is, of course, the true meaniny of the s.ords in clause 15 '1f at any time the Minister shall have reason to believe!, The argument submitted to me was that the Ninister's power to doternine the aprecrent was depend?int upon sore reason gustifying a belief that the agreement was not being carried out in accordance with the terms and true intent and meaning of the agreerent. It followed, according to the argument, that the Court must determine for itself whether facts exist wrich would reasonably lead to the belief that the agreement was not being so carried out. This vaew of the clause I cernot adopt. In my opinion the belief of the Minister 1s 'the sole condition of his autnority'; 'he is the sole judge of the sufficiency of the materials on which he forms 1t' (Llove v. Wallach), If a man is to form a bel1le1l and his belief is to govern, he must form 1% himself on such reasons and grounds os seem good to him (Alicroft v. Lord Eiskhon of Lemdan). Ue must not ae. act dishonustiy, capricivasly or arbitrar that woulc te centrary to the implicetion cf the agreement and so establics a want of the belie? stipulated for as &@ condition of the exercise of the power of determinslion, So lens, ho ever, as the Minister acts upon circumstances connaring to him to bear upon the cvse and giviane hina aimec, in my opinicn, the Courts of lew cennot end oustht not to interfero with 'us discretion. Upon the facts the Minister had ample ratcrialis cn .hnact to found his belief set fortn on the notice of 27th February 1925, and I find as a fact thet th Manister bona fide and honestly forired end neld that belief." (40 C.L.R. 98 at pp.100-1071) rational ground for the belief encertainca, then, In that same case upon appeal it was said by Isazcs ...C.J. at p.106:- "T personally cannot ass: r.t to the implicaticn Nr. Ham suggests - an ivplication that the Minister's function was not purely uccinistrative but was of a quas:-ygudicial nature wnich required an ianau1rry. In wry op2anion, 2f at eny time the Minister in tne natural ana ordinary course of his official duties acted on information of his trusted officers ani fervou a belicf in the general terms mentioned in tne latter pert of the first parogranh of clous? 15 that the contract was not being Yairly cerriea out, he Lad power to terminate the contract without the formality of an inquiry. Tne one condition of his action 1s that he nad reason to believe, and thut implies actual Lelief," See also Gardiner v. Land Agents! Board (1976) 12 S.A.S.R. It is my opinion that the thrust of these comments 15 applicable to a notice under s,155(1). Althouch, pri facie, there is a duty to comply with a notice comple -e and regular on its face there is no statutory cuty to comply with a notice which is in fact invalid. If the citizen contends that the notice is anvalid for want of fulfilment of the condition tnat the Chairman had the relevant reason ts believe om that the membor 1s¢ was otherwise not euthorised to iss.e it, that is a justiciable issue and may be decided in the Federal Ccurt pursuant to s.163A(1)of the Act. An application pursusnt to s.163A(1) in relation to a notice under s.155(4) will provide vehicle where in the words of Griffith C.J. the question co of the existence of the reason to believe may be deali wi "aliunde"., Section 163A(1) is in the following terms:- "163A. (1) Subject to thie section, a verson may institute a proceeding in the Court seeking, in reiabion to a mattcr arisin this Act, the maxing of - und a gs r Tl (a) a declaration in relation to the operat. or effect of ary ] provision of this fct 9 than Davision 2 of Part V or in relation to the validity of an; act or thing done, proposed to be done or purporting to have been done under this Act; or chk O ty er (b) an order by way of, or in the nature of prohibition, certiorari or mandarus or both such a declaration and such en oreer, and the Court nas "gurisdiction to hear and cvermaure tne procecdire, " Be uings 458, co) The section is designed tc provide a convenient forum and procedure by which citizens who are in doubt as to their duties or rights under the Trade Practices Act may in many cases have those doubts authoritatively resolved, As was said by Bowen C.J. and Franki J. an ro Tooth & Co. Ltd. (Ilo.1) (1978) 31 F.L.R. 314 at p.327:- "In its setting in the Trade Practic s.i163Areflects a legislative reco the practical and commercial di likely to be encountered by rea operation of the Act and a leg to provide a remedy,' ve antenvion But an application pursuant to s.163A(1) will proceed in @ manner reflecting the substantive lav. One aspect of the substantive law is that pursuant to s.155(1) and (5) of the Act the uLligation of the recizvent of a notice served upon him 1s ts comply wath the require- ments of that notice. It would be contrary to taose provisions and to the policy of the section if here a recipicnt of a notice institutes a preceeding pursuant to s.163/(1) seeking a decluration in relation to the validity of the notice but, as in this case, submitting no evidence tending to impugn the validity of that notice in any respect the obligation to comply with the notice should b2 postponed until the Court had examined and established its validity. In such circumstances the invitation to the Qurt to enter upon an examination of the validity of the notice and to extend its processes to that end is an invitation to conduct a proceeding which, so far as the epplicant 1s conce:ned, 15 essentially speculative in nature and fishing. Thr ~ama facie duty to comply with a notice complete and regulor on ita face must be recamnised. Also the burden of showing invalidity will rest on the party so alleging it, Where the issue is whether the Chairman hed the requisite reason to believe the relevant matters the validity of the notice will not be impugned until there is satisfactory evidence that he did not have such 1eason to belicve. It 1s in this respect tnat the epplicants face difficulty because unless the applicants have evidence ef an eadimic ron binding upon thorelevant respenden: to the application, that the Chairman did not have the requisite reason to belicve or there are other special circumstinces not readily conceiveble, they can have no satisfactory evidence that the Chairran did not have the requisite belief or reason for it. This follows from the fact that in the nature of things the applicants do not know, for instance, what information true or false the Chairm™m may have received from some person on relevant matters. It is clearly for th fee] Chairman himself to form the relevant belaef on such material as commends atself to him. In such a casc th> applicant is in the position of a i1rtigant seexing to launch a procceding upon allegetions in a statement of clei Ler2 2c = ryi BS) is clear that the action is speculative and h> hus no evidence to support his allezations, In such 4 case +n application to strike out such a procecding vould nortelly succeed, Reference may be made to the judgricnt of Dixon J., as he then was, in Cox v. Journeauy (No. 2) (1935) 52 C.L.R. 713, especially at p.720. ee also Lucas v. O'Reully (judgment of Young C.J. delivered 19 March 1979). Accordingly un a proceeding pursuant to 5,163A(1), certainly in the absence of satisfactory evidence that the Chairman did not have the relevant reason to believe, the applicants are faced with the prima facie validity of the notice. In the absence of such eviderce the proceedin is essentially speculative in nature. In such circurstarces for the Court to assist the applicants by mating avirlavle to them the processes of interrogatories and discovery weuld be to assist them in an essentially fashing exercise ind fren % the Court on established principles should refrezn., Guestions (viii) and (1x) must be answered accordingly. It is to be noted thet nowuere in the sprcial case ner in the arguments addressed to the Court 1s thcre any suggest that the case sought to be made by the applicents goes to the bona fides of the Chairman. The special case states that the applicant,» have siorn and filed affidavits deposing that included in "the grounds" upon which they seek declarations is that:- without the "(viii) The said notice Was c the Chairmen 4 Si bu Tel Trade Pra es Commis32 on or the beputy Chairnen oa ne reason (or alte ernatavely, any ler ally sufficzer.t reason) to kelieve ary o or. the m-tters cet out in s.155(1) of he said Act," a It was accordingly argucd an