Corporate Affairs Commission of New South Wales v Yuill

[1991] HCATrans 38

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IN THE HIGH COURT OF AUSTRALIA

.

Office of the Registry

Sydney No Sl36 of 1990

B e t w e e n -

CORPORATE AFFAIRS COMMISSION

OF NEW SOUTH WALES

Appellant

and

BRIAN RICHARD YUILL

First Respondent

TOURIST HOLIDAY VILLAGES PTY

LIMITED

Second Respondent

NODROGAN PTY LIMITED

Third Respondent

BRENNAN J

DAWSON J

TOOHEY _J

Yuill(2) 1 12/2/91

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 FEBRUARY 1991. AT 10.15 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:  May it please Your Honours, I appear

with my learned friend, MR A.J. BLACK and

MR J.W.FLIECE for the appellant. (instructed by

M.M. Martin, Solicitor for the Corporate Affairs

Commission)

MR T.M. ~UCOVIC, QC:  May it please the Court, I appear with

my learned friend, MR R.J. WRIGHT, for the

respondents. (instructed by Webeck, Farland &

Pender)

BRENNAN J:	Mr Toomey.
MR TOOMEY:	May it please, Your Honours.  Your Honours, this

appeal arises out of the appointment of special

investigator under Part Vll of the Companies Code

New South Wales to investigate the affairs of what

were generally known as the Spedley Group of

companies, but the appeals concern Mr Brian Yuill,

who was the, I think, Managing Director or Chairman

of Spedley and two of his private companies,

Tourist Holiday Villages Pty Limited and Nodrogan

Pty Limited. The investigation was initiated by

the New South Wales minister by appointing the

National Companies and Securities Commission as

required by the Act. That Commission, again as

allowed by the Act, nominated the Corporate Affairs

Commission of New South Wales to conduct the
investigation and the Commission delegated

Mr Glen Miller of Queens Counsel to act as

inspector.

MR TOOMEY:  Mr Miller, acting under powers in the Act to

which I will take Your Honours, required the

production of documents. Mr Yuill and the

companies claimed that they were excused from

producing those documents under a clause which is

similar to other clauses in the various companies'

codes which says that the documents - one may not

refuse to produce the documents without reasonable

excuse. They claimed that legal professional

privilege attached to the documents - that that was

The Commission sought a declaration from the reasonable excuse and they refused to produce them.	Supreme Court of New South Wales that legal
professional privilege was not available.
Mr Justice Hodgson made that declaration; the
respondents then appealed to the Court of Appeal in
New South Wales, president Kirby and
Justices Mahoney and Handley, and that court
allowed the appeal and ordered that the documents
be returned.

BRENNAN J:  Mr Toomey, there is no question as to whether

the documents are or are not subject to legal

professional privilege; the question is whether,

Yuill(2) 2 12/2/91

assuming that they are, the statute either allows

that as a reasonable excuse or does not.

MR TOOMEY:  That is so, Your Honour. They have never been

adjudicated upon, and so the question is whether

indeed it is available.

BRENNAN J:  I am just wondering why it was that an order

should be made for the return of them.

MR TOOMEY:  I can tell Your Honour that when judgment was

handed down in the Court of Appeal an order was

sought by my instructing solicitor that indeed the

order be stayed while the documents were

adjudicated upon as to whether or not professional

privilege did attach, and that order was refused.

BRENNAN J: Are we concerned with that matter?

MR TOOMEY:  I would not think so, Your Honour. I think the

parties - and my learned friend can confirm or deny

this - but I think the parties are ad idem, that

the question to be answered is whether or not legal

professional privilege is an excuse, because
unquestionably, some of the documents would be the

subject of legal professional privilege. It is not

a theoretical question.

If Your Honours please, the appeal as mounted by the appellant falls into two categories. This

Court in October 1983, in Baker v Campbell, ruled

that legal professional privilege was a rule of

general application, not, as we submit, as had

earlier had been generally thought a rule limited

to judicial and quasi-judicial proceedings. Baker

v Campbell was handed down in October 1983.

The Act which falls to be interpreted here was

drafted during 1980 and perhaps early 1981. It was

enacted in 1981 and came into effect on 1 July

1982. The interpretation of the Act, we say, ought

to be made in the light of the fact that at the

time that it was drafted the law was generally	believed to be that legal professional privilege	did not apply to proceedings such as those here.
This Court had, in 1963, in Testro Bros v Tait,
held that a special investigation was not a
judicial or quasi-judicial proceeding.

Accordingly, the primary argument for the

Commission is that Your Honours will interpret the statute by having regard to the law as it was

believed to be in 1981 when the statute was

enacted; that is, as not allowing legal

professional privilege to be available in

proceedings such as these.

Yuill(2) 3 12/2/91

It is submitted that the fundamental error

made by the Court of Appeal was that they approach

the interpretation of the statute in the light of

what was said by Baker v Campbell, that is that for

the abolition of a common law right it is necessary

.	to have clear words or at least the most clear
implication and it was said because the statute did not contain words which were apt to abolish the availability of legal professional privilege then

it was available.

McHUGH J:  How does your submission fit in with the decision

we gave late last year in Annetts v Mccann where we

held that the fact that in 1920 the. Parliament of

Western Australia thought that the rules of natural justice did not apply to coronial proceedings; was

not a ground for interpreting the Act so as to

exclude the rules of natural justice
notwithstanding the fact that Parliament had

enacted certain procedural fairness provisions.

MR TOOMEY: Well, Your Honour, I am not familiar with that

decision but -

McHUGH J:	It is in the current Australian Law Journal Reports, I think.
MR TOOMEY:	Does Your Honour mean the latest loose part.

MCHUGH J: Yes.

MR TOOMEY:  I regret to tell Your Honour that I have not had

time to read that. Your Honour, it may be that

there are particular features of that case. It may

be that the difference is that in this case this

statute does deal with the question of legal

professional privilege. I do not know whether in

the Western Australian statute - - -

McHUGH J: Well, they dealt with part of the rules of

natural justice, gave rights to cross-examine,

rights of appearance and so on, but the majority

said that the fact that Parliament thought that the

rules of natural justice did not apply generally
was not a reason for supposing that they would have
intended to exclude them if they were otherwise

held to apply.

MR TOOMEY:  Your Honour, with respect, that is something

that must be taken into account. But, in this case

we are dealing with the rule of exclusion. The

rule of legal professional privilege is not even a

rule of admissibility of evidence.	It is a rule of
allowing production to be resisted.	It may be

that - and I am at a disadvantage, but it may be,

Your Honour, that in those circumstances different

considerations would apply.

