Brambles Holdings Ltd v Trade Practices Commission (No 2)

[1980] FCA 148

Re: BRAMBLES HOLDINGS LIMITED
And: TRADE PRACTICES COMMISSION and RONALD MOORE BANNERMAN (1980) 44 FLR 182
No. NSW G44 of 1978
Trade Practices - Contempt

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.(1)

CATCHWORDS

Trade Practices - Proceedings for penalties - Issue and Service of s.155 Notice - whether s.155 vests power in a member of the Trade Practices Commission to serve notice under it after commencement of proceedings for a penalty - whether service of the notice constitutes a contempt of Court - whether penalty appropriate.

Trade Practices Act 1974 s.155

Trade Practices - Statutory notice by Chairman of Trade Practices Commission - Action by Commission pending - Whether power to give notice - Whether notice contempt of court - Trade Practices Act 1974 (Cth), s. 155.

Contempt - Statutory notice by Chairman of Trade Practices Commission - Action by Commission pending - Whether notice contempt of court - Trade Practices Act 1974 (Cth), s. 155.

HEADNOTE

Held, that the service of a notice in purported pursuance of s. 155 of the Trade Practices Act 1974 by the Chairman of the Trade Practices Commission upon a respondent to pending proceedings in which the Commission was an applicant, which notice related to issues relevant to the pending proceedings was (i) beyond the power vested by s. 155; (ii) constituted a contempt of court.

Melbourne Steamship Co. Ltd. v. Moorehead (1912), 15 CLR 333, followed.

R. v. Associated Northern Collieries (1910), 11 CLR 738; Attorney-General v. Leveller Magazine Ltd., (1979) AC 440; Attorney-General v. Times Newspapers Ltd., (1974) AC 273; (1979) 2 EH RR 245; Attorney-General v. Butterworth, (1963) 1 QB 696; Attorney-General v. Willesee, (1980) 2 NSWLR 144, referred to.

HEARING

Sydney, 1980, June 9-10; August 12-13, 15; October 27. #DATE 27:10:1980

MOTION.

Notice of motion that the respondents be punished for contempt of court.

D. E. Horton Q.C. and C. A. Sweeney, for the applicants.

L. J. Priestley Q.C. and P. G. Hely, for the respondents.

Cur. adv. vult.

Solicitor for the applicant: D. R. Hentze.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

GERALDINE VANDELEUR

ORDER

THE COURT ORDERS THAT the Respondents pay to the Applicant its costs of the motion as between solicitor and client.

Orders accordingly.

JUDGE1

Proceedings for the recovery of penalties and for injunctions arising out of alleged contraventions of s.45 of the Trade Practices Act 1974 ("the Act") were commenced by the Trade Practices Commission ("the Commission") under the provisions of ss.77 and 80 of the Act. I will call these proceedings "the main proceedings". The main proceedings were against the applicant, Brambles Holdings Limited, and a number of other defendants. They were commenced in 1978 and defences were filed by all defendants. Before filing its defence the applicant sought to have certain paragraphs of the statement of claim struck out. This application was unsuccessful and the applicant appealed without success to the Full Court of this Court. The applicant subsequently sought a separate trial but that application was dismissed by consent. The third and fourth defendants also sought separate trials but I dismissed their applications. About the time when the main proceedings might have been thought to be ready for trial the Commission served notices under s.155 of the Act upon the defendants. The notices served on the defendants asked questions clearly relevant to the main proceedings. Steps were taken by the defendants under s.163A of the Act to have the notices set aside. I have heard those actions but I have not yet delivered judgment in them.

The notice of motion filed by the applicant pursuant to Order 40 of the Federal Court Rules, charged the Commission and Mr Ronald Moore Bannerman, the Chairman of the Commission, ("the Chairman") with contempt of Court by the issue and service upon the applicant and other defendants of notices under s.155 of the Act. The notice served on the applicant was signed by the Chairman. However, because the affidavits in support of the charge related only to the notices served on the applicant I rejected the tender of notices directed to the other defendants. I then gave leave, by consent, for the statement of charge to be amended so that it read:
"The Respondents Trade Practices Commission and Ronald Moore Bannerman and each of them have committed and continue to commit a contempt of the Court in relation to proceedings numbered G.44 of 1978 in which proceedings the first named Respondent is a Plaintiff by the issue and service upon the applicant (which is a Defendant to the said proceedings) of a Notice purportedly pursuant to Section 155 of the Trade Practices Act 1974, by which the second-named Respondent required the Applicant to furnish and produce to the first named Respondent information and documents relating to the subject matter of the said proceedings".

