'. muss ots, 243/68... CATCHWORDS TRADE PRACTICES ACT - application for injunctive relief pursuant to s 80 - whether the Trade Practices Act binds the Crown in right of the State - whether immunity of State Crown extends to others with whom the Crown contracts or enters into an arrangement or understanding - interests of the State Crown adversely affected by the granting of an injunction - meaning of Government business - whether State Minister or others dealing with them can be guilty of aiding and abetting the commission of an offence under the Trade Practices Act. Trade Practices Act 1974: sections 2A, 52, 80 New South Wales Bar Association First Applicant Law Society of New South Wales Second Applicant Michael Aroney an nald Me Sheldon on behalf of The Australian Association of Surgeons Third Applicant -v- Forbes Macfie Hansen Pty Limited First Respondent Monohan Daysen Adams tic Pty Limited a (*) raiia Limit trading as Second Respodent The Hon. Patrick Darcy Hills Third Respondent The Hon. mneth George Booth Fourth Respondent G 219 of 1987 Einfeld J. — Sydney / ts ANS 23 May 1988 a «we sot us ar ' IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: AND: CORAM: Einfeld J. DATE: 23 May 1988 PLACE: Sydney ~ No. G 219 of 1987 NEW SOUTH WALES BAR ASSOCIATION First Applicant LAW SOCIETY OF NEW SOUTH WALES Second Applicant MICHAEL ARONEY and DONALD MERVYN SHELDON on behalf of THE AUSTRALIAN ASSOCIATION OF SURGEONS = Third Applicant FORBES MACFIE HANSEN PTY LIMITED First Respondent MONOHAN DAYMAN ADAMS (NSW) PTY. LIMITED and MOJO AUSTRALIA PTY LIMITED trading as "MOJO MDA" Second Respondent THE HONOURABLE PATRICK DARCY HILLS Third Respondent THE HONOURABLE KENNETH GEORGE BOOTH Se Fourth Fourth Respondent MINUTE OF ORDERS 1. The application is dismissed. 2. Costs are to be paid by the applicants, including costs of the second respondent up to their departure from the suit. E of the Federal Court Rules. Settlement and entry of these orders is deait with in Order 36 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION No. G 219 of 1987 — ee ee ee NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: NEW SOUTH WALES BAR ASSOCIATION First Applicant LAW SOCIETY OF NEW SOUTH WALES Second Applicant MICHAEL ARONEY and DONALD MERVYN SHELDON on behalf of THE AUSTRALIAN ASSOCIATION OF SURGEONS Third Applicant E FORBES MACFIE HANSEN PTY LIMITED First Respondent MONOHAN DAYMAN ADAMS (NSW) PTY. LIMITED and MOJO AUSTRALIA PTY LIMITED trading as "MOJO MDA* Second Respondent THE HONOURABLE PATRICK DARCY HILLS Third Respondent THE HONOURABLE KENNETH GEORGE BOOTH Fourth Respondent CORAM: Einfeld J. DATE: 23 May 1988 PLACE: Sydney REASONS FOR JUDGMENT Application was made under section 52 of the Trade Practices Act 1974 (the Act) on the 22 May 1987 by the New South Wales Bar Association, the Law Society of New South Wales and Doctors Michael Aroney and Donald Mervyn Sheldon on behalf of the Australian Association of Surgeons (the applicants), seeking injunctive relief pursuant to section 80 of the Act. Restraint was sought on the New South Wales Government from continuing a series of advertisements in various elements of the mass media which began on 7 April 1987 and were scheduled to continue to 27 May 1987. In summary, the aim of the advertisements was to introduce, explain and promote the New South Wales Government's new Transcover and Workcover legislation. Forbes Macfie Hansen Pty Limited (the first respondent) and MOJO MDA (a business trading name of Monahan Dayman Adams (NSW) Pty Limited and MOJO Australia) (the second respondent) were alleged to be the advertising agents of the New South Wales Government responsible for preparing and Placing the advertisements in the media. It emerged that the second respondent had nothing to do with the relevant advertisements and subject to costs it was by consent effectively dismissed from the suit. The third and fourth respondents were at the relevant time respectively the Minister for Industrial Relations and Employment and the Treasurer in the New South Wales Government (the Ministers). In view of the imminence of the remaining advertisements, the matter was dealt with as one of urgency. As it eventuated, however, the action was really a means of highlighting, one suspects more politically or at least forensically than legally, the applicants' objections to the substantial changes made by the legislation in the compensation of persons injured in motor vehicle and work place accidents. This is because by the time the litigation was commenced, almost all of the allegedly misleading or deceptive advertisements had already appeared. In addition, as was obviously the case, none of the applicants claimed to be directly adversely affected by any loss or reduction of rights provided by the legislation for the victims of accidents. Their interest was either narrow and selfish, or as guardians and advocates of the public interest, or both. There was no evidence that any member, group of members of the public, trade union or other mass membership body had sought or sanctioned the proceedings. If an injunction might otherwise be available, notwithstanding the colourfully expressed views of Deane J, as a member of a Full Court of this Court, in Phelps v Western Mining Corporation Ltd (1977-8) 33 FIR 327, serious discre- tionary questions may arise in relation to the appropriateness of intervention by the Court in circumstances