sapport of this grour.d whet the relevant notice issued to cach applicant was 1ssuec without the Trade Practices Commission, the Chairman or the Deputy Chairman having reason (or alternatively, any legally sufficient reason) to belicve any of the matters set out an s.155(1) of the Trade Practices Act 1974, But there is no suggestion that there 1s any evidence available to the applicants of such absence of reason to believe, In » the situation dasciosed by the special case therefore an order permitting the applicants to interrogate the respondents or that the respondents make discovery would ke to authorise a procedure of an essentially fishing nature, Accordingly in the circumstances appearing according to the materials in the special case an order for interrogatories or for discovery would be an abuse of the process of the Court and could not be made. It is useful in this context to cbserve that in Norwest Holst Ltd, v. Secretary of State for Trade / 1973 _/ er Ch, 201 the Court of Appeal dealt with a situstion ariseng upon the appointment of inspectors pursuant to authcsracy in the Secretary of State under 9.165 of the Cot venies Act 1948 (U.K.)to make such an appointment "if it appears to the Board that there are circumstances suggesting" certain misconduct, The appointment was crallenged by proccedirgs for declarations and ingunctions in the Chancery Division of the High Court on the ground that natural gustice had nov been accorded and that the appointment was not a bons: fide exercise of the statutory power. The defendant succes fully moved to have these proceedings struck out as cisclosir He) reasonable cause of action, The defendant deposed that the nature of the information in his possession derived fren a previous inspection as well as information from an informant and added that disclosures of that information might reveal the informant's adentity. The Court accordangly struck out the plaintiff's action. The Court of Appeal diswicsed ihe plaintiff's appeal from this order on the following creunds :- "(1) that the wide discrelion conferred on the department by section 165() to appoint inspectors to investigate a company's affairs and report to it was exercised ata preliminary cee for the yurbose of good administration, and c7rricd th it uo amplicetion that there was any case acinst the compen; acecrainsly the rules of natural jut tice were at that steso ins applicable, so weet the apnount mene of incnectore eculd not be challen where the Sesretery of Slate nad acted in good goa and wotuin Luis powers conforred by the Acts, (2) That the court could not and vould not review the exercise of that discretion vnere tay Coden 7d mot wey discharged the onus on 11 of shoving: that "here uv lack of good faith on the pert of the departrent." russ faakly As Lord Denning M.R. said at p.224:- "Al] we are concerned with 1s section 165. As to it, I would say that, so Jong as tne Minister acts in good faitn, at is not anciu Eent upon him to disclose the material he has b 2 him, or the reason for tne inauary." (see also per Ormrod L.J. at p.227 and per Geoffrey Lanz L.d. at p.230) It will be apparent fron the discussion acccmpanying my answer to question (v2i)(a) that I would alse ansver guection (vii)(b) an the negative An affirmative ans.er to question (v1i1)(b) would enable the applicants to ranse far beyond esteblaciins wiether the Chairmen hes a 'reason to believe! to a con.idcretion of whether the Chairman had a particulier type of reason to believe i.e. one supported by adequate evidence PI y In this matter the conclusions of Griffith C.J. in Lloyd v. Wallach (supra) at p.304 and of Starke J, an Pouce ut Bay Co. Ltd. (in Liquidation) v. The Conmom.calth (s supre) at p.101 are of course most persuasive. But there are additional naticrs pointing to *he same conclusion. To enadle or pernz of Taxation \Q7i) 45 ALLIS.P. 249, vrders) Corer seierer of examination of the adequacy of the Chairman's reasons vould not only do violence to the language of s.155(1) but defe:t tne object of that sub-section. That object is to enable a public administrator charged with administering purts cf the éct to further his investigations and obtain additional airformation so that he may assess whether in fulfilling the ecuty ampcecd fo upon him by those parts of the Act he should anitiate legal proceedings. The applicants' submission suggests that at such a preliminary stage it should be possible to call a halt to proceedings to ascertain what evidence the Chairman has accumulated, The nature of the procecdings involved suygests that tnis submission must be rejected. No legal right of an andividcual depending upon existing facts is affected by the activities the Chaarran may pursue under s.155(7), although the rotace gives rise to a duty to conuply with it. The Courts heve elways shoan reluctance to interfere witn an investizatory proccediag the conclusion of which cannot itself affect rights, The juiuments in Norvest Holst Ltd, v. Secretarv of Stete for Tr:de (supre) demonstrate this. When and if an applacant in a procecding under 5,.163A(1) establishes a basis for investigation by this Court of whethe ry the ; exist conditions precedent to the validity of a notice under 5.155(4) /Annth full range of procedural rules may wcll be available to it. This is the situation in the tax cases cited by the applicants. Those cases include Garis Pty. Ltd. v. Federal Commissioner of Taxation (1969) 119 C.L.R. 365, Frew v. Federal Comriccsener . eV Taxation v. Brian Hatch Tirber Co. (fales)Pty. Lte. (1972) 128 C.L.R. 28; LiEstranre v. Federal Cennissioner of Sevation a £1973 7 A.T.C. 4061; Kolotex 'Iosicry CGuctalia) Fiv. Lte. vy. Federal Commissioner of Tatzavien (1975) 4132 C.L.R. 530. The significance of those canes is explained in the gsucgient of the High Court in EBailev v. Federal Cormissioncr of Tayvazion (1977) 136 C.L.R. 214. It as a different matter in the present case where no action affecting lepal rights of the nature of the action taken in those cases has yet been taken. I would answer the questions as follows:- ' (i) Yes. (4i) Yes. (iii) Yes. (iv) Not answered, (v) Yes. (vi) No. (vai) No. (vii) No. (1x) No. Tnese proceecings should stand over for arzanciut on the question of ccsts. IN THE FEDER4L COURT OF AUSTRAELA ) VICTORIA DISTRICT REGISTRY Va No. 54 of 1978 GENERAL DIVISION BETWEEN: MELBOURNE HOWE OF FORD PTY. LTD., COL PfICe FOI PTY. LTD., SLL an SCRD FTY. LoD.. dQ: mOrORD PTY. LTD... DUSIG FORD PTY, Lins, Co. OLN. .oS COFFEY is OPORS Rec Tr, MOTORS (Do: EO PLE rs COTE Tosi Ply, BAYFORD 7 TOLCnS Olt. tee Ueeg os evra [Ovo PTT. LTD. , Bes. bt FORD TROrats ; LIND, CONN rae LIMITED, LOR PROPRIO TARY LINTTED Te eT ETAPY <=, a) "12 AND: TRADE PRACTICES CONT ESTICON and PONCE eo em DUNT AT Respon cer 7 FRANKI and NOWPTEROP JJ. 2& Varchn i579 REASONS Fe Gun i! On cr about 28 July 1978 each of the applicants received a notice in similar form under the hand of the secondnaned respondent ("the Chairman") as Chairman of the farstnamcd respondent ("the Commission"). Lach of the notices was received under cover of a letter 1n similar form Gated either 28 or 29 July 1978 under the hand of -~2- the Secretary of the Commission. Each appixcant received the letter addressed to its secretary and the substantive part of each letter was in the following form : "The Commission's si#ff have been making encuir ves into changes made guring 1977 1n the trade price structure used Ly FPord spare parts dealers, distritutors end wholese in the Meloourne "ictropolitan ar particularly in dculings with sre repairers. p HB oO ry 2. The results of investigations suggest that your company may have @iven effect to a provision of an arrangement or understanecing with other suppliers in lMelbourne in competition with your company, nich has or 1s likely to have the effoct of fixing, controliinyg or naintarning the prices for Ford spare parts supplied to those repairers. I am concerned, if trit 1s so, that your company may have contravened section 45 of the Trade Practices Act 1974. 