On the second day of the hearing of this charge senior counsel for the applicant made reference to three High Court cases dealing with matters arising under the Australian Industries Preservation Act 1906. When the relevance of those cases became apparent the respondents sought an adjournment to consider their position. On the next day the acting Chairman of the Commission revoked the notice which had been served on the applicant. The time for compliance with that notice had previously been extended by the Chairman at the request of the applicant. The matter was then resumed on the first date convenient to counsel and a further three days argument ensued.

It is not necessary to set out the provisions of s.155 of the Act except ss.(1)(2)(3)(5) and (7). It is a section vesting certain powers to obtain information, documents and evidence in a member of the Commission.

The section reads:
"(1) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under sub-section 93(3), a member of the Commission may, by notice in writing served on that person, require that person -

(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;

(b) to produce to the Commission or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

(c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

(2) Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person has engaged or is engaging in conduct that constitutes, or may constitute, a contravention of this Act, a member of the Commission may, for the purpose of ascertaining by the examination of documents in the possession or control of the person whether the person has engaged or is engaging in that conduct, authorize, by writing signed by the member, a member of the staff assisting the Commission (in this section referred to as an 'authorized officer') to enter any premises, and to inspect any documents in the possession or under the control of the person and make copies of, or take extracts from, those documents.

(3) The Commission may require the evidence referred to in paragraph (1)(c) to be given on oath or affirmation and for that purpose any member of the Commission may administer an oath or affirmation.

(5) A person shall not-

(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;

(b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or

(c) obstruct or hinder an authorized officer acting in pursuance of sub-section (2).

Penalty: $1,000 or imprisonment for 3 months.

(7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing by a person of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorized officer for inspection, is not admissible in evidence against the person -

(a) in the case of a person not being a body corporate - in any criminal proceedings other than proceedings under this section; or

(b) in the case of a body corporate - in any criminal proceedings other than proceedings under this Act."

The three questions which arise for my determination are:


One. Does s.155 vest a power in the Chairman to serve a notice upon a defendant in proceedings which have already been commenced by the Trade Practices Commission for a penalty under s.77 of the Act?


Two. If the answer to question one is "No", did the service of the notice on the applicant constitute a contempt of Court by the respondents or either of them?


Three. If the answer to question two is "Yes", what penalty, if any, should the Court impose?

Question One.

Does s.155 vest a power in the Chairman to serve a notice upon a defendant in proceedings which have already been commenced by the Trade Practices Commission for a penalty under s.77 of the Act?

In my opinion the answer to this question is, "No". The Australian Industries Preservation Act, 1906 ("the 1906 Act") was considered in three relevant cases by one or more Judges of the High Court. Section 15B(1) and (2) of that Act was inserted by Act No. 5 of 1908 which was entitled The Australian Industries Preservation Act 1907. It read:
"15B. (1) If the Comptroller-General believes that an offence has been committed against this Part of this Act, or if a complaint has been made in writing to the Comptroller-General that an offence has been committed against this Part of this Act and the Comptroller-General believes that the offence has been committed, he may by writing under his hand require any person whom he believes to be capable of giving any information in relation to the alleged offence to answer questions and to produce documents to him or to some person named by him in relation to the alleged offence.

(2) No person shall refuse or fail to answer questions or produce documents when required to do so in pursuance of this section.

Penalty: Fifty pounds."

Section 14B, which was inserted by Act No.29 of 1910, was assented to on 25 November 1910. It read:
"14B. No person shall, in any proceeding for an offence against this Part of this Act, be excused from answering any question, put either viva voce or by interrogatory, or from making any discovery of documents, on the ground that the answer or discovery may tend to criminate him, or make him liable to a penalty; but his answer shall not be admissible in evidence against him in any civil or criminal proceeding other than a proceeding for an offence against this Act or a prosecution for perjury."