such as these - and as late in the events as here - where private rights were being litigated by self interested narrow membership public bodies not per se entitled to or the beneficiaries of the rights. As the overall proceedings were eventually disposed of on the giving of mutual undertakings by the parties (which had the effect that the remaining advertising was not to appear), only one substantive matter now requires decision. There was no dispute that the first respondent was the advertising agent who devised and placed the advertisements, that the Ministers were members of the Government who wanted the advertisements, and that the Ministers authorised the relevant advertisements. On 25 May 1987 the Solicitor General of New South Wales who appeared on behalf of the Ministers, and the first respondent, filed notices of motion seeking that the proceedings before the court be sunmarily dismissed pursuant to Order 20 of the Federal Court Rules. The Solicitor General put the following arguments: (a) The Act does not apply to the New South Wales State Crown. (b) The Ministers were representatives of the New South Wales State Crown. (c) There is no jurisdiction under the Act to grant injunctive or any other relief that would effectively censor or restrict the activities of the New South Wales State Crown. STATUTORY POSITION The issues raised by the Ministers arise because the Act expressly provides that the Commonwealth is bound by the Act but is silent as to the position regarding the States. The relevant provision concerning the Commonwealth is section 2A of the Act: "2A. (1) Subject to this section, this Act (other than Part X) binds the Crown in the right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. (2) Subject to the succeeding provisions of this section, this Act applies as if- (a) the Canmonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and (b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Cammonwealth) in so far as it carries on a business, were a corporation. (3) Nothing in this Act renders the Crown in right of the Commonwealth liable to be prosecuted for an offence. (4) Part IV does not apply in relation to the business carried on by the Canmonwealth in developing, and disposing of interests in, land in the Australian Capital Territory." a The question as to whether, in the absence of clear statutory provision, the State Crown is bound by the statute was thus stated by Gibbs ACJ (as he then was) in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd. (1978-79) 145 CLR 107 at 116 : "It is an established rule of construction that no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound; there will be such a necessary implication if it is manifest from the very tems of the statute that it was the intention of the legislature that the Crown should be bound: Province of Bombay v Municipal Corporation of Bomba (1947) AC 58 at 61. The Toads Practices Act, by s.2A, expressly states that (subject to that section) it binds the Crown in right of the Commomvealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. The Act is however silent on the question whether it is intemied to bind the Crown in right of a State. The question thus arises whether the rule to which I have referred means that a statute of the Commonwealth will not be construed as binding the Crow in right of a State unless it appears by express words or necessary implication that it wes intended to do so. In other words, does the rule apply to the Crown in all its capacities, or only to the Crown in right of the commmity whose legislation is under consideration? When construing a Commonwealth statute, does "the Crown", for the purpose of this rule, mean only the Crown in right of the Commonwealth or does it include the Crowm in right of a State?" In his judgment, Gibbs ACJ examined a number of authorities that have considered the problem and concluded that the Act does not bind the Crown in right of a State. Justice Stephen at 129 said that since the Act is silent as to whether it binds the Crown in right of the States or any necessary implication to that effect, it should be taken as not binding the Commissioner of Railways who was the relevant Crown representative in that case. It is thus clear that the New South Wales State Crown is not bound by the Act. ISSUES As argued by the parties, the substantive issues raised by the notices of motion are therefore: 1. Were the Ministers instrumentalities, agents, representatives or authorities of the Crown in right of New South Wales? 2. If so, does the immunity enjoyed by the Crown in right of the State extend to its agents? 