3. The attached Notice under section 155 of the Act requires your covpany to furnish certain information and produce certain documents relating to that possitle contraventron. At the same tire @s complying vith the NOtice, your corpeny may, if 1b wishe make written sutvicsions for the Commission to consider when it decides shat further action, if any, it should teke." The notice attached to each letter was headed "Trade Practices Act 1974", Each notice identified the applicant to which the notice was given, its name being inserted in the appropriate place, and vas in the following form : a -3- "NOTICE UNDER SECTION 155 Pursuant to section 155 of the Trade Praclices Act 1974 (hereina fter referred to as 'the Act'), I, RONALD MOORE PANURM«U, Chairman of the Trade Practices Cowmiesion, havang reasan to believe thet Ceirtney & Patterson Motors Proprivtary Tan tod (heroes ter referred to as 'lhe cap ny') 25 capabie of furnicoing unrarnation ard produciis decurcnts rejucting to matters that constitute, or mey constitute a contrava.tion hy the coipany of section 45 of the Act, nowel that the couwrany has given effect to a provis.on a7 an arrangement or uneerctandirs between the compary and other corporations, which has tie purpose, or has or 15 likely to have the cffect, of fixing, controliang or maqnatazing the prices for Ford srare parts supplied by thoco corporations, in Corpota tion witn each other, lo motor vehicle Lody repasrers in Meltourne, HERPPY REOUTRE the company to furnich to tne iiade Practices Commission the anformaution specified an Schedule to this Notice, in writing sigmed dy a cempetent otficcr of tue company, Ly handing the saic rn forege on to MOPRIS ALA SS Mi vy ce; ops On the staff mss2ecing une Commission and actingg on 2ts Lt, act the Offiec of the Conris at ard tleoer, 99 Queen Street, Qurne, on Mardny he 20th day sast i676, betvecu the hours cf 12.00 aco. eud 4.00 pom, AND TORY RED PR Te che corrany to pProsues ase Gecn wis PpeorPren in Schedule Ii to tnis Tlotl6ce in the possess. power or control of the cor pany to 'the faid TIMOR TAL Duc roe &b che Ornic e oj ome Conus cien at ord Hoar, 92 Quecn Strerl, MelLcurne, on Tonday the 2Pth day of Augast 1978, betveen the hours of 10.00 a.n. and 4,00 p.m." ~-4- The notice then sev out definitions of certain words and phrases used in the notice. Schedule I to the notice specified the information requirrd to be furnished and 1t 32 sutficicnt to say tnat the information so sought was of a very detailed and wide ranging nature. Schedule II to the notice specificd the documents required to be produced and the cocunents sO sought to be produccd covered a very wide range. Included with each letter was a typed copy of s.155(1), (5) and (7) of the Trade Practices Act 1974 as amended ("the Act"). The applicants commenced proceedires under $.163A of the Act and sought declarations against the Commission and the Chairman that the notices ; "(a) do not oblige tne azplicants or any oF thas fo on:wer questions or Goliver docurernts Which might tend vo expoce them to a penalty; (b) do not oblige the applicants or any of them to comply with th requirements or any of them contained ian the said notices; (c) are wholly (or alternatively partly) void and without effec in law." When the application under s.163A of the Act came before the trial judge senior counsel on behalf of the applicants indicated that they desired to seek leave to deliver unterrogatorics and a notice of discovery -5- to the respondents limited to the question whether, at the time of the giving of the notices, the Chairnan had any and what, or any ond what sufficient, reason to belicve the matters attributed to him in tne notices. Senior counsel on behalf of the Covmission and the Chairman contended not only that no leave should be given to deliver such interrogatories or to obtain such discovery, but that the question whether, at the time of the giving of the notices, the Chairman had any and what, or any and what sufficient, reason to believe the sa:d matters was not eraminable. At requested that the judge, yrorosuant to £.25(6) of tac Federal Court of fustralia /jct 1976, state a case for the consideration by the Full Court ef certain questions of law arising out of the notices under the contentions of the parties. Scnior counsel for the applicants did not consent to that course tut raiscd no obyection to it. He also submitted, in substance, that s.155(1) of the Act 1s beyond the povers of the Parliament of the Commonwealth of Australia and is void and of no effect when relicd upon by the Commission, but he said that no argument in support cf thas contention would be put in the proceedings in the Federal Court. Pursuant to the request Ly senior counsel for the respondents, the followir questions were cum itted -6- for the consideration of the Full Court : "(i) (av) (v) May a notice given under section 1755 of the Act Ja.fully require a conpany to which 1t is Girected to ans.cr qucsvions, provide information or p1oduce documents which mignt tend to expose it to a penalty under sections 45 and 76 of the Act? May a notice given under section 155 of the Act lawfully require attendence at any place, or the giving of evidence in writing or the production of documents at any place, other than the usual place of business of the person to whom the notice is directed or the usual place of custody of such documents? May a notice given wider sectior. 4 of the Act lawfully be directcd to a company ttself susrectes (by \n the Trade Practic2s Comriss on or the perso. fivins the notaurce) of a contraventior: of tne said Act? Is the perscn to whem a notice 18 section 195 of the Act relieved from com the requirements of such novice by reason only of t the notice is : vexatious; fishing; too wide; oppressive; unreason'.plc; too remotc; ncertain; unclear; such that it enquires into matters of law; such that it requires the making of judgrcite on questions of las? Ber He Aaa af o~ Cs we May a notice given under secti of the said Acc lasfully reauire Gelivery of the information or docurents therein referred to to a person not being the firsinaned Pesjona to or a merber of tne firstmamed Per: ondene ~-7- . but being a roxber of the staff assisting it and duly authorized to act on is behalf? (vi) Does the notice a copy of which is annexed hereto and marked 'B! require delivery of the anformation ane documents therein referred vo other,ise theu to the firstnamed Respondent? (vii) May the Court, in the present application, enquire into and examine — (a) the cucstio whnetner the secondnayed Respondent had reasoi to Lelieve the mutters attributcd io han an the notice a copy of \hich 1s annexed hireto and marned '5't? (b) the queition whether, if the seca dive ed RNespenueus hue regoown tv. telreve the retry: attributed wo hit ain the said novice, bee prounds upon .nicn such reacen te believe rs fcunted are lat fucly sufficient to entitle ham to serve the sald Notice? Ta (viiia)Is it open, in the circumstances of the present Jixvpiication, to order that the Respondents or cither of then answer anter PPO cas ories relating to the questrons (a) a..da (b) referred to in question (vii) or cither of them? ~ (ax) Is it open, in the circumstances of the present Applarcation, to order that the Resnondcnts or eithcr of them make d:scovery of docurents relatainzs to questions (6) and (hb) referred t5 in questi¢cn (vil) cor either of trem" The stated case did not sct out any facts as having been agreed but stated thet atficavets hed Ven filed and sworn deposiry, antcr al.., to the folluving c matters. Each of the appliccnts, excent Puyford iovetrny Pty. Ltd., carricd on bisincss es, inter alia, Ford sotor car spare parts dealers, but the solc business of Bayford Motors Ply. Ltd. 1s that of acting as a property holding company. If the applicants or any of them are oblaged to ansver the guestaions asked in the notices or any of them, or provide the anfor'ation required by the netices or any of tner, or produce documents required by the notices or eny of them, any such answer or provision of anturr ation or producticn of docuncnis would tend to expose the applicant answering, providing or producing the same, as tne case may be, to a penalty pursuant to ss.45 and 76 of the Act. In order to comply with the notices, extensive enquiries would need to be undertaken by officers an employees of each of the applicants ancluding exarination of material placed before the Praces Justification Tribunal. The three persons Brodie, Cheong and Ducret referred to in notices are full-time members of the staff of the Commission and in that caraci*y are authorizot by the Chairman to act on behalf of the Commission in receiving the inftcrration and documents referred to in the notices. The prounds upon which cool of tne applic.n7s seek the ceclarations under s.1€7A of the Act arc set out in the