In Huddart, Parker and Co. Pty. Ltd. v. Moorehead and Appleton v. Moorehead (1908) 8 C.L.R. 330 the Full High Court had to consider the validity of s.15B. The Court gave judgment on 7 June 1909.

O'Connor J said at pp.379 - 380:
"When a Judge orders the examination of a witness by commission the evidence is taken on behalf of the Court by its representative, under its order, in a cause pending, and is clearly part of the procedure in that cause. When the Comptroller makes his requirement under 15B there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognizance of the Court. The power to prevent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in the Court by the Constitution. I take it therefore as clear that, at the stage when the Comptroller-General is authorized to apply the provisions of the section, the suspected or alleged offence is no more within the cognizance of a Court than if it were under preliminary consideration by the Police Department. At that stage it is merely a subject of departmental inquiry in respect of which no member of the public has any right to interfere. The Comptroller-General may act on his own initiative or he may act on a complaint in writing. He can act only when he has arrived at a belief that an offence has been committed."

A little later the following passage appears:
"Such being the scope, purposes, and incidents of the interrogation, I have come to the conclusion that there is no ground for contention that the section confers any judicial power on the Comptroller, or that it empowers him to act in aid of judicial proceedings. I have been unable to find in the proceedings any of the characteristics of the exercise of judicial power no matter how widely that expression may be construed."

Isaacs J. gave judgment in The King v. The Associated Northern Collieries (1910) 11 C.L.R. 738 on 7 November 1910. In an action brought by the Crown to recover penalties from the defendants under ss.4 and 6 of the 1906 Act and for an injunction under s.10 of that Act, the Crown sought discovery of documents by the defendants. The question for decision was stated by Isaacs J. at p.742 as follows:
"Is the plaintiff in a civil action for penalties entitled to an order for discovery of documents?"

His Honour after a consideration of the authorities said at p.747 :
"In view of these clear and undeviating authorities I am bound to refuse the application to compel the defendants to give discovery."-

At p. 748 his Honour continued:
"Nothing short of distinct legislative provision to the contrary can overcome a principle so deeply rooted and consistently enforced, and as there is no such relevant provision, I must take the law as I find it."

It would appear that as a result of this case s.14B of the 1906 Act was introduced by Act No. 29 of 1910 a few weeks later.

The critical case however, is that of The Melbourne Steamship Co. Ltd. v. Moorehead (1912) 15 C.L.R. 333 in which judgment was delivered by the High Court on 21 October 1912. In that case the King and the Attorney-General had commenced proceedings in the High Court seeking penalties for alleged offences against the 1906 Act. After the commencement of the proceedings The Melbourne Steamship Co. Ltd. had been asked a series of questions relevant to the proceedings which had been instituted against other persons but not against it. The Melbourne Steamship Co. Ltd. had been convicted by a Magistrate of refusing to answer those questions and it appealed to the High Court. The High Court by a majority allowed the appeal. Griffith C.J. and Barton J. held that the power conferred by s.15B was exhausted so far as regards the persons whom the Attorney-General alleged to have committed the offence for which he prosecuted, whether those persons were made parties to the suit or not, and that section therefore could not be used for the purposes of a pending suit. Isaacs J. dissented but only on the ground that the power conferred by s.15B could be exercised against a person not charged, although his Honour agreed that the power could not be exercised against a person who had been charged. Griffith C.J. at p.340 set out the relevant objection as follows:
"That sec. 15B does not apply to questions asked for the purpose of obtaining information for use in proceedings already commenced against other persons, and does not empower the Comptroller-General to require answers to questions asked for such purpose;"

At p.341, his Honour said:
"In my opinion, when the Attorney-General has formally instituted a prosecution in this Court in respect of an alleged offence, the power as well as the purpose of sec. 15B is exhausted so far as regards the persons whom the Attorney-General alleges to have committed the offence for which he prosecutes, whether they are made parties to the suit or not. From that time the matter becomes subject to the judicial power, or, to adapt a familiar phrase, transit in litem pendentem. The section cannot, therefore, as contended by Mr. Starke, be used for the purpose of collecting evidence in a pending suit. It is true that the words 'if the Comptroller' believes may be literally capable of including cases where he bases his belief on the fact that the Attorney General has brought a suit, but they are so inapt to express that meaning that such a construction should be rejected."