3. Can injunctive relief by way of section 80 of the Act be given against the first respondent without destroying the immunity of the State? There can be no doubt, and it was not seriously argued to the contrary, that the Ministers were representatives of the State Crown. That this must be so has emerged froma long line of cases. For instance, in Bradken (above) it was held that a Commissioner of the Queensland Railways was a representative of the Crown (see also Crouch v Commissioner For Railways (1985) 62 ALR 1). In Sharkey & Co Pty Ltd v Fisher (1980) 50 FIR 130, it was held that the Metropolitan Water Sewerage and Drainage Board was an emanation of the Crown. By way of contrast, State Superannuation Board v Trade Practices Commission (1982) 60 FIR 165 established that the Board, a Victorian statutory corporation, was so separate and independent from Government as not to be entitled to the immunity. SUBMISSIONS OF THE RESPONDENTS It was submitted that the immunity enjoyed by the State Crown extended to the first respondent and that injunctive relief should not be granted on the basis that this would prejudice the Crown who had acted through its agent. Reliance was again placed on Bradken (above) which also held that the State immunity extends to the contractual arrangements made by the State Crown with others. Mason and Jacobs JJ said at 137-138 in Bradken (above): ".,..in accordance with such authorities as Wirral Estates Ltd v Shaw [1932] 2 KB 247 and In re Telephone Apparatus Manufacturers' Application (1963) 1 463, the absence of an intention to e@ Crown in right of Queensland will not only exonerate it from the direct application of the statutory provisions but will also exonerate from the application of those provisions the contracts arrangements or understandings made by that Crown and the other parties thereto as well." The decisions in Roberts v Ahern (1903-4) 1 CLR 406, Broken Hill Smelter v Collector of sts (1918) 25 CLR 61 and In Re Telephone Apparatus Manufacturers' Application (above) all held similarly. Consequently, it was submitted, the immunity of the State Crown can be availed by others who are not the Crown if the impact on them of an order under the Act will prejudice the State Crown. Kitto J defined the relevant 'prejudice' in Wynyard Investments v Commissioner of Railways (1955) 93 CLR 376 at 393 as follows: "Ordinarily, therefore, to hold that a given statutory provision binds the Crow is to hold that it operates to destroy or curtail or impair some interest or purpose ..... of the Sovereign as so considered. Where the immmity is claimed by a subject of the Crown, whether an individual or a corporation, the question to be decided, whatever may be the language in which for convenience it may be expressed, cannot really be whether the subject is within a class of departments, organizations amd persons generically (and loosely) described as the Crown. It must always be whether the operation of the provision upon the subject would mean some impainnent of the existing legal situation of the Sovereign. This I take to be conclusively shown by the speeches, both of the majority andi of the minority, delivered in the House of Lords, and the judgments delivered in the Court of Appeal, in the case of Bank voor Handel en Scheepvaart NV. v Administrator of Himgarian Property 1954) AC 584. The Solicitor General therefore put that the interest at stake is the interest of the Crown acting free of the Act. In Bradken (above) Gibbs ACJ said at 123-4: "It of course follows that the applicants cannot obtain the relief which they seek against the Commissioner, but can they obtain the relief sought against the respondent campanies? I have already pointed out that such relief, if granted, would invalidate transactions to which the Commissioner is a party. The first two claims are for injunctions to restrain the respndent companies concerned from giving effect to the provisions of contracts, arrangements or understandings to which the Commissioner was party. An injunction restraining one of the parties toa contract from completing it affects not only the party against whom it is made; it equally affects the other party to the contract. The third and fourth claims are for injunctions restraining certain of the respondent companies from engaging in the practice of exclusive dealing, which, according to the points of claim, consists in providing, or agreeing to provide, finance and/or financial assistance to the Commissioner on certain conditions. Those injunctions if granted, will affect the Commissioner as mich as the respondent companies. In other words, if the remedies sought are granted against the respondent companies the Commissioner will be prejudiced by the operation of the Trade Practices Act just as much as if its provisions had been directly enforced against him. In Clark v Downes (1931) 145 L.T. 20 at 22 Romer L.J. said: 'The Acts not binding the Crown, it is the duty of the Courts so to construe the Acts that the Crown and its property are in no way prejudicially affected by the Acts.'" In Sharkey (above) Sheppard J at 150 stated, in interpreting and explaining Bradken : "What I consider them to have meant is that no relief will be granted against a party to a contract, arrangement or understanding, to which the Crown or a body representing it ig also a party, if such relief would affect the efficacy or operation of such agreement, arrangement or understanding. If it were to do so, the Crown would be prejudiced because one of its acts would thereby be affected. Whilst all persons have freedom to enter into such contracts, arrangements or understandings (unless they be prohibited by law) as they may choose to do, once any such contract, arrangement or understanding is entered into, the freedom of such persons is affected. They are bound, legally or morally, to act within the terms of the contract, arrangement or understanding which they have made. To that extent the very freedom which they had to contract, to make ts or to enter into understandings has led to a situation where their freedom to act becomes restricted. The restriction imposed by the contract, arrangement or understanding into which they have