Yuill(2) 4 12/2/91

But, can I take Your Honours to Black-Clawson

which is a House of Lords case in which this very

question of what laws to be applied on the

interpretation of statutes was considered. It is

reported in (1975) AC 591, Your Honours.

McHUGH j: What is the precise proposition you cite this

for, Mr Toomey?

MR TOOMEY:  For the proposition that in interpreting a

statute one arrives at the intention of Parliament

by looking to the mind of the Parliament; by

ascertaining what was believed to be the law at the

time the statute was passed.

McHUGH J: Is the question what Parliament intended, or is

the question, "What is the true meaning of the

words that Parliament used, having regard to the

historical background?"?

MR TOOMEY:  We have gone, with respect, a little beyond that

because of the purpose provision in the the Interpretation Code of the Companies Acts,

which reproduces section 15AA of the

Interpretation Act. But one must, we submit,

whatever the test, first interpret the matrix - I
think Lord Reid uses the word the "matrix" of facts

in which the Parliament thought it was operating,

and if I could take Your Honours straight to a

passage which was not reproduced in the Court of

Appeal judgment, but we say encapsulates the point very well, Lord Simon of Glaisdale, at page 648,

had this to say - I am sorry, perhaps I could take

Your Honours first to what His Lordship said at

page 643, at letter F. His Lordship said:

The appeal to your Lordships raises two

main issues: first

I am sorry, I should give Your Honours a little

background. This was a case concerning the

operation of the Foreign Judgments (Reciprocal

Enforcement) Act 1933. It fell to be determined in

1975 on a convention which was not entered into

until 1961; that is nearly 30 years after the Act

was passed.

The question was whether or not the convention

operated so as to prevent Their Lordships from

questioning or refusing to enforce a judgment which

had been given on a time bar only. The plaintiff

had sued on an English bill of exchange in Germany

and had been held to be disentitled by reason of a

three-year time bar. He brought action in England

within the six years allowed in England, and the

question arose whether the German judgment

Yuill(2) 5 12/2/91

precluded him from prosecuting his action in

England.

The earlier decision on the case, a decision in the 1860s of Harris v Quine, had held that all

that was decided by a decision on a time limitation

was that, indeed, the action was out of time in the

country in which that ruling had been made, and

nothing more; that there was no decision which

could be given effect to outside that. Lord Simon

said this:

The appeal to your Lordships raises two

main issues: first, what is the proper

interpretation to be given to section 8(1) of

the Act of 1933, in particular in relation to

Harris v Quine; and, secondly, how far the

discretion exercised by Talbot J. can be

reviewed in an appellate tribunal.

I confess, my Lords, that when I first

read section 8 of the Act of 1933 I was under

an immediate and powerful impression that the

Court of Appeal must be right. It seemed

obvious that subsection (1) was dealing with

cause of action estoppel and subsection (3)

with issue estoppel. If so, the judgment of

the Munich District Court did not merely

determine an issue between the parties

relating to the operation of the German law of
limitation of action; it dismissed

Black-Clawson's action founded on the bills;

and such judgment would have to be recognised

in any court in the United Kingdom as

conclusive in all proceedings founded on the

same cause of action, i.e., liability arising

from acceptance of the bills.

But, though the foregoing was my first

and strong impression, I soon realised that I

was looking at section 8 with 1974 eyes and

interpreting it in 1974 terms; and that in so

doing I was falling into fundamental error.

Contemporanea expositio est fortissima in

lege. The concepts of cause of action and

issue estoppel were not developed by 1933

(there is, for example, no reflection of the
distinction in the notes to Duchess of

Kingston's case (1776) 20 St.Tr. 355 in the

authoritatively edited 13th edition (1929) of

Smith's Leading Cases -

which was in 1929 -

and could not possibly be what Parliament and

the draftsman then had in mind. My initial

response had been scarcely less anachronistic

Yuill(2) 6 12/2/91

than if I had attempted to interpret Magna

Carta by reference to Rookes v Barnard.

At page 648, His Lordship went on at letter E:

Ascertainment of a defect in the law

presupposes ascertainment of the law which

contains the defect. But, for purposes of

statutory construction, is it the pre-existing

law, as correctly determined, which is

relevant, or what that law was understood to

be.

There may be a communis error as to the

law. This is a source of law until it is

corrected (see Broom's Legal Maxims, 10th

Edition (1939). Indeed, a legal error may

well be held to be too inveterate for

correction (see e.g. Ross Smith (orse.

Radford) v Ross Smith (1963). Once it is

accepted that the purpose of ascertainment of

the antecedent defect in the law is to

interpret Parliament's intention, it must

follow that it is Parliament's understanding

of that law as evincing such a defect which is

relevant, not what the law is subsequently

declared to be. On reflection I do not think

that my hesitation on this point in Povey v

Povey was justified. See also Barras v

Aberdeen Steam Trawling and Fishing Co. Ltd.

There is another canon of construction,

which I shall have to cite later in greater

detail, to which, for the same foregoing
reasons, it is Parliament's understanding of

the law which is relevant, rather than the law

in an abstract juridical correctitude. This

is the canon whereby the courts will presume that Parliament would use clear words if the

intention were to abrogate a long-standing

rule of law: though, no doubt, courts of

construction will be readier to apply this

presumption if satisfied that the rule in

question is juridically well founded and if

its framers carry weight in the law; whereas,

on the other hand, the presumption will be

weaker if the rule has been authoritatively

questioned.

My Lords, I have spoken of "Parliament's" understanding of the law. Of course, a

settlor, a testator, the parties to a

contract, or individual members of Parliament,
may not know the relevant law. It is the

draftsman of the instrument in question who

knows the law (or is presumed to do so); and

his knowledge, so far as forensic

Yuill(2) 7 12/2/91

interpretation is concerned, is irrebuttably

imputed to the person for whom he is drafting.

McHUGH J: What is the basis of that proposition? We know

Lord Simon says it, but - - -

MR TOOMEY:  He who propounds a document must be taken, I

suppose, to adopt it, Your Honour, but perhaps it

is explained. His Lordship does elaborate somewhat

further on in the paragraph, Your Honour.