special cause as follows : "(i) The company 1s not and cannot lawfully be required to answer questions, provide 2nformaticn -~ 9 or procuce documeuts which right tend to cxpose it to a penalty; (ii) The said notice cannot lawfully require attencance at any place, or the giving cf evidence in writing or the production of documents at any place, other than the usval piace of business of the addressee or the usual place of custody of the said documents; (i12) The said notzce camot lawfully be directca to a company itself suspected of a contravention of the saad (iv) The said notice 15 1n vhele (or alternatively in part) vexatious, fashing, too wide, oppressive, unreaconable, too remote, uncei ain, unclear end anquires into Tatte:s of Juv or requires of judgients cf o> la. or altemnab very byectsur ie upon Sci.e or such @reuncs; (v) The said notice canrot lavwfuily require delivery to any person other than the c21ed Cormassion or alternatively a romber of the Said Commission; (vi) The requiremerts of the said notice (or some of them) exceed the anbit of and pewer conferrcd by 5.155 of the said Act; (vi1) The said notice inquires as to anformaticn the cor.fsdential property of others; (vii1)The said notice? was issued witnout the Tride re Clitu. Comezssicn, the Charrnnetn cr oun? Vepaty Chasm an having Trees son (or alvernatively, any Lem) Ly surficient reason} to believe any ot the matters set out in s.150(%7) cf the said Act; y o (ix) etron 155(1) of the said fet Fe beyond the y. 2m. of the Parlianent of tne Commonwealth of Australia ans void and of no effect." A -10- The relevant provisions of s.163A of the Act are as follows ; "163A, (1) Subject to this section, a person may 1unslitute a proceeding in the Court seeking, in relation to a mattcr arising under this Act, the making of - (a) a declaration in relation ... to the validity of any act or thing done, proposcd to be done or purporting to have been done under this Act; and the Court has jurisdiction to hear and determine the procecding." The nature of the jurisdiction conferred py "het section was considecrec by the Full Court of the Pecural Court in Re an 'nplicetion by Teeth & Co. Ltd. (No.1) (1978) 19 A.L.LR. 191 and Re en Anplrcation Ly Tooth & Co, Lid. (No.2), 20 September 1978, [1976] A.T.P.R. 40,084. In the first of those judg~ents, consideration was fiven also to the nature of the discretion in the Court to grant a declaration under s.163A of the Act, pencrally d see Bowen C.J. and Franki J. at pp.201-203 an at pp. 205-210. Tne relevant provisions cf 5.155 of the Act ers "455.(1) Where the Commission, the Chazrnan or the ocputy Charrnan has reason to believe that a person 1s capable of furnishing anfornation, producing documents er plividg evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or 1s relevant to the . . tyr the Commis 340on aA memcer cL Making of a decision under sub-section 97 yoy (2), the Conmassien ray, by notice in writing served on that person, require thal person - (a) to furnigh to the Co nmas320n, by writing signed b ae person or, in the case of a body corpora te, by a competent officer of. the body corporate, within the time and ian the manner specified in the notice, an; such information; i Feu] (b) to produce to the Conmission, or to a person specified in the notice acting on its behulf, in accordance with the notice, any such decuments or (c) to appear before the Commission at @ time and place spcesificd in the notice to give any ench eavidercea, either orally or an writing, and produce any gucn a@teaments. (2) Where t or the leputy C believe that CNngesiug am cen may constitute, Act, a menber of "the Com el as a] oO ) ia r M4ay beso fs waar~ ww at for the purrose of asceri2irin y ir examination of docupencs an Vie posses cion or control of the person wneties tre person has engaged or 18 eng.ging an tnav ceniuct, authorize, by writings c1g ned by the ver, r a member of the staff assisting che Corm2zcsicn (an this section referred 1o as an 'aulnovized officer') to enter any premises, and to inspect any docurents in the possession or under the control or the person and ma'te copies of, or take extracts from, those documents, (5) A person shall not (a) refuse or fail to comyly with a notice under this section to the cxtcrt that the person is capaLle of coppiyiug with it; N ~12- (b) in purported compliance with such a notice, knowingly fusniseh information o1 gave evadence that is false or mislcading; or (c) obstruct or hinder an authorizcd officer acting in pursuance of sub-section (2). Penalty: $1,000 or iuepricomrent for 3 months. (6) The occuprr or person in charge of any prerises thel an auciorized officer envers in nursuance of suab- section (2) shall provide the anthoriced the officer with 211 rea, onalle Pacslities and assistance for tne effective exorcise of his povers uncer that sub-section. Penalty: $1,000 or imprisonment for 3 months. (7) A person i furnishing anforvatlon o or permittang tne 22 2pre document? an pursuar. 0 on the ground thac the anforna docunent may tend to sncrimina t person, but the answer by a person any question asved in a notice unde this section or the furnishing by a person of any informevien an purcacne of such a notice, or any document produced in pursuance of such a novice or made available to an authorized officer for inspection, 16 not admissible in evidence arainst the person - to (a) an the case of a person nov being a bo¢y corporate - 2 ananal proceelings olher than proceedings under this section; (bo) an the case of a lcd dy corpor.te = in any criminal preceédinws otuces than procecdanrs under this ci." It is provosed to consider the guestiosc raasecd this case in the same order as did senior counsel for the applicants. In support of a negative answer to question (i), he relied primarily on the common law privilege expressed an the maxim nemo tenetur seiprun accusare. He submitted that the privilege was available to evcrycne and protected a person fron being compelled to furn2zs) evidence against himself by wey of aodeascion, orulily or by production of docunenis, wher. tha furnichin's of that evidonce would create a risn of exposing Lt person to a penalty. He submitceed that this privilege was not taken away or abrogated by s.155 of the Act. He argued that the common lay privilege has four acpects entitling a person to retain silent 1f an acmissicn would provide (1) evidence of a crime in the strict sense, (2) a reasonable risk of attracting a penalty, (3) a reasonable risk of attractang e forfeiture or (4) a reasonable risk o Ks attract1n 7 an ecclesiastical penalty, the last two categories being virtually cbhsclote He submitted that under ss.76, 77 end 78 of the Aci, a contravention ef s.45 (which 1s within Part IV) of the Act does not constitute a crame but aces the off lice liable to the 27positien cf a necauniary penalty at ine suit of the Minister or the Conmiressen., He thon autc.tre that s.155 of the Act did not abrogete tho privite,;e Ys reuain Silent insofar as the matters souchkt in the novi? were relevant to the anposiation of @ penalty tut thar s.155(7) did abrogate thet privilege ansofar as the rac.ecr sought in the notices related to a crime but he noted the restrictions specified in s.155(7)({a) and (b). The submission is founded on the conmon lav privilege against incramination and the principle has been stave? by Lord Goddard in Blunt v. Park Lene Hotel, Limiird (1942] 2 K.B. 253 at ».257 as follows : "Dealing first with the general objection, shich applics both to oral evidence and to anterro,atories, the rule is that no one 1s bound to argwer any question if the answer thereto wonld, mm tae opanaen of the judge, have a tendency to expose the denonent to any criminal charge, pena Ally, or forfour? Which the judge regards as reason iwmly Likity to be preferred or suec for." The history of the dcveloprent of tic co men Jaw privilege is traced in Virerore on Fyvidenece, Cichaushten Revision, 1951) Vol. 8 cor™encing at p.2G67. See also Holdsworth, A Mistary of Paclisch Li, 1944 Vol IX pp.133- Apparently the pravilere wus limited to givin ams.eus con oath in judicial proceedings or in rrocedures relating to such proceedings, as for example, discovery. The use of the vords "in the opinion of the Judge" in the passa cited from the Jjucgront of Lord Goddard sllustrates tis lamitation. The privilege is not to be confused with the rules of evidence excluding the adnissibilivty of ertain evidence. The