CATCHWORDS Practice and procedure - crimin Practices Act - Federal Court o al matters - Trade £ Australia Act - jurisdiction of trial judge to criminal matter - jurisdiction and determine a case stated in n o alan Fol Yada Ac K + c it) deral Co +t of An aera vo 6 OL 25,26,28, 33. Trade Practices Act 1974 tyr tx £ 24 - 30 31-4 S.A. Nos.G 6 - 12, S.A. Nos.G 13 - 23, CORAM: Melbourne 21 May 1979. state a case ina of Full Court to hear a criminal matter. be KD ~J ch Le) ur ° oe ~XO bo ao . bo a ~ SS.53,79,86,163. Smithers, Franki and Northrop JJ. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION S.A. Nos G6 - 41 inclusive of 1978 SOUTH AUSTRALIA DISTRICT REGISTRY IN THE MATTER of the Trade Practices Act 1974 BETWEEN: CRAIG JACKSON HENDERSON Informant and PTONEPR HOMES PTY. LTD. Defendant (S.A. Nos. G 6-12, 24-30) AND IN THE MATTER of the Trade Practices Act 1974 ~ BETWEEN: CRAIG JACKSON HENDERSON Informant and PIONEER AGDENCIES PTY. LTD. Defendant (S.A. Nos. G 13-23, 31-41). ORDER JUDGES MAKING ORDER: DATE: WHERE MADE: ORDER: Smithers, Frank1 and Northrop JJ. 21 May, 1979 Melbourne Case stated struck out, CN S.A. Nos. G6-G41 inclusive of 1978 SOUTH AUSTRALTA DISTRICT RUGISTRY IN THE SITTER of the Trade Practiccs Act 1974 BETWEEN: CRAIG JACKCON RENDERCON AND: PIOMFER HOMES PTY, ETD. Defendant (S.A. Nos. G6-12, 24-30) AND IN THE MATTER of the Trade Practices Act 1974 "BETWEEN: CRAIG JACKSON ERIDERSON Informant AND: PIONERR AGENCIES PLY. LTD. Defendant (S.A. Nos. G.13-23, 31-41) SMITHERS J. 21 May 1979 REASONS FOP TUDGVENT This special case was stated at the regucst of both parti on 10 October 1978. It concerns 56 informations issued under the Trade Practices Act 1974 against the defendents. These informations are describcd in paragraph 1 of the special case which reads:- "Thais Special Case 1s stated 1n proceedings anstitutcd by 36 informations laid by Craig Jackson Henderson on the 4th aay of August 1978. Upon separete 1unformations the defendant Pioneer Homes Pty. Ltd. and the defendant Pioneer Agencies Pty. Ltd. were cach charged un respect of newspaper advertisements with 7 breaches of section 53(e) of the Trade Practices Act 1974 and (an respect of tne Same aavertisements) with 7 breaches of section 53(f7) of the said Act. In addition, the defendant Pronecr Agencies Pty. Ltc, was charged in respect of other newspaper advertisements in seperate informations with 4 further breaches of section 53(c) of the said Act and with 4 further breacnes of Section 53(g) of the sard Act. Annexed hereto and marked with the letter 'A' are coples of tne said informations." Each defendant has entered a plea of not guilty in respect of each information upon which it was charged. Paragraphs 6-12 of the special case contained matters that were agreed between the parties for the purpose of these proceedings only. Tnose paregraphs state:- corporation within the "6, (a) Each defendant is a said Act(the Trade Practices Act 1974) meaning of the (b) The busaness of the defendant Picneer Homes Pity. Ltd. includes end at all relevent times has included that of acquiring land, builaing dwelling houses and selling the same, -eyo (c) The business of Pioncer Asencies Pty. Ltd, is and at all relevent times has been that of a land agent. It has carried on business in conjunction with Pioneer Homes Pty. Ltd. in the promotion of the business of Pioneer Homes Pty. Ltd. at all relevant times. 7. (a) Each defendant, in trade or commerce, inserted advertisements in issues of the newspaper 'Sunday Mail! dated 7th August, 14th August, 28th Aucust and 40th October 1977 respectively. Annexed hereto and marked with the letters 'E', ''F', 'G' and 'H' respectively are copies of the said advertisements. (b) Each defendant, in lrade or commerce, inserted edvertisements in issues of the newspaper 'News' dated 1st September and 28th September 1977. Annexed hereto and marked with the letters 'I' and 'J! respectively are copies of the said advertisements. (c) Each defendant, in trade or commerce, inserted an advertisement in the issue of the newspaper "Advertiser! dated 10th October 1977. Annexed hereto and marked with the letter 'K' is a copy of the said advertisement, (d) The defendant Pioneer Agencies Pty. Ltd., in trade or commerce, inserted advertisements in issues of the newspaper 'Advertiser' dated 7th October, 17th Octcber, 24th October and 31st October 1977. Annexcd hereto and marked with the letters 'L', '™!', 'N', and 'O' respectively are copies of the said advertisements, 8. The said issues of the respective newspapers were sold to, and the said advertisements appearing therein read by, members of the public in Adelaide on the respective dates thereof. 9. Each of the said advertisements related to packages comprising a block of land together with a house thereon or to be -uilt thereon (and some of the said packages included some or all of specified extras, nsmely carport, fencing, paving, vinyl and carvets) which were said 10 be available for purcnese at certain locations on finance plans specified in the said advertisements. 10. The said packa;res which were advertised for a full price of $37,600 ana which referrcd to wevkly payments of $50.00 (and.those which made no reference to a full ene ee ee price but referred to weekly paynents only) were in fact available pursuant to the following scheme or a scheme to similar effect (involving payrents of not less than those set out below) and not otherwise: (a) The purchaser would enter into either a contract for the sale of house and land (and specified extras, if any) or two contracts, one for the sale of land and the other for the building of a house (and specified extras, if any). No interest would be payable by the purchaser between the date of signing the said contract and settlement thereunder when the title to the property would be transferred to the purcheser,. (b) At settlement, temporary finance, which involved no obligation on the purchaser for repayments of the sums borrowed but involved payments of titerese only, would be provided to the purchaser as follows (a deposatof $100 being paid Ly the purchaser): First Mortgage (State Government Insurance Commission) $18,000 Second Mortgage (Lensworth Finance ) 15,000 Third loan (Pioneer Homes Pty. Ltd.) 4,500 $37 , 500 (c) The terms of the said loans would be as follows:- TERM INTEREST RATE WEEKLY INTERRST First Mortgage 12% $44. 54 Second Mortgage 168% 47.60 Third Loan Nil Nil $89.44 (a) Upon long term finance becoming available to the purchaser (which in the ordinary course would be at least 1 year after settlement), finance would be provided as follows: First Mortgage (State Bank) $18,000 Second Mortgage (Lensworth Finance) 15,000 Third Mortgage (Pioneer Homes Pty. Ltd.) 4,500 $37 , 500 (e) The terms of the said mortgages would be as follows: TERM INTRREST RATE WEEKLY REPAYMERT (Nominal Con- FIRST 15 SUBSZQULUT vertible Monthly) YEARS YEARS First 0-40 years 5.75% $22.14 $22.14 Second 0-15 years 17% $53.28 Nil Third 0-15 years 14% Simple Nil Not Applicabl 15-25 years 15.5% Not Applicable 454,28 $75.42 ~ (f) During the period of temporary finance only, whach in practice has never exceeded three years, Pronecr Homes Pty. Ltd. would make payments to the purchaser's account with the second mortgagee toward payment of the mortgages as follows:- Amount Payments by Balance Payable Pioneer Homes Payable by Pty. Ltd. Purchaser ist year $89.14 $39.14 $50.00 2nd year $89.14 $13.72 $75.42 3rd year $89.14 Nil $89.14 (g) On some occasions, Pioneer Homes Pty. Ltd. might at its own option continue to make the payments of $39.14 referred to in (f) hereof for a longer period than one year. 11. The packages which were advertised for a full price of $37,600 and which referred to weckly payments of $/5.00 (informations G6, G7, G11, G13, G14, G*8, G24, G25, G29, G>1, G32 and G36) were also available pursuant to a scneme identical to the scheme described in paragraph 10 hereof except that the balance payable by the purchaser refcrred to in sub-paragraph (f) thereof during the first year would be £45.00. 12, The package which was advertised for a full price of $34,600 and which referrea to weekly payments of $50.00 (anformatironse G22 and G4O) ves available pursucnt to a scheme Similar in terms but iunvelving ancunts of weekly payments different from those of the scheme describea in paregraph 10 hereof put which «iter one year materially exceedea $50.C0 per week," The stated questions asked first whether the references in the advertisements to the deposit end weekly payments related to the promotion of the supply of services, secondly whether tne statements therein were made with respect to the prices of the services or concerning tne effect of any condition and thirdly if so whether they were misleading. Before these auestions ere answered it is necessary to consids whether the Judge before whom the informaticns came on for hearing had jurisdiction pursuant to s.25(6) of the Federal Court cf Australia Act 1976 (the Act) to state a case for the consideration cf the Full Court. Section 25(6) 1s an the following terms:- "(6) The Court const>tuted ty a single Judge sitting in either Divisicn may state éeny case or reserve 4@ny question concerning a matter with resvect to which an appeal would ire from a jguagment of the Jude to a Full Court of the Court fcr the consideration of a Full Court of the Court in that Division and the Full Court has jurisdiction to hear and determine tne case or question," Doubt on this matter has arisen because, although s.24(1)(a) of the Act provides in terms that the Court (the Full Court see s.25(1) of the Act) has jurisdiction to hear and determine appcals from judgments of the Court constituted by a single Judge, that provision upon the proper construction of the paragraph Gdoes not confer appellate gurisdiction 1n @ criminal proceedings wnere uv there has been e gudgrent of acquittal. This was the conclusion reached by the Fuil Ccurt of the this Court in Thompson v. Mastertouch T.V, Service Pty. Ltd. (1978)19 A.L.R. 547. It was an -that case held that s.24(1)(a) should be construed by reference to the well establ:shed principle of common law that