The draftsman knows the legal effect that the

person for whom he is drafting wants to bring about; and he will draft accordingly, against

his understanding of the prevailing law, and
using as a code of communication to the courts

of construction various canons of

construction. Few testators will have heard

of the rule in Gundry v Pinniger. But few draftsmen of wills will be ignorant of the

rule; so that when the words "next of kin"
appear in a will there is a strong though

rebuttable presumption that the draftsman used

them to denote those who would be the

testator's next-of-kin on his death, and an

irrebuttable presumption that the draftsman

used them in order to produce the legal effect

desired by the testator. Similarly, many MPs

before 1969 did not know the legal rule that

when the word "child" was used in a legal

instrument, it was presumptively taken to mean

a legitimate child; but the draftsman of a

statute did know this; and a court of

construction will conclude that his usage was

to carry into legal effect what Parliament

desired. So again, few MPs in 1933 will have

known of the rule in Harris v Quine; but few,

if any, members of the Greer committee, which

drafted clause 8 of the draft Bill, will have

been ignorant of it. I have pointed out that

this rule has been cited in successive

editions of Dicey without question.	It had
been followed in the Commonwealth and in the
United States. No one had suggested that it
was wrongly decided. It made good sense: any
other rule would make the foreign judgment
conclusive as to more than it actually
decided. The legal knowledge of the Greer
committee as draftsmen of the Act of 1933 must
be ascribed to Parliament in its enactment.

And then His Lordship went on, although it is not

strictly relevant to this case:

Quite apart from the irrebuttable ascription to Parliament of a draftsman's

knowledge of the law in relation to which

Yuill(2) 8 12/2/91

Parliament is legislating, in my view a report

like that of the Greer committee can also be

looked at independently, like any other work

of legal authority, in order to ascertain what

was conceived to be the prevailing state of

the law.

McHUGH J:	What does all this do for the rule of law? does the ordinary citizen, reading a statute,	How
understand it if there is an irrebuttable
presumption that the legal knowledge of the
draftsman is attributed to the meaning of the
statute?

MR TOOMEY:  Your Honour, that very question is dealt with

by one of the other Law Lords and he says that one

of the reasons for this decision is just that, so

that the citizen knows that he may interpret the

statute in the light of what is believed to be the

law and what not will later be declared to be the

law.

TOOHEY J:	I can understand that, Mr Toomey, in relation to the use of a particular word or a particular
expression, but we are concerned here with the notion of reasonable excuse. Is the argument that
somehow what is reasonable excuse is to be
determined only by what was believed to be reasonable excuse at the time of enactment?
MR TOOMEY:	No, Your Honour, with respect.
TOOHEY J:	It is a much more flexible concept, is it not?
MR TOOMEY:	Indeed, Your Honour, and this Court in the

Consultants Corporation case held that the words

"without reasonable excuse" were sufficient to

exclude the self incriminating privilege and in

Baker v Campbell itself the present Chief Justice expressed the view that the privilege against self

incrimination was stronger and more important in

the law than legal professional privilege.

TOOHEY J:  Yes, but my point rather was that it is more

difficult to mount an argument that an expression

such as "without reasonable excuse" is to be

determined only by what was believed to be

reasonable excuse at the time of enactment than it

is, perhaps, to mount an argument that what was

understood to be the meaning of a particular word

should be construed according to what it was

believed to be at the time of enactment.

TOOMEY J:  Indeed, Your Honour, although of course

Black-Clawson itself was a case which depended on a

general view of what the law was rather than any

particular phrase or word. If I can just take

Yuill(2) 9 12/2/91

Your Honours shortly to what some of the other Law

Lords said: Lord Reid at page 613, half-way between letter F and letter G, said:

In this case it appears to me to be

unusually important to consider as aids to

construction all other material which the law

allows us to look at, and I shall first state

my view on that matter. We often say that we

are looking for the intention of Parliament,

but that is not quite accurate. We are

seeking the meaning of the words which

Parliament used. We are seeking not what

Parliament meant but the true meaning of what they said. In the comparatively few cases where the words of a statutory provision are

only capable of having one meaning, that is an

end of the matter and no further inquiry is

permissible. but that certainly does not

apply to section 8.

One must first read the words in the context of the Act read as a whole, but one is

entitled to go beyond that. The general rule

in construing any document is that one should

put oneself "in the shoes" of the maker or

makers and take into account relevant facts

known to them when the document was made. The

same must apply to Acts of Parliament subject

to one qualification. An Act is addressed to

all the lieges and it would seem wrong to take

into account anything that was not public

knowledge at the time. That may be common

knowledge at the time or it may be some

published information which Parliament can be

presumed to have had in mind.

It has always been said to be important

to consider the "mischief" which the Act was

apparently intended to remedy.	The word
"mischief" is traditional.	I would expand it
in this way.	In addition to reading the Act

you look at the facts presumed to be known to	Parliament when the Bill which became the Act	in question was before it, and you consider
whether there is disclosed some unsatisfactory
state of affairs which Parliament can properly
be supposed to have intended to remedy by the Act. There is a presumption which can be
stated in various ways. One is that in the
absence of any clear indication to the contrary Parliament can be presumed not to
have altered the common law further than was
necessary to remedy the "mischief". Of course
it may and quite often does go further. But
the principle is that if the enactment is
ambiguous, that meaning which relates the

Yuill(2) 10 12/2/91

scope of the Act to the mischief should be

taken rather than a different or wider meaning

which the contemporary situation did not call

for. The mischief which this Act was intended

to remedy may have been common knowledge 40

years ago. I do not think that it is today. but it so happens that a committee including

many eminent and highly skilled members made a

full investigation of the matter and reported

some months before the Act was passed.

And he names the commission document.

I think that we can take this report as

accurately stating the "mischief" and the law

as it was then understood to be, and therefore

we are fully entitled to look at those parts of the report which deal with those matters.

TOOHEY J:	I must say I am having some difficulty in seeing the application of these principles to the case in
hand. Say, for instance, Parliament uses an
expression,·as it does from time to time, "just and equitable". Now, in determining the content to be
given to that expression, does one somehow go back
and look at what was regarded as just and equitable
at the time that Parliament enacted the statute or
is it not some more fluid concept that responds to
considerations of the time when the particular
litigation is before the court.
MR TOOMEY:	Your Honour has in mind the sort of thing like

the interpretation of the Constitution as a living

document.

McHUGH J:  No, not really. My concern derives from the fact

that Parliament has chosen a fluid concept such as

"without reasonable excuse" or "just and

equitable" -

MR TOOMEY:	Yes, Your Honour.
McHUGH J:	- - - and it is rather more difficult to suggest

that the content of that expression somehow is to

be determined by what was the understanding of the

expression at the time Parliament enacted the

statute.

MR TOOMEY: Well, with respect, I understand Your Honour's

difficulty, but may I give Your Honour this

illustration: supposing this Act had fallen to be

construed by this Court in February 1983, that is

after the passing of O'Reilly v State Bank of

Victoria in which the Court restricted legal professional privilege to the judicial and quasi-

judicial framework in which the earlier Australian

and English authorities had placed it. It is

Yuill(2) 11 12/2/91

submitted that the Court would have construed the

intention of Parliament as being that legal

professional privilege would not be available as an

excuse to answer a call for documents.

