Hamilton v Oades; Corporate Affairs Commission of New South Wales v Oades

[1988] HCATrans 275

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl38. of 1988

B e t w e n -

WILLIAM JAMES HAMILTON

Appellant

and

MICHAEL GEORGE GADES

Respondent

and

CORPORATE AFFAIRS COMMISSION

OF NEW SOUTH WALES

··Intervener

Office of the Registry

Sydney No 3139 of 1988

Oades(2)

MASON CJ

DEANE J

DAWSON J

TOOHEY J

B e t w e e n -

CORPORATE AFFAIRS COMMISSION

OF NEW SOUTH WALES

Appellant

and

MICHAEL GEORGE OADES

First Respondent

and

WILLIAM JAMES HAMILTON

Second Respondent

1

C2T 2/1/SR 17/11/88

.GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 NOV~MBER 1988, AT 10 .16 AM

Copyright in the High Court of Australia

MR R.A. CONTI, QC:  May it please the Court, I appear with

MISS ·M.J. BEAZLEY, for the appellant, Hamilton.

(instructed by Cowley Hearne)

MR K.R. HANDLEY, QC: If the Court pleases, I appear for the

appellant Conmiission, with my learned friend,

HR H.K. I~SALL. (instructed by Mr R. Watzlaff,.

Solicitor for Corporate Affairs Conmiission of

New South Wales)

MR T.F. ROBERTSON:  May it please the Court, I appear for

Michael George Oades who is the respondent in the first matter and the first respondent in the second.

(instructed by William P. O'Brien)

MASON CJ·:	Mr Conti.
MR CONTI:	Your Honours, before the Court of Appeal the

liquidator readily conceded that the intended examination

would necessarily involve a consideration and questioning

of ingredients of the offences with which Mr Oades

had been charged. If I could just take you very

briefly to page 6 where the main charges are set out.

C2T2/2/SR	2	17/11/88
Oades(2)

MR CONTI. (continuing):  You will see in paragraph (b),

between'lines 15 and 20, reference to the ingredient

of Mr Oades being a director of Bullion Sales;

at line 25 reference to a letter dated 28 June 1984,

the existence of the letter, and over the page at

line 5 a reference to Mr Anson's dealings with

Bullion Sales International Pty Limited. Those

four charges were the main charges but on pages 28

and following there appears the remaining 15 charges.

Your Honours, as we see the issue here for

consideration, thus stated, has section 541 of the

Code removed or abrogated the privilege against

self-incrimination and if so does the abrogation

extend to self-incrimination in relation to

existing pending charges. Now, we have hanfted up

section 541 with our submissions and the critical

subsection is subsection (12) which, we submit,
purports to abrogate the privilege without there
reserving any discretion to the court, and

consistent with what subsection (12) purports

to do are the terms of subsection (8) which

refers to the obligation to answer a question

directed by the court to be answered, subsection (13)

which requires a written record of the testimony

to be not only brought into existence but if

so ordered by the court to be signed by the

examinee, and subsection (14) is to admissibility

of the record in the subsequent. proceedings subject

only to the qualification in subsection (12).

(Continued on page 4)

C2T3/l/MB	3	17/11/88
Oades(2)

MR CONTE (continuing): Your Honours, it is true that in

subsection (5) there is reference to a discretion

which is conferred upon the Court,. · not only

as to the issue of the order for examination but also subsequently. It is our submission

that what is there directed is the subject-matter

of the Court's traditional roles there as to

ensuring that what is to be examined 'are matters

of relevance and are within the charter of -

subsection (3) of section 541 and also to ensure

that the traditional roles of the Court to pre~ent

oppression and needless injury are there restated.

Your Honour, what we would seek to do now

is to compare this legislation with the legislation

considered by the Court in SORBY V THE COMMONWEALTH

where it was found that there had been an.abrogation

or removal for privilege.	SORBY V THE COMMONWEALTH,
152 CLR 281.	Your Honours, SORBY was decided

after HAMMOND and in reaching the conclusion

which the former Chief Justice did at page 296,

at point 3 of the page, namely that this new

amendment in 6A, which did not have effect at

the time of HAMMOND, clearly abrogated the privilege.

In reaching that conclusion, His Honour

considered the legislation which was before the

Court in HAMMOND, pointing out that this Court

had not had the opportunity in the course of

HAMMOND to reach any final views on the import of the ROYAL COMMISSIONS ACT as it then stood. His Honour determined that as the Act then stood

the privilege had not been removed on the true

construction of the legislation. But that was

a step in his reasoning coming to the conclusion

at page 296.

(Continuing on page 5)

C2T4/l/ND	4	CONTI, . QC	17/11/88
Oades(2)

MR CONTI (continuing): Your Honours, the text of

the amendments which embody the new section 6A

which came into force after HAMMOND appear on

the preceding page at page 295. You will see
that subsection (2) is in similar terms to

save that it does not contain the qualification	section 541(12) which is here under consideration,
as to direct use of incriminating admissions
that is contained in section 541(12), but
otherwise it is in similar terms.

Very importantly, we would submit for the

argument, is that subsection (3) expressly

spelt out that the abrogation of the privilege

in subsection (2) did not apply to pending

existing charges. Subsection (3), of course,

has no counterpart explicitly in section 541,

but the view of the Court of Appeal, certainly

that of Mr Justice Priestley and Mr Justice Clarke,

is tha:section 541 should in effect be read as

though something equivalent to section 6A(3)

of the ROYAL COMMISSIONS ACT is inserted.
Whilst you have the book in front of you, can I refer just to some other passages in the

judgments. At page 305 in the joint judgment

of the present Chief Justice and Justices Wilson

and Dawson, the second paragraph ·of the joint

judgment reads simply:

As we agree with the Chief Justice's

conclusion that the new section 6A ..... validly abrogated the privilege from the

time when the amending Act came into

operation, we have no need to examine the

effect of the Commonwealth Act as it stood

before the amendment.

A similar view, as we read it, was expressed

by Mr Justice Murphy at page 312, at the foot

of page 312 and the top of page 313, and by

Mr Justice Brennan at page 323, at point 2 of

the page where His Honour says, briefly:

(Continued on page 6)

C2T5/l/JM	5	17/11/88
Oades(2)

MR CONTI (continuing):

Section 6A(2) puts beyond argument the obligation of a witness to answer without

qualification of the privilege.

They were the findings. Also important for
the purpose of our argument: there are some
observations made by the Court on the 1970 decision

of this Court in MORTIMER V BROWN upon which,

as our submissions indicate, we so heavily rely.

At page 289, the former Chief Justice observed,

near the foot of the page, five lines from the

bottom:

The character and purpose of the statute

may indicate that it should not be construed

so as to preserve the privilege -

for example, MORTIMER V BROWN, which was a decision

on section 250 of the uni.form COMPANIES ACT,

the precursor to section 541, and REES V KRATZMANN,

which is also a decision on section 250. The

reference·there to MITCHAM V O'TOOLE is to other

provisions of the uniform COMPANIES ACT which

dealt with misfeasance - a question there, I

think, by the commission of liquidators and other

officers of the company in relation to misfeasance.

It was a short decision. Then, at page 309,

in the joint Judgment; there is a more extensive

reference to MORTIMER V BROWN, commencing half-

way down the page:

MORTIMER V BROWN furnishes a compelling

illustration of a statute which abrogates

the privilege by necessary implication.

There is was held that s.250 of THE COMPANIES
ACT of 1961 (Q) excluded the privilege
in the public examination by a judge of

directors of a company involved in voluntary

liquidation.

(Continued on page 7)

C2T6/1/SDL	6	17 /11/88
Oades(2)

MR CONTI (continuing)~

In PYNEBOARD we concluded that it is less

difficult to show that the privilege has been

impliedly abrogated in the ordinary case where

a statute imposes an obligation to answer

questions otherwise than on oath, provide

information or produce documents in the course

of an administrative investigation than in the

case of an examination on oath before a judicial

officer whether or not an ob4ect of that

examin.ation is a preliminary~to committal for

trial or summary prosecution. As we there said,

in deciding whether a statute impliedly excludes

the privilege much depends on the language and

character of the provision and the purpose

which it is designed to achieve.

And, Your Honour, we would, at that point, ask you

to now go to MORTIMER V BROWN to see what it was

about the language and character of section 250

of the uniform COMPANIES ACT which enabled the

Court to say, by necessary implication, the privilege

had been removed or abrogated.	MORTIMER V BROWN is
to be found in 122 CLR 493.	Now, Your Honours,

true it is in illRI'IMER V BRGJN" that the examinee had

not been, certainly as up to the time of the hearing,

charged:with any criminal offences. But, Your Honours,

it is our submission that the language from the
judgment which I propose to you shortly, is put in
such unqualified terms that it is fairly open to be

contended that, by implication, the principals there

enunciated should apply to the circumstances of an

examinee already the subject of existing charges,

in contrast to an examinee not in that position.

(Continued on page 8)

C2T7/l/VH	7	MRXONTI, QC	17/11/88
Oades(2)

MR CONTI:  Your Honours, perhaps I should ask you just

briefly to look at section 250 the text of which we

passed up with out written submission. We actually
passed up section 249 of the 1961Act as well as part

of the same annexure because that dealt with, of course, -

private examinations. Section 250(1), (3) and (4) are,

we submit, of compelling importance as is

subsection (7)(c). I think we may have outlined

those in colour on the copies we handed up with the
submissions. The foundation for the public examination

being activated is the making of a report by the

liquidator that:

a fraud has been connnitted or that any

material fact has been concealed by any

person in the promotion or formation of the

company or by any officer in relation to the

company since its formation, the Court may

after consideration of the report -

et cetera. And subsection (3) puts simply:

The Court may put or allow to be

put such questions to the person examined

as the Court thinks fit.

So, in effect, the court had, as it were, its

traditional discretionary role there available.

Sub section	( 4) :
The person examined shall be examined

on oath and shall answer all such questions

as the Court puts or allows to be put to him.

No reservation there, as appears in section 541(12),

at all as to preservation against self-incrimination

for the purposes of criminal charges as a matter of

interest. And at page 495 then of MORTIM;ER what were

regarded as overwhelming public interest factors are

discussed, firstly by the Chief Justice. At line 6

on page 495:  (Continued on page 9)

C2T8/l/SR	8	17/11/88
Oades(2)

MR CONTI (cont-inuing):

As appears· from the reasons of my brothers the language of the statute makes the answering of

every question imperative. The Parliament

has made it abundantly clear that the so called right

to be silent which the common law sought to

protect was not to be available to the examinee:

and, as both my brother Kitto and my brother

Walsh observe, the very purpose of the inquiry

makes such a course inevitable if that purpose

is not frustrated and the inquiry rendered

nugatory. The common law cannot maintain

a right in the citizen to refuse "'."',

et cetera. Then the Chief Justice referred to what

he had said in REES V KRATZMANN. REES V KRATZMANN

was not directly on issue here. REES V KRATZMANN

was concerned with the question whether questions

could be asked outside the scope of the liquidator's

report referred to in section 250 as the activating

circumstance to enable a public examination to take

place. The Court, by majority, said, "Yes, you

can question beyond the scope of the liquidator's

report." The view was taken by the Court that

the ~ourt, being in control of the proceedings,

would exercise its traditional role of ensuring

that there was no abuse of .process and so on.	That
is what the Chief Justice says there, half-way
down page 495.

"Subsection (4) enforces answers by the

examinees -

and subsection (5) I read to you a moment ago -

to questions upon and related to these

topics, but the legislature has reposed

the traditional judicial function of ensuring	in the judge presiding at the interrogation,
that the examination is not made an instrument
of oppression, injustice, or of needless injury to the individual."

It seems to me that this expresses the real

basis or limitation of a discretion confided

to the presiding judge.

Then at page 496 Mr Justice Kitto dealt with the

question of a public interest in this way.	On
about the 8th or 9th line His Honour, having

earlier referred to the fact that he was a dissentient

in REES V KRATZMANN ashe thought that the examinee

should be confined to matters the subject of the liquidator's report, · proceeded to say:

C2T9/l/MB	9	17/11/88
Oades

But however this may be, on the question that is now before us the circumstance which I

find compelling is that the evident purpose
of the section, primarily even if not wholly,

is to enable a suggestion of fraud or

concealment of a material fact to be fully

investigated by means of the public examination
of certain classes of persons. Such a
question in its nature must frequently involve
consideration of evidence tending to incriminate

individuals. To read down the wide terms of

the section so as to allow a danger of self-

incrimination as a valid ground for refusing to

answer a question would render the provision

relatively valueless in the very cases which

call most loudly for investigation.

In fairness with Justice Priestley he pointed that

particular passage out in his judgment and felt	that those words could be read in a way that was
referring to a circumstance pre-laying of criminal
charges rather than existing criminal. charges,
and continues:

By providing in sub-s.(7)(c) that notes of a

person's examination may thereafter be used in

evidence in any legal proceedings against him,

the section shows that the possibility of self- incrimination is contemplated as being inherent

in the kind of examination that is authorized.

And, of course, subsection (7)(c) has a counterpart

in section_ 541(14) as I have already pointed out.

Commencing the last paragraph of the page: The responsibility which is thus placed upon

the court is heavy, for cases are bound to

arise in which immense harm may be done,

on the one hand to the person being examined and

on the other hand to other aindividuals ,or to.

the. community, by the allowing or 'di-sallowing of

questions.

His Honour set out subsections (3), (4) and (7)	In the judgment of Mr Justice Walsh at page 498
at the _top of page 498, and I have read those to
you.

(Continued on page 11)

C2T9/2/MB	10	17/11/88
Oades

MR CONTI (continuing): And then the last paragraph on

that page, His Honour observed:

In my opinion the character and purpose of the provision are such that a construction

which would curtail its operation in the

manner and for the reason suggested ought

not to be adopted. Section 250 has already

been considered by this Court in REES V

KRATZMANN. In that case an attempt to narrow

the scope of its operation, by limiting
the matters to which the interrogation could
extend to those matters to which the report

of the liquidator referred, proved

unsuccessful. By a majority the Court refused

to put that limited construction on s. 250.

The question was, of course, a different

one from that which is now raised but,

nevertheless, I think the case is important

for present purposes. The approach adopted

by the majority of the Court was that the

language of the section should not be read

down by implication, in order to give

protection against injustice or oppression

which, it was contended, would be caused

by it to the individual concerned unless its operation was so confined. Although

the need was recognized to take into account,

wheri construing the provision, any

infringement of individual rights and any

injustice which could be caused by it, the

provision was regarded as containing a

safeguard against these evils, because it

entrusted the control of the proceedings

to a judge.

And, of course, that safeguard is here - the

proceedings are entrusted to the control of the judge

but there is the further safeguard~ here, of

course, of the qualification now inserted in

subsection 541(12).

Then His Honour picked up some observations

on public interest and purpose of

Mr Justice Windeyer half-way down the page which

were stated in REES· V KRATZMANN.	If I may read
them:

11 The honest conduct of the.affiars of companies

is a matter of great public concern today.

If the legislature thinks that in this field

the public interest overcomes some of the

common law's traditional consideration for

the individual, then effect must be given to the statute which embodies this policy 11 •

Your Honours, when I speak of the qualification in section 541(12), I concede that, of course,

C2Tl0/l/ND	11	17/11/88
Oades(2)

it is only there referring to the direct use

that may be made by a prosecutor of incriminating

evidence. We concede that subsection (12) does

not deal with indirect or derivative uses but
nevertheless we submit that the section has

sufficiently spoken to abrogate the testimonial

privilege.

At page 501, a short passage near the foot of the first indented paragraph:

A decision that in the exercise of a common- law right retained by the person examined

notwithstanding the language of the section,

he may decline to anser any question the

answer to which might tend to incriminate

him, would frustrate the purpose of the
provisions contained in it, as well as being

inconsistent with their language.

And on page 502, at about half-way down the page,

after a reference to IN RE PAGET, His Honour

observed:

I think that in deciding whether a

particular line of questioning, to which

objection is taken, should be allowed, the

court may sometimes take into account the

fact, if it be a fact, that the answers

might tend to incriminate the witness.

But in my opinion it would not be in

accordance with the plain lan~uage of the

section to hold that the possibility of

self-incrimination must be regarded by the

court as decisive against allowing a question

to be put.

Of course, the Court of Appeal below has~ in

effect, decided that the real and appreciable

risk of self-incrimination is decisive.

His Honour does there refer to, in effect, that:

the court may sometimes take into account

the fact, if it be a fact, that the answers

might tend to incriminate the witness.

Can I ill~strate this; it is not easy, if I may

say so. Assuming a question which would incriminate,

assuming the question is a matter which is squarely
within the matters legitimately for examination

by the liquidator, they are in the liquidator's

charter, there is no question of any ulterior

C2Tl0/2/ND	12	17/11/88
Oades(2)

purpose or motive which may be an .

abuse of the Court, where is there room for

the principle which Mr Justice Windeyer there

postulates? If I could give an example which

might be thought to be an excreme example,

but perhaps it ~ilustrates:. let us assume

that the examinee has been charged with

murdering one of the creditors, or suppliers
of services to the insolvent company and

clearly the relationship between the company

and the conunercial dealing~ which the liquidator

may want to examine, would be relevant, but in

so far as questions go to motivation.

and are really not relevant to what the

liquidator is essentially about in his

information gathering process and that may be

the kind of exceptional circumstance

Mr Justice Walsh is there referring to.

So·therefore, Your Honours, in summary of

the submissions we make, we say these matters
as to why no qualification of the kind which

the Court of Appeal would seek to impute is

public interest factors which are discussed in	to be justified. The first matter is the
MORTIMER, and I say no more about those. May I
say here, of course this is not a case where
the liquidator, as it were, had the control over the laying of the criminal charges. The liquidator
had started his own procedures and it was the
Corporate Affairs Commission which. lay these charges and which, of course, has occasioned the
situation which is the subject of this litigation.