there should _- cee ee ph be no appeal from a gudgment of acquittal pronounced in eriminal proceedings by a court of competent yurisdiction after a hearing on the merits, Section 24(1)(a) could only be regarded as conferring gurisdiction in an appeal from a judgment of acquittal if,in the relevant provisions of the statute, there could be found some unambiguous words showing that, notwithstanding the common law principle, it was the intention of Parliament to confer jurisdiction in an appeal from a judgment of acquittal. As no such words appeared it followed that the jurisdiction conferred by s.24(1)(a) did not extend to hearing and determining an appeal from a judgment of acquittal after a hearing on the merits entered by the trial gudge in an information laid under s.79 of the Trade Practices Act 1974. But of course s.24(1)(a) does confer jurisdiction upon the Full Court to hear and determine an appeal in a criminal matter where the judgment is one other than of acquittal. (See McNamara v. R., discussed below). It is as though the words used were that the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single gudge in civil proceedings and in criminal proceedings 1n which there is a gudgment other than an acquittal. Those are the judgments comprehended within the expression "parents" where it is used in s.24(1)(a) and as defined in s.4, Accordingly, it may be said that there 1s an appeal to the Full Court from a judgment of the kind designated in s.24(1)(a), and thus fron a conviction or an order other than accurttal in a criminal proce?d ing. It follows that when,as is the case in s.75(6), the legislature has used the expression "judgment" in a context in whic the subject of appeals from judgments is central and critical _ one would expect that expression to be used in the sense and with the meaning it bears in s.24(1). If so, s.25(6) would confer jurisdiction to state a case or reserve a question concerning a matter, with respect to which an appeal would lie from the judgment if the matter were not criminal in nature and from a judgment other than of acquittal if the matter were criminal in nature. It is inevitable that if in the course of a proceeding an application is made to the Judge to state a case or reserve a question for consideration of the Full Court, or if the Judge himself is minded to do so, it is not known at the time of the application or the consideration of the matter by the Judge whether the judgment in the proceeding, if it is criminal in nature, will be one of conviction or acquittal. It is therefore not known whether the Full Court would have jurisdiction to hear and determine an appeal from the gudgment actually given in the proceeding. This feature is not likely to have been over- looked by the draftsman of s.25(6), and it is hardly to be thought that the jurisdiction to state a case or reserve a question would depend on such a circumstance. But the question is whether at the relevant time it could be postulated that a case or question stated or reserved, concerning some issue in the proceeding, was a case or question which concerned "a matter with respect te which an appeal would lie from a judgment of the Judge to a Full Court" within the meaning of that expression in s.25(6) of the Act. The power conferred by s.25(6) clearly reflects a legislative view that the exercise of the power,1in suitable cases, will be beneficial to the administration of justice, The adopted criterion of the existence of the power to state a case or reserve a question is whether the relevant matter 18 such that, vith respect thereto, an appeal would lie from a judgment therein, The criterion of the exercise of the power 1s whether 1t 1s reasonable to exercise it. Higgins J. + arpiendo in Baxter v. Ah Way (1909)8 C.L.R.626 at p.647,a case stated in 4 criminal prosecution under the Customs Act 1901, after rc ferring to the fact that counsel had persuaded him that it was rea- sonable that he should state a case said of the proceeding,"This is really a sort of side proceeding in the trial". The sub-section is procedural only, designed to promote the administration of justice through the efficient adeinistration of the law. It is proper therefore to approach its construction Sree from the restraints that might apply in relation to legislation of a different nature, In construing s.25(6) it 1s necessary to have in mind that references to the existence of a right of appeal, so far as they concern criminal proceedings, cen only be references to at app- eal from judgments other than of acquittal. Accordingly 1t would see: that a general reference in the Act to matters from a judgment 1n which an appe2] lies to a Full Court would be a reference to criminal proceedings, simply because an appeal does lie from a gudgrent in such a case if it 2s not a gudgnent of acquittal. A criminal proceeding therefore is within the class of matter, from a judgment in which,an appeal lies to the Full Court. The appeal in contemplation is one in a matter but from a judgment. It is not to the point that it is not from every judgment in such procecdings that an appcal would lie. The point is that it is in the nature of criminal proceedings that an appeal does lie to the Full Court from a judgment which mey be given therein, If one tests the matter from the opposite direction it is clear, of course, that it cannot be said that an appeal does not lie from a judgment in a criminal proceeding. It would appear therefore that the question whether a Judge in the course of a criminal trial has jurisdiction to state a case, or reserve a question, for determination by the Full Court really depends upon whether when the question of stating a case or reserving a question arises, the Judge should ask himself the question, "1s this case one with respect to which an appeal to the Full Court will lie from my gudgment whatever it is",or "is the nature of this proceeding such that with respect thereto an appeal would lie from a judgment therein?" If this latter question is asked and the expression "judgment" is used in the same sense as "judgments" in s.24(1)(a), the answer is clearly in the affirmative. It appears to me that the latter 1s the correct question. If the intention were that the Judge should ask himself the former question it would have been natural for Parliament to say in simple tcrms, that a case might be stated or a question reserved in any case from the judgment in which an appeal would lie to the Full Court. But s.25(5) introduces features which would be unexpected in the enactment of thet simple provision, First there is the reference to a matter "with respect to which" 'an appeal would lie and secondly the expression "a judgment". To use the expression "concerning a matter with respcct to which" is an unexpected way of saying "in a matter in which", or "arising in a matter in which", It 1s unduly contrived for such a purpose. Also for the purposes of the former question the natural words would be "the judgment". These features make it reasonable to consider whether Parliament was not speaking rather by reference to the nature of the relevant matter which could he adentificd as a matter the nature of which was that an appeal would lie from a gudgment therein, albeit of only a particular kind, rather than to the availability of an appeal from a judgment in the particular matter or proceeding whatever that judgment might be, If, as appears to be the case, the criterion of the power to state a case or reserve a question 1s the appealability of the matter, that must be because the legislature considered that the procedure in question was suitable where the matter was likely to involve questions appropriate for determination in the Full Court. Questions apprepriate for decisicn of the Full Court arise in a criminal case as in a civil case. There are appeals from orders other than acquittals in criminal cases, In the context of appropriateness therefore there is no distinction between a criminal and civil procecding. Reading s.25(6) as an enabling provision,it is seen that that which it authorises may be done if a certain ad condition is fulfiljJed, It is unnecessary to read the condition more restrictively than the words imposing it renuire according to their natural meaning. If one lcooks at the sub-section as authorising the statement of a case,or the reserving of a question,concerning a matter of a class with respect to which an appeal would lie from a gudgment of the Judge, the cless ancludes civil proceedings and criminal procecdings; civil proceedings because in general an eppeal vould lie from any judgment therein and criminal proceedings because there is an appeal from gudgments other than of acquittal. It appears to me that this construction 1s warranted by the introduction of the expression "with respect to which an appeal would lie", the use of the expression "a gudgment" where"the judgment" would be more appropriate and as reflective of the construction & s.24(1)(a) as expounded in Thompson v, Mestertouch T.V. Service Pty. Ltd. (supra). If s.25(6) of the Act 1s antended to apply to criminal proceedings at all, the power to state a case or re- « serve a question must depend on the view that the kind of ae appeal referred to is that authorised by the grant of jguris- diction to the Full Court to heur and determine eppeals in criminal cases where, and only where, the jgudgment given is ons other than of acquittal. For the purposes of the Federal Court of Australia Act the conception of the right of appeal in criminal cases is of an appeal from an order other than that of acquittal, In the light of this consideration a reference in the Act to an appeal in relation to a crimaunal prcecaciys is a reference to the only such appeal knowm to the Act or in contemplation of its provisions. No reason appears for Parliament to have intended to restrict the scope of s.25(6) to civil cases only. It would be curious to introduce such a restriction by refcrence to the right of appeal rather than more directly. It may be noted that singie Justices of the High Court have on a number of occasions stated cases in criminal matters under s.72 of the