TOOHEY J: Well that is one way of putting it. The other

way might be simply to say that as at that date

legal professional privilege was not an excuse,

that the words - simply because the law did not

recognize legal professional privilege is available

in that type of proceeding.

MR TOOMEY:  Yes, but with great respect, Your Honour, if one

then develops that, one must arrive at the position

where, if Your Honour's proposition is correct, the

courts have the right to change the intention of

Parliament.

TOOHEY J: Well I have not any proposition. I am simply

trying to distill the appropriate principle.

MR TOOMEY:  Yes, indeed, Your Honour.

McHUGH J: But that does not necessarily follow that there

is a change in the intention of Parliament.

Parliament obviously intends the words "reasonable

excuse" to speak for the future.

MR TOOHEY:	Yes.
NcHUGH J:	So whatever is perceived as a "reasonable excuse"

at any particular time, can be availed of and if

the common law is later declared to encompass legal
professional privilege under "reasonable excuse",

then Parliament intended that result.

MR TOOMEY: Well, with respect, Your Honour, that may be so

in general terms, but where you are referring to

something specific like the conduct of an

investigation which is for the purpose of, as we will point Your Honours to, ascertaining whether there has been fraud, negligence, breach of trust

and such like, on behalf of a company, it would be

our respectful submission that the Parliament would

fix that which would be a "reasonable excuse" in

such an investigation.

McHUGH J: But why, they have used such general terms?

MR TOOMEY:  We do not rely solely on the words "without

reasonable excuse", but it is important in the

interpretation of the document as a whole for this

reason that the question the Court of Appeal posed
to itself - and every one of the three judges of

the Court of Appeal posed this question, and that

is whether the statute had abolished the

availability of legal professional privilege. That

Yuill(2) 12 12/2/91

being on the basis that Baker v Campbell in October

1983 had said that "legal professional privilege

was available in all proceedings", and we say the

question posed was wrong. The question posed

should have been, "What did Parliament intend when

it passed the statute as to whether legal

· professional privilege should have been available

or not?", and that is the importance of what would

have been in the mind of the Parliament in 1981,

because if the question is what is the intent - --

DAWSON J: Is that not a little simplistic? Parliament did

not deal with legal professional privilege - - -

MR TOOMEY:	To an extent, it did Your Honour.
DAWSON J:	- - - except for one particular section which is

explicable upon a certain basis. It did not deal
with it because it did not think it was necessary.

It turns out later that it was necessary and what

Parliament believed is irrelevant. In other words,

you are not looking for the intention of

Parliament; you are looking for the meaning of the

words which it used and those words do not touch

it, except for that one argument you are going to

come to in that particular section.

MR TOOMEY:  Yes, Your Honour, except, with respect,

Your Honour, that there is a general interpretation

argument in any event. We say even if the Act is

to be interpreted in the light of Baker v Campbell,

if we fail on this point, we say, in any event one

can infer from the statute an intention that legal

professional privilege would not be available.

But, it is a much easier argument if one approaches

it on the basis that when the statute was enacted,
the Parliament knew, or believed, that legal

professional privilege was not available.

DAWSON J: But all that says is Parliament did not do

something because it did not think it was necessary

and it was mistaken in that thought, but that does

not help you when you come to the words of the

statute.

MR TOOMEY: Well, not quite, Your Honour, because it does, as Your Honour says, deal with legal professional

privilege in two ways, and both are ways which

confer rights which would not have been available.

In other words, Parliament has put its mind to the

question of what protection ought be given in

respect of legal professional privilege, and in two

instances it has enacted protection: in

section 299(2)(d), which I will take Your Honours

to, and in section 308. It is not a matter of a

suggestion that this is happening sub silentio.

Yuill(2) 13 12/2/91

DAWSON J:  No, no, but all it does is, acting on that

mistaken belief, it extends, in a limited way,

legal professional privilege into an area in which

it did not think it otherwise existed. That

carries you some distance, but perhaps not far

enough.

MR TOOMEY:  I appreciate what Your Honour says. The

question is then, the implication from those acts -
from the conferring of the protection - the
implication is that the Parliament intended that

there should be no other protection, and it is in that context we say that the general belief as to

the law at that time is important.

DAWSON J:  I think really what I am saying is, where

Parliament positively does something in a mistaken belief, then in interpreting the words which represent the positive doing of something, then

one, of course, has to have regard to its belief,

because one has to give meaning to those words.

MR TOOMEY:	Indeed, Your Honour.
DAWSON J:	But when it is an omission, Parliament does not

do something because of a mistaken belief, that
does not carry it nearly so far. That is all I am

saying.

MR TOOMEY: Indeed, Your Honour, I appreciate what

Your Honour says.

BRENNAN J:	Mr Toomey, the problem, I suppose, really arises in this way, does it not, that if it was right to
say, at the time that the Act was passed, that
legal professional privilege was confined in the
way in which it was then understood to be confined,
the question of legal professional privilege as falling within reasonable excuse did not arise for consideration, because the frames of reference were quite different. Parliament was here dealing with
a non-judicial, non quasi-judicial power.

MR TOOMEY:  Yes, Your Honour.

BRENNAN J: But then the view of the law was changed, and

the question is, what interpretation should now be

given to those words when, in the light of the new interpretation of the law, those words are capable

of extending to legal professional privilege. Does

that raise the same sort of problem as was raised

in Bropho's case, that is the interpretation that

was to be given to words of general application

where a new view is taken as to the way in which

one interprets exclusion of the Crown.

MR TOOMEY:  Indeed, Your Honour.

Yuill(2) 14 12/2/91

BRENNAN J: There may be some observations in the majority

argument. judgment in Bropho which would support your

MR TOOMEY:	I am indebted to Your Honour.
BRENNAN~:	They are dicta only and may I say, immediately,

that there may be some dicta in my judgment which

would be opposed to it.

MCHUGH J: Yes, I was just going to say, you will not get

any support from Mr Justice Brennan.

MR TOOMEY:  One accepts gratefully whatever crumbs fall from

the table, Your Honour. Can I briefly take

Your Honours to a couple of other statements in the

speeches in Black-Clawson.

Lord Wilberforce, who dissented, I might say,

at page 629, in the paragraph beginning just

after B, said:

. My Lords, we are entitled, in my opinion,

to approach the interpretation of this

subsection, and of the Act of 1933 as a whole,

from the background of the law as it stood, or

was thought to stand, in 1933 and of the

legislative intention.

And then, just above H:

The saying that it is the function of the
courts to ascertain the will or intention of

Parliament is often enough repeated, so often

indeed as to have become an incantation. If

too often or unreflectingly stated, it leads
to neglect of the important element of
judicial construction; an element not

confined to a mechanical analysis of today's

words, but, if this task is to be properly

done, related to such matters as

intelligibility to the citizen, constitutional

propriety, considerations of history, comity

of nations, reasonable and non-retroactive	effect and, no doubt, in some contexts, to
social needs.