The second matter is this: that we submit

the absence of a qualification of the kind which
appears in subsection (3) of the ROYAL COMMISSIONS

ACT, which I have shown to you earlier and which was set out in SOREY, the absence of such a

qualification, we submit, tends to show that the

legislature did not intend that the wide terms

of abrogation of the privilege in subsection (12)
should, as it were, be read down as not

applying to pending existing charges. The

legislature saw fit to spell out that qualification

in the ROYAL COMMISSIONS ACT and we submit that

the same, one could postulate, should fairly have

been done here if that is what was intended. It

was this absence of a spelling out of any such

qualification which, as it were, were seized upon

by Mr Justice Pincus in the decision in RE GORDON,

which we handed up to you, as justifying the

opinion, in His Honour's view, that the decision

of the Court of Appeal in OADES V HAMILTON should

not be followed by him in his consideration of

the somewhat parallel provisions of section 69(12)

C2Tll/l/JM	13	17/11/88
Oades(2)

of the BANKRUPTCY ACT. Those provisions, I

should just mention to you, in RE GORDON are
set out in full at the commencement of

His Honour's judgment in case you wanted to look at them.

We submit thirdly, and we acknowledge this is not a decisive submission: but it is just one

other to add to, as it were, the basket of

factors, it is true that in the contempt of

court cases in relation to administrative tribunals

the courts have said that the privilege of

self-incrimination, as it were, does not run

unless there are pending existing charges,

not merely, as it were, the possibility of
charges in the contempt of court cases. But,

we submit, the contempt of court cases are not

material here. The fact is that the impact upon

an examinee, if he is subsequently charged, of

having incriminated himself is ex hypothesi
the same as the impact on the person who has

already been charged.

Mr Justice Street made that observation

in ROBERTS, which we handed up to you with our

submissions. I will not ask you to look at

the decision, which was a decision on section 249

of the private examination provisions. It is

reported in 91 WN(NSW)573 and His Honour made

that observation - and I did not refer to this in our written submission - at page 541 in the

paragraph conmmcing between lines E and F. As

His Honour said, he thought in principle to

draw that distinction was not a material one.

(Continued on page 15)

C211/l/JM	14	17/11/88
Oades(2)

MR CONTI (continuing):  The last factor we put to you.is that, and·

this is repetitive, subsection (12) bas put in its own
qualification in relation to the removal ot the

privilege, albeit that-we concede this - that the

qualification is confined to direct use of testimonial

evidence, and we concede that the qualification would

not go to indirect or derivative use, but nevertheless

we submit that it is sufficiently clearly set out.

And, Your Honours, that is the submissions for the

first appellant.

MASON CJ:  Do not you have to meet another point? I can

understand the submission that privilege has been

excluded on the interpretation that you give to these

provisions. But what about the court's inherent

power to stay the examination in the interests of

ensuring that the individual receives a fair trial

in the event that criminal proceedings are taken

against him?

MR CONTI:  The reason why I have not addressed that matter is

this : the discretion to stay. is, we would concede,

clearly still there and we offered, if I may say so, to the Court of Appeal the illustration of - and this

is not directly on point, but an examination which

was sought to take place several days before the

criminal charges were to be heard- We would submit

the court would exercise its inherent power to stay

in that circumstance .. But, Your Honours, in this

particular case there is no suggestion that

His Honour Mr Justice McLelland erred. Assuming he

correctly construed section 541, there is no suggestion
that he erred in any discretionary way in declining
to stay the proceedings in this particular case. But,

Your Honour, we accept that the court can still stay the proceedings for the very reasons stated by the

Chief Justice in REES V KRATZMAN from the passage I

read out to you.

DEANE J: What do you say about Mr Justice Clarke's statement

on page 212 in the middle paragraph?

MR CONTI: Your Honours, in principle and, of course, we are

not talking about the circumstances of this case because
we are aguing, as we see it, because there is no

question in that particular case once the construction

argument of ours is accepted that there was any

prejudice her~.- the committal proceeding were not then

set down until February 1988 - that we say in relation

to that, Your Honour, is this: the public interest

factor in a liquidator proceeding to manage the affairs

of an insolvent estate, to g~t in the assets and

pay the creditors who have suffered as a result of the

insolvent administration, outweighs the factor of the individual director in so far as his right to silence

is concerned.

MASON CJ: Well, you are grappling with this question, now;

you are making a submission on it?

C2Tl2/l/SR	15	17/11/88
Oades(2)
MR CONTI:	Yes, Your Honour, but we make that submission for the purposes of construction.	We say, for the purpose

of construction of section 541 - - -

MASON CJ: What,on the question of whether or not the privilege

has been excluded?

MR CONTI:	That is so. We submit that it has been excluded because the character and purpose of the legislation
is such that pre-eminence is given to the public
interest factor, I have just mentioned, rather than
the right to silence.

DAWSON J: What you are really saying is that there is no

factor in this case which would not be present in any

other case where charges were pending or likely and

clearly the legislature contemplated that and came

down on one side.

MR CONTI: That is so.

MASON CJ:  That means that you are really attacking what

Justice Clarke said, not only on the central ..

paragraph at page 212 to which Justice Deane has drawn

your attention, but also what follows from that, if

you read on?

(Continued on page 17)

C2Tl2/2/SR	16	17/11/88
Oades(2)
MR CONTI:	Yes. I would say we are - oh yes, Your Honours.	As

we said in the first page of our written submissions,

that is the point where the issue turns. We entirely

embrace what Mr Justice McClelland says in the

following passage.

DEANE J: But if you accept that,the section aside, the court

has inherent jurisdiction to protect the integrity	of criminal proceedings actually instituted before
it, and if you also also accept that in the ordinary
case, that jurisdiction would be~xercised to preclude the interrogation of somebody accused in those proceedings about the very matters of which he is accused, do you not have to get the section somehow
cutting down that jurisdiction?

MR CONTI:  We do not accept, I am sorry, the second matter you

put to me. We · do not . accept in the ordinary

case - ·we say, only in the kind of exceptional case

which I tried to iilustrate when I took you to that

passage of Mr Justice Walsh in ·.

MORTIMER V BROWN - It would be a very exceptional

case where the court would intervene.

DEANE J:  To prevent the compulsory interrogation of an accused

before it in a pending trial about the very matters of

which he is accused, I see.

MR CONTI:  Yes, Your Honours. We put that and we say

it cannot be said - as His Honour Mr Justice Walsh said,

one cannot say decisively, · "Well that in that situation, is
that is the end of the examination!' We say one would

need a more extreme circumstances than that because

if the question is for the purposes of the examination

paragraohs ~ within the liquidator I s charter, then the view	it is for the purposes that spelt out in the preceding
of Mr Justice McLelland would prevail, the question must
be answered.

GAUDRON J:  Mr Conti, though, in subsection(Sl what must be

answered is the question that is directed by the

court. is not the question this: whether what has

gone before subsection(8)and that which follows it,

in some way confines what would appear to be a

discretion to direct, conferred by subsection(B) so as to exclude a discretion to take into account the

matters that were taken into account by Mr Justice Clarke?

MR CONTI:  We would submit no. We would .submit that, of course - I

uean, the same language	.. was in subsection(3)or
(4)of the uniform COMPANIES ACT:as the court thinks	fit• II

GAUDRON J:  The question there, was it not, was the right of the

person being interrogated. The question here is

what discretion - well, perhaps the question here	is
what discretion is left to the court?

C2Tl3/l/VH	17	17/11/88
Oades(2)

MR CONTI: Well, what is left? .. The discretion that is left to

the court is in the narrow, limited area which was

illustrated by Mr Justice Walsh in MORTIMER V BROWN

at page 250 which I read out to you.	It is that
limited.

GAUDRON J: And that is a matter of construction.

MR CONTI:	Yes.	But we entirely accept - indeed, as Justice Street did in ROBERTS when he would not
accept the submission that incriminating questions could not be asked in the section 249 examination. His Honour pointed out that there is, of course, the
overriding discret!Lon of the c:ourt to stay its
proceedings and so on. And we accept that entirely;
we have no argument with that but, on the decisive
question, should this question be allowed because
the fact is it is going to go to an ingredient of
the proceedings, as have been rendered here, the the criminal charge, we say no. It just renders
examination abortive. It cannot even ask the person
whether he is a director of the company. So it
entirely curtails the liquidator's task.

So :in .the::.:word:s- d.f M:ct..~stlce Walsh the

fact that there will be -a_ self.:.incrimination

is just not decisive. in relation to pending - incriminating judges -

(Continued on page 19)

C2T13/2/VH	18	17/11/88
Oades(2)

MR CONTI·(continuing): The question, prima facie,

is relevant f9r the purpose of the liquidator's

charter; if· it is asked bona fide for· the· purposes

for which he is going to conduct the examination,

must be answered.

DAWSON J: Really, all you are saying is that there must

be something in addition to the fact that the

answer tends to incriminate?

MR CONTI:	That is so.
DAWSON J:	You are not trying to define what that additional

factor must be; but it must be something in addition?

MR CONTI:  That is so. My illustration.of the examinee

having murdered the creditor is a poor one but

it is that sort of situation that we had in

mind.

DAWSON J:  And you say in this case there is nothing there?

MR CONTI: That is so, precisely.

MASON CJ: ·Thank you, Mr Conti. Yes, Mr Handley?

MR HANDLEY:  Your Honours, this case does not turn on whether

or not a particular question should be allowed

and an answer enforced. What is here involved

is a challenge to the whole examination proceeding

while criminal charges are pending.

The question which actually triggered the challenge before Mr Justice McLelland and which

ultimately has reached this Court was, as my

learned friend pointed out a moment ago, a question

relating to the status of Mr Oades as a director.

at page 188, line 17:  It is set out in Mr Justice Clarke's judgment

director of Darlington Commodities Pty Ltd?

For how long before 1985 were you a

On no view, in our submission, could the residual

discretion discussed by Mr Justice Walsh in

MORTIMER V BROWN and which, in our submission,

would flow through into the present legislation,

lead to a question of that nature being disallowed

where the answer could not be used in evidence

against the examinee. So what is involved here

is, in effect, an application to stay the

whole examination so far as it has any bearing

or could have any bearing on the criminal charges

until those charges are disposed of. Nothing
of this Court says, in allowing or refusing this

appeal, would preclude the exercise of the residual

discretion to disallow a particular question

as needlessly oppressive in the language

C2T14/1/SDL	19	17/11/88
Oades(2)

of Sir Garfield Barwick in MORTIMER	V'	BROWN
and Mr Justice Walsh in the same case.	As the Court

will appreciate, we have endeavoured in the first

instance to approach this case as a matter of

statutory construction and as a matter of legislative

history and we would seek to hand up, if we might,

the text of the uniform COMPANIES ACT as in force

prior to the Code coming into operation.

The Court already has before it, courtesy

of Mr Conti, sections 249 and 250 but perhaps
has not immediately available the text of

section 367A.

TOOHEY J:  Mr Handley, just before you take us to that,

there was some discussion on a special leave application as to the state of these various charges against the respondent. Are you able

to tell us what the present position is: whether,

in fact, they are all still pending?

MR HANDLEY:  They are all still pending, Your Honour.

I.am_not involved in those charges but I have asked my instructing solicitor to reduce to

writing the current position. But there is nothing

academic about this case; the criminal charges

are still pending; the pleas of guilty have not been withdrawn; sentences have not been passed; trials have not been held and there are other charges still pending for which pleas

of guilty have not been entered.

TOOHEY J: Thank you.

MR HANDLEY: What.has clearly happened, Your Honours, is

that in the drafting of a· Code,, the old section 249

and the old section 250 and the old section 367A

have been collapsed into the present section 541 and

sections 249 and 250 did not give any power to

the Corporate Affairs Commission and section 541

clearly does.

(Continued on page 21)

C2T14/2/SDL	20	17/11/88
Oades(2)

MR HANDLEY (continuing):  I would seek to direct attention

to 367A. It gives the power to the Commission

to apply to the court for an order that:

the officer or former officer attend before

the Court on a day to be appointed by the

Court to be examined as to his conduct

and dealings as an officer of the company.

Parliament directed its attention to whether that

examination should be public or private and in

subsection (2) provided that it should be conducted

in private -

unless the Court otherwise orders.

Subsection (3) finds its counterpart in subsection (4)

of the present 541, something to which Justice Gaudron

has already - sorry, subsection (5) of the present

541. Then subsection (5):

The person examined -

(a) shall be examined on oath;
(b) shall answer all questions which the

Court puts or allows to be put to him -

that had its echo in a corr~spond~ng provision in

250 considered by the Court in MORTIMER. It:

is not entitled to refuse to answer any

question that is relevant or material to

the examination on the ground that his answer

might tend to incriminate him.

So that Parliament made explicit the withdrawal

of any general right to refuse to answer on the

ground of self-incrimination, left the discretion

recognized in MORTIMER in place in subparagraph (b)

but then went on to protect the witness in a way

which section 250 had not done: 

but- if he claims that the answer to any

question might incriminate him and but

for this subsection he would have been

entitled to refuse to answer the question,

the answer shall not be used in any

subsequent criminal proceedings against

him except in the case of a charge of

perjury.

Thereare two points we wish to draw attention to,

firstly, that the protection was in respect of

subsequent criminal proceedings and, secondly,

that the prohibition on the use of the answer

was perhaps arguably, at all events wider, than

its direct use as evidence in the subsequent

C2Tl5/l/MB	21	17/11/88
Oades(2)

criminal proceedings because the answer shall

not be used in any subsequent criminal proceedings.

So it was arguable that both the direct and

indirect use of the answer was prescribed by

the provision. Going down to subsection (7) the:

Notes of the examination -

(a) shall be reduced to writing -

they were to be signed, and in subparagraph (c):

may thereafter, subject to subsection (5)	.•... be used in evidence in any legal
proceedings against the person examined.

So as a matter of strict statutory language there was no protection for the witness in pending

criminal proceedings. Now, there is obviously

a question about the use of the word "subsequent",

whether it covered a criminal trial which might
be held after the examination where the criminal

proceedings had been commenced and were on foot

at the time of the examination, and it may be,

in view of the interests of the witness-that the

court would have given a wider than normal meaning

to the words "subsequent criminal proceedings".

But, of course, you can never use written evidence

in proceedings which take place prior to the

written evidence coming into existence. So it

is arguable, at least, that there was no protection

whatever under 367A against the use of compulsory

answers by the witness in pending criminal

proceedings. That, of course, is thrown up into

sharp focus by the language of subsection (7)(c)

which.qualifies the right to use the answers against

the witness in any legal proceedings only by

reference to subsection (5) and then that raises

the question of "subsequent".

Now, of course, it is going to be one of our

submissions that the distinction between pending

proceedings and future proceedings is an illusory

distinction in cases such as this.

(Continued on page 23)

C2Tl5/2/MB	22	17/11/88
Oades(2)

MR HANDLEY (continuing): Indeed, it is our submission

that far greater prejudice may accrue to the

witness if there are no pending criminal

proceedings and the result of his examination

is to generate such proceedings and provide

inf·ormation which can be used to enable the

criminal law to be set in motion against him

than in cases where proceedings are already

pending, the pro_secution has commenced and the

prosecuting authorities conceive that they

have evidence to commence and continue the

prosecution independently of the results of

an examination. But more of that in due course.

Of course, in the context of 367A a

court asked to suspend an examination because
criminal proceedings were already pending would

be faced in a more acute way with the present

problem then indeed the present case because

it could be said that Parliament had directed

its attention to the extent of the protection,

had given it for subsequent criminal proceedings,

had withheld it for pending criminal proceedings

and therefore there was no reason why the

examination should not proceed. On the other hand,

it might have been said that because there is

no protection for pending criminal proceedings
the case for adjourning, or restricting the examination, was an overwhelming one. Now

Parliament addressed that issue when it enacted

section 541. It decided to remove the word

"subsequent" from this provision when enacting

section 541(12) and that operates partly

in the interests of the witness and partly in

the interests of those wishing to conduct the
examination. It widens· the protection of the
witness so that it covers not only subsequent

criminal proceedings, but pending criminal

proceedings, but at the same time it removed,

in our submission, what would have been arguably

a good basis for adjourning, or suspending, or

restricting an examination under section 367A

where criminal proceedings were already pending

because the transcript which could have been

used against him in .pending· criminal. proceedings under

section 367A cannot now be used as evidence in the pending

criminal proceedings under section 541(12).

We have also made the point that Parliament

also directed its mind, and fairly clearly and

might be made for criminal proceedings of a specifically, to the question of just what use

transcript obtained under a compulsory examination

under section 541. I have drawn attention in our

outline of submissions to the wide language of

section 367A(S) which arguably would have entitled

the accused person to prevent the prosecution

C2Tl6/l/JM	23	17/11/88
Oades(2)

making any use whatever of the transcript against

him in subsequent criminal proceedings and hence

the accused person would have been entitled to

restrain the liquidator, or the commission, from

passing the transcript over to the prosecution

authorities restricting its use to use for

civil purposes. Parliament has directed its
attention to that question and now the protection

has been narrowed so that under section 541(12)

the only protection is that the answer is not
admissible in evidence against him in criminal
proceedings. The indirect use, in the light of
the legislative history, of the transcript as

information to inform the prosecuting authorities

is clearly allowed.