Judiciary Act 1903 for consideration of the Full Court of the High Court; see e R. v. Harris, Scarfe &@ Co. Ltd. (1909) 8 C.L.R. 225; R, v. Australasian Tilms Ltd. (1921) 29 C.L.R. 195; R. v. Brewer (1942) 66 C.L.R. 535; and R. v. Regos (1947) 74 C.L.R. 613. It has been said that,as a matter of principle, an accused person is entitled to the jgudgnent of the Court by which he is tried. Obviously cases may arise, in which it would be a denial of justice, to interrupt the trial and deprive an accused person of the gudgment of the tribunal before which he is tried. But to apply this doctrine absolutely would hardly accord with the application in the cases referred to above of s. 72o0f the Judiciary Act 1903. But in any event it would seem that a statutory provision authorising adoption of a procedure, by which a trial judge may receive authoritative assistance to enable him to give gudgment according to law, would prevail. As a general proposition it is in the interests of the accused as much as the prosecution that the law applied by a gudge at a trial accord with the law correctly expounded. Accordingly,in my opinion there was jurisdiction to state thn peer rimrenant tn «& DEILY At tee Pat It is useful and instructive, 1n considering the proper construction of s.25(6),to examine the broader purpose of the Federal Court of Australia Act. In the past, the jurisdiction of this Court was exercised by a number of Courts and the cuestion of suitable circumstances for stating a case has arisen in those Courts. Reference to the practice of the Federal Court of Bankruptcy 1s especially anformative. It is to be noted that until 1963 when the Bankruptcy Act 1966 (No. 33 of 1966) was proclaimed, there was jurisdiction in the Federal Court of Bankruptcy pursuant to s.20(3) of the Bankruptcy Act 1924-1966 to state a case, for the opinion ofthe High Court, in all proceedings in that Court including criminal cases. Section 20(3) was in the following terms:- "(3) If in any bankruptcy proceeding in a Court any question of law arises which all the parties thereto desire, or which one of them and the Judge of the Court desire, to have determined in the first instance in the High Court, the Judge shall - (a) state the facts in the form of a special case for the opinion of the High Court; and (b) transmit the special case and the proceedings or such of them as are required, to the Hign Court for the purposes of the determination." In 1968 s.20(3) was repealed along with the rest of the Bankruptcy Act 1924-1966. On the subject of stating a case in bankruptcy proccedings s.38 of the Rankruntcy Act 1966 was enacted in the follcwing terms:- "38, - (1) Where in any proceeding before the Court - (a) a question of law arises which the Court desires to have determined by the High Court before the proceeding is further dealt with by it; or (b) a question of law arises which a party to the proceeding desires to nave so determinec and the Court consents to its being so determined, the Court - (c) shall state the facts 1n the form of a special case for the cpinion of the High Court; and (d) shall transmzt to the High Court the special case and the documents in the procceding, or such of them as are required for the purposes of the determination, and a Full Court of the Hign Court shall hear and determine the question, (2) The High Court may drav fron the facts and the documents cny unference tnat could have been drawn from them by the Court by which the case was stated." It is apparent from the decision of the High Court in R. v. Federal Court of Henkruntcy Syn. Lov enstein (1937) 57 C.L.R. 765 that it was no objection a case being stated under s.20(%3) of the Bankruntcy Act 1924 that the proceeding in question was criminal in nature. In that case a bankrupt had been charged with a criminal offence against the Renkruptcy Act 1924, The bankrupt pleaded not guilty but before his trial continued requested the Judge to state a special case for the High Court dealing inter alia with the constitutional validity of the section under which he was charged. The trial gudge declined to do so,because he was of the opinion thet the necessary facts h3a not been established by eny finding or by admissions. A writ of mandamus was sought by the bankrupt directed to the Federal Court of Banaruptcy to require that Court to state the special case and was made absolute by the High Court, No suggestion appears in the joint judgment of tne High Court that there was any principle applicable in terms,that an accusea person was entitled to the gudement of the Court before which vt ee ee ee ee tn em -* he pleaded, notwithstanding that the Court was authorised by statute to state a case on a auestion of law. Indeed the Court was emphatic in noting that a case might be stated at any time deemed appropriate on facts, not the whole of the facts which might be found, but such facts as were adequate to raise the question of law, The situation was dealt with at pages 771 and 772 wherein the gointgudgnent of Latham C.J., Rich. Starke, Dixon, Evatt and McTiernan JJ. the following co) passage appears:- " It will be observed that the section provides that the High Court shall give an 'opinion! upon the 'questicn of law! which it may be asked to 'determine', The High Court does not under this provision receive the whole matter into its jgurisdicticn. Only such of the proceedings as are required are transmitted to the High Court 'for the purpos.s of the déeterminetion,.' Thus the High Court does not give the decisive judg- ment or make the decisive order as if tne whole proceeding had been transferred to it from the Court of Bankruptcy. Accordingly, there is nothing in the frame of the section which would prevent the High Court from determining @ question arising at the beginning of or during the ccurse of the bankruptcy proceeding. It was argued however, that the requirement that the gudge should 'state facts' means that he should state tne whole of the facts in reletion to which a decision has tu be reached before the bankruptcy proceeding in which the question of law arises can be completed. Eut it 15 not necessary to construe the words 'state the facts! in such a manner. They are satisfied by the statement of only such fects as are required to enable the High Court to cetcrmine the question of law which has arisen, Sometimes a statute expressly authorises the statement of a case 'at any stage' in the procercdings: for example ,Commom eelth Conciliction and Arbitration 4ct 1404-1994, sec.di(z There are no such express words in sec.20 of the Banzruvtcy Act. But the words of the section aco nov exclude the possibility of the statement of a case during the course of proceedings and before all the facts have been determined if 1t 1s possible to state facts upon which the auestion of lav arzses in respect to which it is desired to obtain the opinion of the lizgn Court. There is no rule that to 'state the facts' must mean to state all facts, The facts which must be stated are the facts which it is necessary to know in order to decide the question of law: 'It is absolutely settled law both in England and in Austrailia that the expression 'state a case' involves stating facts, that 1s, the ultimate facts, requiring only the certainty of some point of law applied to those facts to determine either the whole case or some particular stage of it - the stage at which the case is stated' (Australian Commonwe=1th Shannins eS rdv. ere feemoats Union of ,nstrel.8ia —»)) 26 C.L.. tT peo. Under sec,¢éu of the nontrustoy Act the facts to be stated must be 'ultimate iacvs' in tne sense explained A in Merchent Service Guild of Austrolécra v. . . Newcast ie ona maeter ive =o ST G2N C5, irda, /ilo.1/ to C.Len. 1S SsuU.Ticient to state such facts as require only a binding legal opinion for the determination, not of the whole proceeding, but of the guestzon of law which arises, In the present case, the question of law arose when the cnarge was made and the accused plecded not guilty and raised the objections mentionea, It is sufficient to state these facts, which are ultimate facts for the relevant purpose, in order to raise the auestions of law. Sec. 20 provides tnet if both pzerties desire a question of law to be determined by the Haigh Court, the gudge 'shall! state a case, This provisicn does not mean, in our opinion, that the parties cre entitled to insist upon the gucge making picceeieal Gecisions unon partial evidcnce, but this has not been done in the present case, where the necessary facts mentioned are already ascertained beyond dispute, The order for mandamus to state a case should therefore be made absolute." In due course the case was statcd to and heard and determined by the High Court, see R, v. Federa!' Court of Eanwruptey, pen. Lowens sein (1938) 59 C.L.R. 556. There appears to be no ground for supposing that different principles applied ain respect of s.228 of the Panlruricy Act 1966, Indecad the learned authors of McDonald, Fenry & Mcek, Australian Bankruntey Lv. & Practice (4th Ed. 1968) p.45 refer to Ex op, Lowenstein (1937) £7 C.L.R. 765 as applicable thereto. Reference may also be made to Re Hodzkinson (1947) 75 C.L.R. 276, Re Brasier (1950) 81 C.L.R. 625 and R. v. Davidson (1954) 90 C.L.R. 353 1n whicn cases were stated in proceedings, criminal in character, and dealt with as such for the benefit of the trial Cudge. Samilarly in R. v. Aocms (1935) 53 CLLR. 563 the Full Court of the Supreme Court of South Australia stated a case for the opinion of the High Court prior to plea ina criminal matter, pursuant to s.18 or s.72 of the Judiciary #ct 1903. (see 53 C.L.K. 563 at p.567). The stated case was duly heard aud the questions were answered. In relation to civil cases see Lioyd v. Federal Commi scisner of Land Tax (1932) 49 C.L.R. 760 and Richarason v. .rsuti tin (1942) €€ C.L.R. 585. It 1s to be concluded thet om accordance 12th ».20(3) of the Bankruptcy Act 1924 and s.38 of the Bankrunicy Act 196 there was an established practice,in criminal as well as Civil cases,for a case to be stated when thought appropriate. Section 38 remained in force until 1 February 1977, when it was - repealed by 5.5 of