entered affects that freedom." It follows from these expressions that an injunction cannot go to any person or corporation contracting with a statutorily immune Crown if the interests of the Crown would be adversely affected by the injunction. The question here is whether preventing advertising of Government legislation is such an adversity. As this matter was argued as if it were not a twofold question, I must assume for the purposes of its resolution, that the advertising is false or misleading, although I am certainly not to be taken as making such a finding at this stage of the case. -10- The Solicitor General submitted that the interests of the State Crown extended to the Crown's being the judge of its own freedom of speech in a matter of legitimate public debate such as the new Transcover and Workcover legislation. Of course sections 52 and S53 are designed to prevent the making of false and misleading statements. If freedom of speech is taken, as it should not be, as meaning the right to say anything anywhere at any time, and if the State Crown is rightly entitled to claim it (and this is no time to rule on these questions), its presence as part of Australian law is not to be found in the Act or in immunity therefrom. In the absence of a constitutional or statutory entrenchment of the freedom, or some appropriate provision of an international covenant ratified by Australia extending to the States, to which domestic application should be given, the Solicitor General is presumably calling in aid and quoting the common law. If so, immunity from these provisions of the Act does not establish or provide the thus, albeit wrongly, defined freedom of speech of the New South Wales State Crown, because as I understand the position, the common law itself and other New South Wales legislation place their own restrictions on both the State's and the first respondent's "freedom of speech" to make false or misleading statements. This is not the place to examine and debate these interesting questions, because it is not the right to freedom of speech in a free society that determines the permissibility of a person or entity, or even the State, to mislead or tell untruths to the public. Nor do any of the authorities referred to by the Solicitor General say that any restriction on a person's capacity to advertise deceptions is a curtailment of freedom of speech. I repeat that I am of course making no finding that anything in the advertisements is misleading or untrue. I merely assume it, as I must, to test and rule on the proposition being advanced. In my view, the clarifying dictum of Sheppard J in Sharkey demonstrates, with his Honour's characteristic explanatory skill, that it is not the human rights of Cabinet Ministers or Governments that are under discussion in Bradken but the survival or immunity of private individuals' contractual or other arrangements or understandings - in this case of a commercial character - with State Governments. It is these persons or entities who are the recipients or beneficiaries of the Crown's immunity from the Act's restrictions or impediments. In my view, the Bradken extension of immunity should not be further extended into social and humanitarian spheres. It is confined to commercial, contractual and similar activities of the immune Government where restriction of action would directly impinge on or derogate from the freedom of the State from the Act's reach. SUBMISSIONS OF APPLICANTS The applicants did not dispute that the High Court decision in Bradken is binding upon me and therefore that the New South Wales Crown is not bound by the Act. However, they sought to distinguish it by submitting that the Crown in the right of the State of New South Wales is not a party to these proceedings. I have already ruled against one aspect of this submission. The applicants further argued that the extended Bradken rule only applies to cases where the contract with Government involves the carrying on of government business. Consequently the real question to consider, the applicants said, is whether the granting of the relief sought by the applicant could prejudice, destroy, curtail or impair business activity which is part and parcel of a Crown function. In the context of this case there was a need, the applicants submitted, for the relevant advertising and contractual arrangements to have been authorised by the Government. The applicants submitted that the publishing of misleading advertising is clearly not an authorised function of the Government. In South Australia v The Commonwealth (1942) 65 CLR 373 at 423 Latham CJ stated that there are some functions of Government which have always been regarded as such whereas others only become so if Parliament authorises them. Obviously what must be examined is the nature of the business and whether it can be classified as being within the ambit of Government activity or is the private business of the relevant government representatives. Attention was drawn to McDonald v Hammence (1984) 53 ALR 136 at 141 where Neaves J, with the benefit of many years of pre- judicial senior Government service stated: "There are many activities in the ordinary course of administering the affairs of government that may be carried on independently of any statutory provision expressly or impliedly authorizing the particular activity. One may put to one side for present purposes the need for parliamentary