Now, all this legislative history, in our submission, Your Hono.urs, shows that Parliament

has specifically and in detail directed its

attention to balancing the competing interests

involved in the compulsory examination of officers

of failed companies and it has moulded the protections

and it has gone as far as it considers it should go

and it has restricted protections, extended protections,

improved the rights in some circumstances of the

witness, restricted them in other areas and it is

not for the court, in our submission, in any general

way, such as the Court of Appeal.has done in this

case, to override this legislative judgment. We,

of course - - -

(Continued on page 25)

C2T16/2/JM	24	17/11/88
Oades(2)

GAUDRON J:  Mr Handley, is it true that the court has

overridden it in a general way?

MR HANDLEY:  Yes, Your Honour, in our submission.

GAUDRON J: Can I take you to page 213 of the book. There

Mr Justice Clarke says that:

an order that "his examination be restricted

to those matters which are not the subject of

pending criminal proceedings against him" .....

is ..... too wide.

And what His Honour had said in the earlier paragraph was that there should be a restraint on:.

asking questions which may elicit answers

which are incriminating, in the wide sense

discussed -

leave that to one side -

and which go to the heart of one or other

of the charges.

Now, His Honour seems to have limited it, as it were,

to the actus reus of the charges and yet the order,

which appears to have come about by consent, does seem

to give a general restriction?

MR HANDLEY:  Yes, I appreciate that the order is in that

form, but I would make this point, Your Honour,

bearing in mind that these proceedings were triggered

off by the question, "How long before a certain date

in 1985 were you a director of the company" - - -

GAUDRON J: But that is exactly what Mr Justice Clarke says

is too wide because it does not go to the heart of

the charge?

MR HANDLEY: But it does, Your Honour, because some of these

offences are, ''Being an officer of the company you did X. 11

GAUDRON J: Yes, but being an officer of the company is not, one

would imagine, the heart of the charge. The heart of

the charge is, 'You did X~' It may be the body that did

it but - - -

MR HANDLEY: 

It is not, in a sense, part of the actus reus

because it is not yet an offence to be a director,
but it is - - -

DAWSON J: It may be the whole of the defence though, may it

not if his defence is that he was not a director at the

time?

C2Tl7/l/SR	25	17/11/88
Oades(2)

MR HANDLEY: Well, quiet. This question of de jura/ de facto

there could have been - in my submission, it does

go to the heart of the charge because the status

of the accused is a necessary ingredient of the charge.

Now, of course, by using a metaphor, "the heart",

like all metaphors,it is not particularly clear·, but

there is nowhere do the Court of Appeal say, he could

have been asked the question that triggered off this

litigation and that is, in my submission, seen as

going to the heart of the charges.

DEANE J:  Mr Handley, while you are being directed to the order,

have words such as "the absence of" been left out of

(b)?

MR HANDLEY:	No, Your Honour, the point is that -
DEANE J :	What, "Answers which 'W'OUld disclose a defence would·

incriminate"?

MR HANDLEY:  It would interfere with the pending proceedings.

DEANE J: But it is qualified by "incriminate"? But do not

trouble if that was what-was intended.

MR HANDLEY:  I believe so, Your Honour. Mind you, in some

circumstances, one could well imagine that it would be

oppressive,to, as it were, explore possible defences;

you know, "What is your defence to the first charge? ,r, one would hope would be instantly disallowed. But we

are not here in order to - can I perhaps, in further

answer to Justice Gaudron's question, just refer to the

matters which the liquidator has informed the

court he wishes to have inquired into. And they are

set out conveniently in Mr Justice Clarke's judgment

at page 190.

(Continued on page 27)

C2Tl7/2/SR	26	17/11/88
Oades(2)

MR HANDLEY'(continuing):  At the very bottom of the page,

six lines up:

Secondly, counsel for the respondent

identified before this court three broad

areas upon which the respondent wished to

examine the appellant. They were:

(1) Whether any preferential payments were

made and, if so, which payments were

preferential?

In ordinary circumstances, Your Honours, questions

in that area·wouldnot trigger any· coherent or any credible claim

against self-incrimination-but there is this

very important qualification, that the COMPANIES

CODE does proscribe and penalize the acts of company officers in committing the corporation

to debts at a time when the corporation is unable

to pay those debts. So in fixing, in an examination

of a witness under 541, the date at which a

corporation became insolvent ~which, of course,

as Your Honours appreciate, is central to the
question of what preferential payments may be

recoverable, or what payments are even preferential -

at the same time you do fix the point at. which

the company officer is in jeopardy of incriminating

himself or being subject to criminal offences

because, from that point onwards, assuming knowledge,

he may have been a party to committing the company

or corporation to the incurring of debts which

the company had no expectation or no reasonable

expectation of being able to pay.

The next question is whether $3 million

worth of gold bullion, which had apparently been

referred to in the account, existed, and.if so

what happened to it. Of course, there, assuming

the witness signed the accounts, there could

be criminal offences involved in signing -false

accounts, knowing that they were false. :The

disappearance of the bullion, assuming it was

in hand at the date of the accounts, could involve

the fraudulent misappropriation of company property

and it could also involve the fraudulent

misappropriation of property which perhaps was

held as bailee for customers of the company.

And then:

Who is the true owner of one million dollars

worth of gold which is in the possession

of the liquidator of another company?

That, in itself, of course, is not likely to

generate questions which would incriminate the

C2T18/l/ND	27	17/11/88
Oades(2)

witness but, drawing the boundary between the

owners of the bullion, who may be. either the
company or clients of the company, on the one

hand, and those clients whose bullion has been

converted, of course, may well incriminate with

reference to the bullion which has been stolen

or misapplied.

It is also significant, in our submission,

that there is no suggestion here such as there

was in HAMMOND that the examination was actuated

by any purpose of securin~ answers which would

establish the guilt, albeit on an administrative

basis, of the witness in respect of the criminal

charges. It is a different sort of examination

that is under way. It is 193, at the very bottom

of the page and the top of page 194~ Referring

to HAMMOND, Mr Justice Clarke said:

It is true that Gibbs CJ refers to questions which were designed to establish

that Hammond was guilty of the offence - and that, of course, was the situation in HAMMOND,

that the commissioner was conducting an administrative

trial in respect of criminal offences. He called

the witnesses for the prosecution and now he

was going to call the accused before the

Royal Commission.-

whereas in the present case there 1s no

suggestion that counsel will wish to put

questions with that design.

(Continuing on page 29)

C2Tl8/2/ND	28	17/11/88
Oades(2)

MR HANDLEY (continuing):  Mr Justice Clark did not think that

was important in the long run, but it does demonstrate

that here there is no subjective purpose of setting out to prove, through this witness's mouth, step by

step, all the ingredients of any particular criminal charge. I have drawn attention to a number of areas where the legislature engaged in what could fairly

be described as fine tuning to strike an appropriate balance between the rights of the public, creditors, liquidators and prosecution authorities on the one

hand, and witnesses on the other. I should also draw

attention to the provision made as to whether the
proceedings should be held in public or in private.

541(4) provides that the -

examination ..... shall be held in public except

to such extent (if any) as the Court considers

that, by reason of special circumstances, it is

desirable to hold the examination in private.

That is another area in which that is an important

potential safeguard for a witness facing criminal

proceedings, that the examination can be held in
private. There has been no application here that

the examination be held in private at any stage,

but no doubt that power remains and could be exercised

at particular points or, even generally, in relation

to some or all of the foreshadowed examination. But

that is 250 of the old Act provided it would be

in public, and 367A(2) provided that it should be

private:

unless the Court otherwise orders.

And here one finds again evidence of fine tuning in

the legislation. Now I would like to draw attention

to some matters which, in our submission, make the

distinction between existing criminal charges and

possible future charges - an illusory one for present
purposes. Where charges are not pending, the

prosecution authorities may not even be aware of the

commission of the offence, so that absent an

examination, the criminality may never come to light

and the witness may never, ever, face prosecution.

Of course, here the offences have come to light

and the prosecutions are pending. It is arguable that

who comes to face criminal charges as a result of	far greater prejudice could be suffered by a witness
by this witness in this case. an examination than any prejudice that may be suffered

DEANE J:  But it is not prejudice, is it? It is unfairness.

I mean, it is neither here nor there to say he might

whether it is unfair that a person who is actually	be more greatly prejudiced. The real question is
charged with a criminal offence and waiting his trial
should be interrogated about the matters constituting

C2Tl9/l/VH	29	17/11/88
Oades ( 2)

the alleged offence. In our jurisprudence, contrary

to some, it has generally been thought that that is an

unfair and.a burdensome procedure.

MR HANDLEY: Well, Your Honour, in our submission, prejudice is

at the heart of unfairness. That would be the first

answer we would make and, the second answer we would

make is that Parliament has directed its attention to
these matters and has said it would be unfair if the
transcript could be used against him as evidence in

the criminal proceedings. We do not deem it unfair

that the information be available to the prosecution

authorities. It may be unfair if the proceedings are

conducted in public, so we will leave it to the court

in ~he exercise of its discretion, its ordinary

proceedings should be conducted in the public. judicial discretion, to decide whether or not the

(Continued on page 31)

C2Tl9/2/VH	30	17/11/88
Oades(2)

MR HANDLEY· (continuing): It may be unfair - the section 250

provision, which mandated that the examination

be in public, may operate unfairly against an

accused person awaiting trial. So, at each

point all that remains is the obligation to answer

questions on oath.

DEANE J;	But you have forgotten one ingredient in your
statement, and that is Parliament has also said
that it will be for · the court to give such directions as to the matters to be inquired into.

MR HANDLEY:  Yes, Your Honour. I accept that that is there,

there is no quarrel with that but the examination

is not to be at large.

DAWSON J:  I rather thought, Mr Handley, you were saying

it is no more or less unfair whether or not the

charges are actually pending?

MR HANDLEY:	Yes, Your Honour.
DAWSON J:	To use the word "unfair" rather than "prejudice"

does not make any difference; your submission

still stands?

MR HANDLEY:  Yes, Your Honour. I appreciate, Your Honour -

if I can come back and endeavour to deal with

Mr Justice Deane's question,- the Court does have

a discretion; it had that discretion at the

time of MORTIMER V BROWN and it had that discretion

under section 367A but, in our submission, the

Parliament has excluded, as a general factor leading
to the wholesale deferment·of the examination,
the question of unfairness in relation to actual
or pending criminal proceedings~ There is, of
course, the discretion in relation to particular

questions and there would be the discretion as

to the timing of the examination so that it should

not interrupt· or conflict with the preparation

for or the conduct of a criminal trial or committal
proceedings.	But I will. come back, if I may,

to that matter shortly before I conclude.

Where prosecutions are not pending, the examiner can ask questions which would systematically

cover all the ingredients of possible offences

and the witness would be bound to answer and

the examination could proceed because the sort
of wholesale disruption of the examiantion sanctioned

by the Court of Appeal in this case would not

be available where criminal proceedings had not

been commenced.

The witness is less likely to be aware

in practice of the incriminating tendency of
the examiner's questions; he will not have been
able to get advice from a solicitor and counsel

in quite the same way to focus attention on the

C2T20/l/SDL	31	17/11/88
Oades(2)

particular ingredients of the offences which he

can where the offences are actually the subject

of pending proceedings. So there is a far greater

risk, in practice, and a far greater, perhaps,

unfairness of compulsory interrogation on oath

before proceedings are commenced against an uninformed

and, perhaps, unadvised witness which may lead

being taken so that the answers are avialable	to answers being given without the objection
against him as evidence in the subsequent criminal
trial.

That.potentially, one would have thought,

is likely to be far more prejudicial and far

more unfair than an unadvised or ill~advised

witness, not knowing where in the range of the.

criminal law the potential charges might lie,

may incriminate himself out of his own mouth,

on oath, without having claimed the pnivilege. Equally possible that the penny will not drop

until too late and so three-quarters of the ing~edients

of ari offence might be established before the

penny drops and the objection is taken.

So, in our submission, no:g~eat distin~tion

is concerned between pending prosecutions or	is to be drawn so far as prejudice or unfairness
future prosecutions and this is an illusory
distinction on which to base the sort of orders
that have been made by the Court of Appeal in
this case.

(Continued on page 33)

C2T20/2/SDL	32	17/11/88
Oades(2)

MR HANDLEY (continuing): If anything, we would submit, a far

greater prejudice ·-and unfaimess is likely to accrue· in

examining an uninstructed, unadvised witness.

When criminal charges are not pending this may

lead to him incriminating himself totally out
of his own mouth, under compulsion, on oath

without having claimed privilege. We would

also draw attention, if the Court pleases, to

543 of the Code which deals with a related matter.

543 says:

No civil proceedings under this Act shall

be stayed by reason only that the proceedings

discloses, or arises out of, the commission

of an offence.

Now, there may be some awkwardness in applying

that language to a 541 examination. Nevertheless,

we would submit, it does apply a 541 examination.

Civil proceedings include compulsory examinations

of the kind covered by and authorized by section 541.

This Court so held many years ago in the context

of the SERVICE AND EXECUTION OF PROCESS ACT, and

this matter was discussed by Mr Justice McLelland

in an earlier decision in this case included in the

appeal book when it was sought to set aside the
order requiring Mr Oades, the witness, to be

brought from custody in Victoria to New South Wales

to be examined, the order had to be served under

the SERVICE AND EXECUTION OF PROCESS ACT. Could

I just ask the Court to look at 20 and 21 of the

appeal book. The order for the examination of

Mr Oades was made ex parte and there was an argument

that he was entitled to notice and natural justice

which Mr Justice McLelland rejected and at line 12 on page 20:

it is clear that Mr Oades is a person who,

in a practical sense, may be affected by the

operation of the order and, for that reason,

standing to apply to set the order aside	.•..• it seems to me he would have sufficient
on the merits, that is to say, on the basis that
~t should not have been made. Accordingly, he
has, in my view, standing to test the validity of the order on the second ground on
which he relies, that is, that it falls outside
the proper ambit of s 16A -

that is, 16A of the SERVICE AND EXECUTION OF PROCESS

ACT.

The argument put in that regard is that the
examination of a person under s 541 of the
COMPANIES (NSW) CODE is not "for the purpose
of obtaining evidence in any proceeding

before the Court" within the meaning of s 16A.

C2T21/l/MB	33	17/11/88
Oades(2)

The distinction is drawn between g1v1ng

evidence in a proceeding on the one hand and

providing information for the use in a

winding-up on the other. It seems to me,

however, that that.point is concluded against

Mr Oades by the decision of the High Court

in CHENEY V SPOONER, in which the Court

had to consider whether phrase "requiring any
person to appear and give evidence ... in any

divil •.. proceedings" ins 16(1) of the

SERVICE AND EXECUTION OF PROCESS ACT embraced

an examination order under ss 123 and 124 of the

COMPANIES ACT 1899.

They are the ancestors, if the Court pleases, of

249 and 250 of the uniform COMPANIES ACTS of 1961

and 1962.

The Court held that the expression "evidence"

ins 16 did embrace the giving of information

on examination under ss 123 and 124 and that such

an examination in a winding-up proceeding was

a civil proceeding for the purposes of s 16.

No distinction in substance, no - \'

''·

I

l.~

distinction between ss 123 and 124 of the

COMPANIES ACT 1899 on the one hand ands 541

of the COMPANIES CODE on the other.

So that ground challeng.ing the order failed.

MASON CJ:  Mr Handley, was the presence of section 543

relied upon at all in the courts below?

MR HANDLEY:  Well, it was relied upon before .

Mr Justice McL~lland, Your Honour. I do not

believe it was raised in the Court of Appeal.

Mr Robertson tells me it was raised by him.

MASON CJ:  We will wait enlightenment as to how he raised

it.

MR HANDLEY:  Yes. Well, it is actually covered by his written

submissions - in his outline of submissions in this

case in this Court, it is covered, it is included.

(Continued on page 35)

C2T21/2/MB	34	17/11/88
Oades(2)

MR HANDLEY (continuing): Now, as I say, Your Honours, there

is a question under section 543 as to whether the

examination under section 541 discloses or arises

out of the commission of an offence, but, in our

submission, it certainly arises out o~ in the

sense that the series of offences were allegedly

committed in the course of conducting the

company's business in the last few years of its

corporate existence and regardless of whether section 543 applies with verbal exactitude to section 541, it does indicate a legislative

intention that the mere existence of offences
should not result in the stay of 541 examination

or the other civil proceedings which might be

brought by a liquidator against a former officer.

TOOHEY J:	Mr Handley, what are the consequences if this appeal succeeds, the order of the Court of Appeal is
set aside and the order made by Mr Justice Mctelland
is reinstated? The order itself I do not think
appears in the appeal book.  I am just wondering
what are the consequences of the appeal being allowed?
MR HANDLEY:	Your Honour, it would be my submission that

the consequence would be that there could be no

general objection to the conduct of the examination. But, of course, the discretion of the court as to the

timing of the examination, or particular parts of it,

and as to particular questions was not affected, was

not foreclosed by Mr Justice McLelland's order,

so the court would retain a discretion to disallow

particular questions as being oppressive and the

like of the kind discussed by Mr Justice Walsh in

MORTIMER V BROWN.

TOOHEY J: Is it possible then that the question you

illustrated, the one as to whether or not Mr Oades

had been a director, might still be disallowed by

reason of the exercise of some inherent power of

the court?

MR HANDLEY:  It is theoretically possible, Your Hono.ur,

but in my submission, a court concerned with the

examination of officers of insolvent companies is

not likely to take ~he view that asking a person
whether he held office in that company and for
what period was an oppressive question an~ in
my submission, it would not be an oppressive

question.

TOOHEY J: No, and you may well be right. It is just that

allowing the appeal may not really achieve a great

deal in regard to the form that the examination

takes. I do not suggest that is a reason for

not upholding the appeal, but it is just a matter

which you may have to take into account.