distinction betieen the privilese and the rule of evidence as te admissibility is clecrly tllustrated in Kint v. Mctctien foval VIR. 773. n a] that case the Tull Court of the Supreie Court of Victoria corprising Gowers, Nel»on and Ardcrson dJ. corsidcrec the effect of certain sections of tae Vactorian Votsr Car Act 195% requiring a person te furnish a sample of his g breath for analysis ly a breath analysis arstreent cond an particular the provisions of s.80F(G), (2) and (11) which make it an offence 1f a driver refuses or faiss to so furnish a sample. One of the argurencs rejccleu by the Full Court in a joint Judgment concerned the application of the principle thal 2 person under arrest could not be cenpelled to furrish a cample of his breath. The Court said at pp.77C~777: "in relation to the first argument the maxim concerned 15 nemo tenetnr se jnosum accusere, It was suouititcd that thougi1 tne authorities on the existence of the rule uniformly referrea to such a rule in relation to curial interrogaticns, the protection afforded Ly the cornon law was not linited to persons asked incriminating euesc1ons in the course of proceruings Put extended to protect & person in custody against' be nr reeuire4 in any way by act or com uct or ford to provide evidence acsunsy hawself. It was then said that tne breath analysis Leeiclation dia riot ctearly abrogate tne ravit of a perso: un custedy not to angricrate bine for, thouga s.80F(E), (S) ens arposce er ovli gation Sainj le of breeth anc a novel ty for refusing cn failing ic de go, the legislatuc: aid pot in terre or in cle?tr laremacce sharulsabe that such obligation oxisi.? after a person was arrested, and thus Parliament could not oe ta'en to have iunterded to alrevate a nercants comron la. righe not to incrin.nate hanself in such a situation. So, it was said, the raphe rerarved, entitling & person vo Gecline 9 furnish what mignt be an incriminating sample of his breath. ty That there as a fundauwcntal principle that no man can be compelled to incriminate himself cannot, of course, be gainsaid. The maxim 215 one expression of the principle vwiich has been quoled and applied counticss tines, But as an exaninatioy of the histery -16- of this principle skaus, the protecticn afforded by it has always been accomicd, and has only been accorded, in resice of a rignt to refuse te answer incriwimMatinag questions and not tu ancrumanate h woellt, when beinre anterrofgeted in cone Porn of gudicsal anquisy. ven in tye Urtice ip t ra States where the conus Law mivinm ras been tran rated airlo conti tublonad safecuirves or stale ery protections th? principle bas net been extended berens ancraminatongs areuer. To questions, 'The history of the pravilere - especially the spirit of wach. ats eetablich crt ene erat - su, ests teat the pravil cg i , Pethe struc Re ak ? 2 as Lweud to testar cert disclosures. It was airected at tne erpleyment of lefal precess to extract from the person's own lips an adiissien of his guilt whicn sovld thus tane lhe place of other cviduce ... In other words, 1t 1s net morely eny and cvery compulsion that is the hernel of the privilege, in hastory eid in the constatutromal cefaniwicns, but testi n2al compulsion'; Wr ocore ch vadenee, Mevited Edition, 8.0205. Jae cporateen of the maxin has been caue tly l2rited in Australia: Horrley v, (194 303; fadui| ALR. @5 27 Riv (8972) 1 T.S.W.EL.R. €02. General observation in 1963] Vin. 579, ab n.oaT & antended ts cay soucthaneg what he hed said in tris r R. v. Que we are unablic t Tt rf une: pursuc the conrevien between th and such statu ory Ses @8 are te te amnunities fovnd an ¢ 1958, fer Lo nuligecets beyond Dre riulh ntereseybeonm 2a te course of cere sl tres een rt, one Vie resent aifcuscion 32% not concer: wey that. Nor we 1 profarce) le to onariye a rd the lirats withan vavch confess loneud statenents are ajmitted an evidence, for these concern ervra-curial svatementeo, and not only did the principle nat extend to them, but they are not an question in tho present cose. On the other hand, when the cuogect malte: exis D beyond anterrogation and peyond ' state. nts, to oluer forays of conduct, the princaple pursiant to vyhich evidence as to cuen conduct may be excluded in the exercise of gedzcicl discretion has « different histery and a ciffcrent source fron the amenity agarnst self-ineriunination in curjal procecdings expressed in the maxim. Such evidence 15 exeluted on the basis of fairness and not becouse of the common law right of non-incriminction, The conmon law rignt 18, of course, based on fairness, buy 1t 15 not tne basis for excluding evidence unfairly obtained." The application of the privilege and 1ts abrogaticn Ly statute are well allustrated by four caSes namely Mortimer v. PRrown (1970) 122 C.L.R. 493, Hinddart Poller & Co. Pty. Wid. ve. Moor i xd (1905) 8 C.L.R. 320, Materan v. Ciyorie (1977) 137 C.U.n. 250 aud Cer ltt ee of Cust-s and Tresse wy. Bere (ie 77] 1 A.C, 7E0 cc L.Gls. In the first of tnose ca.es the lingh Court held tit in @ public exaritation ulver 8.2560 of Whe Coraayles 'ccs, 1961-1964 (2) an examinee was not entacled to ducliy: to answer a question on the grount that the ansver to 1¢ may tend to incriminate him. In that case, Walsn J. at p.498 said : "The contention on behalt of the applicants tnat tne deciczen of the Full Court ¥as yrone raises a question as to tne proper construction of s.250 or the Act cnd, in particular, of sub-ss (3) and (4) tnercof. It is desircble to quate these subsections and also sau-o.(7). Theee sunsecticrs are in the follewing terms :- '(3) The Court may put cr aila. to be Puc such quauicns te the person oxamined «S the Court thanks f1t.! ~18~- '(4)The person examined shall be exanined en oath and shall ansi.cr all such cucstT1ons as the Court puts cr allow» to be put to him! '(7) Notes of the \samanation - (b) shall Le read over to or by avd saguce My the person examincd; wil pe ryevuced to writin; (c) may theres fier be used in cvidence in anv lect] procccdaings against hiu; and (d) shall be op-n to the inspection of any creeitor or contributory at all reasonable times.' The only limit which is, in terms, placed upon the questions .o1cn may be put to a person buinz examu+d, and which he commanded by the scc..on to ans.er, is expressed in the worsc, 'such question ee. 48 the Court *hawis f1it'. The questions which may be put are the questions wnich ans,cn chat description and by sub-i.(4) the yorsin c.amuet ac Ww commanded To ancwor all sucn cuesbics. The arguyenz tor tre cyplicants 1s tat the provision shoalt ul cons fiucd an a way which restrici. iTS operation ts as to préecerve tie uraestlonat righe or privilege apainet cour al our 1 incrimination, whieh: it recognizes as avericxte in judicial proceedirss. It ir said that in the absence oF un abr pation in express terms of this pravilece, the provision sioule@ ue construcd as not @isclesing an anicntion to take it away froy persons Vho are requarce to submit themselves to examination." ao sltnessieo The High Court held that the provisions of 9.250(3) and (4) of The Companies Act did abrogate the common lav privilege and that the cxanance was obliged to answer all questions which the examining Court, an its discretion, thought fit. - -19- In the third of these cases, the Full Court of Victoria, (1977) 2 A.C.L.R. 471,had held that the - f provisions 'of 8S. -278- and 2675 of the Companies A u al 1961 (Vic.) dud not abrogate the ccmmon law privilege against self-incrimination so as to compel the ccsairince to answer questions in an exemination beang concuctca before the Supreme Court of Vacterzi. In refusing special leave to appeal froa the gucgiient of the Pull + Court, the H2¢gh Court comurvcary Stephon, Jianen, duccic, " Murphy and Aickin JJ. said at p.152, (137 C.L.R.): "The Court is sacisfre > teav thee is nothoig an 6.272 0. 