Lord Diplock, at page 636, at H, said this:

The attention of the Court of Appeal had

not been drawn to the report of the Foreign

Judgments (Reciprocal Enforcement) Committee

which had been presented to Parliament in

December 1932. To that report there was

annexed a draft Bill of which the wording was

almost identical with the Act which received

the Royal Assent in April 1933. Also annexed

Yuill(2) 15 12/2/91

was a commentary and explanation of the draft

Bill. It is apparent from the committee's

comments on clause 8, which is reproduced

verbatim by section 8 of the Act, that they

did not consider that it made any alteration

to the common law. The membership of the

committee included experts in private

international law who must have been aware of

the decision in Harris v Quine. I would

therefore accept the inference that the

committee did not realize that the language

that they had recommended for clause 8 would

have the result of altering the common law as

to the effect given by English courts to

judgments of foreign courts in favour of

defendants which were based solely on the

ground that the plaintiff's remedy was time-

barred under the domestic law of the foreign

state. On the other hand it would, in my

view, be quite unrealistic to suppose that the

members of either House of Parliament who

voted on the Bill gave any thought, either

individually or collectively, to the decision

in Harris v Quine or to the effect of clause 8

upon it. The most that can be inferred is

that those who took the trouble to read the

small print on p 64 of annex V to the report

were not aware that it would alter the

existing common law in any way.

I do not, however, understand that any of

your Lordships go so far as to suggest that a

court is entitled to put a strained

construction on the words of section 8 in

order to give them the effect the committee

thought that they had, if this would involve

departing from their plain and natural

meaning. It is for the court and no one else

to decide what words in a statute mean. What
the committee thought they meant is, in itself

irrelevant. Oral evidence by members of the

committee as to their opinion of what the

section meant would plainly be inadmissible.

It does not become admissible by being reduced

to writing.

What is suggested is that recourse may be had to the report as an aid to construction in

order to ascertain, first, what the existing

law was understood to be upon the subject

matter of the Act; and, secondly, what was
the mischief for which Parliament intended to
provide a remedy by the Act.

As regards the first of these purposes

for which recourse may be had to the report,

the Act deals with a technical subject matter

Yuill(2) 16 12/2/91

- the treatment to be accorded by courts in

the United Kingdom to judgments of foreign

courts. The expressions used in it are terms

of legal art which were in current use in

English and Scots law at the time the Act was

passed. In order to understand their meaning

the court must inform itself as to what the

existing law was upon this technical subject

matter. In order to do this it may have

recourse to decided cases, the legal textbooks

or other writings of recognised authorities,

among whom would rank the members of the

committee. Their report contains a summary of

the existing law, as they understood it. As

such it is part of the material to which the

court may have recourse for the purpose of

ascertaining what was the existing law upon

the subject matter of the Act. There is,

however, no real doubt as to what it was. Those are the relevant passages, Your Honours, from

Black-Clawson and if I could, in the light of that, take Your Honors to the statute and take you

through the relevant sections. The relevant part

of the Act is Part VII which begins at section 289.

The heading is "Special Investigations". It

contains some interpretations and definitions
special to the part, and I ought draw Your Honours'

attention to the definition of "officer" which is

expanded from the general definition in subsection

5(1) of the Act to include, for instance, under

section 289(l)(a):

a person who acts, or has at any time acted,

as banker, solicitor or auditor, or in any

other capacity, for the corporation.

At section 289(1A):

In this Part, a reference made to a statement made at an examination -

_ and the importance of that will come out later -

answer given, or any other comment or remark	includes a reference to a question asked, an
made, at an examination.

That is important because it means that the

definition of "statement" would include not merely a statement prepared for the purposes of evidence, but a transcript of the questions, the answers and

any other statements made during the interrogation
of a witness.

Sections 290, 291, 292, 293 and 294 are

machinery provisions as to the setting up of an

Yuill(2) 17 12/2/91

investigation, how it shall be done; and the only

other section which applies there is section 304

which is the power of delegation, and that

delegation was availed of in this case by the

Corporate Affairs Commission to appoint Mr Miller

as the inspector. The substantive sections of the

Part begin with section 295(1):

An inspector may, by notice in writing

containing the prescribed matters given in the
prescribed manner, require an officer of a

corporation affairs of which are being

investigated under this Part -

(a) to produce to the inspector such books of

the corporation and other books relating to
affairs of the corporation as are in the

custody or under the control of the officer;

(b) to give to the inspector all reasonable

assistance in connection with the

investigation; and

(c) to appear before the inspector for

examination on oath or affirmation and to

answer questions put to him,

and may administer an oath or affirmation to

that officer.

(3) Where an inspector has reasonable grounds

for believing that books in the custody or

under the control of a person may be relevant

to any of the matters relating to affairs of a

corporation that are being investigated under

this Part, the inspector may, by notice in
writing containing the prescribed matters

given in the prescribed manner, require that

person to produce those books to the

inspector.

The definition of "books" in subsection (5)(1) of

the Act includes documents, Your Honours, so as to

incorporate, for instance, letters.

(6) Where books are produced to an inspector

under this Part, the inspector may take
possession of the books for such period as he
considers necessary for the purposes of the

investigation, and during that period he shall

permit a person who would be entitled to

inspect any one or more of those books if they were not in the possession of the inspector to inspect at all reasonable times such of those

books as that person would be so entitled to

inspect.

Yuill(2) 18 12/2/91

One assumes that this, as Your Honours would

appreciate, being an inspection which may take

place when a company is still operating as opposed

to the later provisions which relate to
investigations by an investigator, one would assume
that was intended to cover the rights of
shareholders to have access to registers and that

sort of thing.

Section 296 - Examination of Officers.

(1) Where affairs of a corporation are being

investigated under this Part, the following

provisions of this section have effect.

( 2) -

A person -

shall not, without reasonable excuse, refuse

or fail to comply with a requirement made

under section 295.

Penalty: $10,000 or imprisonment for 2 years, or both.

(3) An officer of the corporation shall not,

in purported compliance with a requirement

made under section 295, furnish information

that is false or misleading in a material

particular.

(4) An officer of the corporation shall not,

when appearing before an inspector for

examination pursuant to paragraph 295(l)(c),

make a statement that is false or misleading

in a material particular.

And the same penalty for both the information or

the statement: $10,000 or two years gaol. Refusal

to:

take an oath or make an affirmation -

is visited with a penalty of: 

$1,000 or imprisonment for 3 months.