C2T22/l/JM 35 17/11/88

Oades(2)
MR HANDLEY: There is no way - I mean, it would mean that

the examination could be restored to the list and could
proceed. Particular questions could still be

objected to and those matters might be taken to

of the judicial discretion discussed in the judge by way of exploring the proper application

MORTIMER V BROWN to this witness in this examination

in particular questions and there may we.11 be some

sort of need for guidance of the kind that

Mr Justice Pincus gave the registrar in bankruptcy in RE GORDON.

(Continued on page 37)

C2T22/2/JM 36 17/11/88

Oades(2)

MR HANDLEY (continuing): But, of course, as Your Honour would

know, this problem has arisen in many examinations

in bankruptcy over the years and particular questions

have been taken to the judge and there is no escape

from that by any order this Court might make because

the only question that has been crystallized here is

the one to which attention has already been directed.

DAWSON J:  Mr Handley, it is a very difficult thing to do, but

can you give me an example of the sort of question
which might be the occasion for the exercise of

discretion,in this case for instance? I cannot think

of one myself, actually.

MR HANDLEY:  Your Honour, it did seem to me that any

exploration of the defences which may be intended to

be agitated in the criminal proceedings would be - - -

DAWSON J: A fishing expedition which goes outside the

legitimate area of the investigation.

MR HANDLEY:  Yes. I mean one can explore what happened to the

gold and see that particular gold was sold or

delivered, for example, but to actually go from that

poiI"t to asking, "Well, you stole the gold, didn't

you"? or "That was theft wasn't it, Mr Oades?'\ what

answer do you have to the accusation that that was

theff'might well be thought to be outside the proper

limits. I mean it may be far-fetched but - - -

DAWSON J: No, what you mean it is something that is only of

peripheral relevance to the actual inquiry but it is

vital to other proceedings?

MR HANDLEY: Yes, and it may be that questions designed to

elucidate the existence of witnesses could in some

circumstances be disallowed - "Who else was present?

Did you tell anybody at the time that that is what

you were doing?",might be seen to, as it.were, at least

have the potential to enable the prosecution to be

shored up by going and getting that witness and

proofing him for the committal and so on. I mean,

matters of that nature, we would have thought, which

could not help the liquidator achieve a civil recovery

but might interfere or go directly to the conduct

of the prosecution or the defence would, in our

submission, perhaps, appropriately, attract the

exercise of a discretion.

I should also draw attention to the fact that section 541

gives an express power to the court to adjourn the

examination - section 541(17). Now.no doubt that
would, in any event, have been picked up, perhaps,

by the general language of subsection (5) but there

is yet another procedural power which is available to

be exercised as a matter of discretion to prevent
the examination being conducted oppressively by

reason of conflicts with time necessary to be spent

C2T23/1/SR	37	17/11/88
Oades(2)

in preparing for or conducting a criminal defence.

We would seek to conclude by making two further points.

We wish to draw attention to a decision of

Mr Justice Toohey, then a Federal Court judge,in the case of HUSTON V COSTIGAN - not of any great

length, not:beyond the headnote. But this concerned

the examination of the plaintiff/applicant, Huston, by

Mr Costigan, when a Royal Commissioner, as to matters

which were the subject of pending criminal proceedings	in the immediate aftermath of HAMMOND V THE COMMONWEALTH.
HAMMOND's judgment was given in July or August of 1982.

(Continued on page 39)

C2T23/2/SR	38	17/11/88
Oades(2)
MR HANDLEY (continuing):

The .applicant had been summoned to

give evidence before a Royal Commission

being conducted by -

Costigan.-

He had given evidence relating to a

particular investment scheme (Hamidan).

Some time thereafter the applicant was char~ed with having committed certain

criminal acts in relation to -

that investment scheme.

Subsequently an application that the respondent discontinue taking all evidence

relating to Hamidan that touched on charges

pending the applicant was rejected. However,

Costigan -

did order that further evidence be taken

in confidential session.

The app 1 i cant s·o.u.g_h tan i nj unction against

the taking of evidence on matters the subject

of, or relating to, charges pending against

the applicant.

And there was jurisdiction under the JUDICIAL

REVIEW ACT to entertain the proceedings.

(iii) Proceedings of a Royal Commission

may, in a particular case, constitute a

contempt of court or interference with the

administration of justice.

That was well established by this time.

(iv)       An inquiry which has no purpose other

than to establish the guilt or innocence

of the person who has been charged with

an offence may be restrained:: from proceeding.

We would emphasize the words:

which has no purpose other than to -

(v) Where a person has been charged with

an offence it may be an interference with

the administration of justice for an inquiry
to proceed without offering certain

safeguards to the person charged, for instance

by restricting the publication of evidence

which may prejudice his trial

C2T24/l/ND	39	17/11/88
Oades(2)

(v) Having regard to the safeguards

imposed _by -

Mr Costigan -

the fact that charges are pending against

the applicant is not of itself a reason

for restraining the respondent.

The safeguards were~ hearing in private

and no communication of the evidence without

adequate notice to the witness. At the very

bottom of 563, the last two lines:

In the present case none of these

considerations operates. The Commissioner

has stated his intention to hear any evidence relevant to the applicant's

activities in confidence. At the hearing

yesterday evening counsel for the

Commissioner stated that the Commissioner

further proposed and.undertook that if at

any stage he contemplated making public

any evidence taken in confidence, on the

applicant, he would not do so without first	basis that it was not prejudicial to the
giving to the applicant seven days' notice of his intention.

And in the light of those matters, the judge	took the view that there was no basis for restraining
the further conduct of the examination. That,
of course, is a decision on its own facts. We do not seek to get any general principle
from it other than that there is no general
principle. And here, there are statutory
safeguards which go further - in
541(12) itself, and the power to hold the proceedings in private and so on which, in our
submission, meet the objection.
up and apply to this case a short passage from Your Honours, we would just seek to pick
the judgment of the majority of this Court in
the PYNEBOARD case, 152 CLR 328. I accept,
of course, the obvious distinctions between that case and this but there·.are some general statements of principle in the judgments of
wish to pick up a short passage at 341; in the this Court in PYNEBOARD - 152 CLR 328, I just
last paragraph on the page:

In deciding whether a statute impliedly

excludes the privilege -

and here, of course, the exclusion is express -

C2T24/2/ND	40	17/11/88
Oades(2)

much depends on the language and character

of the provision and the purpose which it

is desi~ned to achieve. The privilege will

be impliedly excluded if the obligation

to answer, provide information or produce

documents is expressed in general terms

and it appears from the character and purpose

of the provision that the obligation was

not intended to be subject to any qualification.

(Continuing on page 42)

C2T24/3/ND	41	17/11/88
Oades(2)

MR HANDLEY (continuing): It is our submission, Your Honours,

that the structure of section 541 and its legislative

history, particularly in the light of MORTIMER V BROWN,

demonstrates that the obligation of this witness was

not intended to be subject to any such qualifications

as the Court of Appeal have laid down. There are some

qualifications written into 541 but not any qualification
of the kind that the Court of Appeal has said ought to

be applied in the administration of the section. So,

in our submission, Parliament has made very clear that the witness:'\s oligation was not intended to be subject

to any qualification of the kind forced by the

Court of Appeal in this case. They would be our

submissions, if the Court pleases.

MASON CJ:	Thank you, Mr Handley.	Yes, Mr Robertson.
MR ROBERTSON:	May it please the Court.	May I hand up some

outlines of our submissions? Whilst Your Honours are

reading those, perhaps I could hand up some other

materials. Your Honours, this case may well turn upon

the construction of section 541 of the COMPANIES CODE ..

But the exercise of construction which my learned

friends asked the Court to undertake can only be

undertaken having regard to the existing law, both

common law and statutory, which affect the rights and

the obligations of persons who are burdened or benefitted

by the provisions of the COMPANIES CODE in contention

in these proceedings.

Our first propositmon is that there is, in the

statute law of New South Wales, a right to due

process of law. That right has never been abrogated

implicitly and never been abrogated expressly by

the legislature of New South Wales. What is bound

up in the right has, from time to time, been affected

by later enactments by that legislature and, to a

limited extent by enactments of the Commonwealth

Parliament in so far as they operate inconsistently with New South Wales law affecting those rights and

obligations.

But can I ask the Court to turn to the IMPERIAL ACTS

APPLICATION ACT 1969? The purpose of this law was to

rid the statute books, or purge the statute books of

New South Wales of imperial laws which were no longer

of any use to the community but, at the same time,

preserve imperial laws which either had a continuing
use or were fundamental constitutional enactments.

Section 6 of that Act provides that:

Each Imperial enactment mentioned in Part I of

the Second Schedule ..... so far in either case

as it was in force in England on the twenty-fifth

day of July, one thousand eight hundred and

twenty-eight -

(a) is declared to have been in force in

New South Wales on that day ..... and

C2T25/l/VH	42	17/11/88
Oades(2)

(b) except so far as affected by any Imperial

enactments or State Acts from time to time

in force in New South Wales -

(i) is declared to have remained in force in -

that State and -

(ii) shall from the cormnencement of this Act

be in force in -

that State -

and

(c) is not repealed by section eight -

which is the general repealing section. May I ask

Your Honours to turn to the Second Schedule of that

Act? Your Honours will see in Part I:

Constitutional Enactments.

A number of laws of the imperial Parliament. The

first is MAGNA CARTA qnd, in relation to that law,

what is krtown as chapter 29 of MAGNA CARTA alone

was preserved. Can I take Your Honours to the

document I have handed up entitled Halsbury's

Statutes of England and Wales? This is, in fact,

a collection of the Acts upon which we rely from

various sources. The first enactment in the collection

is the remnants of ~GNA CARTA. preserved in England,

and Your Honours will see on page 15 that:

Chapter 29 Imprisonment, etc contrary to law -

and it provides that:

No.freeman shall be taken or imprisoned, or be

disseised of his freehold, or liberties, or

any other wise destroyed; nor will we not pass	free customs, or be outlawed, or exiled, or
upon him, nor (condemn him,) but by lawful
judgment of his peers, or by the law of the
land. We will .sell to no man, we will not deny
or defer to any man either justice or right.

Your Honours, the next enactment is:

28 EDW 3 -

the 1354 law which is the third law preserved in

Part I of the second s.chedule and it is preserved

in that schedule in relation to c·hapter 3.

C2T25/2/VH	43	17/11/88
Oades (2)

MR ROBERTSON (continuing): Chapter 3 is headed:

None shall be condemned without due process

of law

Item, that no man of what estate or condition that he be, shall be put out of land or

tenement, nor taken, nor imprisoned, nor

disinherited, nor put to death, without

being brought in answer by due process of the

law.

The following statute upon which we rely is

42 Edward III chapter 3 and that is the fourth

statute enacted in 1368 preserved in Part I of

schedule 2. Now the relevant provision of this

statute is in the last five lines, commencing:

It is assented and accorded, for the good

Government of the Commons, That no Man

be put to answer without Presentment before

Justices, or Matter of Record, or by due

Process and Writ original, according to

the old Law of the Land: and if any thing

from henceforth be done to the contrary, it

shall be void in the Law, and holden for

Error.

The final statute upon which we rely is

misleadingly entitled "The Petition of Right, 1627".

It had its origins as a petition but it was in

fact enacted by the English Parliament. The

Petition of Right dealt with a number of then existing grievances against King Charles I and

it arose out of the case of the KNIGHTS so-called

in 1627 where it was believed commonly that the

writ of habeas corpus had been illegally.resisted

by the King's officers. The relevant par~s of the

Petition of Right commence at the third paragraph on

page 128 where it is recites the great charter and

it provides: 

And where alsoe by the Statute called the

Great Charter of the liberties of England, it is declared and enacted - ·•

and then it recites what I have already referred to.

Paragraph 4 recites 28 Edward III, chapter 3, which I

have taken the Court to. Paragraph 5 provides: Neverthelesse against the tenor of the said

statutes and other the good lawes and

statutes of your realme to that end provided,

divers of your subjects have of late been imprisoned without any cause shewed -

and that, of course, is a reference to the case of

KNIGHTS. Paragraph 7 recites 25 Edward III and provides:

C2T26/l/JM	44	17/11/88
Oades(2)

And whereas alsoe by authoritie of Parliament

in the five and twentith yeare of the raigne
of King Edward the Third it is declared and

enacted that no man should be forejudged of

life or limbe against the forme of the Great

Charter and the law of the land.

Then, finally, in the actual enacting provision - and

I suppose today we would regard the first seven

paragraphs as a kind of headnote or an objects

clause, or a recital - paragraph 8 provides:

They doe therefore humblie pray your most

excellent Majestie, that no man hereafter

be compelled -

and there is a question of taxing without parliamentary

authority -

that none be called to make aunswere or take

such oath or to give attendance or be confined

or otherwise molested -

for failure to pay those unlawful taxes -

And that no freeman in any such manner as

is before mentioned be imprisoned or detained.

(Continued on page 46)

C2T26/2/JM	45	17/11/88
Oades(2)

MR ROBERTSON (continuing):  And then the final words are

in law French; but they have the "R" for "Rex"

soit droit fait come est desire -

which was the traditional assent given by the King

in those days to statutes of the Parliament:

"It shall be law as it is wished".

Those enactments, Your Honours, form part of the law of New South Wales. If it be the case

that a parallel and collateral inquiry into

the substance or subject-matter of pending criminal
proceedings is, in the broadest sense, a denial

of certain of a bundle of rights which are understood

to comprise a fair trial, then that, in our

respectful submission, is, on its face, contrary

to the guarantee to persons in New South Wales

of due process conferred by those enactments.

The important question is, what does due

process of law mean and did it mean somethirig
in the 17th century or the 14th or the 13th
century different to the meaning which we -

ascribe to it today? In order to understand

what it meant when the Petition of Right, the

most recent of those constitutional enactments

was enacted, I wish to take the Court to the

report in the third volume of the State trials

entitled, ~Proceedings in Parliament relating

to the liberty of the subject". The Petition of Right being an enactment, by reference, of the New South Wales legislature, these proceedings

might be taken to be the parliamentary debates

on the Petition of Right, in the best possible

sense of the word. There was a committee established,

perhaps analogous to a joint select committee,

of the House of Lords and the House of Commons.

The committee heard evidence and submissions

from the greatest lawyers of the day, Selden,

Coke, Littleton, and the various houses of

the Parliament discussed at various times what

promises ought to be extracted from the King

in the form of the Petition of Right and the

King, through his officers, came to Parliament

and made answer and eventually gave assent to

the petition.

The parts of this document on which we

rely, Your Honours, commence at page 83 which

is - there are two page numbers on each leaf

in it and it is about half-way down page 83.

It records that after - on page 82 - the commons

proposed a series of resolutions·concerning

the rights of the subject and, in particular,

the writ of habeas corpus. And, about half-way

down page 83, it is recorded that

C2T27/1/SDL	46	17/11/88
Oades(2)

A conference desired by the Lords, and

had by a Committee of both Houses, concerning

the Rights and Privileges of the Subjects.

And four persons addressed the conference: Sir Dudle.y ·Diggs -

and his address was by way of introduction -

Mr Littleton, Mr Selden and Sir Edward Coke.

We have extracted Mr Littleton's argument because

it was the argument concerning or most relevant

to the meaning of the words, "due process of

law" or their alternative and predecessor in

MAGNA CARTA, the words, "the law of the land".

It will appear, we respectfully submit, from

Mr Littleton's argument and its eventual adoption

by the House of Lords, the House of Commons and

the King that "due process of law" was not merely

a requirement that there be a document by way

of initiating process before a person could

be brought before the courts and called upon

to answer for some charge but, in fact, had

a substantive connotation carrying with it various

of a bundle of rights which we now call a right

to a fair trial.

(Continued on page 48)

C2T27/2/SDL	47	17/11/88
Oades(2)

MR ROBERTSON (continuing):  Mr Littleton commences his

argument at the bottom of page 85 when he says,

commencing with the word "liberty" about four or

five lines from the bottom:

this liberty is established and confirmed

by the whole state, the king, the lords

spiritual and temporal and commons,by

several acts of parliament; the authority

whereof is so great that it can receive

no answer save by interpretation or repeal

by future statutes -

and we will come to the question as to whether

section 541 abrogates these laws in a moment.

But he refers to the MAGNA CARTA. The first

of them is the grant charter of the liberties

of England and he recites some of the passages

and gives a construction to them and we do not

rely on that. About half-way down page 86 he

says:

For the words are "That no Freeman shall be taken or imprisoned but by the lawful

of peers, ordinary jurors,or others,who judgment of his peers;" which is by a jury

are their peers,or by the law of the land:

which words 'Law of the land•· must of
necessity be understood in this nation, to be by due process of the law,and not

the law of the land generally,or otherwise

Villeins) who are excluded by the word 1·Liber;' it would comprehend bond-men(whom we call

And the following sentence:

And that this is the true understan4ing

of these words, 'Per legem.terrae',

will more plainly appear by divers other

statutes that I shall use which do expound

the law accordingly.

The following page, 87, at about the third paragraph,

he says:

There was no invasion upon this personal

liberty till the time of Edw. 3 which

wa~ soon resented by the subject; for in 5 E.3, _c.9, it is ordained in these words:

'It is enacted that no man from henceforth

shall be attached by any accusation, nor

fore-judged of life or limb, nor his lands,	tenements, goods, nor chattels, seized into the
king's hands, against the form of the Great
Charter, and the law of the land.'

C2T28/1/MB	48	17/11/88
Oades(2)

We are yet to see the emergence of the words, "due

process of law'•'·. Then he says:

25 E. 3, c.4, it is more full, and doth

expound the words of the Grand Charter, and

is thus:

And he recites the words and that, of course, is where the words:

or by process made by writ original at the

common law -

first occur. And then there is a further expression:

by the course of the law.