the Ecukrintoy frendm 12 Act 1975 (No. 161 of 1976). But by that sare Act entitled"an Act to make Provision for the Transfer of Jurisdictzon from the Federal Court of Bankruptcy to the Federal Court of Australia and for the -abolition of the Federal Court of Bankruptcy ",the Federal Court oO of Austrelia was invested with gurisdiction in be nkruptcy throughout Australia. It was a consequence of this that ss.24 and 25 of the Federal Court_of Australia Act 1976, which came into force on 1 February 1977, applied to proceedings in bankruptcy. Section 24(1)(a) provided for appeals from judgments of single gudges in bankruptcy matters and s.25 dealt with various aspects of the appellate jurisdiction of the Federal Court of Australia. It is apparent that s.25(6) has application to proceedings in bankruptcy, It is that fact which explains the express repeal of s.38 of the Bankruptcy Act 1966, It was no longer required because s.25(6) did its work. But if the view be taken that s.25(6) does not permit a case to be stated in a criminal procecding, at any rate after plea, then at least in bankruptcy the practice of some fifty yeas is overturned, fortuitously apparently, by an Act the purpose of which was a mere transfer of gurisdiction from one Court to another. Griffith C.J. in Baxter v. N.S.W. Clachers! Associa tion(1909)10 C.L.R. 114 at pp.128-129 ,on the question of the effect of the transfer of jurisdiction from one court to another, went so far as to say:- "I think that when the powers of a Court of limited jurisdiction ere directed to be exercised by another Court by way of substatution, it is to be intcrred that the limats cf the transferred gurisAiction were not intended to be sltered either by way of enlargement or diminution. If, for anctance, the powers of a Court of record were on 1%s abolition conferred as to pending cases on a Court vhich had not before any such powers, the necessary powers would be conferred by implication. And vice versa." Having regard to the forcgoing there are strong reasons for concluding that s.25(6) of the Med=ral Court of fustralia Act authorises the stating of a case in criminal proceedings hecrd by Judge of the Federal Court of Australie under the Bunkruntcy Act. If it does, the reason is that notwathstanding that an appea in such cases lies only frem an order other than acquittal , such matters are to be regarded as "matters with respect to \hich an appeal would lie from a Judgment" therein. But s.?5(6) 1s of general application to all matters in the original gurisdiction of this Court and there can be no valid distinction drawn between for exemple, bankruptcy watters and matters which relate to other subjects. if 1t is once conceded that satters may be stated an one area of crimingl luw, conteined in the general division of this Court, why nov in anotner? If so in bankru.tcy wny not in trade practice matters? Indeed the Federtl Cours of Austr:117 Act I197€ perform to 2 laige extent in ratters previously gusticiable im various courvs the function of consolidating C3 the jurisdiction of the those Courts. In Pearce ve. Federal Canmitsion-r of Taxation (1978) 20 &£.L.R. 354 the Full Court cf the Federal Court of Auslirdlia had to construe s.26(1) of the Fedcral Court of Austialia Act in relation to civil prececdings. Bowen C.J. Gid not find it necessery to deal with the point, but Erennen and Deane JJ. each expressed the opinion that, although under s.26 of the Act a general pover to reserve a question of law for the opinion of the Federal Court 1s conferred upon a court from which an appeal lies to the Federal Court from a gudgment of the court hesrang the matter, that sub-section does not confer such gurisdiction when an appeal to the Federal Court is subject to leave being granted by the Fcacral Court. Dean? J. said at p.358:- upreme Court delivers t matter, no appeal will "At the time when the © Sel. mat 1s the result of the Le) judgment in tn Jie to this Court express words of ASE Ogemort fot Wrjia 5 5() of the Income Uax £On cv. 4 eet tuat TAs courte sy subscuuentay crent vw? to appeal coos net alter the fact tnrt, unl nd uniil such leave is granct-d by this court, the prerent motler cenrot nroperiy for the purposes of 5.26 cf the Fe chet eo Court oF Austra}i2 sct, be repcocdea cs ont am Maca en appeal woul Tie to a jguageeat or the Suprene Court," yu This would be the position not only at the time of judgment, but at all stages of the case before judgment. But the comments would not be applicable with reference to a criminal case with respect to which an appeal would lie to the Full Court as of right under s.24 of the Federal Court of Australia Act 1976 in the event of an order other than acquittal. I do not think that the decision in that case is of assistance in construing s.25(6) of the Act. tata + vol fu ray ~ eave = be + te tery ot Ler VO Vio GY [O} So cr decisions where the Full Court's appellate gurisdiction has R. been discussed. In Kovac v. (1977)15 A.L.R. 637, at p.643 the Full Court stated by way of summary, its appellate jurisdiction under s.24(1)(b) in terms also applicable to the remainder of that section:- "We think that s.24 of the Federal Court of Australia Act 1976 1s the Suostafivive section conferring upon this court jurisdiction to near appeals from the Supreme Court of a Territory and that s,28 1s modal. Section 24(1)(b), sf the extended meaninz of 'gudgment!' is insertcd, provides that this court has jurisdiction to hear and determine appeals from gudg7ents, decrees or orders, whether finsi or intcrlocutory, cr sentences of the Supreme Court or a Territory" The second case is McNemara v. R. (a gudgment delivered on 22 June 1978, the only report of which appears to be in the High Court end Federal Court Practice Reporter - CCH edition ~ Vol. 2, para. 60~017). In that case an accused unsuccessfully appealed under s.2/4(1)(b) of the Act against the refusal by a Judge of the Supreme Court of the Northern Territory to order that he be tried separately from a co-accused, Although that order or judgment wes clearly not a gudgment of ~ conviction or acquittal Brennan J., with whose reasons for cl judgment Toohey J. agreed, did nol doubt that the Full Court on that basis possessed jurisdiction to hear an appeal from that order. However, as the appellant had not established "that the order appealed from /yould/ cffect an injustice, and that the injustice can be avoided by the intervention of this Court", Brennan J. concluded that the Full Court, as a matter of discretion, should decline to exercise this"exceptional" jurisdiction. Deane J. was also prepared to dismiss the appeal on this latter ground, although he expressed "serious doubts", as to whether upon the proper construction of the general provisions in s.24 of the Act,in the context of established principles relating to the nature of an appeal and the circumstances in which an appeal should ordinarily lie,they do extend authority to institute,or gurisdiction to hear,an apvpeal from an interlocutory order in a criminal procecding. The judgments of Brennan and Tochey JJ. in McNamara's Case accept thet in appropriate circumstances appeals may be brought from orders in criminal matters prior to judgment of acquittal or conviction, The wide definition of "judgment" in s.4 of the Act of course gave rise to that conclusion, As discussed above, the terms of s.25(6) are closely linked to the ambit of the Full Court's appellate jurisdiction. As such it is significant to note that it 1s not beyond the jurisdiction of the Full Court, in appropriate circumsténces, to hear appeals in criminal proceedings prior to the conclusion, by order of conviction or acquittal, of the relevant matcer. In the discussion of the scone of s.25(6) of the Federal Court _of Australia Act 1t 18 desirable to refer to the decision of the Full Court of the Supreme Court of Victoria in Tart v. R./1963/ V.R. 547. In that case a person convicted of murder and sentenced to death applied on motion Yor an order for an inauiry as to whether he was of unsound mind and for a reprieve,pending the outcome of such inquiry and the determination ef the motion and other proceedings, The trial Judge reserved the application for the consideration of the Full Court under s.44 of the Supreme Court Act 1958 (Vic.). That section provided that:- "Subject to any Rules of Court any Judge of the Court sitting in the exercise of its gurisdiction Fé moO eC A Af ann nf the worts - woe may at the requcst of one of the parties But (except the contrary 1s expressly enacted) not otherwise, reserve any case or any point ina case for the consideration of the Full Court, or direct any case or point in a case to be argued before the Full Court; and the Full Court shall have power to hear and deterrine such case or point so reserved or so directed to be argued," It was held that notwithstanding the gcneral language of the section, 1t did not apply to criminal procecdings. But this conclusion was not reached on the ground that such language or such a provision would not ordinarily avthorise the reservation of a case or a point of law in a criminal case. The majority of the Court (Lowe and Pape JJ.) explained that according to the law of Victcria, expressed in authorities binding upon them, no appeal lay to the Full Court of the Supreme Court in criminal matters. They pointed out that the terms of the notice of motion showed that the current proceeding was acriminal matter and concluded:- " If the matter cannot come by way of appeal to the Full Court, because in such a matter the Full Court 1s not cmpoworcd to deal with it, 1t must follow that nearther can it deal with it by reservation under s.44," (/19637 V.R. 547 at p.550) The Judges of the Court were invited to disregard form and constitute themselves as a Full Court hearing criminal appeals under Part VI of the Crimes Act 1958 (Vic.),but declaned to do so on the ground that the suggestion did not fit the case because:- "The Full Court so constituted only hears applications (so far as is relevant here) where a person convicted on indictment appeals egainst his conviction or sentence and obviously this is not such a case." (/7963/7 