6.737 of the Compenice Alf 1061 (viet) whech Cetracts toon whe right of a porto under oath to decline wo ans ver a question on rhe sround that it right aincraraingrce han. Mortimer v. Brown (1970), 122 CLR. G95, vas dceide crent section of the Comme 6s 'et, ard the concétonaticn Oi Leatures in tie section there under cousideravion, $.250, which led the Court to its conclusion in that case 1s not resent in the secticus now undcr consideration. Tnco conelusion of the Full Court of the Supreme Court of Victoria was corrcct. Chairnan or the Deruty Chairran ond so tne reocua nemo tcneter cerosut ace snare ray pave no ida is rs What is involved as the applicat.on of a wider priicaipic namely the right of a person to refuse to answer any question or produce any docunents 'unless corpelled Ly law a - to do so. In Huddart Parter ? Co. Prv. Lhd. ve. Hor cohena, supra, the High Court considered crders nisi to review u convictions for breaches of 3.198 of the Auntrel> on Industries Precervatran 4¢t 1995. Ti.ckhe breaches arose out of refurcals to arsver certain questions pral to the appellants by the Coamptrellci -Cenucral of Custem, That seclacn provaded that af tne Co ptroller-Gererul believed that an offence hed Leen con inbiad agesnst Part II of the Act, or if a corplaint vas mide to hin in writing that sucn an offence bud been cornmnztted, ar he so bLelicved, he may, by writing under his hand, require any perocas Whom he Lalioved t2 lo caprzblic of Giving ey unforcution in relation to the alleges offences to ans.er quostsons and produce decuments in relatien to the alleged offence, and it amposed a ponalty on any person failing to do so. In reliance on s.4bh, the Corptroller-Gcneral had callec upon Nuddart Parkes & Co. Pty. Ltd. and its Marager, Mr. 4ppleton, to answer certain qeestions. Each refused to answer ine questizne and each was convicted of an offence unecr S.15B. Cne of the grounds upon which the srcer mis1 to reviev was oO laincd wan inat s.15b s umegistatarcec 27 and anvalic. Tne iagh Court regesced that grovnd. The substance of the argutens rejected by the High Court was statcd by Griffith C.J. beginning at p.27o! eT. It was argucd that s.15B authorised conpulsory ditcou ry an ~24- in aid of criminal proceedings for offences and that this discovery, which could te ovtauined from a person alleged to be guilty of en offence, was inconsistent with'the right to trial Ly gury provadsa by 3.80 of the Constitution. At p.aoe tee Crire? Justice card: "Wath regard te the arsument that compulsor, oxarinst.cn of a suspected persen 1s ianconsasteus with the righy of treal wy gury ain the case of andictable oficntes, it i Le sufficient to say that the doctrir¢ expressed by the mirvis. nono tenetir selpsum accusare was inlroaucea ines Englisn 1a. long afier the institution of trial ty gury; that 1ts application has frequently been cxycluded by Statutes 2n the case of iundictable offences (e.g., offences arainst tre bankruptcy Laws); ami thac the rule 1s rather one of evicence than on rolating to trial by gury." O'comor J. at p.277 said: "In ry opapion tne rofers to be exercissa b, boo Com iro'ler- Genera] cra tno. wocinted ty haw are Nov ygetsci. Ll pever3 an the Sense in which treat vor 1s used an the Cerstituczin. Om The contre 7 ~~! they are posers mecca apaly arelus. mn the crvcoutive ianetions of Covermicnuet. Me pot. ef wut1y for the purpe.o of acranistre tor and, under Par ierci cary Gover for the purpose allo of anforiing the legacté ure, 36 or ue scortil part of th omens of Gll executive authority. In every grans of power by the Constitution v9 the Parliament of the Commonwealth tiere 18 necessarily included tne raght of enacting such prov)510n3s as may be necessary to rendcr the power effective. ne right to ask qunstior , whith, as was pointed out by this ceurc in Clour v. Leahy 2 C.L.R., 139, the Executive jovernment has in canton with covery other citzren, is of Little value unless it has behind 1t the authority lo cuferce answers and to compe] the ciscovery cra a) Qo a) c a -22- production of docim.onts. It is to nae the puwer ef anauiry efacvclrve for the purposes of Custors administiline for instance, that sec.234 of che Or tu 4 Act 190) authorizes tne recevery ol ~~ ponaltaes acainst these vyho faz bo t : docu cos wher requested so vo a> by Cuntors officers acronis under the @aulie:itly 3, 195, 193, ana 214." of secs. 353, Section 155(1) postulates three categories .hich may be the subject of the "reascn to believe" cf the Commission, the Chairmen or the Deputy Cngirnan. The sora "Commission" is defined an s.4(1) of tne Act and the word has an extended meanang. In the opening words of s.155(1) lhe unclusicn of the werds "Chairman or the Deputy Chairnan" indicate a contrary intedtron within s.4(1) aid 2.t fo re) u ° x wer Cc ce Qi a o ~ C L w F t- a fe 8.155(1) the word "Com Los meaning of the Trade Picectaces Ce'ocr' sion, Ina the vo present case the notices specify Cant the Cuaireo. tas reason to beliove, The three cate ores jietulate. are that a person 1s capalLle vf ~ (1) furnishing information, (2) producing documcat., or (3) gaving evidence relating to a matter that constitutes, or may consviiute, a contravention of the Act. Each of these catcsgorits corresponds to paragraphs (a), (b) and (c) respectively of 8.159(1). Section 155(1)(c) also refers to the production of documents, Sectzron 155(2) confers a different type of power, a power described during argumcnt as -"* power to "raid", Section 499(2) coun not conta the werd "matucr" and ii wee argued cr behalf of the anplacants that on rts fruc corescrusvien sub-sectrons (1) and (2) arc mut.all It was armed that the word "patbert (1) should be construcd as being in tue ueture of a lis or a suspected lis within sub-section (2) and accordingly the pover conferred ty sub-section (1) could not be used against a person beings a suspect under sub-section (2). In our opinion this arguicnt chould not be acceptcd., Sub-seciien (2) corfces a vover of a: Lry to be usea in extresoe case . fata cry GRLy at amposed upen the occvnter o: poise no in Churge of th premises when the entry is mde, s.4f505), ema what duty 1s acdilaonal to the cutv ropoccd by 2.75802) Cee. There 18 no warrant for gaving tie word "natter" an 8.155(1) any technical meaning. That word is tc Le construed in its ordsnary senre of an affa.r or a thang. It follows therefore thal the pever conferred by s.155(1) 1s lamited only by the "reason to believe" the existence of one or more of the threw catcpor:es postulated. It 1s beside the puant that the person vo whom notice is given 1s a suspect in tho sense of being a person who has engaged in or is engaging in conduct that constitutes or may constiltce a contraventinn of the Act. S) as speettie an veavid2r sy vet Q person rhall not reface or fnal te eco ply titha notic: Bos.T55 do tes erhoabt bratoou U relat 2s -24- capable of complying with at. The section further provides that it 1s an offence to lnovwingly furnish information or give cvadcnee thal is feise or misleading in purported compliance wilh sucts a notice. In our opinion this clearly rexoves all yvivaiege of any Frid expressed in the rani nom teeatur scans ace sere and which would cr masnt otkerace on ot for refmucaing to a proper notice under s.455. Tnat clear anrdc cosy remove any such pravilorse is shown ty tyrbeor v. Pre supra, and Copiresierer of Curto os : supra, Section 155(7) refers to tirce cuteroricy ware are not advicssi:tle agasnst @ peretn in certain crirany proceedins. Tnese catcgorics arc (1) the anevcr by a person to any questicn ached an a notice urcer 8.7155; 2) the furnishing by a person of any anformacsor 1n re) J L Fe] pursuance of such a notice, aml (3) any docusnect peewuls4 (2) producing or perestourre, tre cuss celusna at doe. in pursuance cf s.155. Ko referlnec wo made to tic third category wiica 1s later mutroncd in 5s. 155% namely the answering of any cucct.cn ached in a notice under s.155. Although the first thrce lanes of s.755(7) do not contain any provision specificelly requiring the answer to any questiacn est cd an a notice we core: it is clear that £.155 rea? as a .buls requiies, any , such guestion to be arsverced. Jn saying Lhis we are only directing cur attention te the question of whether the tenuuncy cf an enews tu erpeue to ary cranial charge om vonally proviecs an excuse for not answering the question. Woe ava that it 15 also not clear how the mere "furnash.ns by a per.on cf any information in pursuance of such a netice" could be evidence against hir but in any ever.t the secticn provides that it 1s not so admissik j4 e in cervain cases, and 1t also provices that the ancwers to any questions asked in Lhe notice shali not be acuisciulie an those circumstances. Section 1959(7) prevents vie use of matcrial 50. obleaned an any err P re an) TOC OTT 4° bedy corporate and in any craminsl peocetdangn vtiuc: bs under tne Act where tne persen ac a ted) corporate. ay We do not conmsicer that 2.155 of the acl is ret ivane because that section 14 comcernct wien perctons before