In the following paragraph he says:

Out of this Statute I observe, that what in

MAGNA CHARTA, and the preamble of the Statute

is termed 'by the law of the land,' is in the

body of the Act expounded to be by process

made by the writ original at the common law

which is a plain interpretation of the words

'law of the land' in the Grand Charter. And

I note that this law was made upon the commitment

of divers to the Tower, no man yet knoweth for

what.

28 E.3, c.3, it is more direct, this

liberty being followed with fresh suit by the

subject, where the words are not many, but very full

and significant.

And then, again, the words:

be brought in to answer by due process of

lawr' Here your lordships see the usual words,

'the law of the land', are rendered by due

process of the law.

He refers to some other statutes, but .. ti.he following

paga 89 he recites 42 E.3, c.13, which he says:

At the request of the Commons by their Petition

put forth in this parliament.

The enacting clause is:

That no man be put to answer without

presentment before justices or by due process

and writ original.

He says:

But this is better in the Parliament Roll

C2T28/2/MB 49 17/11/88

Oades(2) (Continued on page 49A)

and then he recites the actual enrolment in the

Parliament of that law which reads:

That no man be put to answer without

presentment before justices or matter of record, or by due process and writ:

original, according to the old law of·

the land.

Here by due process and original writ,

according to the ancient law of the land,

is meant the same thing, as 'per legem

terrae', in MAGNA CHARTA; and the abuse

was, they were put to answer by the

commandment of the king.
The King's Answer is thus:

'Because that this Article is an Article of the Grand Charter, the king willeth that

this be done, as the Petition doth demand.'

By this appeareth that 'per legem terrae',

in MAGNA CHARTA, is meant by due process

of the law.

(Continued on page 50)

C2T28/3/MB	49A	17/11/88
Oades(2)

MR ROBERTSON (continuing):  Your Honours, the argument of

Mr Littleton was answered by the junior counsel to the Attorney, Sergeant Ashley, at page 148 - and I think it is only fair to refer to it because

he seeks to contradict Mr Littleton on his

historical analysis of the statutory development

of the guarantee of due process. At page 148,

at about point 4, he first of all saxs he hopes to be "neither offensive nor tedious 1 • He was

later imprisoned, after addressing the Parliament,

Your Honours, not a remedy always open to bodies

whom lawyers address. He says:

in that we acknowledge the statute of

MAGNA CHARTA, and the other subsequent

Statutes, to be yet in force: for on that

they enforced this general conclusion;

'That therefore no man could be committed,

or imprisoned, but by due process, presentment or indictment. 1 Which we say is a Non sequitur

upon such our acknowledgment; for then it
would follow by necessary consequence, that
no imprisonment could be justified but by

process of law, which we utterly deny.

The next passage is the last paragraph on

page 148 when he says:

In like manner the Jud~es in these several

Courts may commit a man, either for contempt

or misdemeanor, without either process or

warrant.-

and he argues that the proposition is absurd

because the law recognizes that persons may be

arrested without there being a necessity for

warrant, as is the case even today.	He says,
at the bottom of that page:

And various are the cases that may be

instanced, wherein there may be a lawful

commitment without process. Wherefore I
do positively and with confidence a1firm

that if the imprisonment be lawful, whether

it be by process, or without process, it

is not prohibited by the law.

Which being granted, then the question

will aptly be made, Wh.ether the King or

Council may commit to prison 'per legem

terrae', were only that a part of the

municipal law of this realm, which we call

the Common-Law?

That is his first argument. He then poses a

series of arguments and concludes, on page 151,

in relation to the question, at point 2:

C2T29/l/ND	50	17/11/88
Oades(2)

for offences against the ·State, in case

of State Government, the king and his council

have lawful power to punish by imprisonment,

without shewing particular cause -

and that was the conclusion addressed to the question

whether a writ• of habeas corpus could demand proof

of the grounds for imprison~ent from the gaoler

which was the second matter which concerned the

Commons and the House of Lords at that time.

There are a series of answers given to the

objections of the King's Counsel.	At the bottom
of page 151:

It was agreed by the Attorney-General,

Sir Robert Heath, that the seven Statutes

urged by the Commons were in force, and

that MAGNA CHARTA did extent most properly

to the king. But he said, 1. That some

of them are in general words, and therefore

conclude nothing -

and at page 152, point 3:

2. Mr Attorney objected, that 'per legem
terrae' in MAGNA CHARTA ..... cannot be

understood for process of the law and

original writs; for that in all criminal

proceedings no original writ is used at

all; but every constable either for felony

or breach of the peace, or to prevent the

breach of the peace, may commit without
process or original writ, and it were hard

the king should not have the power of a

constable. And the statute cited by the

commons, makes process of the law and writ

original, to be all one.

The answer of the Commons to this

objection was, that they do not intend

original writs only by law of the land,
but all other legal process, which comprehends
the whole proceedings of law upon cause,
other than trial by jury, Judicium parium,
unto which it is opposed.

That, of course, deals with the prov1s1on 1n

MAGNA CARTA in the alternative concerning trial

by peers. But with that exception the Commons'
answer to the King's attorney is that due process

comprehends the whole proceedings of law upon

cause and not merely an initiating document or

not merely some other narrower meaning.

C2T29/2/ND	51	MR	ROBERTSON	17 / 11 / 88
Oades(2)

MR ROBERTSON:	He continues:
Thus much is imported ..... out of the word process; and by the true
acceptation thereof in the statutes that
have been used by the connnons to maintain
the declaration, and most especially
the statutes of 25 Ed 3 ..... where it appeareth that a man ought to be brought
in to answer by the course of the law,
having former mention of process made by
original writ.

Then there is some discussion about the difference

in the meaning between "by the course of the law"

and "by due process of law" if any and at the bottom

of the page the various terms connnencing with

"by the law of the land and MAGNA CARTA" and finishing

with "by due process and writ original" it is said: are meant one and the same thing, the

latter of these statutes referring always

to the former, and that all of them import

any due and regular proceedings of law upon

a cause other than the Trial by Jury.

Your Honours, there are only two other passages and I

will just refer the Court to them. At page 153,

the passage beginning "But it standeth" at point 7

and page 154, the passage beginning with the numeral 2:

Admit 'per legem terrae' extend to all

the laws of the land.

And there are some arguments urged against the attorney's

arguments there. And the following page, 156, it is

concluded by the Commons:

And upon the seven statutes did conclude,

that their declaration remained an undoubted

truth, not controlled by anything said to the

contrary.

There are some further proceedings which I simply

set out for the purpose of information and completeness.

If Your Honours could turn to page 221, Your Honours

will see that the eventual outcome of the second

reading and debates in the House of Commons and the

House of Lords was the Petition of Right which was a

much amplified statement of what the Commons and the

House of Lords then comprehended to be the liberties

of the subject. And I have already taken the Court

to the Petition of Right, the Petition is in the same

form, of course and that was on those pages up to

page 224, the enactment of the Parliament.	The King
answered,	on page 224, to the dissatisfaction of the

House of Connnons and the following pages record a

C2T30/l/SR	52	17/11/88
Oades(2)

series of toings and froings between the palace and

the Parliament as to pr~cisely what status the

Petition of Right would have in English lawi whether

it would be an Act and whether the King wou d assent

to it in common form. And ultimately, the King was

forced to reply as the Commons ·had demanded and the

assent is given at page 230 in the law French, "As

it is wished,so it be done."

Your Honours, we respectfully draw from those

proceedings this, that.the notion that due process of law
not merely a reference to necessity for written
procedures to accompany or for the initiation of
proceedings in which persons are placed at risk, but

rather that even in the 17th century, without the

further three centuries of legal history, even then

it comprehended the matters that attended the whole of

the legal proceedings which placed persons at risk.

And we respectfully submit that that is a right which

is guaranteed to the people of New South Wales in

precisely the same way as the 14th _ammcbrant of United States

CONSTITUTioN guarantees the right to due process of law - -

DAWSON J: Subject, of course, to subsequent Acts of Parliament?

MR ROBERTSON: Indeed, subject to subsequent Acts of Parliament

to the citizens or persons resident in the United States

of America.

(Continued on page 54)

C2T30/2/SR	53	17/11/88
Oades(2)

MR ROBERTSON (continuing):  We say that the right to due

process comprehends the right to a fair trial

and that latter right, the right to a fair

trial, is recognized in decisions of courts

in this country and in others. But, may I

take the Court to ABOUD's case, 10 NSWLR 671,

which is one of the more recent discussions

of the right and it is discussed not in the

rather amorphous nature in which it usually

appears in judgments of courts more or less as

a common law assumption, but as a specific right

which is capable of legal enforcement, although

it was not the right in issue in these proceedings.

ABOUD's case concerned a stay of criminal

proceedings on indictment against Aboud by reason

of the delay between the initation of the

proceedings and the bringing of Aboud to trial.

those of the President Mr Justice Kirby and Your Honours, the principal judgments are

Mr Justice McHugh, but it is to Mr Justice McHugh's

judgment that I wish to turn. His Honour identified	two particular rights, the right to a speedy trial,
which he drew from common law. At the bottom of page 691, His Honour says:

The right to a speedy trial is a

common law right -

and refers to HERRON V McGREGOR, and the right to

a fair trial, which he distinguishes on pages 694 to

695.

Now, we would respectfully submit that it

may be true that the right to a speedy trial is

a common law right but it is also a statutory

right; it is a right conferred by MAGNA CARTA as

imported to the law of New South Wales by the

IMPERIAL ACTS APPLICATION ACT and it is in the

previous phrase to the one concerning trial
by the law of the land and I will take Your Honours

in a moment to HERRON V McGREGOR.

His Honour, at page 694,refers to MILLS V REG

where:

Lamer J pointed to the distinction between

the right given by the CANADIAN CHARTER OF

RIGHTS AND FREEDOMS to a "fair hearing"

and the right "to be tried within a reasonable

time". His Lordship pointed out that the fair hearing right required "a wider and, to some extent, different range of factors

to be consid.ered in the analysis of delay".

He thought that the conduct of the Crown

was relevant, that timely assertion by the

accused of his right and disclosure of the

C2T31/l/JM	54	17/11/88
Oades(2)

nature of its impairment might be required,

and that the length of time elapsed would

generally be of less weight in considering

the fair ,trial right than in considering

the reasonable time right.

I agree with Lamer J that the concepts

of a speedy trial and a fair trial are

separate and distinct.

Then His Honour complains that other courts have not

been so similarly minded. Then His Honour refers to

BELL's case which concerned a particular constitutional

provision in Jamaica and then His Honour refers to

the cases in New South Wales which had vindicated

the right to a speedy trial.

We would respectfully adopt His Honour's

analysis. They are two distinct rights, but we

would not go so far to say that they flow from the

cotmnon law alone. We would prefer to put it on

the basis that they flow both from the common law

and, of course, from the statutes which were

re-enacted by the IMPERIAL ACTS APPLICATION ACT.

Can I take the Court very quickly to

HERRON V McGREGOR, 6 NSWLR 246, which is regarded

in New South Wales as perhaps the fons et origo

of the abuse of process doctrine comprehending the

stay of proceedings where accused persons have not

been speedily brought to justice.

(Continued on page 56)

C2T31/l/JM	55	17/11/88
Oades(2)

MASON CJ: This is the case in which Mr Justice McHugh first

advanced this view of the right to a speedy trial, is

it?

MR ROBERTSON:  Yes, that is so, Your Honour, it is not the

first time it was advanced in New South Wales.

MASON CJ:  No, but it is the first time His Honour did so.

MR ROBERTSON:  That is so. Your Honours, it is also relevant

in these proceedings because of the debate which

occurred in the court below concerning the appropriate

remedy. We pitched our submissions on the basis that

the court either could control its own proceedings

in its inherent jurisdiction or alternatively it

could stay its own proceedings and the court below

took the view that the appropriate relief was that

in the inherent jurisdiction of the court to control

its own proceedings. But His Honour discusses at

pages 250 and 252 the power to stay for abuse of
process and then discusses specifically the right to a

speedy trial. At page 252, at about D His Honour says:

Throughout its history the connnon law has recognised the importance of the speedy

trial of both civil and criminal proceedings. The importance of the speedy hearing of cases

was expressly recognised in MAGNA CARTA -

and he refers to section 40 which is in fact chapter 29.

For various historical reasons there are several versions

of MAGNA CARTA, no relevant difference in the words we

are concerned with, but section 40 is in fact

chapter 29. Then he refers to tirst Institute Coke,

where Coke claimed:

that MAGNA CARTA was "but a confirmation

or restitution of the common law".

And this is the source of the, perhaps, confusion as

to whether these are connnon law rights or statutory

rights. But we would respectfully submit that it

simply cannot be said, after the Petition of Right,

that the rights which were there confirmed and declared

do not flow from th~ statute as well as from the connnon

law. The sum of the laws may be declaratory of the common law but they also import binding obligations

on persons to observe the rights.

MASON CJ: Mr Robertson, am I right in thinking that one of

the judges of the Court of Appeal has attempted to

refute this historical view of the law put forward by

by Mr Justice McHugh?

MR ROBERTSON: 

Your Honour must be referring to an unreported

decision of which I am unaware but there has been some,
I think Mr Justice Samuels - - -

C2T32/l/SR	56	17/11/88
Oades(2)

MASON CJ: Yes, now it was Mr Justice Samuels I had in mind.

MR ROBERTSON:  I have only heard, as it were, second hand, but

that was in relation, I think, to the - well I will

not go on, Your Honou~ because I am - - -

MASON CJ: Is that the case of JAGO?

'MR ROBERTSON:  I am told it is and it is being handed to me now.

It is in fact now reported apparently in (1988) 12 NSWLR 55

MASON CJ: Yes, I see it has been included in the case lists,

apparently, we do have a copy of it.

'MR ROBERTSON:  I see.

MASON CJ: There is no need to take us through it, I just

wanted a reference to it so I could read it for myself.

'MR ROBERTSON:  Yes, I note that there is a discussion by

Mr Justice Samuels of the history of the entitlement to speedy trials - - -

MASON CJ: Yes, and I should say it is in that case in which

there is an application for special leave to appeal

listed for hearing tomorrow week.

'MR ROBERTSON:  Yes, I was:· not aware of that, Your Honour, it has

not reached my chambers yet. I will perhaps take the

Court back to that shortly. In any event, the earlier

reference, in New South Wales to those statutes

occurred in REG V O'CONNELL, ( 1985) 2 NSWLR 269. This

was an application to stay proceedings made to the

trial judge in the district court on the grounds that	the delay constituted an infringement of the accused's
right to a prompt hearing and His Honour Judge Moore
discusses what he terms the constitutional right to a
prompt trial at pages 272 to 273.

(Continued on page 58)

C2T32/2/SR	57	17/11/88
Oades(2)

MR ROBERTSON (continuing): And His Honour, simply recites

what he calls the constitutional enactments

applying in New South Wales - MAGNA CARTA is

the first one, the second one is 42 Edw 3

upon which we rely and the third one was the

Bill of Rights which is not relevant in this

respect. So we would respectfully submit that those

foundational documents have been utilized in

courts of New South Wales to found the existence

of the right to a speedy trial and

Mr Justice McHugh contrasts it with a right to

a fair trial which he describes as a "different

right" and we would respectfully submit - the

right to a speedy trial derives from the last
phrase in chapter 29 of MAGNA CARTA which is
not pertinent in these proceedings but in so
far as the distinction is made it is important
because we respectfully submit that the right

to the fair trial is in fact the successor to

what is perhaps more aptly and more accurately called

the right to due process.entrenched by those

laws and there are many cases in this Court where

the right to a fair trial has been recognized

and we have referred to the most recent being

HINCH V ATTORNEY-GENERAL, 164 CLR, and there

are just two passages there at page 58 in the

judgment of Justice Deane and His Honour there

says, in the second paragraph:

The right to a fair and unprejudiced

trial is an essential safeguard of the

liberty of the individual under the law.

The ability of a society to provide a fair and unprejudiced trial is an indispensable

basis of any acceptable justification of

the restraints and penalties of the criminal

law. Indeed, it is a touchstone of the

existence of the rule of law. 1~ is

difficult, if not impossible, to envisage

any situation in which countervailing public

interest considerations could outweigh the

justice involved in public prejudgment by

the mass media of the guilt of a person
awaiting trial.

detriment to the due administration of

Your Honour Justice Gaudron referred to it at

page 8 6 and Your Honour re fer s , a t the_ top _of the

page, to the test for contempt, the risk of

interference in proceedings and Your Honour then

re fer red t o th e v a r i o u s pub 1 i c i n t e r e s t s, i n c 1 u d i n g

at point 6:

The public interest in the integrity of the criminal justice system -

which Your Honour described as -

C2T33/l/ND	58	17/11/88
Oades(2)

a matter of fundamental importance.

Notwithstanding that some offences are

punishable summarily and that on some

occasions an accused person may waive his

or her right to trial by jury, the law

regards as fundamental to the preservation

of the rights and freedoms necessary for

the maintenance of an open and democratic

society that a person should not be

convicted of a serious criminal offence

save by the verdict of a jury given after

a fair trial upon the evidence presented

at the that trial.

And then Your Honour refers to some other matters.

But it is noteworthy, we would respectfully submit,

that recognition of the right arose in a case

of contempt, publication contempt, where in HAMMOND's

case, proceeding by analogy, the recognition

of the right was - or the right was sought to

be secured by using the concept of the law of

contempt as part of the law that protects judicial
proceedings from interference. This is not a

contempt case and so HAMMOND's case perhaps might

be re~arded as not strictly, for that reason,

in point but the remedy sought in these proceedings,

a stay or an exercise by the court of its discretion,

in its inherent jurisdiction, may not have the

same - has the same consequence as contempt and

it seeks to vindicate the same principle, as

in HAMMOND's case.