Section 296(6) gives the right to legal

representation. Section 296(7) conveys a limited

protection although forcing answers to

incriminating questions:

An officer is not excused form answering a

question put to him by an inspector on the

ground that the answer might tend to

incriminate him but, where the officer claims,

Yuill(2) 19 12/2/91

before answering the question, that the answer
might tend to incriminate him, the answer is
not admissible in evidence against him in
criminal proceedings other than proceedings

under sub-section (2), (3) or (4) or other

proceedings in respect of the falsity of the

answer.

(8) A claim referred to in sub-section (7)

may be made in any form of words -

Section 296(9) is a saving provision, one would

assume, from civil action or some such thing.

(12) Where, in the opinion of an inspector, a

legal practitioner acting for an officer is

attempting to obstruct the examination of the

officer by the exercise of the rights

conferred on him under sub-section (6) to
address the inspector or to examine the

officer, the inspector may require the legal

practitioner to cease to address him or to

cease to examine the officer, as the case may

be.

(13) Where an inspector makes a requirement

of a legal practitioner under

sub-section (12), the legal practitioner shall

not refuse or fail to comply with that

requirement.

Your Honours, one may make the general comment on

that section that it is a stringent code and it is

a code which is intended by the Parliament, in our

submission, to open up completely to examination

the affairs of the company under heavy penalty.

TOOHEY J:	Mr Toomey, you do not appear to be submitting an argument that "without reasonable excuse" is
somehow directed to the practicalities of the
situation - I am not suggesting you should - but
trying to get some understanding of what is meant
by "without reasonable excuse", you can understand
company simply cannot get access to the documents an excuse being furnished that the officer of the
or that they have been destroyed and it is easy
enough to see how that constitutes an excuse,
reasonable or otherwise would no doubt depend on the circumstances; but is there any sort of analogy, leaving aside self incrimination, by which
some statutory provision, some rule of law might
constitute reasonable excuse as opposed to some practical situation?
MR TOOMEY:	Your Honour, our argument, of course, is that

no rule of law would not oppose, that "without

reasonable excuse" is indeed confined to non-legal

Yuill(2) 20 12/2/91

excuses, as Your Honour says, destruction of
documents, the documents are in Alaska, or some

other such thing, and we will take Your Honour to

the cases on that, but one of the matters which has

been relied upon by the courts in construing the

meaning of "without reasonable excuse" is the

· purpose of the statute. Can I take Your Honours

straight away to section 306(11) because it casts a

light on the purposes of such an investigation:

If, from a report under this Part, or from the

record of an examination under this Part, the

Commission is of the opinion that proceedings
ought in the public interest to be brought by

a corporation for the recovery of damages in
respect of fraud, negligence, default, breach

of trust, breach of duty or other misconduct

in connection with affairs of, or for the

recovery of property of, the corporation to

which the report or record relates, the

Commission may cause proceedings to be brought

accordingly in the name of the corporation.

That relates, from its subject-matter, to civil

proceedings but it outlines what the purpose of the

investigation is, in our respectful submission, and

other sections indicate that criminal prosecution

is also to be pursued when it arises out of the

facts which are disclosed by the investigation.	So
one has to read section 296 in the light of the fact that the Parliament intends to pierce the
corporate veil, to lift the corporate veil, and to
make available to the investigator all matters
which will make possible a proper consideration of
whether either criminal or civil action should be
taken.

It is our respectful submission that in that

light - and I am anticipating myself - but it is in

that light that one interprets section 296 as

saying no technical legal rules are available, as

this Court said in Consultants Corporation in 1986

that "without reasonable excuse" did not preserve

the rule against self incrimination.

TOOHEY J:	One difficulty with that proposition perhaps is that, while the word "excuse" may not be
particularly apt to describe a person who relies upon legal professional privilege, section 296
itself uses the term "excuse" in relation to self
incrimination, does it not? Section 296 and 297 -
MR TOOMEY:	Yes, he is not excused from - yes, Your Honour,

that is correct. That is so.

Yuill(2) 21 12/2/91

TOOHEY J: But I suppose that is a double-edged argument.

The fact that Parliament has selected self

incrimination as an answer would no doubt go to

support your argument.

MR TOOMEY: Yes, Your Honour, indeed. It is from

· section 296 that one is to infer the approach of

the Parliament to the investigation - the general
approach. There are other matters, of course,

which have particular - if I could take

Your Honours on, section 297 provides that an

inspector, if satisfied that a person has failed to

comply with a requirement under section 295 without

reasonable excuse:

the inspector may, by writing signed by him,

certify the failure to the Court.

In this case, that would be the Supreme Court of

New South Wales, and:

Where an inspector gives a certificate under

sub-section (1) -

in relation to an officer or a corporation -

the Court may inquire into the case and -

(a) order the officer -

or the other person -

to comply with the requirement of the

inspector ..... ; or

(b) if the Court is satisfied that the

officer -

or the other person, as the case may be -

failed, without reasonable excuse, to

comply with the requirement of the

inspector, punish him in like manner as

if he had been guilty of contempt of the
Court and, if it sees fit, also make an

order pursuant to paragraph (a).

The powers of the Court under this section may

be exercised in relation to -

an officer or another -

person notwithstanding that the -

officer or other -

Yuill(2) 22 12/2/91

person has been convicted of an offence in

relation to the matter in respect of which the

powers are to be exercised.

So he can be fined $10,000 or imprisoned for two

_ years and he can be dealt with for contempt of court and he can be ordered to comply with the

direction. Again, we would submit, an indication

of the approach of the Parliament to such an

investigation. It is not to be trammelled in any

way.

It ought be drawn to the attention of the

Court that section 296 does not deal with the

production of documents which would intend to incriminate a person and yet, by analogy with Consultants Corporation, that would not be held to

be a sufficient excuse to refuse the production of

such documents. Section 298 deals with the record

to be made of an examination and it is important

for the use which is made of such a record under

section 299. Section 298(3) provides that:

A written record of the examination of a

person under this Part that is signed by the person as mentioned in sub-section (2) or is authenticated in any other prescribed manner

is prima facie evidence of the-\

statements made -

at the examination.

Section 298(5):

Nothing in this section affects or limits

the admissibility in any criminal or civil

proceedings of other evidence of the -

statements made -

at an examination under this Part.

Section 298(6) - copy to the legal representative.

Publication of the copy is barred by section 298(7)

and section 298(10) provides that:

When a final report is made in respect of

an investigation under this Part, any record

made ..... at an examination relating to the

investigation shall be furnished with the

report.

Section 299 provides:

(1) Except as provided by sub-section (2),

any statements made at an examination of a

Yuill(2) 23 12/2/91

person under this Part are admissible in

evidence in any criminal or civil proceedings

against the person.