V.R. 547 at p.550) Smith J.,the other member of the Full Court in separate reasons for judgment, concluded that the reservation of the case for consideration of the Full Court was not authorised by s,44 of the Supreme Court Act,not because the language of the section would in itself not so authorise, but because s.44 had its origins in s.25 of the Judicaturs Act 1883 which was qualified by s.38 of that Act "and thereby rendered inapplicable to criminal proceedings". (/19637 V.R. 547 at pp. 560-561) It would appear from the foregoing that the decision in Tait's Case does not provide any ground for reading the ® terms of s.25(6) of the Federal Court of Australia Act 1976, as qualified in any way,or in particuler as being inapplicable to criminal cases, It may be desirable also to refer to the decision of the Quensland Court of Criminal Appcal in R. v. Elliott /19387 St.R.Qd. 311. In that case it was held that there is no power in a trial judge acting under s.668B of the Criminal Code (Qld. ) to reseive, at the request of the Crown Prosecuton at the conclusion of the racs fan th- Crown and before verdict, poanls of law for the consideration of the Court of Criminal Appeal. Thr Court toak the view that on the proper construction of s.66&B of the Craninal Code (OQld.),it was a condition precedent te the exercise of the power pursuant t2 which the trial gudge had purported to reserve the points of law thet the accused should heve been convicted by the gury. For tnis reason the conclusion of the Court was inevitable. However, ait appears that before reserving tne points of law the learned trial judge had ruled tnat there was no evidence of guilt fit to be sub- mitted to the gury. The Court went on 'to observe that there 1s an overriding principle that in such a situation the priser is always entitled to the benefit of the views of the trial gudge on the point and that no other mand than that of the trial gudge can be interposed. Exceptzon could not be taken to such a view in respect of a case such as Elliott's Case in / the Crown case had been closed and the gudge had cxpressed has conclusicn in fevour of the accused. But in my opinion, no assistance can be derived fron this decision in construing s.25(6) of the Federal Court of Auetriz2a Act 1976 particularly as the view of the Court 1s not 1n accord with the practice of the High Court under s.72 of the Judiciary 'ct 190+,which was and is,so far as 1s relevant, in the same terms as s.668B of the Cramin?l Code (Qld,). Of coursc the general inconvenience of stating a case in the course of @ gury trial is such that, cven if the -stating of a case were permitted by a relevant statute,1t would only be in exceptional circurstances that the discretion to state a case would be exercised and then in acccrdance with the procedure which appears to have becn generally edopted under s.72 of the Judicitrv Act 1905 to wnach the following remarks of Burwick C.d. an R. v. Pall (1974) 131 C.L.R. 204 at p.209 ere relevant:- "Before the jury was charged, the accus wu requested the Judze of the Surreire Cou presiding over the trial to reserve ce points of lav for the consiCeration of a Full Eenck cf this Court. tis Nonour, however follcwed the convenient course of taking the verdict of the jury... ana wncreafter vostponcd judgment until this Court should have answered the questions asked in 4 case stated by him pursuant to s.72(3) of the Judicicry ict 1903~1969." (emphasis added) The result of the above is that in my opinion tnere was jurisdiction an these proceedings for the Judge to state the case, Having had the advantage of perusing the reasons for gudenent of my brothers Franki and Nerthrop, I am ewere that the proposed orderlereinis that the Court 1s unable to answer the questions reis«d in the case stuted,>because the Judge hearing the matter lacked jurisdiction to state the case. I have therefcre considered wnether I should state, in these my reasons forthe decision I would give ain this siated case, the answers I would give to the quections asked therein. l have decaded that I should not. The trial has commenced before the trial judge and I think it more convenient that the issues that now have to be decided therein should be decided in the trial rather than in what Higgins J. called "a kind of side proceeding" in the trial. Accordingly, as a matter of discretion, I would decline to answer the questions, return the case to the trial gudge and make no order as to costs. It may be added as a final word on the question of jurisdiction that it 1s an alternative and attractive view that s.25(6) should be read as providing that a single dudge sitting in any case mey state a case or reserve a auestion concerning en issue which arises in that case which 1s an issue with respect to which an appeal wouldlie from a Judgrent in that case, If this is the appropriate construction for the sub-section the result would be that in the present case there would be juris~ diction to state a case. Autindey fv Sat Abate , "Timo Aha Ainnand _—--—— -_ ais 14 ry cy a IN THE FEDI R41 CCURT OF AUSTRALTA) wee S.A. Nos.GS-G41l anclusive of 1978 GENERAL DIVISTOW SOUTH AUSTRALIA DISTRICT Re ror rrorsmey) IN THE MATTER of the Trade Practices Act 1974 BETWEEN: CR.tG JACP SOW HENDPRSON Informant AND: PIOMERR HOmeS PTY. DTD. Defendant (S.A.Nos.G.6-12, 24-30) AND IN THR UATTER of the Trade Practices Act 1974 BRTVEEN: CP4IG JACKSC] BRiMERsat Informant AND: PCONEER AGENCIES DOTY. LTD, Defendant (S.A.Nos.G.13-23, 31-41) Coram: Smithers, Franki ard Northrop JJ. Melbour.ic Q/ May 1979 REASO'S FOR JUDGYENT FRANKI J.: Mr. Henderson, the informant, hes commenccd two sets of procecdings alleging contraventions of s.53(¢) and (g) of the rede Practices Act 1974 ("the Act"). Section 53 is in Part V of the Act. The first set is against Pioneer Homes Pty. Ltd. and the second set : _o7 against Pioneer Agencies Pty. Ltd. Section 53 of the Act so far as relevant provides : "A corporation shall not, in trade or commerce, im connexion with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services - (e) make a false or misleading statement with respect to the price of gvods or services ; (g) make a false or misleading statement concerning the existence, exclusion or effect of eny cond: tion, warranty, guarantee, rignt or remcdy." The proceedings are prosecutions under s.163. Section #9 of the Act provides that in the case of a person being a body corporate, a person who contravenes a provision of Part V of the Act, other than s.52, 1s guilty of an offence punishable upon conviction by a fine not exceeding $10,000. There 1s no doubt that the proceedings instituted by these informations are criminal proceedings. Upon the informations coming before the learned trial judge an apnlication was made to the judge to apply the provisions of s.25(6) of the 2lia Act 1976 end three questions were i) Federal Court of Avntr a stated by the trial gudse for the ccoucidcration of a Full Court. -~3- Before us the question cf jurisdiction has arisen and, since jurisdiction cannot be conferred by consent, it is necessary for this Court to oxamine whether it has jurisdiction in the particular circumstances to answer the gqucstions submitted to it. Section 25(6) of the Federal Court of Australia Act deais with the gurisdiction of the Court and provides : "The Court constituted by a single Judge sitting in either Divison may state any case or reserve any QUeslton CONCEL NIN a baller WLttl respect to which an appeal would lie from a gudgnent of the Judge to a Full Court cf the Court for the consideration of a Fuil Court of the Court in that Division and the Full Court has jurisdiction to hear and determine the case or question." Section 26(1) is a section corresponding to s.25(6) and deals with cases stated or questions reserved fron courts other than the Federal Court of Australia. It provides : "A court from which appeals lie to the Court may state any case or reserve any question concerning a matter wita respect to wnich such an appeal vould lic from a judgment of the fiurst—mentioned court for the conzideretion of the Court and the Court has jurisdiction to hear and determine the case or question." It will be noted that both sub-sections uce the words "may state any case cr reserve any qucstion concerning a matter with respect to which an appeal would lie from , -4- a judgment ..." Section 25(6) then proceeds "of the Judge" and s.26(1) "of the first-mentioned court." Both sub-sections then procecd to invest the court to which the case is stated or the question reserved with jurisdiction to hear and determine the case or question. Section 26(1) does not provide jurisdiction for a case to be stated or a question to be reserved by any court from which an appeal lies to the Federal Court of Australia but only where the case stated or the question reserved concerns "a matter with respect to which en " ~ ae appeal would lie from a gudgeent" of the court stating ) the case or reserving the question. Similarly under s.25(6) a case may not be stated or a question reserved in all cases where the Federal Court is constituted by a single judge sitting in either divisicn but again only where the stated case or the question reserved concerns @ matter with respect to which an appeal would lic from a judgment of the gudge to the Full Court of the Federal Court of Australia. Section 24(1)(a) of the Federal Court of Australia Act provides : tSubgect to this section and to any other Act, whetner sassed before or after the commencement of this Act (including an Act by virtue of which any gudgrents referred to in this section are made final and conclusive or not subycct to appeal), the Court hus jurisdiction to hear and determine - (a) appeals fron judgments of the Court constztuted hy a single Judge;" ~5- It has been held by the Full Court of this Court in Thompson v. Mestertouch T.V. Service Pty. Linited (1978) 19 A.L.R. 547 that s.24(1)(a) and (b) of the Federal Court of sustralia Act does not empower the Federal Court of Australia to hear aid determine an appeal from a gudgment of acquittal in criminal procecdings before a single judge of this Court. The Nigh Court refused special leave to appeal from this judarent of the Full Court of this Court. It was also held by a mayority of this Court in Pearce v. Federal Cormissioner of Taxation (1973) 20 A,L.R. 354 that no power to reserve a question of law for the opinion of the Full Court of the Federal Court lay in that case under s.26 of the Federal Court of Australia Act because no appeal lay from the Suvreme Court of South Australia except by leave of the Federal Court (s.196(5)(a) of the Income Tax Assessment Act 1936). Deane J. av p.358 said "The fact that this court may subsequently grant leave to appeal does nec alter the fact that, unless and until cucn leave is granted by this court, the present matter cannot proverly, for the purroses o2 s 26 of the Federal Court of Auctralia Act, be regarded as one in Which an appcal would tie from a judgment of the Supreme Court," Section 24(1)(a) deals only generally with "appeuls from judgments of the Court constituted by a single Judge." 