(Continuing on page 60)

C2T33/2/ND	59	17/11/88
Oades(2)

MR ROBERTSON· (continuing):  We put two propositions to

the Court: the first is that proceedings which
are collateral and parallel to criminal proceedings,

in which the person at risk in the criminal

proceedings is deprived in the collateral proceedings

of rights or immunities or protections which

you would usually enjoy in the criminal proceedings,

constitutes a denial of both the right to due

process and the right to a fair trial if they

be different.

Alternatively, we say, there is a denial

of due process and the right to a fair trial

where the collateral and parallel proceedings

create a real risk that the due administration

of justice will be interfered with. Perhaps

they are not alternative propositions; perhaps
they are different sides of the same coin, but

those propositions were not first advanced but

they were certainly vindicated in HAMMOND's

case.

We say that the proposition simply does

not depend upon the parallel proceedings being

proceedings which have an executive rather than
a judicial or parliamentary character. That

may have certain consequences under chapter III

of the federal CONSTITUTION but it makes no

difference, in our respectful submission, to

the right but only to the remedy that the proceedings

are judicial rather than executive.

Your Honours, the proposition which

my friends have to advance, if the principle

in HAMMOND's case is accepted, is that section 541
of the COMPANIES CODE has affected the right
to due process or the right to a fair trial

entrenched by the earlier constitutional enactments

such as to constitute an implied repeal of those

statutes in so far as the circumstances comprehended

by section 541 would arise. (Continued on page 61 )

C2T34/l/SDL	60 .	17/11/88
Oades(2)

MR ROBERTSON (continuing):  Now, the most recent decision which

collects the law on implied repeal is a decision of

the Supreme Court of New South Wales - it is not on

our list but I will hand up copies of it to

Your Honours - in the RE APPLICATIONS OF SHEPHARD.

The headnote adequately records His Honour

Mr Justice Yeldham's decision which is effectively

to summarize the doctrines and it concerned an

alleged inconsistency between the DISORDERLY HOUSES

ACT 1943 and some laws which had repealed various

prostitution offences in 1979. The headnote at page 96

records that His Honour:

Held: (1) The test to be applied in determining

whether there has been an implied repeal of

statutory enactments is whether the contrariety

between the earlier and the later enactments is

such that- effect cannot be given to both at

the same time.

(2) Repeal by implication should not be lightly

inferred and should not be found unless it is

inevitable and unless the latest statute is

clearly and indisputably contradictory and

contrary to the former.

And it would be our submission, whereas it might be put

that a common law right can be ousted or affected by

a statute by necessary implication as well as

expressly, it is very difficult for a court to find

that an earlier statute has been repealed by a later

statute where necessary implication is relied upon.

Usually statutes are repealed expressly; usually the

area where an earlier statute is sought to be

affected by a later statute is defined in the later

statute specifically and addressed, and that is

precisely what is not done in section 541 because the

question is not as my learned friends have put it

to the Court; the question as to whether the right to

non-incrimination is preserved adequately for a person

who is at risk in criminal proceedings; the question

is rather whether parallel proceedings inquiring into

the same subject-matter as the criminal proceedings

strip the person concerned of rights, immunities

and protections which he would otherwise be entitled

to in the course of a criminal trial.

(Continued on page 62)

C2T35/l/VH	61	17/11/88
Oades(2)

MR ROBERTSON (continuing): That concept in turn can be

reduced into statutory form by specific advertence

to the very problem of parallel criminal proceedings.

Had section 541 stated clearly that notwithstanding

the fact that criminal proceedings had been

initiated an examination could take place of a

person accused in those proceedings, then it would

have solved the problem. But merely by compelling

testimony, with or without ..... immunities or

wider immunities, the statute simply does not

address the problem. The fallacy which my

learned friends expressed in their submissions

by relying on - by a later Commonwealth enactment
to establishment the meaning of an earlier enactment

being the 1982 amendments to the Commonwealth ROYAL

COMMISSIONS ACT,said to have some relevance to an

earlier enactment, is simply reversing the usual

presumption which the courts apply when considering

whether statutes have ousted rights, immunities or

privileges conferred upon persons in the course of criminal proceedings so as to advance or vindicate

the interests of a fair trial. The fact that

the Commonwealth in 1982 in the ROYAL COMMISSIONS ACT,

by way of a covenant for further assurance, inserted

section 6(3) so as to enact in statute form what

this Court had decided was the common law in any event

in HAMMOND's case, is really quite irrelevant.

(Continued on page 63)

C2T36/l/JM	62	17/11/88
Oades(2)

MR ROBERTSON·(continuing):  But, accepting for the purposes of

submission th~ fallacy that my friends have

advanced, could I take the Court to the INDEPENDENT

COMMISSION AGAINST CORRUPTION ACT of 1988 which,

unlike the ROYAL COMMISSIONS ACT of the Commonwealth

is an Act of the same legislature as the legislature

which enacted the COMPANIES CODE which is before

the Court.

The INDEPENDENT COMMISSION AGAINST CORRUPTION ACT, 1988, establishes a permanent standing

investigative body which has jurisdiction to

inquire into alleged public corruption and the

legislature of New South Wales - the enacting

body for the purposes of these proceedings -

saw fit in section 18 of this Act to make specific

advertence to the problem which is before the

Court. Not the problem in relation to self-

incrimination - self-incrimination is, to a

certain extent, a side issue in these proceedings -

but the problem of parallel proceedings.
Section 18 provides:

The Commission may do any or all of the following -

investigate, report on its investigations or any

other matter -

despite any·proceedings that may be in

or before any court, tribunal, warden,
coroner, Magistrate, justice of the peace

or other person.

(2) If the Commission does any of the

things -

then it has to ensure that its hearings are -

in private during the currency of the

proceedings -

and it is to give directions which will avoid

prejudice and it is to:

defer making any report to Parliament

..... during the currency of the proceedings.

(3) This section has effect whether or

not the proceedings commenced before or

after the relevant investigation commenced.

That, in our respectful submission, is a specific

legislative advertance to this problem. The

INDEPENDENT COMMISSION AGAINST CORRUPTION ACT

authorizes the Commission to compel testimony

even though the testimony is incriminating and

it authorizes the Commission to - it abrogates

C2T37/l/SDL 63 ROBERTSON 17/11/88

Oades(2) (Continued on page 63A)

the various privileges, legal professional privilege

and any other privilege that might be thought

to be attracted to persons testifying at

administrative proceedings; it contains, arguably,

the widest possible powers of interrogation belonging to any administrative tribunal in this nation and, none the less, despite the manifest object of the law to root out from

the State of New South Wales what is perceived

to be corruption, one would have thought a much

stronger purpose or object than even section 541

seeks to vindicate it was, none the less, thought

appropriate by the legislature to make specific

advertence to this problem.

(Continued on page 64)

C2T37/2/SDL	63A	17/11/88
Oades(2)

MR ROBERTSON (continuing):  So, in so far as what legislatures

have done subsequent to 1981 is concerned, we would

respectfully submit that the approach adopted

in New South Wales is merely a reflection of the

fact that when one seeks to oust what is an essential

due process right, being the right to a fair trial,

it is necessary to do so specifically and to

advert in doing so - not necessarily to the

statutes, the constitutional enactments so called,

to which we have taken the Court - but rather to

the particular occasion which gives rise to the

rights sought to be abrogated.

Now, that occasion is not, and those rights

are not restricted to the right to non-incrimination.

They are much more sophisticated than the right

to non-incrimination. The right to confrontation of one's accusers nowhere occurs in section 541, that is not a right known in section 541 inquiries.

The right to procure evidence by compulsory process

is not known to section 541. The right to

discover documents, the right to call witnesses

is not known to section 541. Now, those are the

bundles of rights which are - together with others,

such as the right to counsel - bound up in the

notion of a fair trial. May I take the Court to

some authority in the United States on the due

process clause in the 14th amendment. They are
not on our list but we have copied them for

ease of reference.

(Continued on page 65)

C2T38/l/MB	64	17/11/88
Oades(2)

MASON CJ: 

I hope you are not taking us into this too deeply

because due process in the United States is a
never ending quagmire, Mr Robertson.

MR ROBERTSON:  Yes. Your Honour, no, we are not. We are

taking the Court to those parts of the quagmire

wherein islands on which one can place firm feet

stand and which are not presently the subject of

review by the Supreme Court and are recognized

generally in the United States as part of the notion.

MASON CJ:	Yes.
MR ROBERTSON:	By way of explanation the distinction in

the United States is usually made between substantive

due process and procedural due process. Substantive

due process involves such things as the right to
privacy and the broader rights and we are addressing
ourselves to the procedural due process rights,
the right to a fair hearing and notions of that

kind.

In RE MURCHISON a decision of the United States

Supreme Court in 1954 - - -

MASON CJ: Now, what do these authorities establish? Can

you indicate what the proposition is before we

look at them?

MR ROBERTSON:  Due process means a right to a fair trial.

MASON CJ: That is all that they go to.

MR ROBERTSON:  That is all that they establish and,

Your Honour, I will only take the Court to one

and that is the judgment of His Honour Justice Black

at page 136 of the report. The case concerned

a judge trying a contempt which was contempt before

him and His Honour said:

A fair trial in a fair tribunal is a basic

requirement of due process. Fairness_ of

course requires an absence of actual bias

in the tria 1 of cases. · But our sys tern of law

has always endeavoured to prevent even the

probability of unfairness -

and he then refers to some propositions which are

well known, of course, in Australia and the bias

question. Your Honour, it is our respectful

submission that the rights and immunities which

have been produced· by the proceedings in relation

to my client under section 541 are the right not to

give evidence in your own defence, the right to

procure evidence by compulsory process, the right

to confront your accusers, the right to call evidence

in your defence and the concomitant or the extended

right, if giving evidence - the right to refuse

to answer questions on the grounds that they might

tend to incriminate you.

/"\~~--/'>\ C2T39/l/AC 65 17/11/88

MR ROBERTSON (continuing) Those are rights not known to

the proceedings under section 541. As well, in

the appeal boo~ in the judgment of His Honour identifies the concepts which continuation of the

examination would abrogate. His Honour identifies

at page 210, at about line 7:

In particular he is not required to submit

to pre-trial interrogation, nor is he amenable

to the subpoena process. The Crown is obliged
to prove the case against him and he is not

required to assist the prosecution or to

disclose his defence.

It follows that the exposure of a person charged with a criminal offence to questioning

which may lead to the furnishing of incriminating

answers in respect of matters at the heart
of the criminal charge may cause significant

prejudice to the examinee and constitutes

a real interference in the administration

of criminal justice.

And there His Honour is reciting what His Honour

has crystallized as a test which arises as a result

of the principles in HAMMOND's case. And, of course,

it is not, as my learned friend has put, a case

of identifying actual prejudice - contempt and

analogues never address the case of actual prejudice,

usually contempt is relevant in restraining conduct

which might lead to prejudice. The question in

contempt cases is whether there is a real risk

of prejudice, not whether there is prejudice and

His Honour there identifies the compulsory process

of interrogation as being a significant prejudice.

(Continued on page 67)

C2T40/l/AC	66	17/11/88
Oades(2)

MR ROBERTSON (continued):  But we rely not just on that

matter but also on the convergence between the

rights accord~d to an accused person in a criminal

trial and the abrogation of those rights in the

course of a 541 examination. Your Honours, those

rights in New South Wales are not merely part of

the common law but are, in fact, statutory rights.

May I hand to the Court some excerpts from the

CRIMES ACT 1900 and the EVIDENCE ACT 1898.

In section 407 of the CRIMES ACT it confers

the right of accused persons to give evidence but

not be compellable to give evidence in those proceedings

subject to certain provisos which are irrelevant.

In the EVIDENCE ACT section 6 provides:

every person offered as a witness and competent

to give evidence shall, except as hereinafter

provided, be compellable to give evidence.

And then:

Nothing in this Act shall render any , person compellable to answer any question

9.

tending to criminate himself.

Perhaps those are declaratory - at least the

EVIDENCE ACT is a declaratory provision but
none the less it is a statutory recognition of
at least the right of silence, which of course

is wider than the right not to incriminate oneself.

(Continued on page 68)

C2T41/l/AC	67	17/11/88
Oades(2)

MR ROBERTSON (continuing):  Your Honours, the other proposition

that we put i~ in relation to our friend

Mr Handley's submission concerning the illusory

distinction between pre-charge investigation and

post-charge proceedings is that, in fact, the

distinction is not illusory. We would suggest

that the· right to a fair trial arises as soon as
a prosecutor or an investigator having power to

do so decides to charge a person.

Now, JAMES V ROBINSO~ in this Court, decided

that that protection arose first after charge and

not merely when charges were entertained in the

mind of potential prosecutors. We would respectfully

submit that the right to a fair trial commences,

and the rights contained in that bundle of rights

commence, when the investigator decides to charge,

once the investigator makes up his or her mind.

There is some extracurial reference to this problem

in the report of the Senate Standing Committee

on Constitutional and Legal Affairs when it examined

the National Crimes Authority bill of 1983. I do

not want to read it but I simply want to hand it

to the Court because it is a post-HAMMOND report
which had to consider whether to write into the
National Crime Authority bill specific provisions

protecting persons from compulsory inquisition before the authority who had also been charged

with criminal proceedings.

There is, as well, an interesting recitation

of the series of then recent decisions of this

Court on whether self-incrimination rights had

been abrogated in various statutes. The passage

on which we rely is the excerpt from the evidence

of Mr Costigan, QC at page 57, who said:

(Continued on page 69)

C2T42/l/AC	68	17/11/88
Oades(2)

MR ROBERTSON (continuing):

Once I have formed the view that a man is

guilty of an offence, however, it would be

quite wrong, even with all the protections

that I have suggested the ROYAL COMMISSION ACT

has, to put him in the witness box and force

him to give answers which might incriminate

him. I would never envisage that happening.

And, of course, that is precisely what did not happen in HUSTON's case. What my friend did not

inform the Court was that in HUSTON's case there

was no suggestion of Huston himself being required
to give evidence to the Royal Commissioner either
in public or in private. In fact in HUSTON's case,
the Royal Commissioner, Mr Costigan, only wished

to obtain information which might have intersected,

at some stage, with the substance of the criminal

charges against Huston, but information obtained

from other persons and other sources and that,

with respect, is not the same proposition which
we are asking the Court to consider.

Your Honours, the authorities which again are well known which are authorities for the

proposition that when one is ousting rights such

as this it is necessary to have a clear expression

of intent in the legislation, perhaps ar~ b~st ·gathered
in the judgments in SORBY's case and may I simply

give Your Honours the references. SORBY, 152 CLR - and it is in the judgment of the then Chief Justice

at pages 295-5 and in the joint judgment at

page 309. As well, Your Honours, in the KINGSWELL

case which considered whether section 80 had a

continuing operation as a substantive constitutional

guarantee, I think it was Your Honour Justice Deane -

KINGSWELL, 159 CLR - said in relation to fundamental

guarantees of rights that they should be broadly

interpreted and applied.	And that passage appears
at page 299.

On the question of construction, the matter has, in fact, been considered by a court of parallel

jurisdiction.

(Continued on page 70)

C2T43/l/AC	69	17/11/88
Oades(2)

MR ROBERTSON (continuing):  The Supreme Court of Canada

in BATARY, 52 .DLR (2d) 125, considered a question

very similar to this matter where Batary had been

charged with non-capital murder of a man called

Thomas and immediately before he had been charged

a coronial inquiry into the death of Thomas had

been established. Once he had been charged the

to a statutory authority, that the inquest be re-opened. In fact, the date set for the re-opened inquest or the resumption of the inquest was the

coroner closed his inquest and subsequently the

same date as was set for the hearing, the preliminary

hearing, the committal proceedings, in relation

to the charges of non-capital murder.

until the conclus.ion of the inquest and on the Those preliminary hearings were then adjourned

third day of the inquest the counsel for the

Attorney-General indicated that he proposed to

call the person accused and his counsel objected

to him being sworn and to him answering questions.

The court then had to consider it from the perspective

of whether for constitutional reasons the province

enjoyed the power under its residual criminal

powers to make this law. The important passages appear commencing at the bottom of page 130. The

court says:

It is now clear that a person who is being tried on a criminal charge is a competent

witness if he decides to testify but that

he cannot be compelled by the prosecution

to enter the witness-box -

and that, of course, is 407 of the New South Wales

CRIMES ACT.

If he decides to testify he is subject to

cross-examination and compellable to answer any

relevant questions put to him although his

answers may tend to establish his guilt.

That, of course,is the distinction between Canada

and Australia. Gener.ally, in Canada, if one gives

evidence, if one goes into the box, one can be

asked and required to answer questions, the answers

to which might tend to incriminate you. But there

is a substantive right to stay silent, the right

not to go into the box. Half-way down page 131:

In the case at bar, it is clear that had the preliminary hearing of the charge against the

appellant proceeded he could not have been

compelled to testify, and that it would have

been the duty of the presiding Justice to warn

him ..... that he was not bound to say anything.

ClT44/1/MB	70	17/11/88
Oades(2)

Then Their Honours refer to RE COOK, which is

an English case really concerning coronial practice
and where it was concluded, perhaps in the course

of argument, that there had never been an instance

where a prisoner was required to give evidence

before a coronial inquiry which, of course, took
the place, often in England, of the grand jury

proceedings which are common even today in the

United States. At the bottom of page 132 the

court says:

(Continued on page 72)

C2T44/2/MB	71	17/11/88
Oades(2)
MR ROBERTSON (continuing):

There is nothing in the judgments in either

of these cases to suggest that a person charged
with the murder of a person into whose death
an inquest was being held could be compelled
to testify at such an inquest.