And Your Honours will remember that I drew your

attention to 289(1A:

In this Part, a reference to a statement made

at an examination includes a reference to a

question asked, an answer given, or any other

comment or remark made, at an examination.

The exceptions in section 299(2) are fourfold.

Evidence of a statement made by a person at an

examination under this Part shall not be

admitted in evidence in criminal or civil

proceedings against the person if -

the person had objected to answering on the ground

on self-incrimination. That is giving effect to
section 296(7).

(b) the statement is not relevant to the proceedings and the person objects to the

admission of the evidence -

one might wonder why it is necessary to include

that. If it is not relevant it would not get into

evidence anyway, one assumes. (c) is the doctrine

of completeness:

the statement is qualified or explained by

some other statement made at the examination,

evidence of the other statement is not
tendered in the proceedings and the person
objects to the admission of the evidence of

the first-mentioned statement -

and, again, one would almost wonder at the

necessity for that -

or

(d) the statement disclosed matter in respect

of which a claim of legal professional
privilege could be made by the person in the
proceedings if the provisions of this Division
did not apply in relation to that evidence,
and the person objects to the admission of the
evidence.

Now, it ought first be said, Your Honours, that

there is a plain error in the subparagraph in that

the word "Division" is inapt. There is no division

of Part VII. And it has been agreed by all parties

and the judges who have heard the matter that the

word "Division" should be replaced by the word

Yuill(2) 24 12/2/91

"Part" for the purposes of the interpretation of
the paragraph.

Your Honours, here is a matter where the Parliament has directed itself to the question of

_ legal professional privilege and what it has done

is to say that where a statement, that is

questions, answers and things said during

examination, disclosed matter in which a claim of

legal professional privilege could be made by the

person in the proceedings, that is the legal

proceedings, if the provisions of this Part did not

apply in relation to that evidence and the person

objects in the legal proceedings to the admission
of the evidence then the statement is not to be

admitted.

It is, we would submit, aimed at the fact that

compulsory disclosure is required of a person -
compulsory oral disclosure of matters before the

inspector, to which, had he not been covered by

section 296, he could have raised objection; and

it is plain, on our submission, from this paragraph

that objection on the ground of legal professional

privilege is not available to questions put to him
before the inspector. It does not deal with

documents, it deals only with statements and

statements - - -

GAUDRON J: But, Mr Toomey, why does it not deal simply with

the failure to claim privilege?

MR TOOMEY:  I am sorry, I do not understand Your Honour.

GAUDRON J: Subsection (1) would render admissible a failure

to claim the statement if there was a failure to

claim privilege. (2) would simply be to say,

"Well, notwithstanding the general law, you can

none the less claim privilege if there has been a

failure to claim it before an inspector."

MR TOOMEY:  Your Honour, with respect, there are two

different matters.	When the questions are asked
before the inspector, if it were a legal proceeding

they could be the subject of a claim for legal

professional privilege because the witness is being

asked to orally produce, as it were, material which

is covered by legal professional privilege. But

once he has made the statement to the inspector,

per force, that statement is not covered in any way

because the statement to the inspector is itself

not something which is covered by legal

professional privilege. That is the reason, as we

apprehend it, for the form of (2)(d).

As we understand it, and it was dealt with by

this Court in Baker v Campbell, particularly by the

Yuill(2) 25 12/2/91

then Chief Justice, at some length, the doctrine of

legal professional privilege is not a doctrine of

admissibility. It is a doctrine which gives a

person the right to refuse to produce. That, of

course, is demonstrated by the fact that if a

. document falls into the hands of someone else, even

by stealing - it is suggested in some of the

authorities - it can still be used. It does not

affect the admissibility. It affects the privilege

against production.

Now, subsection (2)(d) gives a right which would not exist. Once the person had been forced

to answer the questions before the inspector, that

statement would be admissible against him. He

could not claim legal professional privilege.

GAUDRON J: As, indeed, they would be if he or she merely

failed to claim the privilege, assuming it were

otherwise claimable.

MR TOOMEY J: But, with great respect, Your Honour, it makes

no difference whether the privilege is claimed or

not because the privilege does not go to the

admissibility in the later proceedings, you see.

That is, in our respectful submission, the purpose

of (2)(d). It envisages and can only be read to

mean that a person has no legal professional

privilege before the inspector. Once the questions

have been answered, then the subjects of legal professional privilege have been revealed, per force, by compulsory interrogation, out of the

mouth of the person himself, or herself. And the

Parliament has said, in our submission, it would be unfair in those circumstances where they have been forced to make the disclosure that it should be

available against him. It is not covered by the

privilege because it has been stated and so the

only objection is to admissibility and that is not
covered by legal professional privilege.

TOOHEY J: What then of a document that is produced which

would ordinarily be the subject of legal

professional privilege? Your comments are being

directed presumably at the questions that are asked

arising out of the production of that document.

But what of the document itself?

MR TOOMEY: Well, Your Honour, our respectful submission is

this. A document which is produced and which would

ordinarily be the subject of legal professional

privilege, is something which was brought into

existence not for the purposes of the

interrogation; not for any purposes except the

conduct of the company itself. It stands in a

different category from material which is acquired

by compulsory interrogation and it is our

Yuill(2) 26 12/2/91

respectful submission that that is the reason why

(2)(d) gives a protection against statements which

are forced from the witness as opposed to documents

which were brought into existence for the purposes

of the affairs of the company.

TOOHEY~:  The document having been disclosed, to what

extent can it be relied upon in other proceedings?

MR TOOMEY:  If one looks at section 307, Your Honour:

Commission's powers in respect of books

307(1) An inspector may, when making a report

under this Part, give to the Commission books

of which he has taken possession under sub-

section 295(6) and the Commission -

(a) may retain the books ..... to consider

whether or not legal proceedings ought to be

instituted .....

(b) may retain the books for such further

period as it considers to be necessary to

enable any such proceedings to be instituted

and prosecuted;

(c) may permit other persons to inspect the

books while they are in its possession;

(d) may permit the use of the books for the

purpose of legal proceedings instituted as a

result of the investigation - - -

TOOHEY J:  I wonder what that means, "shall permit the use

of the books". Does that mean that somehow in

proceedings instituted subsequent to an

investigation a document which would ordinarily be

the subject of legal professional privilege must
not only be disclosed to the inspector but it may,

if the Commission decides, become admissible in

proceedings under the Act?

MR TOOMEY:	We say that is so, Your Honour.
BRENNAN J:	But the Commission surely cannot decide

admissibility.

MR TOOMEY:  No, but the Commission can decide whether to

use it or not. The Court would ultimately decide

whether it was admissible.