At p. 346 Barton J. said:
"I am of opinion that the view expressed by O'Connor J. in Appleton v. Moorehead is the correct one. Broadly on the ground he states there, 15B was held to be within the constitutional powers of the Commonwealth. If sec. 15B were read as an interference with judicial proceedings, it would be an exercise by the legislature of a power vested by the Constitution in the judiciary. It cannot, therefore, be so read if it is, as without doubt it is, open to an interpretation consistent with the Constitution. Such interpretation removes it altogether from the area of judicial proceedings. It cannot therefore be used as an aid to such proceedings, and it follows that such a use of it as was admitted by Mr. Sharwood on behalf of the Crown Solicitor, was unauthorized by law, and that the defendant was not bound to answer questions administered under cover of the section in an inquiry in aid of pending judicial proceedings. When the point has been reached at which the Crown institutes such proceedings in respect of the subject matter of the questions, there is no right in the Comptroller-General to institute such an inquiry. That subject matter has passed into the hands of the Courts alone."

It will be noted that the passage mentioned in Appleton v. Moorehead is the one to which I have previously referred.

Isaacs J. expressed a similar view at p.347 where he said:
"If, however, the Executive is already so far satisfied as to both, that legal proceedings have been instituted, or as the case may be, consented to by the Attorney-General against the given person in respect of a given contravention then, as regards that person in relation to that offence, the object of the section is exhausted, and has no operation, because the limits of the power have been reached."

His Honour at p.349 said:
"The Crown has, however, pressed the position further than I have indicated. Its full contention has been that the words of the section are unlimited and unqualified, and that so long as the Comptroller-General believes the offence has been committed, he may act whether the offence in relation to the given person is under prosecution or not. I disagree with that contention, not on the ground that it is an interference with judicial power, but on a wholly different ground."

At p.350 his Honour continued:
"The true ground is that, reading sec. 15B with the rest of the Act, I gather the limit of the power to be where the matter has reached the stage when the Crown has definitely arraigned before a Court a particular person on a particular charge. As to him, in relation to that charge, the language of the power is, on the face of it, then inapplicable."

It was common ground in the case before me that, in an action for a penalty, discovery cannot be obtained nor answers to interrogatories compelled from a person against whom proceedings have been brought.

Senior counsel for the respondents sought to distinguish the case of The Melbourne Steamship Co. Ltd. v. Moorehead. He argued that s.155 was considerably wider in its area of operation than s.15B in three main ways:

(a) That the person giving the notice did not need to have any belief that an offence had been committed.

(b) Section 155 relates to both criminal and non-criminal contraventions of the Act.

(c) Under the Act both the power to issue the s.155 notice and the power to prosecute are vested in the Commission.

In my opinion no significant difference in any relevant sense exists between the two sections.

I do not consider it is necessary in this case to examine what the position would be were I not to have the benefit of the decisions of the High Court to which I have been referred. I consider those decisions are conclusive and so I am satisfied that s.155 of the Act does not vest power in a member of the Commission to serve notice under it after proceedings have been commenced in a Court for a penalty, where that notice is directed to obtaining answers from a defendant which are relevant to the Court proceedings against it. The answer to question one is "No".
Question Two.

If the answer to question one is "No", did the service of the notice on the applicant constitute a contempt of Court by the respondents or either of them?

It was common ground that the Commission could not get discovery or require answers to interrogatories since the proceedings were for penalties. Counsel for the respondents conceded that the question of whether the issue of the notice amounted to contempt was to be determined by whether what had been done had affected or could on any reasonable view have affected the proper resolution of issues between the parties in regard to the proceedings for a penalty. Senior counsel for the applicant argued that whether or not the Commission had the power to issue the notice, its issue was designed to secure to the Commission an advantage in the litigation which it could not have obtained otherwise because of its inability to require discovery or answers to interrogatories.

It is an important aspect of this case that the issue of the notice and the compliance with it was a matter not authorised by statute and not within the control of the Court. This distinction is important and distinguishes a number of cases where the relevant act was authorised by statute and was subject to the supervision and control of the Court. See for example Re Hugh J. Roberts Pty. Ltd. and the Companies Act,(in liq.) (1970) 2 N.S.W.R. 582 and In re Bletchley Boat Co. Ltd (1974) 1 W.L.R. 630.

