ON APPEAL FROM A COURT OF PETTY SESSIONS OF Questions asked by Comptroller-General of Customs-Duty to answer-Prosecution
pending- - Person interrogated not charged-Corporation-Australian Indus- tries Preservation Act 1906-1909 (No. 9 of 1906-No. 26 of 1909), sec. 15B.
When the Attorney-General has formally instituted a prosecution in the MELBOURNE, High Court in respect of an alleged offence against the Australian Industries October, 1, 2, Preservation Act 1906-1909, the power conferred by sec. 15B is exhausted so far as regards the persons whom the Attorney-General alleges to have com- mitted the offence for which he prosecutes, whether they are made parties to the suit or not, and that section therefore cannot be used for the purpose of a pending suit.
So held by Griffith C.J. and Barton J. (Isaac8 J. dissenting). By Isaacs J. The limit of the power conferred by sec. 15B is that, where the Crown has arraigned before a Court a particular person on a particular charge, the power cannot be exercised as to that person in relation to that particular charge.
By Griffith C.J. When a public officer entrusted with a power to be used for a particular purpose avowedly seeks to use it for another and unauthorized purpose, the persons against whom it is sought to be so used may object to its exercise. Consequently, if questions are avowedly put for an unauthorized purpose the person interrogated is justified in refusing to answer.
Semble, by Griffich C.J., when a question demanding a categorical answer is put under sec. 15B and is SO framed as to include matters concerning which the questioner is not entitled, as well as matters concerning which he is entitled, to ask, it is for the questioner, and not for the person questioned, to modify it so as to confine it within permitted limits.
Held also, by Griffith C.J and Barton J. (Isaacs J. dissenting), that sec. 15B does not authorize the Comptroller-General of Customs to require an incorporated company to answer questions.
Decision of Court of Petty Sessions of Victoria reversed.
APPEAL from a Court of Petty Sessions of Victoria.
On 26th April 1912 at the Court of Petty Sessions at Mel- bourne before a Police Magistrate an information was heard whereby Richard William Moorehead, an officer of Customs, charged the appellants with refusing to answer certain questions put to them under the authority of sec. 15B of the Australian Industries Preservation Act 1906-1909. The following were the circumstances under which the prosecution was instituted:-
By writ dated 4th June 1910 an action was brought in the High Court, New South Wales Registry, by the King and the Attorney-General of the Commonwealth against the Associated Northern Collieries, a number of companies who were colliery proprietors, the Associated Steamship Companies, a number of companies who were shipowners, and a number of individuals, but the appellants were not included among the defendants. By the action the plaintiffs sought to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69
Case
[1912] HCA 69
Decision Date
CaseChat Overview and Summary
The Melbourne Steamship Company Ltd (the appellants) appealed to the High Court of Australia from a decision of a Court of Petty Sessions of Victoria. The appellants had been charged with refusing to answer questions put to them by the Comptroller-General of Customs under section 15B of the Australian Industries Preservation Act 1906-1909. The prosecution arose in circumstances where a separate action had already been commenced in the High Court by the Crown against other parties, including allegations of a combination involving the appellants. The questions posed by the Comptroller-General were admitted to have been asked for the purpose of obtaining information for use in this pending litigation.
The primary legal issues before the High Court were: first, whether section 15B of the Act authorised the Comptroller-General to require answers to questions posed for the purpose of obtaining information for use in a pending legal proceeding; and second, whether section 15B authorised the Comptroller-General to require an incorporated company to answer such questions. The appellants contended that the power under section 15B was not intended to be ancillary to existing litigation, and that the questions were avowedly sought for an unauthorised purpose.
Griffith C.J. and Barton J. held that once the Attorney-General had formally instituted a prosecution, the power conferred by section 15B was exhausted in relation to the persons alleged to have committed the offence for which the prosecution was brought, and therefore could not be used for the purpose of a pending suit. They reasoned that a public officer seeking to use a power for an unauthorised purpose, as was admitted in this case, could be objected to by the persons against whom it was sought to be used. Furthermore, they held that section 15B did not authorise the Comptroller-General to require an incorporated company to answer questions, as the purpose of the section was to discover facts from the examination of individuals. Isaacs J. dissented on both points, arguing that the power was not exhausted by a pending suit and that the section did apply to corporations.
The High Court reversed the decision of the Court of Petty Sessions. The appellants were therefore justified in their refusal to answer the questions posed by the Comptroller-General.