the Cornis3ion. Question (i) ain the epecia: ease before the Court seeks an answer to the question of \hether under ©£.155 any of the applicants may lawiully Le required to ansvcr questions, provide anformézon or procuce docurernts which maght tend to expose it to a peraity unger 93.45 and 76 of the Act. In our opinion, for the rcasos already stated, but busivelly beceuse clear wordt in a statute may remove any privilege and hecaurc we consicer the words 1n 5.195 clearly do that, the ans ver te this l fo lon) ' t4 ts code ores qucutionomust be in tne aflarrative, a i be noted that this answer 1s not wnicnded to cxternd to any other defence which right be open in any procecdangs under s.155(5) of the Act. Question (ii3) asks vhether a notice pursuant to s.155 of the Act may lawlully be directed to a person suspected (by the Trace rracties 3 Comaiscion or the person giving the notice) of a contravc..tion or the Act. The noticcs given in 7huis case siate that the Chairman has reasui to Lol.eve that the recipient 1s carable of furpisacug anfareavien od progucing docutents rela cli, fe rarvers tet Consviiabe orm nay Cereb iba a cer vowtach Uy The recipient of s.45 cf te fot Por Lhe rcasens alread, cxprecscd, wv? are of the operizcn thal this question also should te Questions (22), (v) end (vi) raise questions as to the form of the notices. Laci notice reyuircs the recipient to furnash the information and to produce the decuwents at tne ertice of the Cavsasticn at Melbourne on a snrcirfacd day to naved wectbirs of the staff assisting the Comusectien. These three questions razse the issue of whelher the notices lewfully can reqeire the pee gpierts to frrmae the informe tron or than the place of vusipese of the rica; ten usual placo of cuviets of tre deel weeds (2 A por|es -27- not being the Commission, the Chairman or a monhionr of the Comoission. The ansvcis to these depend upon the con: 'wucticn of 5.155(1)(a} and (1) of the Act. Under s.4(1) af the Act whe vord "Cortisseront means "the Trade Practiccos Conraoston establiched i" section 64, and ancludes a@ nenber of the Cowiltesicr or a Division of the Commission performing funclrens of the Commission", Under Part IT of the Act, the Commission is constituted a body carporate and consasts of a Chairran, and such nowber of ovher ircw7lt as are from tame to tare aposinicd, ss.€A ad 7. Seo also s.UA4 relating to esccclave reclers of the Cocrirn: Staff necessary to assist the Consiccien, by 2.27, are to be persons arposnted or ¢ ployrdi ucer the = Putlic Service fet Commission to delesg? any of its pouers te Comeirssion, Loing a through 1ts remters Commission, Sectacn 155(1){%) provides that the notice me; require the person to whom 1t 3s given "to produce to the Comuission , or to a person specified in the notice acting on its behalf" the reauiretdecumenis while s.155(1)(a) provides that the notice may require ~28 the person" "to furnish to the Commissicn" the recuire: information, If the word "Counrtssion" steod alone in s.155(1) it should, an cur opinion, be construed as empowering a notice wiler 8.195(41) to Girect tit the infornatic: required be furnished ro a specsfiel Momber or to specified momLers of the steff cproiavid to assist the Comuissr1on proviued the choice of tc Menber or mawbers was not wureasonehblic. Th no doubt that by defanition th. rotace valitiy co. 1a YG. tis direct that the anfoimation ke furnisned to a pedvoer of the Cornission including the Chairran. Scnee by defanitien the word "Coxurission" corporate G&S well as the meaning the Ce''1assion of necessily mus members of steff appointed to assist av who are to receive information Purnishec ty the Co~1iserzcn,. & mm The dcubt, 2f any, ari6os fre tie amctucion in paragrap? (b) cf the words "or tz @ person spccuracd in Pe the notice acti: notice can reguire the Cogwcnts fo be preducca to 2 person not beans the Co. .iiasm an ite nerrov ap extondcd rxeanang endo not being a merber cf Lun cts. This view 1s supported by a reference to s.155(2). In the circumstanees therein specificd, a member of tne Conmassion may, for the spccifired purposes, authorize "a member of the staff assisting the Commissicon" to enter any premises. Tae class of persons who co. Le -29- authorized officers within the meansng of ¢.195(2) is thus narrower than the class of persons who are capable of beang a person especafied an 5.195(4) (4b). In these circursiancese there carn be no varrant to construe the word "Cem .ipcion an s.195¢(7) (Ca) so as to cxcluce from the powers of the Ca zecson a pover to require informivson to Le furnished to a member of Lhe ctf of the Cormtcsgen. Under 6.4°°(2, and (3) of the Act, the Coomersic:, subject to the provisions contauned im thuse sul-cections authorized to retain porscssion of dsevrents pregucce an pursuance of a motice under 5.155, Lut under 5.457%) only a merbor of the Co wiscsion or a person authorised by a merber of the Co wission 1S c1povercd to anspect documents so produced or to take conies er extracus fa eda POO ys PLUT from those documents. In tne «becnee of the a authorization, it arrears thot @ rirtier of the ed.tr + avy se assisting Une Comuis tp rse ed or a percer uperatied as acting on beralf of the Cownissison, in rece:virs . a aA f- - - docunents produced pursuant to s.10804) 0), 2c veenr ys as a conduit only for the purpose: of recebving Vaart documents for the Cote aero, There as mothanz an the "cet woaca boggesl tansy tol . the Commission docs nob have power te direct thobl ow. inforration to be furnished or the dovuramts to be produced are not to be furnishel or preduccd at the office of lhe Commission. Tn procetding unter o.155(5) ory 0 - of the Act questicius avy emcee ay to whelhor, an ine particular ciareurslances of thal case, a require one 2S reasonable er not, luc irsacsa cf Unat bard efmmat be answored in thas wpeea.nd case. Th pash ing ato is noted that ©.193(5) deca not cunt.on vores ruch an Mun}ess gust couse er oxcuse for cho mfulal (or failure to conmly) or resleuct au rio. by han", of. 8.224 Income Ter Asse. sunt tet 1256. (fe7 also Smornor v. Austratia ced Moe Poland bonlore Greve Ltd. (1976) 134 C.L.R. 475 por Stuvhen J. at po. kes~ 489 and on appeal, judgeent being gen on 13 Verch 1979). In our opipien gqae tran (; d abut be Becta Nyon, quistaon (vw) choad te cue cpa "yun! cultis (vi) should Le answered "mot, Tuc @never to qacctlon (av) depend usecrn ea examinaron of i..c questions ale. lo an Ue notices, cf, Riley Uenay Py. Ite. ve Pevcernn C1077) 75 4 LP. 504, It 1S inappropracte that ¢: 2.8.05 OF thie hand should be decided on a statcdcase Vory prop rly U.c parties did not press for pan ansvcr to Wis qunc ele and the Court cozs not anurer questien (av). Questions (712), (v1ai) cnd (ix) reanin for consideration. Each of these questions rolates te tne issue of whether the Chasrcan hel ro con to bela. the matters attributed lo ham ir the notices weer 5.40561) of the Act and,it so,wavcher the proaads won wah 7: reason to toVieve was sou iotalce an tu. ouebicaent ty entitle} aut toe reve, to tebe Fh ———- ~-- aid in attempisug to ep taliach the lace of reaion to believe or the lack uf sufficret ground. veon which the reason 1o betas Vas Tounded, the sae oe : applictris, an toe sr cre ocreee ur tor gto ed th : . Act, sc.) to ambemogt C ata roar te. Chairns: @nd seul Clo ow or SC ow rin. Were as nothing an the cftaegavits Prato: un cupperc of the applocation unaer s.1624 Lo suggest thet the Chairman did not uave mecso1 to bolseve or diu not have sufficient grounds uprn which to found trie reason to belicve. It is not neccessary to exmicks any ominicn on wnether, an a procecdans under 5,189(5) of the Act, a defendant as entitied to varee a defence thet the Curiission, tre as the Case May be, cca pet pave tre rvegliepes "peason ic relawo™ ce ti. b Uiere acre me eb gets ouln Which ény fhe Peary ty Plenty coed arto Reon basec. It 28 sutf.ct ont too ocy uUbat caovisticciun uf the requirexent of "reass.. bo belneve™ asa bin nature of a condition preeciwnt to the cacicace of a the statutory powe: to give a notice under £.125(7%) of the Act. In Norwest Bolet Ltd. ve. Sreretory of Strete for Trace [ie7s Ch. 201 the Court of Appeal Law vo consider the nature cf the power contained in s.175(b) ve (ii) of the Correvies Act (U.K.) 19/3 under which the Board of Tirade Lad power to appoint 1anspeciers to ~32- investigate the affairs of &@ cotpeny and where . words "if 1t appears to tie Board" were used. The relevant statutory provision wos ¢ wae Wy UO SO [appoint Lispecty 7] 14 eppeiurs to the MPeced tint Use sugsesting ... Cv.) tart nersous '4tuon or the concerned woth ite for. managerent of 265 affairs have an connection cheraath b e ar io bee gurbiby 33 frood, maisfevsoncc or cther mine snd" as aes 3 ek . els ye towarcs it or voavarte ats meshera Of tre Donrets peovers Lorl Dewars LR. said av "So also wath tls oprcantacnh or inspectors, under seciton 416500) (az). She arerec. uy are not to Acerde rami er ecnys. They are to paver vilete® dra report, This LNGULDY LE @ pW. ae litrative arrangev nt Por the i conducr of comanics and tn arp a2fairs. It 1s not u case to Watch the rules of r alural guctice a tTncre 1s no need for thou to gyrern netice of a charve, or a fair ovesrtunit, of meeting at, All we are concerred with 18 section 165. As to it, r wOUL) fay nat, £6 Jong as the manister acts an goon faith, 1t is not wneisbert uyOu get to €isciose the rareraat he hes befere har, or rhe ru .comt Par the anquiry.? Ormrod L.J. said at p.22?: "But under sevtim. WU) cit rimister may do so af ut specare fe can 7 at there are cure meter oy Sag wctaryg one or eller of che vation. 