It is not necesary to set out in detail the terms of the notice but in substance the notice, which bore on the back sheet the name of the Commission, commenced:
"Pursuant to Section 155 of the Trade Practices Act 1974 ('the Act'), I, RONALD MOORE BANNERMAN, Chairman of the Trade Practices Commission ('the Commission') having reason to believe that you are capable of furnishing information and producing documents relating to a matter that constitutes, or may constitute, a contravention of section 45 of the Act, namely -

. that on or about 12 February 1976, 20 May 1976, and 4 August 1976 -

Brambles Holdings Limited

. ('the second defendant') and certain other companies made an arrangement and/or entered into an understanding whereby the second defendant agreed with certain other companies that it and each of them would not negotiate with, furnish quotations to, enter into contracts with or otherwise deal with, T.I.C. Management Consultants and/or Tradestock Pty. Ltd. or any other agent and/or broker, in respect of the carrying or forwarding of freight, or the arranging for the carrying or forwarding of freight, proposed or sought by T.I.C. Management Consultants and/or Tradestock Pty. Ltd. or any other agent and/or broker for or on behalf of persons seeking the services of the second defendant, and certain other companies or any of them for the carrying or forwarding of freight or the arranging for the forwarding or carrying of freight through T.I.C. Management Consultants and/or Tradestock Pty. Ltd or any other agent and/or broker; and/or

. that the second defendant, certain other companies and each of them would only negotiate with, furnish quotations to, enter into contracts with, or otherwise deal with, persons seeking the services of the company or certain other companies, or any of them for the carrying or forwarding of freight or the arranging for the carrying or forwarding of freight, direct, and would not negotiate with, furnish quotations to, enter into contracts with, or otherwise deal with, the second defendant or certain other companies or any of them, through T.I.C. Management Consultants and/or Tradestock Pty. Ltd or any other agent and/or broker.

HEREBY REQUIRE you to furnish to the Commission the information specified in Part 1 of the Schedule to this Notice and produce to the Commission the documents referred to in Part 2 of the Schedule to this Notice by handing the said documents to -

. Edwina Barton

. Louis Facchinelli

at the office of the Trade Practices Commission situated at 1st Floor,

60 York Street,

Sydney, N.S.W. 2000.

between the hours of 10.00 a.m. and 4.00 p.m. on Wednesday Second day of April 1980."

The notice then set out in detail s.155(1) (5) and (7) and s.156 of the Act, thereby specifically drawing the applicant's attention to the penalty of "$1,000 or imprisonment for three months" for failure to comply with the notice "to the extent that the person is capable of complying with it". Thereafter followed 12 pages of questions, at least the majority of which, appeared likely to be directly relevant to matters the Commission would seek to prove in the main proceedings. Next was a list of documents which it was said were "Required to be produced to the Commission . . .". There was also a considerable number of pages of attachments relevant to the questions asked.

Mr. Bannerman was the only witness to give evidence for either respondent. He gave evidence concerning the circumstances in which he had signed the s.155 notice and he was cross-examined at length by senior counsel for the applicant. In order to understand the circumstances in which the notice was given I have set out the following matters which were established by the Chairman's evidence.

(a) The notice was issued upon the suggestion and on the advice of a senior counsel and was settled by a senior counsel.

(b) Senior counsel's advice was given in conference. No written opinion was delivered by senior counsel and Mr. Bannerman did not know whether any brief was delivered for his opinion. The advice was given at a conference at which Mr. Bannerman was not present but the advice was conveyed to him by members of his staff.

(c) The notice which he ultimately signed went further than Mr. Bannerman had expected.

(d) Before receiving the advice of senior counsel Mr. Bannerman never contemplated the issue of a s.155 notice against the opposite party in litigation and he had a general feeling that the statutory powers provided by s.155 could not be exercised in the course of court proceedings. Mr. Bannerman was conscious of the fact that it was an extraordinary step to issue a s.155 notice to defendants when proceedings had commenced.

(e) Mr. Bannerman, although a qualified and experienced lawyer, said "I have not been my own lawyer for many years and I try not to be".
(f) At the time the notice was served Mr. Bannerman appreciated that the Commission could not get discovery from or administer interrogatories to the applicant.