And the court concluded at page 133 point 3 that: the law of England as at ..... 1870 -

which was the critical constitutional date or the

critical statutory date -

a person charged with murder and awaiting
trial could not be compelled to testify at

an inquest into the death of the deceased with

whose murder he was charged and it is necessary

to consider whether this state of the law has

been altered by any Act of the Parliament of

Canada.

He says at the bottom of the page:

The effect of the sections of the

EVIDENCE ACT, referred to above, was to give

to a person charged with a crime the right to

be a witness in his own defence, it was not

to enable the prosecution to call him as a

witness. The ,choice as to whether or not he

would give ovidence was given to the accused

alone and if he chose not to testify comment

by the Judge or by counsel for the prosecution

was forbidden. None of this is challenged;

but it is said that the sections have the

effect of rendering the accused a compellable

witness at the inquest ..... If I am right in the

view, which I have already expressed, that in

1870 the accused would not have been a compellable

witness at such an inquest, it would, in my

opinion, require clear words to bring about so

complete a change in the law. Section 5 does ·

not purport to say who shall or shall not be
compelled to take the witness stand. It deals

with the rights and obligations of a witness

who is already on the stand. It does not protect
him from the use against him of the answers he

makes in the proceeding in which he makes them

but only in "proceedings thereafter taking place."

And so the court concludes at the bottom of the paragraph:

In the absence of clear words in an Act of

Parliament or other compelling authority

I am unable to agree that that is the state of the law.

C2T45/l/VH	72	17/11/88
Oades(2)

BATARY's case is, in our respectful submission,

high autho~ity for the proposition which we advance

that it is not sufficient for the court to find a

necessary implication in the statute but rather
there must be advertence in the statute expressly

to the particular right in the bundle of rights

imported by the notion of a fair trial, which the

statute is seeking to abrogate.

MASON CJ:  Mr Robertson, we may adjourn at this stage until 2. 15.

AT l.J2 PM LUNCHEON ADJOURMENT

C2T45/2/VH	73	17/11/88
Oades(2)

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Robertson.

MR ROBERTSON:	Your Honours, we have had an opportunity to read JAGO's case and there are two matters
which we wish to put concerning it. First of
all, His Honour the President seems to have
developed a third doctrine in relation to the
implied repeal of statutes. If the statute is ancient enough then it may safely be disregarded
especially if it is difficult to construe. But rather, if there are on the same subject-matter
as the statute international conventions which have not been incorporated as part of the domestic law of Australia, those conventions may be treated
as if they were statutes. We, with respect to
the learned President,suggest that that proposition
ought not to be followed if it is applicable to
the statutes upon which we have earlier relied
to draw out a statutory right to due process in
New South Wales.

The second thing we say about JAGO's case

is the recognition in express terms of the right

to due process in the judgment of His Honour

Mr Justice Samuels and it is contained or

encapsulated in the concluding words of

His Honour's judgment which the Court - this is

(1988) 12 NSWLR and Your Honours will find on page 582,

between point D and point E, the follow.ing

sentence:

Those powers and the right to due process,
as developed in recent decisions of this Court,

provide adequate protection without the need

of any separate right to speedy trial.

The ahistorical nature of some of Lord Coke's

writings identified by His Honour Mr Justice Samuels

in the earlier part of his judgment does not affect

the statutes, or those parts of the statutes to

which we have drawn.the Court's attention in these

proceedings. Of course, I suppose, the most

outstanding example of Lord Coke's occasional

straying from historical truth was BONHAM's case,

but we do not suggest that these statutes have
the character of fundamental law in the sense that

they are entrenched and by the means of entrenchment,

superior to the ordinary law of the State.

(Continued on page 75)

C2T46/l/JM	74	17/11/88
Oades(2)

MR ROBERTSON (continuing): Before leaving the general

matters of principle, may I give Your Honours
the references to the pedigree of the doctrines
developed in HAMMOND's case: In McGUINNESS,

63 CLR, the first advertence to the problem appears

in the judgment of the Chief Justice, at page 85;

the first BLF case, 152 CLR 25,

Chief Justice Latham's proposition is developed

by the then Chief Justice Sir Harry Gibbs at

page 54, by Justice Stephen at pages 71 to 72,

by Your Honour the Chief Justice at page 95,

where Your Honour used the words "a glaring case

of an intent ion to interfere", in reference to

parallel and collateral proceedings; and the
passage which we wish to read occurs at page 161
in the judgment of His Honour Justice Brennan

where His Honour poses a question, at about

point 3:

Should a statute of the Commonwealth

Parliament which confers a general power

upon the executive be construed as

authorizing the executive to interfere

with the due administration of justice by

this Court? Or by a court created by the

Parliament? Only a negative answer is

possible.

And we rely on the rest of that passage - it

goes over to about point 4 on page 162. At

page 167 His Honour quotes Lord Diplock in the

TIMES NEWSPAPER case as putting three propositions

which are contained in the notion of the due

administration of justice. The third proposition,

where "thirdly" appears in italics at about

point 3 on page 167:

"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 theX will be observed is contempt of court.'

But in so far as the word "calculated" is used,

of course it is used not in the purposive sense
but in the sense of the effect or consequence
of action rather than the purpose of the action

characterizing the finding of it being in contempt.

The reference to the word "design", used by the

then Chief Justice in HAMMOND's case on which

Mr Handley relied, is in similar vein.

C2T47/l/ND	75	17/11/88
Oades(2)

MR ROBERTSON (continuing): It is not to be taken as a

reference,that one has to find an illegitimate or

extraneous purpose in using statutory powers to

interrogate persons in circumstances where due

process rights are not available where those persons

are to stand trial. The specific question of

construction, and we pose it in this way, does the

COMPANIES CODE authorize that which would otherwise

be unlawful, having regard to the principles in

HAMMOND's case, the question of whether a law authorizes conduct which would otherwise be unlawful was

specifically addressed in the first BLF case. The

answer given by the majority of the Court being	Chief Justice Gibbs and Justices St?phen, Mason and
Brennan, was specific authority is required and
general authority is insufficient when the unlawful conduct involves interfering in the due administration of justice. The references to those findings are in the
pages 54 to 54, Justice· Stephen at page 72, judgment of His Honour the then Chief Justice at
Your Honour the Chief Justice at page 94 and, of course,
the passage to which I had already referred in the
repeated by Your Honour the Chief Justice in the judgment of Justice Brennan at page 162. That is
PIONEER CONCRETE CASE which appears later on in 152 CLR 460. Your Honour refers to it at page 473.
And, of course, HAMMOND's case itself stands as
authority for the proposition that if in so far as it is
constitutionally lawful for the executive to interfere
in the administration of justice where the stream of
justice flows from the Commonwealth source, then specific statutory authority is necessary.

The other specific questions of construction

which arise were largely addressed by the court below

and we adopt the judgment of His Honour Justice Clarke

on those questions. It is not necessary for us to

repeat them. The fresh matters which my -~riends

addressed concerned, first of all, section 543 of the

Code. And if I might illuminate the proper construction

of that section. Your Honours, it provides: No civil proceedings under this Act

shall be stayed by reason only that the
proceeding discloses, or arises out of, the

commission of an offence.

That provision was inserted clearly, in our

respectful submission, to overcome the felonious tort
rule. The felonious tort rule was first developed in

England in SMITH V SELWYN, but there is a comprehensive

discussion of its antecedents and its current status

in McMAHON V GOULD, (1982) 7 ACLC 98.

C2T48/l/SR	76	17/11/88
Oades(2)

MR ROBERTSON (continuing): That was not on our list of

authorities. It may have been on some of my

friends but I do have photocopies of it - I see

Your Honours have it. If Your Honours would look

at page 99 on the left-hand column:

The argument before me started with reference to the rule in SMITH V SELWYN

somewhat inaptly known as the'~elonious

tort rule' as it is not confined to actions

in tort. The rule long antedated that

case but there received a classic exposition, that:

'.'aplaintiff against whom a felony has been

committed by the defendant cannot make the

felony the foundation of a cause of action

unless the defendant has been prosecuted or

a reasonable excuse has been shown for his

not having been prosecuted."

It is not a rule in the same league as the proposition

for which we contend toda½ as His Honour Justice Clarke

explained at some length in his judgment - he refers

to McMAHON V GOULD - but it was the rationale for

the insertion of section 543. Quite clearly

section 543 is, assuming the felonious tort rule

applies in New South Wales, designed to overcome

it. But we rely on it for a different reason.

What it does demonstrate is advertence by the

legislature to the problem of an allegation which

is part of a c i vi 1 proceeding - and we accept the

early judgment in this Court which found that these

examinations were civil proceedings- where the

allegation is one - or may amount to one of criminality. and a correction of an old rule - not the one in consideration here - which might have impaired

the examination. The express and facet rule is,
although not a strong rule of construction - but
there is a specific advertence to that problem

and not to the collaterality of legal proceedings.

The second specific matter of construction

Mr Handley raised concerned the provision in

section 367A of the 196luniform COMPANIES ACT -

subsection (5) which contained the word "subsequent"

and the implication he sought to draw from that

word was that whereas under the 1961 Act one could

say that incriminatory evidence could only be extracted

from persons who were not at that time under charge,

this obviously displayed the legislature's intention

when they failed to re-enact the word "subsequent"

in 1981 to incorporate a rule in its broadest possible

sense in section 541 relating to the interrogation

of persons whether or not that interrogation interfered

in the due administration of criminal justice.

C2T49/l/AC	77	17/11/88
Oades(2)

MR ROBERTSON (continuing):  May I hand up to the Court the

explanatory memorandum for the CXl'1PANIES BILL 1981.

I apologize, there are some copies which are not well stapled. . I.t..is the explanatory memorandum

for section 541. We mentioned earlier that, of course,

we are dealing with the New South Wales statute.

The New South Wales statute is the COMPANIES APPLICATION

OF LAWS ACT 1981 which incorporates the

1981 COMPANIES ACT of that name enacted by the

Commonwealth Parliament for the purposes of the ACT

and makes certain procedural changes to it. In fact,

as I understand it, there is only one explanatory

memorandum for all the C~des in the States and

that is the explanatory memorandum which was

presented to the Commonwealth Parliament. Most of

the State legislatures do,lnot have explanatory

memorand·a, so, in our respectful submission, it

is legitimate to look at it.

Your Honours will see that there is no mention

of this fundamental change of which Mr Handley speaks.

All there is mention of is on page 507 paragraph 1175

where we are told that:

The following is a comparative table of the provisions in the COMPANIES BILL -

clause 51 and the uniform COMPANIES ACTS -

sections 292, 250 -

I think that should be 249 -

and 367A. It should be noted that the correspondence

is sometimes only approximate.

But it is a table of correspondence and Your Honours

will see on page 508 that the references to

367A(S)(a), (b) and (c) are the relevant references

and they are said to correspond to similar paragraphs

in section 541. It is, with respect, drawing a very

long bow for Mr Handley to suggest that the failure

of the the words "subsequent to appear," in section 541
discloses a legislative intent to abrogate the rule

in HAMMOND's case. The legislature paid not even a

passing glance to this problem.

The third matter of construction

was this proposition: that because the proceedings

are entrusted to a judge that in itself is a sufficient

safeguard of the rights of persons examined and that

therefore one can drawn an implication that the

legislature intended to erode ·or so reduce the rights

of persons that they become subject merely to the	discretionary rule of the presiding officer. The
first fallacy in that proposition is that, as
Your Honours will see from the appeal book, this was a matter heard before a junior officer of the

C2TS0/1/VH	78	17/11/88
Oades(2)

SUf)reme court, not a judge and, in fact, it is the

case in New South Wales and in other jurisdictions

that deputy registrars and acting deputy registrars

of the court hear these proceedings and this, of

course, concerns MORTIMER's case and REES V KRATZMANN

is that it is quite clear that one of the purposes of

section 541 is to constitute a tribunal~ whether one

.characterizes it as judicial or administrative is

probably irmnaterial but we would characterize it as

administrative because it does not exercise judicial

power in the sense of making judgments as the

outcome of the examination - to constitute a pre-trial

investigatory tribunal which has several purposes,

one of which is to assist in the winding-up of

corporations, but another is to assist in the

investigation of crime, specifically, the word,

"fraud" appearing in 541 ( 1).

I will not take Your Honours to it, but may I

simply refer to the judgment of this Court in

REES V KRATZMANN. The dissenting judgment of

His Honour Justice Kitto, not perhaps, dissenting

on this question, makes it clear, in our respectful

submission,that one of the purposes of the provision

is to assist in the investigation of fraud. We do

not resile from that result but what we say in

relation to it is that it is, with respect, an

unrealistic proposition to suggest that the closer

the examination comes to the heart of the so-called

crime or the alleged fraud, the more likely it is

that the Court will exercise its discretion to

restrain the examination.

(Continued on page 80).

C2T50/2/VH	79	17/11/88
Oades(2)

MR ROBERTSON (continuing): One would have thought quite

the contrary.· If one of the purposes of the provision was to assist in the uncovering of

fraud and to assist the prosecutor of fraud in

the State of New South Wales,the Corporate Affairs

Cormnission, who are given special standing rights

by section 540 and section 541(1), then the manifest

purpose and object is to go to the heart of criminal

proceedings. So how that manifest object can

reside easily with a discretion in the court to

be exercised whenever the questions get a little

too hot for the per?on who is in the witness box

we fail to see. If the purpose of the provision

is to assist in the prosecution of offences it

stands in ~e same relationship as all other

similar administrative tribunals and inquiries

who are given statutory powers such as the Trade

Practices Commission and other similar organizations.

They conduct their activities and exercise their

powers within the rubric of the general law and

that means that the due process of law, the

statutory requirement in New South Wales, has to

be considered as a right entrenched which can only
be specifically disavowed by the legislature.

May it please the Court, those are our submissions.

MASON CJ:	Yes, thank you, Mr Robertson. Yes, Mr Conti.
MR CONTI:	Firstly, as to the form of the order which

Your Honour Justice Gaudron drew attention to

on page 220, that was designed to bring together

the opinion of Mr Justice Priestley who used the

words concerning the criminal charges, in

perhaps some contrast to Mr Justice Clarke who

spoke about going to the heart of the criminal

charges. The reference to disclosing the defence

to criminal charges was designed to pick up

the description on page 210 of the appeal book

at line 10 where facets of the privilege are

spoken about including: 

not required to assist the prosecution

or to disclose his defence -

to be read with what ·appears on page 213 of

His Honour's judgment at line 15 where His Honour

refers to:

in the wide sense discussed, and which -

and it was - so in drafting _ .:>f the terms of the

order tried to encapsulate those notions.

TOOHEY J:  But paragraph (b) should really stand on its

own, should it not?

MR CONTI:  I beg Your Honour's pardon?

C2T51/l/MB	80	ROBERTSON	17/11/88
Oades(2)

TOOHEY J:  Paragraph (b) should stand on its own and not

be qualified by_ the reference to incriminating

questions, to give effect to those judgments?

MR CONTI:  Yes, although, Your Honour, that depends. That

raises the question as to whether the use,

the expression "use" where it appears in subsection (14)

goes beyond, as it were, self-incrimination out

of one's own mouth to indirect or derivative use,

or can conceivably go to those matters as well.

But, Your Honour, I would not be troubled if

Your Honour's observation was as accepted, could I?

That is how the drafting of the order came about.

The next matter we wish to say in reply is this:

assume that the construction of section 541 for
which we contend is to be tested on the basis that

it repeals an imperial statute - and we make that

assumption for the moment - there are two questions

that arise.

Firstly, if MORTIMER V BROWN be correct then

there was an implied repeal in New South Wales

by section 250 already in 1961. The IMPERIAL

ACTS APPLICATION ACT,section 6,starts· at the point

where an imperial enactment is in force in 1828

and then takes in any amendments that have occurred

in the meantime prior to the enactment of this

legislation in 1969.

(Continued on page 82)

C2T51/2/MB	81	17/11/88
Oades(2)

MR CONTI (continuing):  We would submit that although,

in MORTIMER V. BROWN, the Court spoke about dealing

with a common law principle as distinct from

a statute the test is, in substance, the same

for this reason - and this is the other matter

which we say arises.

We ask the question:  what difference

is there in substance for present purposes between

repealing a statute which declares a common

law right or a deeply ingrained common law right

itself?	The abrogation must occur by clear
words, by clear language.	But clear language,

as this Court pointed out in SORBY when it referred

to MORTIMER V BROWN as having removed the privilege -

removal, as the case may be, can occur by reasonable implication.

it spoke in terms of "express words or necessary or
implication". It does not matter, in our respectful
submission, whether you approach the· issue in
terms of implied repeal of an imperial statute
or removal of a deeply rooted common law principle.

The difficulty - and we make this observation the scope of present operation of imperial statutes

"	more in passing - in dealing or considering
was pointed in JAGO by Mr Justice Samuels on
page 578. His Honour was there referring to the HABEAS CORPUS statute of the 17th century, or was it the 16th century. His Honour refers
to it as section 6. The statute was picked up
on page 575 in its full text - it was enacted
in 1679. What His Honour pointed out, at page 578,
was this:

Finally, despite its presence on the

statute book it is debatable whether s.6

can be effective in New South Wales at

GENERAL OF CORRECTIONS ..... the Full Court

the present day. In CLARKSON V DIRECTOR

of the Supreme Court of Victoria held

that there was no room for the operation

of s.6 within the framework of present
criminal procedures in Victoria. In my
opinion the reasoning in this case applies

also to the organisation of criminal justice

in New South Wales -

and then His Honour refers to what was said

by Mr Justice Laski, of the difficulty of reconciling

the requrements of ancient statutes. So we

would submit that the safer approach here is

that which has been traditionally adopted in

Australia and that is to regard this privilege

as a deeply rooted common law principle albeit

that it was declared on a statutory basis some

centuries ago. But, consider it in terms of

C2T52/1/SDL	82	17/11/88
Oades(2)

common law principles, that was the approach

in MORTIMER and that was the approach in SORBY

and that was the language in HAMMOND.