0 It was pointed out in Thompso v. Maestertouch T.V. Servi Pty. Limited, supra, that those words are to be distinguished from the words which appear in s.735 of the Constitution of Australia Act where the corresponding - a a7 . 4+ ae ed tA -6- generality of the words in s.24(1)(a) was mentioned. The power to state a case provided by s.25(6) is not cast in the terms of empowering a single yudge to state a case or reserve a qucstion in all matters, or in matters generally in which he may be sitting as the Court constituted by a single gudge, but only in respect of "any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court ..." The words used are words of selection from amongst those matters on which the gudge may be sitting as a single judge. The selection made is that the only questions which may be reserved are those concerning a matter with respect to which an appeal would lie, The restriction of matters to those "with respect to which an appeal would lie from a judgment of the Judge..." limits the right to state a case or reserve a question to certain proceedings. It is to the final position that one must look in deciding whether the qualification is satisfied. In the case of criminal proceedings before a single judge 1t 1s not possible tc decide whether an appeal would lie from the judgment until the judgment has been given and if the judgment is one of acquittal then no appeal lies. Sometimes no appeal will lie because of specific exclusions introduced by the words of s.24(1)(a) and sometimes no appeal will lie because the accused has been acquitted 1n proceedings which are criminal. I consider that the words "a matter" in s.25(6) moan no more than "a proceeding". The section is not cast in ~7- the terms which are sometimes used where a power is conferred to state a case upon any question arising in a procecding. (See @enerally Austrelian Cormon~ealth Shipping Toard v. Federated Scaren's Union of Australasia (1925) 36 C.L.R. 442). It is reasonable to approach the interpretation of s.25(6) against the background thet, in general, once criminal procecdings have begun they should be allowed to follow their ordinary course unless some special reason exists in the interest of gustice why the normal course should not be followed. (See generally Sankey v. Whitlam (1978) 21 A.L.R. 505 at p.516.) =" in KR. v. Bld rott 978 St.R.Qd. 311 the Queensland Court of Criminal Appeal was considering certain provisions of the Crimina? Cede (Q.). The judgment is directed to particular provisions of that Code but it concerned the stating of a case at the request of the Crown Prosecutor Guring a trial. The joint judgment of the Court concludes: "It seems to us that the overridirg principle involved in this case is that the prisoner is alvays entitled to the benefit of the views of the trial gudre upon the point that there is no evic.nce of guilt fit to be submittcad to a gury for its consideration. The lcarned trial yudge heving so rulcd and no veréict of the gury having been taken, no other mind than that of the trial gudge can be interposed." There is nothing unusua} in refusing to construe a section providing for the reservation of a point for the consideration of a Full Court as providing gurisdiction to reserve a questicn \here no appeal jJies from the judgment of the gudge being asked to reserve the question. -8- (See generally Tait v. R. [1963] V.R. 547 at p.550). I consider that once criminal proceedings have been commenced before a judge of this Court, they should be determined in the first instance by the trial judge. If the accused is acquittcd the matter ends, if he is convicted he has a right of appeal. This is the traditional way with criminal proceedings. I consider that ciear words would be necessary to alter that position and I do not find any such clear words in s.25(6) of the Act. In my opinion since an appeal only lies in the event of a conviction I do not consider that it can be said that an appeal would lie from a judgment of a single judge sitting in the general division in criminal proceedings until judgment has been given and that judgement is not one of acquittal. The words "would lie" are to be contrasted with "might lie". See gencrally Ex rarte Dawes; In re Moon (1886) 17 Q.B.D. 275 at p.282 and Pearce v. Federal Commissioner of Taxation, supra. In my opinion a single judge of the Federal Court has no power to state a case or reserve a question of law for the opinion of the Full Court of that Court in proceedings commenced by information in which a fine is sought in respect of a contravention of s.53 of the Trade Practices Act 1974, Therefore I consider that this Court has no gurisdiction to answer the questions submitted to it. T would allow the parties to make submnicsions on the qucstion of costs I certify tnvt this and the cir preecding pares are a true copy of the Reasons fer Judgment herein of his Eenour ir, Justice aarar pi U9 <\ lane Ul Associate Dated: 2/ Nog MUA -~ re IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION S.A. Nos. G 6-41 inclusive of 1978. SOUTH AUSTRALIA DISTRICT REGISTRY BETWEEN: CRAIG JACKSON HENDERSON Informant and PIONEER HOMES PTY. LTD. and PIEONELR AGONCINS PTY. LTD. Defendants NORTHROP J. REASONS FOR JUDGMENT 21 May, On 6 October 1978, in Adelaide, 14 informations against the defendant Pioneer Homes Pty. Ltd. and 22 anformations against the defendant Pioneer Agencies Pty. Ltd. came on for hearing before the Federal Court of Australia constituted by a single Judge. Each defendant entered a plea of not guilty in respect of each information upon which it was charged. At the request of the informant and the defendants and before any evidence was given the Court stated a case in the form of a special case, see Federal Court of Australia Rules Part 3 Order 6, for the consideration of the Court under s.25(6) of the Federal Court of Australia Act 1976. During the hearing of the case stated, the Court raised the question whether it had jurisdiction to hear and determine the case stated which concerned a criminal matter arising under the Trade Practices Act 1974, 1979. as amended. Counsel made submissions supporting the existence of the necessary jurisdiction, but it is clear that jurisdiction cannot be conferred on the Court by consent of 2. the parties. Before making any order the Court must be satisfied that 1t has jurisdiction to make the order sought; re: Trade Practices Act 1974 and re: An Application by Tooth & Co. Ltd, Full Court, Federal Court of Australia 20 September 1978. Accordingly, 1t becomes necessary for this Court to consider whether 1t has jurisdiction to make orders answering the questions raised in the case stated. The Federal Court of Australia was created by the Federal Court of Australia Act 1976. It is a Superior Court of Record and 1s a court of law and equity, s.5. For the purpose of the organisation and conduct of the business of the Court, the Court comprises 2 Divisions, namely, the Industrial Division, and the General Division. Jurisdiction that 1S required by any Act to be exercised in the Industrial Division and jurisdiction incidental to the existence of any such jurisdiction, 1s exercised in the Industrial Division and all other jurisdiction of the Court is exercised in the General Division, s, 13, In the present proceedings the Court 1s exercising jurisdiction in the General Division. The jurisdiction of the Court is conferred by Part III of the Act which 1s headed "Jurisdiction of the Court" and which contains sections 19 to 32 both inclusive. Division I of Part III is headed "Original Jurisdiction". Section 19(1) of the Act provides as follows: "19.(1) The Court has such original jurisdiction as 1s vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament." The original jurisdiction of the Court in the General Division 1S exercised by a single Judge, s.20, and the power of the Court to make orders 1s stated in wide terms, $.21, s.22 and s.23. Normally the trial of a sult is by a Judge without a jury but the Court or a Judge has power to direct the trial of issucs with a jury, s.39 and s.40. ewe mew ee wie ee ee ee nee 3. The present case stated concerns a Matter arising under laws made by the Parliament. Section 53, Trade Practices Act imposes specified duties upon corporations. Section 53 is within Part V of that Act. Section 79(1) of that Act provides as follows: "79.(1) A person who contravenes a provision of Part V other than section 52 is guilty of an offence punishable on conviction - (a) in the case of a person not being a body corporate - by a fine not exceeding $10,000.7; or (b) an the case of a person being a hody corporate - by a fine not exceeding $50,000." If these provisions stood alone, under Part X of the Acts Interpretation Act 1901, as amended, the offences created by s.79 of the Trade Practices Act would be punishable on summary conviction and the fine recovered in a court of summary jurisdiction, see s.43 and s.44, Acts Interpretation Act, see also Crimes Act 1914, as amended, s.13, s.18A and s.21. The Trade Practices Act contains a "contrary intention" within the meaning of s. 44, Acts Interpretation Act. Section 86, Trade Practices Act is as follows: "86. Jurisdiction is conferred on the Court to hear and determine actions, prosecutions and other proceedings under this Part and that jurisdict2zon is exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under s.75 of the Constitution." Section 79 and s.86 are each within Part VI of the Act. By definition "the Court" is the Federal Court of Australia. Any doubt as to the meaning and effect of s.86 is removed by s.163, Trade Practices Act. The relevant provisions of that section are as follows: 4. "163.