(g) Mr. Bannerman knew that, in general, the questions asked in the notice were very relevant to issues in the pending proceedings against the applicant, that the answers were to be used in evidence and that this was the dominant purpose for which the notice was served. Mr. Bannerman said that it was issued "to find out the truth".

(h) Mr. Bannerman knew that the notice required the defendant under threat of fine or imprisonment to answer questions about matters involved in current litigation against it.

(i) At the time he signed the notice Mr. Bannerman believed that he had the power and that it was appropriate to issue it and that this was a proper course. Mr. Bannerman took the view that he should take senior counsel's advice and rely on that advice and that senior counsel was a better judge of the propriety of the issue of the notice than he was himself.

(j) At the time of the service of the notice Mr. Bannerman expected a challenge to its validity, but he thought that service of it would save time and reduce costs.

(k) Mr. Bannerman did not ask for any further or more detailed advice from counsel or seek advice from any different counsel.

The argument of senior counsel for the applicant was along the following lines. Many matters upon which information was required by the notice involved allegations which the Commission had to prove to succeed in the action. Once the proceedings had been commenced in the Court all matters for determination were submitted to the jurisdiction and control of the Court. The notice was an attempt to divert the ordinary course of justice in such a way that issues would be determined otherwise then in accordance with the rules and practice of the Court. This was because the rules and practice did not permit the applicant being required to answer interrogatories or to give discovery. It was submitted that it was contempt to interfere with the ordinary way in which the Court went about the resolution of a matter before it. It was an attempt to put pressure on the litigant. Senior counsel for the respondents argued that seeking an advantage not otherwise available was not necessarily a contempt of Court, and, the only result of the issue of and compliance with the notice would be to have evidence available which would assist the Court to come to a true conclusion on the issues before it.

In my opinion it is perfectly clear that the service of the notice was for the purpose of obtaining information from the applicant which could not be obtained by a process in the Court because discovery and interrogatories were denied to the Commission.

The function of the Court is to determine issues according to law and the evidence presented to it and not to proceed in an inquisitorial manner to endeavour itself to ascertain the truth. It is clear therefore that the giving of the notice, which referred to the penalty provided by s.155(5), was an attempt to achieve by threats an advantage in proceedings already before the Court which could not otherwise have been obtained and therefore, in my opinion, was a clear interference with the Court.

During the proceedings to set aside the notice which I have mentioned previously, senior counsel then appearing for the Commission, argued that s.155 was unlimited and, in answer to a question put by me, did not exclude the likelihood that the primary purpose for which it had been enacted was to assist the Commission after it had commenced proceedings.

It is not always easy to define the limits of contempt of Court. These proceedings were conducted before me upon the common basis that the charge of contempt was of a criminal nature.

In Attorney-General v. Leveller Magazine Ltd (1979) A.C. 440, the House of Lords considered the question of contempt of Court. Lord Diplock at p.449 said:
"My Lords, although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it."

Lord Scarman at p. 472 said that the offence was interference, with knowledge of the court's proceedings, with the course of administration of justice.

The House of Lords also considered the question of contempt in Attorney-General v. Times Newspaper Ltd (1974) A.C. 273. Although that case ultimately went to the European Court of Human Rights (1979) 2 E.H.R.R. 245), I think it is useful to note some of their Lordships' statements. Lord Diplock at p. 308 said:
"All other contempts of course are classified as 'criminal contempts' whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment. To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent.

Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also-and this more immediately - the particular interests of the parties to the case."

At p. 309, he continued:
"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."

Here his Lordship pointed out the requirement that once a dispute has been submitted to a Court of law there should be no act "which tends to undermine the due administration of justice by the Court in which the case will be disposed of".

Lord Simon of Glaisdale at p.316, cited with approval a passage from Reg. v. Castro; Skipworth's Case (1873) L.R. 9 Q.B. 230 which made it clear that the statement that when a case was pending it ought to be tried "in the ordinary course of justice", meant "the ordinary and unimpeded course of legal proceedings".

In my opinion the issue of the notice in this case was a clear interference with the ordinary course of justice. It was a clear attempt to procure an advantage by threatening a party with criminal proceedings if it did not do something which the law did not require it to do.