appropriation of funds to meet any necessary expenditure. I do not doubt that the activities of the Canberra Tourist Bureau in publishing periodically a list of accomodation facilities in Canberra and in making the necessary decisions as to what information such publications should contain are activities which do not require express or implied statutory authority. In this regard it is sufficient to refer to the decision of Fox J in Hawker Pacific Ltd v Freeland (1983) 52 ALR 185, referring to New So les v (1934) 52 CIR 455 at 474-5, 496 508. Clearly it cannot be maintained that the authorising of these advertisements and the hiring of the first respondent as advertising agent was private business of the Ministers. There is simply no evidence of any private interests of theirs involved or addressed in the advertising of the Transcover and Workcover legislation. In my opinion, the Ministers were obviously acting in an official capacity and on behalf of the State Government when they authorised the first respondent to publish the advertisements. The applicants further contended that the Ministers or any of the officers of their departments did not have the legislative authority to order the placing of the advertisements in the press and on television. This view held that to say that the relevant contract was authorised by a Minister is not sufficient. In New South Wales v Bardolph (1934-35) 52 CLR 455, Starke J at 502 stated that the fact that a Minister has entered into a contract or directed a subordinate official to do so is not sufficient to establish the necessary authority: " The Crown is dependent upon the supply granted to it by Parliament, and there is an express or implied term in its contracts that payment shall be made out of moneys so provided. But the existence of the contract is not conditional upon Parliamentary authority, or upon provision of funds by Parliament for the perfommance of the contract. The view that it is #0 conditional is entirely contrary to English practice, and to a long line of cases, collected in Robertson, Civil and nst_ the Crown + Pp. . (See v Doutre (1884) 9 App Cas. 745; Rayner _v The mg (1930) N.Z.L.R.441). Moreover, it ig in opposition statement of the Judicial Committee in R v Fisher (1903) A.C. at p.167. Constitutional practice, as in the Carmercial Cable Case (1916) 2 A.C. 610, or statutory provisions, as in Churchwood's Case (1865) L.R. 1Q.B. 173 or Mackay's Case (1922) 1 A.C. 457, may prescribe conditions to making of contracts with the Crown, and so far as these conditions exist they must be observed. But otherwise contracts made on behalf of the Crown by its officers or servants in the established course of their authority and duty are Crown contracts, and as such bind the Crown. The nature and extent of the authority may be defined by constitutional practice or express instructions , or inferred from the nature of the office or the duties entrusted to the particular officer or servant. It is not every contract made or purported to have been made by an officer or servant of the Crown on its behalf that will bind the Crown, but only such as are within the authority delegated to that officer or servant. The authority is a matter which ultimately falls for determination in the Courts of law (see Musgrave v Pulido (1879) 5 App Cas 102). The fact that a Premier, or a responsible Minister of the Crown, has entered into a contract on the part of the Crown, or has directed a subordinate official so to do by no means establishes the necessary authority: such a role, while it might not destroy Parliamentary control over the amount and manner of expenditure of public money, would necessarily weaken that control. In each case, the character of the transaction, and also constitutional practice, must be considered." On the other hand, Dixon J at 509 in the same case said that statutory authority is not needed to make a valid contract which binds the Crow. On the question of authority to enter contracts, reference was made to sections 12 (1) and 4 (1) of the Public Finance and Audit Act 1983 (NSW) as to who can enter contracts and incur expenditure on behalf of the executive. Section 4 (1) of the Public Service Act 1979 (NSW) was also relied on to establish the purported authority of Government departments to enter contracts. The applicants further submitted that when a Government department is given access to certain moneys, they must be used in the manner in which the department is authorised to spend the money. Consequently, it was maintained that the spending of Government money to misinform the public is not within the authority of a Government department. There is no direct evidence to establish the basis for any of these arguments. This application seeks an injuction to restrain the Ministers from permitting particular advertisements to be aired in public, not departments from undertaking or authorising expenditure or entering contracts on behalf of the Government. Yet there is for example no evidence as to if, how, by whom or from what fund the first respondent was paid for its work or the advertisements were otherwise paid for. However, I am satisfied that the Ministers were authorised to engage the first respondent and approve the appearance of the advertisements. The evidence satisfies me that the advertisements were authorised by the Ministers in their official capacities and there was no cross