{1) Prosecutions for offences against this Act shall be brought only in the Court, (2) Jurisdiction is conferred on the Court to hear and determine prosecutions under this Act ... (4) Proceedings before the Court in accordance with this section - (a) may be instituted by summons upon information; and (b) shall not be instituted except with the consent in writing of the Minister or of a person authorised by the Minister, by writing under his hand, to give such consents..." By definition "the Court" is the Federal Court of Australia. When the informations against the defendants came on for hearing in the Court, the Court was exerclSing original jurisdiction in respect of a Matter arising under laws made by the Parliament. The matter was clearly a criminal matter arising under the Trade Practices Act and so it is not necessary to discuss any of the many authorities concerning what are criminal matters aS contrasted with civil matters, Division 2 of Part III of the Federal Court of Australia Act 1s headed "Appcllate and related Jurisdiction." Section 24 confers the appellate jurisdiction upon the Court. For present purposes the relevant provisions of that section are as follows: "24,(1) Subject to this section and to any other Act, ... the Court has jurisdiction to hear and determine - (a) appeals from judgments of the Court constituted by a single Judge; ..." Having regard to the definition of "judgrent" contained in s.4 of the Act and the powers referred to in s. 28 of the Act, Ss. 24 appears to confer an unlimited jurisdiction on 5. on the Court to hear and determine appeals from Judgments of the Court constituted by a single Judge. I shall return later to consider the limitations imposed on the literal meaning of the words contained in s.24(1) (a). Section 25(1) provides that except where otherwise provided, the appellate jurisdiction of the Court is to he exercised by a Full Court as constituted pursuant to s.14. Section 25(6) of the Federal Court of Australia Act is of crucial importance in the present case. It provides as follows: "25.(6) The Court constituted by a single Judge sitting in either Division May state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court of the Court in that Division and the Full . Court has jurisdiction to hear and determine the case or question." The power to state a case or reserve a question conferred by s.25(6) 1s not unlimited. The word "matter" in s.25(6) should be given the same meaning as the word "matters" in s.19. The word "matter" must refer toa subject matter of a law made by the- Parliament and when used in s.25(6) must refer also to the subject matter of a legal proceeding, see In re Judiciary and Navigation Acts (1921) 29 C.L.R. 257 per Knox C.3., Gavan Duffy, Powers, Rich and Starke Jk. at pp.265-6. See also Collins v. Charles Marshall Pty. Ltd. (1955) 92 C.L.R. 529 per Dixon C.J., McTiernan, Williams, Webb, Fullagar and Kitto JJ. at p. 535-544. Except as otherwise provided, and in the present case there is no other provision, the Court constituted by a single Judge is exercising the original jurisdicticn of the Court, s.19 and s.20, and of necessity is exercising jurisdiction "in respect of matters arising under laws made by the Parliament". The power in s.25(6) to state a case or reserve a question must concern such a matter but the matter is limited to "a matter with respect to which an appeal would lie from a judgment of 6. 6. the Judge to a Full Court". Difficulties arise immediately in applying this limitation since the jurisdiction to hear and determine appeals is conferred by reference to "judgments, as defined, and not by reference to matters within the original jurisdiction of the Court. Generally see Cockle v. Isaksen (1957) 99 C.L.R. 155 per Dixon C.J., McTiernan and Kitto JJ. at pp.160-6 especially at 163 and 164. The word "matter" in s,25(6) cannot be construed to mean "judgment" as that word 1s used in s.24(1) since the case to be stated or the question to be reserved is not a judgment of the Court. A case stated or a queStion reserved of necessity refers to 1Ssues arising prior to a judgment, decree or order, whether final or interlocutory, or a sentence. Nor can the word "matter" be construed to mean "proceeding" since the case to be stated or the question to be reserved must concern a subject matter which 1s within the jurisdiction of the Court conferred by s.19. In this regard I refer to the discussion in Collins v. Charles Marshall Pty. Ltd., supra. In each of Cockle v. Isaksen and Collins v. Charles Marshall Pty. Ltd.the proceedings before the High Court were with respect to appeals against orders made by a stipendiary Magistrate dismissing informations for offences in criminal matters. It is unfortunate that Cockle v. Isaksen is not Mentioned in Thompson v. Mastertouch T.V. Service Pty. Ltd., post, The appellate jurisdiction conferred by s.24(1) of the Federal Court of Australia 1s subject to any other Act. Between 1 February 1977 and 18 June 1978, both inclusive, s.118B(1) (a), Conciliation and Arbitration Act 1904 as amended, provided as follows: "118B.(1) Notwithstanding anything contained in the Federal Court of Australia Act 1976 - . (a) an appeal does not 11e€ to a Full Court of the Federal Court of Australia from a judgment, decree, order or sentence under this Act of that Court constituted by a single Judge; ..." Since 19 June 1978 s.118B(1)(a) has provided as follows: "118B.(1) Notwithstanding anything containeée in 7. the Tederal Court of Australia Act 1976 - (a) an appeal does not lie toa Full Court of the lederal Court of Australia from a judgment or order of that Court, constituted by a single Judge, in proceedings under section 158P or under Part IX;..." See Conciliation and Arbitration Amendment Act (No. 3) 1976, S.3 and Conciliation and Arbitration Amendment (Federal Court of Australia) Act 1978, s.4. These provisions impose limitations upon the appellate jurisdiction of the Court by reference to "a judgment, decree, order or sentence" of the Court constituted by a single Judge and are not in terms directed to specific "matters arising under laws Made by the Parliament". By using language consistent with that used in s.24(1) of the Federal Court of Australia Act, these provisions do not assist in determining the application of the limitation contained in s.25(6) of the Federal Court of Australia Act. The difficulty in applying the limitation would not have arisen if s.24(1) (a) conferred an unlimited jurisdiction to hear and determine appeals from all judgments of the Court constituted by a single Judge in respect of matters arising under laws made by the Parliament, or put another way, 1f the words of s.24(1) (a) were construed literally as meaning aJl judgments as defined, in proceedings concerning matters within the original jurisdiction of the Court constituted by a single Judge. The Full Court of the Federal Court of Australia, however, has held that s.24(1)(a) of the Federal Court of Australia Act does not confer Jurisdiction on the Court to hear and determine an appeal from a judgment of the Court constituted by a single Judge in respect of a criminal matter arising under a law made by the Parliament where the judgment sought to be appealed from was an order made dismissing an information for a criminal offence, Thompson v. Mastertouch T.V. Service Pty. Ltd. (1978) 19 A.L.R. 547. Subsequently the High Court refused special leave to appeal against the order of the Full Court, see s.33 Federal Court of Australia Act which prescribes exceptions to and regulates the jurisdiction of the 8. 8. High Court to hear and determine appeals from judgments from the Federal Court of Australia whether in civil or criminal matters. In Thompson v. Mastertouch T.V. Service Pty. Ltd. supra, the respondent, on the information of the appellant, was charged under s.79, Trade Practices Act, with a breach of s.59 of the Act, The information came on for hearing before the Court constituted by a single Judge which, by order, dismissed the information with costs. The appellant purported to appeal as of right against that order. The Full Court held that it did not have jurisdiccion to hear and determine the appeal. Deane J., in a judgment with which Smithers and Riley JJ. agreed, traced the history of the common law principle that there should be no appeal from a judgment of acquittal pronounced in criminal proceedings by a court of competent jurisdiction unless the right to appeal was conferred by statute in express and unambiguous words. His Honour came to the conclusion that the words of s.24(1) (a) of the Federal Court of Australia Act, even when read with s.28 of that Act, were not sufficiently express and unambiguous to justify the abrogation of the common law principle. The word "judgment" in s,24(1) (a), Federal Court of Australia Act when applied to a criminal matter in proceedings before the Court means "a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises" see re Woodhall (1888) 20 Q.B.D. 833 per Lord Esher M.R. at p.836. By applying the principles enunciated in Thompson v. Mastertouch T.V. Service Pty. Ltd. supra, 1t follows that s.24(1) (a) does not confer jurisdiction on the Court to hear and determine appeals from all judgments of the Court constituted by a single Judge. Without attempting to give a definitive answer applicable to all types of judgments, I am of the opinion that when the Court corstituted by a single Judge is exercising original jurisdiction in respect of a criminal matter arising under the laws made by the 9. 