17 eters set oul in raraseates (1), (23) and (113) of Auac sub-rcotLan, rout of on, Clearly an such a cate a Lis the Wanaster who anpwigtes an in Ure CLlrcuavienecs Geoffrey Lane and, inn wtp cterd, ait ne as ree ieee to do ot tng! flame 15 to set fairsy in reasiuuns hob aececcun," "So far as the maireter's disercticn is concesed, at as gate nhuin, cud no ene wallow 'won ab far @ monenv, that any fr must be court 2, has the du Lo say are unla.fal. this particulsr is acting 1s thas : Without pregadice to their poncrs & bo Teut Torceroine a aN . me sectioar e? "rade - lias de would manirten burden an ace ' so far that he is é@écouns other than poereriay in this cacc." is a conditaon prececent wo Ue omeves Se of tre power conferred by s.155(4) of the Ac?, a Court may, mn an appropriate cace, an cilagete Saou pr ihe comiut oa fh been satisfied ani vwheoiner the Comusccaem, Chair en or y Deputy Chairman has ceted in g va Fcsth, bue it sls Qi tu { \ -534- need not Le discloscd except possicly insofar as there is a basis'for the contention that the power hes been exerciscd impropcrly. Generally see Korvest Petet Lid, v. Secretary of State for Teale, sevra, Drow? vi Vallcoh te (1915) 20 C.L.R. 23° Marcau vv. P.C.T. (1926 ) 65 Boveawt Pay Ca, Lid. ve Ure Con co eth (4577) 4O C.L.R. 98, Adclords Comm cof eo dte Vatperc as Incorpore' ed v. 2) 07 C07. 446 at p.135, Litto wy mo Cory os tes det V1, uo — tn ——— [a A.C. €6 at pp.70-77 and Arreements ve WP. Sesth o at pp.1458-146u. Seaa ad _\ = ee . r my Co. (Site )d Pte, Ltt. (1972) 125 Clu. PR per Waneeyer J. at pp.56-58&, In support ef their case relied strongly on a line of auth Court Cesling wot provisioers an an Ty Mer fats Act 19,5 urior Wuch @ Crserecior is os *L.3.e8 4 1 tte Con jiss2c..cr of Taxabion when ralores e asscf 0 a7. Cases citrd anecluded Fee Ds os! Tis ve Ba. (166 73 CLLR. 253, Carn, Pie Ta ve FC. Oty 7 CLL, Hogtery Cocticie yur, 555 aS well as P.C.T. v. Ply. Ltd., supre. Tn acustin referee eb me Us authorities anvolvans the pour ef the Cort cette nis of Taxation to make avonded assesemenes ur. cl tne Incerme Taz Agsserenent Act 1935, Ib ruce be re cuscred ee el Merete on = that these authorsutics ere an rel ot.en T) provesc.ous in an Act which provitcs far agrecoemene of Gncerw can and objections to and appeals aceite sc Uhase Gunes serts {See generally Jartey v. P.C.T. (19/7) 136 CLLR. 214 at pp.225-252). Unler these provenuon- a Court ray consider the diserction ef tne Ces auutuner of Taration and the croind upon which a dastrevicn vas exercised and, in apprupriate cases, the burdun rects upon the taxpayer of proving to the reasonable satisfaction of the Court the particuleor fact or facts which prevent the Commissioner from exercisine his powers edvercely to the interest of the toxrmayer, soe Velr dra ve. PLC T, (1957) 98 C.L.R. 263. As an aid to proving his cctre the tarpuyercugy be cntrrlid to ter Lene st of thie precedurss Tor aiecovery., Worcs rtar ulrea Vy tab AN an Eppreprvarce Cast @ Cour or alc otc rate when the Coriic sen, Chars 7 iur Depaut, Co nla hes the reguicavy "rowewn wo bolaec™ eS a welitaen precede to the exersicc of the po er couterres Ly e.79500j of the Act. It is not necessery for us to ovpretr a view on whether the authorities relive. ups ty tre applicants are relevant where a Court undertakes such an investigation, Tne poxers confurred by s.125(4) of tho Act are to ve cxere ced OG. a aid a. deloretnang whether tuere has becn a cernvraventiun of the Act ard in this respect are to be commarcd with savilar pe.worc contained ian ss.223, 224, e635 wir oo of the Treas Tax Assosount ter 1925. Generelin, occ Geos vy. Austreliag ond Mou Feat ei vor e Get Te, conrs, -36- See also Huddart Pavker © Co. Piy. Lid. v. Mooreheod, supra. In the present case the Court is not concerned to consider what use the Cor cesion ray make of information furnasind by theo cpr lacaniy or of docu ents progdecrd by, the applicatabte in con icy so with une + rr 4 * ' t see wos . In the Lagat ef dheoe cle iicuusciag, 1t of . . a es " asses faeyn d ¢ . -, ~\ necessary to consid.: wmeeetoame (vaal Cerin) em quand of the sprcral case. he epplicatien: pode urtor 2.4704 of the Act co not expressly state that the applicu.cs seex declarations that the Chairnun, at the tire of [on giving the notices under s.155(41) of the Act, did not have the reguisive "reason toe believe" or that the Grounds upen which he a ce) ted were not lawfully sufficrent to entitle him to form the requisite "reason to Felicve" The questions an the Spccial case are bercd ure a contention muce when the catter ws Eeferes the trecd Judge thav ine applicants ceszrcl tu cers leave te Geliver ancerrojatories and to ser Gzccorery of Cotuiims darceled to the crasteece of tae Mroci ly te bole at by the Chaaiven aad the craunts worn ho oa he de 67: to any S.cm "pecion ca beticvet, E-aace toweect far the vespo. sits ar mai the ss teceut wore ance | ina fishaee c.pedutocn and tol tee Courh shorted nos applicants to try to establish ¢€ ce 7c wmiless tucre vues Q@ reasonable factual basis to support euch a prececaing and that in this case there 7s no suth reasonik.e factual basis. He relied upon the views capresscd in -~37- Norwest Holst Lita. v. Secretary ef S'aio fer Prete, aura, where an action comnenced by the comary challerping the validity of the appointr, band ct Lo Fy ct rea ve Q be "9 we re a co Oo o ct Cc invesvrgare the coupany woo. tlacr oat as adirciorlun uo Bere eyte vy Le aVvOLOU, We AS we havo salto the s*e*cn ong. BCLs oe the affidavits syvrn deposed, antes alas, that "ia the applicants or any of thom were obliged lo anseer the questions asiled in the said notre provide the anfrmation required vy the said notices or eny Bs eet Gato of then, or provuce Gecunente required by the card notices or any of the, eny cath an.wter or provision of information or production of docu,entls sould tone to expose the applicant ansvevairs providisg or preaucang the same (as the caso tty be} Lo a pore ty purnusal te Sectione 45 and 7E of the Jeb". Tae notice bly the Chuirrran alleses that he nacre scr to belacve tict the Perecn ta wiem the naties a3 dlliveret 1s capaluc of furnishing velevant antic occtaw. cid thc letter olorerrc ce that notice vefors, to anvicts thew a Waid have en coneuctedo ey the Coo ues ten. Gere as notsare tT. Slo leet that the Cnaarman has acted otuerwice wen an peel fail. and we see no reas ta Gosresord tie sworn evilence by the applicants ccncerning the Likelimood thie compliance with theo notice weulg tend to expose vein to a penalty. It as clear that so far as the stated case 1s concerned, the Court hus before it no agreed -36- facts relating to these questions. all these circumstances we deciine (vir) (viz) and (ax). In the Lipht of to "ISVer qucsllaons We Would prcprce thar liz yrecciipe be ansvores us PForlous 2 (1) Yes. (12) Yes. (ani) Yes. (iv) Not answered. (v) Yes. (vi) Ko, (v2i) Not onseercd. (vi11) Wot ansvered. (1x) Not answered. We also prepese thab the nrcleec wigs stead cvor for arguredat com tre cuostion of cools. eee -- : a, ITcertriy te ft tpiserdtce Os pes ia MDE CMT ay yeah be ob Prec omy ot the ' nensete fer Tetlh Vtbsasim et. boner | ' br. euctice $ N ' Dated * or ee ee Re Assvcinte " ~ ast ys wh é wre ra ) ( ee er