examination to establish any other basis for their actions. Further, the explanation and promotion of Government-sponsored legislation are, it seems to me, legitimate functions of Government in ordinary circumstances. FURTHER ISSUES - AIDING AND ABETTING It was further claimed by the applicants that the first respondent should be restrained, pursuant to sections 75B, 79 and 80 of the Act, from aiding and abetting the Ministers in the commission of an offence by engaging in the conduct of instructing the publication of deceptive or misleading advertisements. I reject this argument for which no authority was cited. In my view the first respondent was acting entirely as an agent of and under the presumably contractual instructions of the Government in devising and placing' the advertisements for which it had no other responsibility. Again assuming, without finding, that the two advertisements are in fact misleading or deceptive, I do not believe that the first respondent's activity amounted to the separate offence of aiding and abetting the then presumed offence of misleading or deceptive conduct. In any event the first respondent can no more be held liable under the Act for any falsities or misleading or deceptive features of the advertisements than can the Ministers themselves. If the Ministers are not bound by the Act, they can commit no offences under it. I cannot' see how someone else can then commit the offence of aiding and abetting a non offender in not committing the principal offence. The applicants also put the reverse argument - viz. that the Ministers were aiding and abetting the commission of an offence under the Act by their agents the first respondents and, as I understand it, by the newspapers and television stations who were going to publish the advertisements. They pointed in this latter connection to the words of section 980(1){c) where reference is made to aiding and abetting "a person" (presumably another person) to commit an offence, as demonstrating that the second person does not have to be a person before the court and could in this case for example be the newspapers or television stations. In my view both these submissions also fail. All the relevant "persons" are before the Court. The first respondent is said to be committing the offence and the Ministers are the alleged aiders and abettors. I do not believe that the first respondent has committed any offence at all. In the circumstances of this case, they are not subject to the Act. The Ministers cannot commit any offence under it nor specifically can they aid and abet a non offender. As regards the publishers or proposed publishers of the advertising, the applicants relied upon the decision of Phelps (above) where it was held that those who caused misleading advertising to be published, not being the newspapers, could be dealt with under section 52. However, upon a close reading of the decision, it seems to me that the real issue before the court was the locus standi of the applicant. Upon determining this issue, the court allowed the case to proceed against those who had caused the advertising to be published. The court did not address the question of whether an aider and abettor may be found to have committed an unlawful act notwithstanding that the person whom it is alleged was aided and abetted could not be found to have committed an offence because that person was not before the Court and the matter had never been tried. In any event the publishers in this case would, it seems to me, be protected from injunction under the Act for the same or similar reasons as the first respondent. In Rv Darby (1981-82) 40 ALR 594 the High Court held that one conspirator may be guilty even if the other or others are acquitted. That difficult decision, however, does not compel me to find that an aider and abettor may be found guilty when the principal offender is acquitted, even by operation of law alone. I therefore reject this argument. CONCLUSIONS My conclusions, therefore, on the issues here raised are: 1. The Trade Practices Act does not bind the Crown in the right of a State. 2. The Ministers are representatives of the State Crown and are therefore not bound by the Act. 3. Their immunity from the Act extends to commercial contractors with the State Crown, restrictions on whom would adversely affect the rights and interests of the Crown. 4. The immunity also extends to exclude both the Ministers and the commercial contractor being found to be aiders and abettors of the committing by the other or by further contractors with either,of any offence against the Act. The application is therefore dismissed with costs, including the costs of the second respondent up to the time of their dismissal from the suit. | certify that th.s and the SEvewtTeen preceding p-g7s are @ tiue copy cf the Reasons for Jucgment herein of his Honour Mr. Justice Einfeld Paklenn Tehhe 198% ' Assccjate | i Dated: 2322 MAY Counsel and Solicitors Mr Bainton, QC for the applicants and Mr Stowe, QC with Mr Douglas and Mr Ellis instructed by Phillips Fox Solicitors Counsel and Solicitors Mr Hunter, QC for the first respondent with Mr Sullivan instructed by Dawson Waldron Solicitors Counsel and Solicitors Mr Mason, QC for the third and fourth Solicitor General for New South Wales respondents with Mr Sackville and Mr. B. Walker instructed by Crown Solicitor Date of Hearing 25 May 1987 Date of Judgment 23 May 1988