Your Honours, the view of the Court of

Appeal, of course, was that section 541 removed

the common law principle to the extent that

there were no existing charges and they did

so because they took the view that subsection (12)

specifically addressed the privilege and, we

submit, it did so in such wide terms as to gather

in the situation in such general terms and with

language which is sufficiently intractable to

gather in the notion or the circumstance of

pending existing charges.

In relation to the Canadian cases, we

just point out briefly, as appears on page 568

of JAGO, that one is dealing somewhat with a

different base. The question of the right to

a fair trial in Canada has its origins in the

Canadian Charter of Rights and Freedoms - I

appreciate that is not an entire answer to the

problem.

(Continued on page 84)

C2T52/2/SDL	83	17/11/88
Oades(2)

DEANE J:	Mr Conti, is the order of the Court of Appeal not based on an acceptance of the abolition
of the privilege in both pending, and even
when proceedings are pending, but then proceeding on the basis of the inherent jurisdiction in any event, or am I misreading it?
MR CONTI:	Your Honour, it is predicated surely on the

findings - on the opinions of Mr Justice Priestley

and Mr Justice Clarke that section 541 cannot

have an operation in relation to pending existing

charges.

DEANE J: But if that were so, they would not have needed

to confine the order?

MR CONTI:  Your Honour, they took the view that - certainly

Mr Justice Mahoney took the view that there was

some scope for asking questions of Mr Oades.

In effect, there were peripheral matters which could be the subject of questioning.

DEANE J: But if you look at the order on page 218, if

it were based on what you say, it would have

properly ended with "may tend to incriminate

the examinee", but as I understand it, the

basis on which the order was made was that the

privilege had been abolished in relation to

pending proceedings but that none the less~the

court possessed an inherent jurisdiction to	stay the examination if it would have prejudiced
the accused's trial unfairly.

MR CONTI:  The basis was the interpretation put on the

section. The court took the view that they were

at odds with Mr Justice McLelland on -the scope

of section 341, that it could not extend to

pending existing charges. But they took the

view also that that did not mean that therefore

all and that they therefore had to give some	there could be no examination of Mr Oades at	definition for the assistance of the registrar
as to how the privilege in a practical way
could be safeguarded because the privilege was there. There
were pending existing charges, therefore the privilege against self-incrimination was entrenched.

But as I would understand it, what the

Court of Appeal sought to do was to give a

charter or specification to the registrar because

they appreciated the difficulty that would result

and, indeed, no better illustration of the difficulty

of results can be seen in GORDON's case where, as

Mr Justice Pincus pointed out, the registrar

took the view that there was, as it were, a rule of -

that OADES V HAMILTON had laid down virtually a rule of

practice that once one was, as it were, getting even

C2T53/1/JM	84	16/11/88
Oades(2)

slightly beyond the periphery of criminal
charges or self-incrimination, that is where
it all stopped. But that was certainly the

intention, Your Honour, to take that course.

DEANE J:	I can see the force of what you say in relation
difficulty with regard to what you say when to parts of the judgments, but I have great
I look at pages 212 to 214 in Mr Justice Clarke's
judgment, and the form which the orders took.
MR CONTI:	It seemed to the people who were involved in

the drafting of the order was that what His Honour

was seeking to do was also to - the draftsman was - the judicial draftsman, because I think it was ultimately undertaken by the Court,

sought to accommodate the approach of Mr Justice Mahoney

as well.

But, as I was saying, there is no doubt that

the view was taken as part of the reasons for

judgment that there was a divergence from the interpretation view of the trial judge below.

(Continued on page 86)

C2T53/2/JM	85	16/11/88
Oades(2)

MR CONTI (continuing): Your Honours, we suhnit that one needs

to use the expression "parallel prqceedings" here

with care. If I JUSt may go back to this point

that is troubling Your Honour Justice Deane:

when one reads the judgment of the Acting

President Mr Justice Mahoney, the presidin~ judge,

he does not himself take issue with the trial
judge below on the construction question as do
the other judges and he sees the exercise purely

in terms, as I would understand his judgment,

of the court controlling its own proceedings

but he does not, in effect, say the construction

of 541 is such that as soon as one asks a question

which, "In relation to", he says, "a real and appreciable danger of self-incrimination then

the privilege operates decisively, automatically."

He does not seem to say that but that is the

approach of Mr Justice Priestley and

Mr Justice Clarke.

None of the members of the court express

agreement with the reasons of the other though

Mr Justice Priestley does say that he expressed

agreement with the terms of the order that

Mr Justice Clarke was proposing. So that, if

I may say so, endeavouring to draft a satisfactory

order was not an easy task. It was to get in,

as it were, all three judgments.

DEANE J:	Where does Mr Justice Clarke clearly say that
the section did not abolish the privilege of
discrimination as a matter of legal entitlement?
MR CONTI:	At page 211, between lines 10 and 15, and then,

of course, to the rest of the page. Also on

page 212, commencing from line 17.

DEANE J:	So he does not really say it in terms though, does he?
MR CONTI: Not in terms - - -

DEANE J: I mean, what he is saying is, "I don't find in

the section a legislative intention that an

accused person should be deprived of the ordinary

attributes of a fair trial, as we understand

i t , II ?

MR CONTI:  I must say, I would have thought that on

page 211, lines 11 and 12 say as much.

DEANE J: I can see the force of your reading. Reading

it fn the context of His Honour's judgment from

around about page 200, I would read it differently.

I do not read His Honour as saying, "The accused's

legal right remains." I read him as saying,

"The court's inherent jurisdiction to act to

ensure a fair trial has not been affected."

C2T54/l/ND	86	17/11/88
Oades(2)

MR CONTI:  Although his discussion of the case law seems

to be predicated on the assumption that he is

looking at a divergence in statutory interpretation

because - - -

MASON CJ:  But if you go back to page - is it not 195,

His Honour is discussing HERRON V McGREGOR.

Clearly, at least from the point where His Honour

is discussing HERRON V McGREGOR he is talking

about the court's power to stay proceedings or

to mould the proceedings with a view to ensuring

a fair trial.

MR CONTI:  Yes, Your Honour. I am wondering, with respect,

that therewas considerable - if I could answer

your question this way. There was considerable

controversy below on this question: was the court looking in truth at a stay application

or was it looking at a contempt situation? In

other words, would the registrar be in contempt

of the district court? And that was left at

the end of the argument as an issue, and an

unresolved question.

(Continuing on page 88)

C2T54/2/ND	87	17/11/88
Oades(2)

MR CONTI (continuing): In his judgment Mr Justice Clarke

seems to reason for the basis on which the court

should approach the matter. In so doing he looks

at a number of the "stay of proceeding" cases by

way of illustration but I do not, with respect,

read that because he had to do two things. First

of all there was the interpretation issue. Then
there was the questio~ what we do with the

proceedings once we take a view on the interpretation?

And what we do with the proceedings depends on

the inherent power of the Court to control the

process.

What was being sought by my learned friend

was that the whole of the examination be stayed.

There was a resistance to that in the Court of

Appeal - they thought there should be at least

some examination. They were concerned about the

public interest factor and so on that has been

spoken about, so that there were those dual
considerations and they are, with respect,

apparent in the judgment and the discussion and

there was this concern as to the basis upon which
the ~egistrar - his course should be charted and

concern as to whether he would be in contempt of

court or whether - - -

DAWSON J: Is not your argument much simpler than that?

You say it cannot be an abuse of the process of

the court to do something which the legislature

permits.

MR CONTI:  But we argued a fall-back position if the Court

was against us on interpretation and then sought

to get as much as we could, as it were, of a

definition as to how far matters could go.	But
certainly that is the - - -

DAWSON J:  And in so far as Mr Justice Clarke says that

it is an abuse of the process of the court and

it impinges upon what the legislature has permitted,

then he must be wrong.

MR CONTI:  We say the legislature gives entire authority

for a question to be asked which goes to

self-incrimination.

DAWSON J:  And in so far as discretion is concerned, you

cannot bring back the broad discretion via the

provision in the section if it nullifies what is

said in the operative part of the section.

MR CONTI:  Your Honours, as to the explanatory memorandum,

we submit that there was no need to talk about

any fundamental change which had been wrought -

it had already been changed in 1970 by the decision

in MORTIMER V BROWN. If Your Honours please.

C2TSS/l/AC	88	17/11/88
Oades(2)
MASON CJ:	Thank you, Mr Conti.	Yes, Mr Handley.

MR HANDLEY: In our submission, Your Honours, the judgment

of the Court of Appeal, at least Mr Justice Clarke's

judgment and Mr Justice Priestley's judgment, if

anything, was of a more radical nature still.

Mr Clarke's judgment proceeds on the basis that section 541 provides no statutory authority for

a compulsory interrogation of former company officers

relevant to pending criminal charges. In our

submission that cannot be supported in the light

of legislative history. Once you construe

section 541 as providing statutory authority for

compulsory interrogation in relation to pending

charges then the discretion to stay has been

exercised on a wrong principle, in our submission.

DEANE J:  I can follow the way you put it. You would

essentially agree with what Mr Justice Wootten

said and what Mr Justice Needham said as to the

fact that the privilege against incrimination has

been abolished does not foreclose the question

whether a stay should be granted but you approach

that on the basis of policy considerations. I

am not trying to put that adversely to your argument

but - - -

MR HANDLEY:  No. I paused for a while to sort of look at

it sideways just in case. Your Honour, the generality

of the statute, in our submission, does not admit
of an exception in respect of pending criminal

charges especially in the light of its legislative

history and the repeal or the decision not to bring

forward the word "subsequent" which was in the

antecedent legislation.

(Continued on page 90)

C2T55/2/AC	89	17/11/88
Oades(2)

MR HANDLEY (continuing):  But if the appeal is dismissed the

effect will be to write out of the Act this section

in respect of any matters germane to pending

criminal charges. I mean there is no difference between

this case and any other case where there are criminal
charges pending and, of course, the criminal proceedings

could be commenced on a private basis as well as

on a public basis. They could be federal or State

prosecutions. In GORDON's case they were sales tax

offences and the liquidator may well want to

interrogate about sales tax matters in relation

to proofs of debt and such matters or pending appeals

against assessments.

DAWSON J: 

Mr Handley, you really have to go to the extent

of saying that the exercise of discretion, the general
discretion, to prevent an abuse of the process of
the court cannot be exercised upon the mere basis
of self-incrimination?

MR HANDLEY: 

Yes, Your Honour, indeed.

DAWSON J: It has to be something more?

MR HANDLEY:  Indeed. I thought I was trying to do that in

this - .- -

DAWSON J: You did not put it in those terms though?

MR HANDLEY: Yes, but that is to deny the statute. That is

setting the court against the legislature on a matter

on which the legislature has directed its attention

and has set up a scheme of checks and balances
designed to reconcile the competing interests and

to achieve what it conceives to be a fair balance.

DAWSON J: Yes, I did not think what Justice Deane put to you

went as far as that - - -

MR HANDLEY: Perhaps I should have paused a little longer

before I answered, yes. As I say, if this judgment

stands, then section 541 is stripped of its utility

and usefulness and its useability over the field covered

by or relevant to pending criminal charges.

Mr Robertson and Mr Conti have covered most of the

passages in the judgments which deal with what is

meant by the "heart of the charges" and so on, but

could I add one further reference which, in my

submission, does throw some light on what

Mr Justice Clarke meant by the "heart of the charges"

which has not been specifically drawn to the Court's

attention and that is at the bottom of page 193 and

at the top of 194. In the start of this paragraph,

His Honour says that there is no suggestion here

that what has been done will be within particular

language used by the former Chief Justice in HAMMOND's case

C2T56/l/SR	90	17/11/88
Oades(2)

But then on line 2 on page 194, Mr Justice Clarke goes on:

But I do not regard that as a substantial

point of distinction for it is clear that

the questions which the appellant will be

asked are likely to call for answers which

may establish, at the least, elements of the

offences with which he has been charged.

And the fact that he is a director at particular

times, of course, is an element of the offence.	So
we would suggest, reading the judgment as a whole, the "elements of the offence" is a synonym for

the "heart of the charge". In any event, we would

suggest that is the ordinary meaning of "heart of

the charge", something which goes to an ingredient

of the offence rather than a fact which tends to

prove a fact.

I would just like, if I might, to spend a moment looking at the matters which were seen in

HAMMOND as prejudicing the fair trial of the accused

in that case.

(Continued on page 92)

C2TS6/2/SR	91	17/11/88
Oades(2)

MR HANDLEY (continuing): . Every justice referred to compulsory

interrogation on oath without the privilege of

being able to decline to answer on the ground

of self-incrimination. We say that is completely

covered by statutory authority in the present case.

Your Honour Mr Justice Deane also added this

parallel inquiry point and at 205 point 4 Your Honour

pointed out that the Royal Commissioner was
conducting an inquiry which was following the
general form of a criminal trial, and came back
to that at 207 point 5. Indeed, what had happened

was that the witnesses for the prosecution, as it

were, had been called and then it was proposed to

call Mr Hammond to say, "Well, what do you say

about that evidence?"

Now, we seek to answer the first point,

compulsory interrogation, by the way we have already

done it and we say that here there is no question

of any parallel inquiry in the sense used in

HAMMOND which bears any resemblance to the general

form of a criminal trial; 205 point 4 and 207 point 5.

First of all.here the witnesses are examined

separately and while a wittness may have his counsel

or solicitor p-r:esent to. re-·examine him he has no

right to re-examine or cross-examine other witnesses,

so that the inquiry is conducted witness by witness.

Whereas in the Royal Commission, typically, every

counsel has a go and so one could - there is an ·

important distinction here in that respect.

Next, there is no question of confrontation

here,as Mr Robertson points out, no question here
of confrontation whereas there was in HAMMOND.

In HAMMOND it would have been possible for

Mr Justice Woodward to have said, "Well, I have

heard the evidence for the prosectuion and I have

heard the accused and in my opinion he is guilty

of conspiracy to adulterate export beef with

kangaroo or horse meat or whatever it was." Here

the judicial officer conducting the examination

is in no position to form any conclusion whatever

about any of the matters in issue.

(Continued on page 93)

C2T57/1/MB	92	17/11/88
Oades(2)

MR HANDLEY (continuing): All he does is to conduct the

examination and the liquidator takes away the results

and gives advice and puts it all together.	So
there is no administrative inquiry here of a

royal commission type which leads to any conclusion

and, in our submission, that is an important

distinction. There is no parallel inquiry here of

any kind; there is merely a parallel interrogation. If,

in so far as there are parallel civil proceedings,

the matter is dealt with by 543. My friend suggested

that 543 only abolishes the tort felony rule but

it is quite general in its text; it applies to all

criminal offences and there is no way, in our

submission, that it can be read down to only apply

to felonies.

There is only one or two matters in conclusion,

Your Honour. The only other matter I wish to put in

concluding is that the very clear provision that

Mr Robertson read from the ICAC legislation illustrates

what might be done but, of course, that legislation

post-dates the decision of the Court of Appeal in this

case by many months and what might be done to overcome

a decision in this case does not assist when this

Court has to consider an appeal from the decision.

So they would be our submissions, if the Court pleases.

MASON CJ: Thank you, Mr Handley. Yes, Mr Robertson.

MR ROBERTSON: May I put a short submission on costs?

MASON CJ:	Yes.
MR ROBERTSON:	Your Honour, can I take the Court to page 216 of the appeal book? At the bottom of that page - this
is the reasons for judgment on the orders - the
Court of Appeal state:

Before proceeding to set out that order there is a further matter which should be mentioned.

At the hearing on 19 April Mr Palmer of Senior	Counsel appeared for the Corporate Affairs
Connnission and sought to intervene under
section 540.

They recite the section -

The Corporate Affairs Connnission had not appeared

in the appeal at any time before 19 April.

Mr Palmer was quite frank in indicating that the purpose of the intervention was to enable the

Commission to pursue the matter of an appeal to the High Court.

Can I take the Court to the notice of appeal filed by

the Corporate Affairs Commission. Your Honours will

see that it is dated on page 228, 26 October 1988,

the appeal by the liquidator is dated, on page 224,

28 October 1988. It might be frankly admitted by

my learned friends that, essentially, this is an

C2T58/l/VH	93	17/11/88
Oades(2)

appeal which is activated by the Corporate Affairs

Connnission.

MASON CJ:	What is your application?
:MR ROBERTSON:	The application is that, whatever the result of

the proceedings, the Corporate Affairs Connnission pay

our costs.

MASON CJ: Yes, of both appeals?

:MR ROBERTSON:	Indeed, of both appeals.
MASON CJ:	Yes.

:MR ROBERTSON: If it please the Court.

MASON CJ: Yes, Mr Handley.

:MR HANDLEY:  If the Court sees fit to make that order, I do not

wish to heard at length against it but, in a case

involving workers compensation, the name of which

escapes me for the moment, a recent decision of this

Court - I think it is 153 CLR, · dealing with the

transitional effects - this Court said that the time

to make the sort of application that Mr Robertson

has just made -

MASON CJ: A special leave application.

:MR HANDLEY: - - - is at the time of the special leave application.

MASON CJ: Yes.

:MR HANDLEY:  That was not made in this case, Your Honour.

MASON CJ: Thank you. The Court will consider its decision.

AT 3.12 PM THE MATTER WAS ADJOURNED SINE DIE

C2T58/2/VH	94	17/11/88
Oades(2)