9. Parliament, s.24(1)(a) does not confer on the Court jurisdiction to hear and determine an appeal from a judgment which constitutes an acquittal. It follows that where the Court constituted by a single Judge is exercising the original jurisdiction of the Court in respect of a criminal matter, it cannot be said that that criminal matter 1s "a matter with respect to which an appeal would lic from a judyment of the Judge to a Full Court of the Court", see s. 25(6). The jurisdiction of the Court to hear an appeal from such a judgment depends upon the nature of the judgment made. In the exercise of jurisdiction concerning a criminal matter, at the most an appeal would lie only from a judgment which, does not constitute an acquittal. Whether a judgment 1s of such a nature can be determined only after a judgment has been given, it cannot be foretold. Accordingly, 1n my opinion, in the present case, the Court has no jurisdiction to hear and determine the case stated and the case stated should be struck out. This result may seem unsatisfactory and anomalous but in this respect the absence of jurisdiction to hear and determine a case stated 1S not unique. A court has no jurisdiction to hear appeals unless conferred by statute, see Benson v. Northern Ireland Road Transport Board [1942] A.C. 520 per Viscount S12mon L.Cc. at p.525. The obita by Lord Birkenhead 1n Secretary of State for Home Affairs v. O'Brien [1923] A.C. 603 at pp.609-10 that in certain circumstances appeals are permitted to the highest tribunal in the land, is to be read in the light of the canments made in Williamson v. The Director of Penal Services J1959} V.R. 205 per Herring,C.J., Gavan Duffy and Adam JJ. at pp.209-10. Thus whenever a question arises concerning the appellate jurisdiction of a court, it is necessary to construe the statute conferring that jurisdiction. In Benson v. Northern Ireland Road Transport Board, supra, the House of Lords held that a statute which provided that: "An appeal shall lie to a court of quarter 10. 10, sessions against an order of a court of summary luriSdiction. in cases of a civil nature by either party whether he is the complazrnant or defendant, and in other cases bv any party against whom an order 18 made for payment of any penal or other sum, or for any term of imprisonment,..." did not confer a right of appeal on the complainant in a criminal matter where a court of summary jurisdiction had dismissed a summons brought by the complainant and ordered the complainant to pay the defendant's costs, See also McIDwan v. Waldron (No.1) [1976] V.R. 495. Likewise, the question whether a court has jurisdiction to hear and determine a case stated or question reserved is to be answered by construing the statute conferring that jurisdiction. In Tait v. R. [1963] V.R. 547, the Full Court of the Supreme Court of Victoria held that s. 44 Supreme Court Act 1958 (Vic) did not confer a power on a judge to refer a special case in a criminal matter for the consideration of the Full Court. The section provided as follows: "44, Subject to any Rules of Court, any Judge of the Court sitting in the exercise of its jurisciction may at the request of one of the partics but (except the contrary 1s expressly enacted) not otherwise, reserve any case or any point in a case for the consideration of the Full Court, or @irect any case or foint 1n a case to be argued before the Full Court; and the Full Court shall have power to hear and determine any such case or point so reserved or so directed to be argued." il. ll. In a joint judgment Lowe and Pape JJ. said at pp.549-50: "If that section alone in the full breadth of its languaye 1S considered, it 1s hard to see why the present reference does not come within ait. But there 1s a series of authorities binding on this Court which establashes that no appeal will lie to this Court in criminal matters: see re Thomeson (1893), 19 V.L.R. 286; re Marshall (1901), 27 V.L.R. 205; 7 A.L.R. 201; re Medley (1902), 28 V.L.R. 475; 8 A.L.R. 230; R. v. Watt (1912] V.L.R. 225; 18 A.L.R. 96, 158 and Williamson v. Director of Penal Services [1959] V.R. 205; [1959] A.L.R. 542, and this 1s so cven in face of what appears to be language of universal application, viz. 'every order made by a judge in Chambers' with exceptions not relevant (Supreme Court Act s.4l1. In Thompsons's Case, supra, Williams 'This 1s a criminal matter and therefore there 1s no appeal to this Court. It 1s virtually an appeal from a punishment inilicted by a Judge presiding in the Cririnal Court fer a criminal offence. There is no appeal to this Court in such a matter'., The date was 1893 and consequently before the Court was empowered to deal with criminal appeals. Madden, c.J., in Marshall's Case, supra, puts the matter. thus: 'He [1.e, the applicant] 1s entitled to have his case judged there and then [1.e. in the Criminal Court] and once only'. In the instant case the very terms of the notice of motion show it to be a criminal matter. And if the matter cannot come by way of appeal to the Full Court, because in such a matter the Full Court is not empowered to deal with it, 1t must follow that neither can 1t deal with 1t by reservation under s, 44. This conclusion 1S supported by the terms of s.42 of the Supreme Court Act which empowered 'any single Judge sitting in Court!' to hear and determine, ectc., "subject to appeal in cavil or mixed matters to the Full Court', where the appeal 1s expressly limited to matters which are not criminal. This language was held in Williamson's Case, supra, to preclude tne Full Court from entertaining an appeal from a decision of a judge in a criminal matter: [1959] V,R. 205, at p,207." See also per Smith J. at pp.560-1. It 1s interesting to note that in that case the Solicitor-General for Victoria, though not making any submission upon the question, drew the attention of the Court to the provisions of the Supreme Court Act. On this aspect Smith J. said at p.560: 12. 12. "The fact that no submission 1s made does not, in my view, relieve the Court from the necessity for considering this question". Likewise, the Supreme Court of Queensland has held that under the criminal code of that State a trial Judge does not have power to refer a question before verdict for the consideration of the Court of Criminal Appeal,R. v. Elliott 1938 St.R.Qd.31l. In that case, the Court of Criminal Appeal comprising Blair C.J. Webb J., and Hart A.J. said at p.314: "Tt seems to us that the overriding principle involved in this case 1s that the prisoner 1s always entitled to the benefit of the views of the trial Judce upon the point that there is no evidence of guilt fit to be submitted to Sayyeyw for ta snonsiderstion MRA Taneacd a jury ©£Or its consiaeration. anG s2Carnéea trial judge having so ruled, and no verdict of the jury having been taken, no other mind than that of the trial Judge can be interposed." I consider that once a proceeding ina criminal matter has been commenced before the Court constituted by a single Judge exercising original jurisdiction, and this must occur at least when a plea has been centered, the person charged with an offence is entitled to the decision of the trial Judge. At common law a person accused of a criminal offence had the right to have the charge against him heard and determined by the trial Judge and 1f acquitted was not subjected to having that judgment of acquittal set aside by an appeal court unless the statute conferring the appellate jurisdiction did so in clear and unambiguous language. The procedure permitting a trial judge to state a case or refer a question to a court exercising apoellate jurisdiction 1s in effect similar in some respects to the effect of an appeal from a judgment given by the trial judge. In each case the decision of the court exercising the appellate jurisdiction becomes a binding authority on the court constituted by a single Judge. The case stated or question reserved may raise matters of law which if answered by the appellate court adversely to the accused person could lead directly to his conviction thereby depriving him of his right to have all issues tried by the trial Judge. In such circumstances the opinion of the appellate court prevails. The true position was stated by Madden C.J. in re Marshall 13. 13, (1901) 27 V.L.R. 205 at 208 as follows: "A criminal trial and all the incidents of that trial ought to be dealt with and disposed of finally by the Judge." The construction I give to s.25(6) Federal Court of Australia Act 1s consistent with the principles of the common law. Likewise, the construction 1s in harmony with opinions expressed in Pearce v. Federal Commisstoner of Taxation (1978) 20 A.L.R. 354. In that case the Full Court of the Federal Court of Australia had to construc s.26(1) of the Federal Court of Australia Act. The proceedings concerned a civil matter. Bowen C.J. did not find it necessary to express any opinion on this question, but Brennan and Deane JJ. each expressed the opinion that although under s.26 of that Act there 1S a general power to reserve a question of law for the opinion of the Yederal Court conferred upon a court from which an appeal lies to the FederalCourt from a judgment of the court hearing the matter, that section does not confer jurisdiction to refer a question and does not confer jurisdiction on the Federal Court to answer a question when an appeal to the Federal Court 1s subject to leave being granted by the Federal Court. Deane J. said at p. 358: "The fact that this court may subsequently grant leave to appeal does not alter the fact that, unless and until such leave is granted by this court, the present matter cannot properly, for the purposes of s. 26 of the Federal Court of Australia Act, be regarded as one in ~~ which an appeal woulda lie from a judgment of the Supreme Court." In all the circumstances I am of the opinion that in the present proceedings the trial Judge had no jurisdiction to state a case to be heard and determined by a Full Court, and that the Full Court has no jurisdiction to hear and determine the case stated. The case stated should be A ae LEIS EAE ITNT LONER TA POO TAO INES ~ Loeitey dia the aud the fort cope of the struck out. Y edie. mie are a teu \ Reoer te bids en hater ot tee Ther ude Ma du tice Worntnge Kenpo Sgt mn