Senior counsel for the respondents did not suggest any significant difference between the position of the Commission and that of the Chairman except to put that the evidence against the Commission did not establish any positive act by it. However, the notice, signed by the Chairman, went out as a notice from the Commission and required delivery of documents to officers of the Commission and it was the result of an act of the Chairman after consultation with officers of the Commission and in relation to proceedings instituted by the Commission.

It was further submitted that since criminal contempt was involved it was necessary to establish the relevant mens rea. However the position was made clear by Donovan L.J. in Attorney-General v. Butterworth (1963) 1 Q.B. 696 at p.725 where he said:
"I return to the finding in the present case that none of the respondents had any future proceedings in mind or any intention to interfere with the course of justice. I regard that state of affairs as immaterial. The question is whether the respondents' action was calculated so to interfere, and this involves a consideration not of their state of mind on this particular point but of the inherent nature of their act: see as to this the decision in Reg. v. Odhams Press Ltd., Ex parte Attorney-General (1957) 1 Q.B. 73."

See also Attorney-General v. Willesee (N.S.W. Court of Appeal, 11 August 1980) (unreported) Moffitt P. at p.13 and Hope J.A. at p.5, and Borrie and Lowe "The Law of Contempt" (1973) pp.209-211, 226-227. It is useful at this stage to have regard to the following passage cited by Borrie and Lowe at p.1 from Oswald, "Contempt of Court" (3rd edn. 1910) p.6.
"To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during litigation."

I am satisfied beyond reasonable doubt that the second question should be answered "Yes", by both.
Question Three.

If the answer to question two is "Yes", what penalty, if any, should the Court impose?

I am satisfied that the charge of contempt of Court has been established against both respondents. No challenge was made to Mr. Bannerman's evidence that he had acted on the suggestion and advice of the senior counsel then advising the Commission. It was suggested that it might have been appropriate to secure further advice or to get advice from a different senior counsel. However, in all the circumstances, I think that the respondents were entitled to accept the advice of the senior counsel on this issue. This is no defence to the charge but it is a relevant matter to take into account when deciding whether any penalty should be imposed, and if so, what should be the nature and extent of the penalty.

Senior counsel for the applicant invited me to bear in mind the magnitude of penalties which this Court had imposed in the past in cases where it had found that a contravention of Part IV of the Act had taken place. However, the magnitude of a penalty in relation to such a contravention is to be measured against the magnitude of the penalty specifically provided in the Act for such a breach, namely, in the case of a corporation, $250,000.

In this matter I am satisfied that both respondents acted in good faith without any intention to commit an act which was in contempt of Court. I do not however, consider that this is a case of what has been called technical contempt, see Attorney-General v. Times Newspaper Ltd. (supra). Lord Diplock at p.312 said:
"Since the court's discretion in dealing with a motion for committal is wide enough to entitle it to dismiss the motion with costs, despite the fact that a contempt has been committed, if it thinks that the contempt was too venial to justify its being brought to the attention of the court at all, the distinction between conduct which is within the general concept of, 'contempt of court' and conduct included within that general concept, which a court regards as deserving of punishment in the particular circumstances of the case, is often blurred in the judgments in the reported cases. The expression 'technical contempt' is a convenient expression which has sometimes been used to describe conduct which falls into the former but outside the latter category; and I agree with my noble and learned friend, Lord Reid, that, given conduct which presents a real risk as opposed to a mere possibility of interference with the due administration of justice, this is at very least a technical contempt. The seriousness of that risk is relevant only to the question whether the contempt is one for which the court, in its discretion, ought to inflict any punishment and, if so, what punishment it should inflict."

There is no doubt that the service of the notice presented more than a "mere possibility" of interference with the due administration of justice and indeed did more than present a "real risk" of interference with the due administration of justice.

Lord Simon of Glaisdale at p. 321 pointed out that "The concept of the technical contempt overlaps, but is to be distinguished from, the concept of the contempt which does not call for punishment - there are many factors which will affect what, if any penalty should be imposed."

I also bear in mind that the acting Chairman of the Commission revoked the notice the day after reference had been made to the judgments in the three High Court cases, which dealt with the 1906 Act.

I find the charge established in relation to each respondent but I consider that I should do no more than mark the Court's disapproval by ordering the respondents to pay the applicant its costs of the motion as between solicitor and client.

The order of the Court is that the respondents pay to the applicant its costs of the motion as between solicitor and client.