BRENNAN J:  Well, can permit the use, but is it not for the

Court to decide the admissibility of any document

which the Commission permits to be used and which a

party objects to being used on the grounds of legal

bit curiously, would it not, because the documents

have been handed back.

MR TOOMEY: Yes. Well, Your Honour, perhaps I could just
read the summons quickly to Your Honours:

The plaintiff claims:

(1) A declaration that the plaintiff is

entitled to inspect and make use of all

documents produced by or on behalf of the

defendants in answer to a notice issued by the

Yuill(2) 80 12/2/91

plaintiff's delegate in the special

investigation being conducted by the delegate

pursuant to Part VII of the Companies (New

South Wales) Code.

(2) A declaration that legal professional

privilege is not available to the defendants

to prevent inspection by the delegate of

documents produced by the defendants to the

delegate pursuant to the notice.

(3) Such further or other orders as the court

thinks fit.

(4) ..... costs.

BRENNAN J:	Do you want any relief other than (2), if you were successful?
MR TOOMEY:	No, I do not think we do, Your Honour. (2) covers the situation. I think

BRENNAN J: Perhaps we should hear from Mr Jucovic as to

what he has to say with regard to it.

MR TOOMEY:  May it please Your Honour. I would want to be

heard as to costs also, if Your Honours please.

TOOHEY J: Could I just ask you this, by way of

clarification, Mr Toomey? Is inspection a right

that exists under the Act independent of

production?	I mean, section 295 is concerned
with - - -

MR TOOMEY:  There is a power under the Act to seize

documents, Your Honour.

TOOHEY J:  No, I am not asking about that. Section 295

contemplates that a notice may be given for the

production of documents.	Now, if	they are produced
is there - - -

MR TOOMEY:  Power to inspect.

TOOHEY J:  - - - an independent right to inspect them or not

to inspect them.

MR TOOMEY:  There is a power in the Act to inspect,

Your Honour, on them being produced. That

is 295(6), Your Honour. It is perhaps a little

elliptical but we would say that it plainly

envisages inspection.

TOOHEY J: But the operative act is the act of production.

It is that which the respondents seek to .....

MR TOOMEY:  Yes, Your Honour.

Yuill(2) 81 12/2/91

BRENNAN J: Is this the situation: after Baker v Campbell,

some modus vivendi seems to have been arrived at

between the legal profession and the investigative

arms of government which results in documents being

sealed up and left in some custody until the

court's decision is made?

MR TOOMEY:	Your Honour, I am not aware that the point has been taken before, actually. That is what happened
in this case, Your Honour, but I am not aware that
that has happened before or that the point has been
taken before.
BRENNAN J: Can you tell us this wheter,	if the second

declaration which was sought in your summons went

one way or the other, was it common ground between

the parties that the documents would then be either

open to inspection if you succeeded or returned if

you were not?

MR TOOMEY: That is the way it was argued, Your Honour.

That is what I understood to be the case, and I

believed it to be common ground.

BRENNAN J:  We can hear what Mr Jucovic has to say about

that, and then I will call on you with regard to

costs.

MR JUCOVIC:  That is plain by what was said at pages 27 and

28 of the appeal book. It was just a modus

vivendi? The documents have now been handed back

and the appropriate order, Your Honour, is that
which would follow the statute, namely, production.

They were sealed up to await the outcome of the

essential question, the abrogation of legal

professional privilege.

BRENNAN J:	Is there any reason why if you should fail in these proceedings the order which this Court should
make should not be in the terms of the second
declaration that is sought, leaving it to the parties having regard to whatever arrangements they
have made to work that out as they may be advised?

MR JUCOVIC:  Only one practical problem. Following the

decision of the Court of Appeal the documents, as I

understand, were returned.	The declaration should
now be as to production, Your Honour.	They no

longer - the declaration sought is as to

inspection, not production. The second order is to

prevent inspection; it is really to prevent

production, Your Honour.

BRENNAN J: Would it be right, Mr Jucovic, to say that

really the problem arises, not under 295 but 296?

The reason why I ask that is because the order of

the Court of Appeal seems to suggest this is a

Yuill(2) 82 12/2/91

limitation on power under 295 rather than

reasonable excuse under 296.

MR JUCOVIC:  That is the way in which it proceeded in front of the Court of Appeal.

BRENNAN J: It was a question of power?

MR JUCOVIC:  Yes. If the Court pleases.

BRENNAN J: Thank you, Mr Jucovic. Mr Toomey?

MR TOOMEY:  May it please Your Honours. Your Honours, as to

costs, we would say this. This is an investigation

in the public interests concerning a group of

companies which lost $1.2 billion and it is

submitted that there is no reason why Mr Yuill, who

was the chief executive of the major company, and
who is the executive director of the two other

companies named as respondents, should not, since

he has chosen to litigate this matter, pay the

costs if he fails. We would put the other side of

the coin and say that there is no reason why the
public purse should meet the costs of this appeal

if the appeal is successful.

May it please Your Honours. ·

BRENNAN J: 

Mr Toomey, in order to acquaint the Court with

the material which gave rise to the proceedings,
the initial appointment of the inspector in terms
of the appointment and reference would be of

assistance, and if that does not reveal the

relationship between each of the respondents so

that the corporate respondent's relationship with

Mr Yuill is not thereby revealed then perhaps the amending reference by the minister.

MR TOOMEY: 

Yes, Your Honour.

BRENNAN J: 

The second document would be the notice

requiring production of the challenged documents or

summons or whatever it may be.	The third would be
the summons which commenced these proceedings.

MR TOOMEY:  May it please Your Honour.

BRENNAN J: Could copies be made of those and made

available?

MR TOOMEY: Certainly, Your Honour.

BRENNAN J:	You have no objection to that, Mr Jucovic?
MR JUCOVIC:	No, Your Honour.

Yuill(2) 83 12/2/91

BRENNAN J: Are there any other documents that you think

should be acquired?

MR JUCOVIC:  I cannot see any objection. I assume they were

before Mr Justice Hodgson, but I cannot - - -

BRENNAN J:	I have assumed that from what you said.
MR TOOMEY:	Yes, they were annexures to the affidavit of

Mr Bennett- - -

BRENNAN J: Well, would it be easier for the summons of

Mr B~nnett's affidavit be produced?

MR TOOMEY: Well, indeed, Your Honour, that might be the

simple manner of dealing with it.

BRENNAN J:  Would that be agreeable, Mr Jucovic?

MR JUCOVIC:  Yes, Your Honour. May it please the Court.

BRENNAN J: Well, let that be done. The Court will consider

its dec~sion in this matter.

AT 3.52 PM THE MATTER WAS ADJOURNED SINE DIE

Yuill(2) 12/2/91